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s.7 Any person in breach of sections 4 and 5 is guilty of an offence.( Penalty: 5000
Penalty Units)
s.8 Any alleged breach which, if successfully proven, would result in a potential
liability in excess of 1000 Penalty Units shall be prosecuted in the Supreme Court of
NSW.
Contemporaneous newspaper reports indicate that The Domestic Animals Act, 1995
(the Act) was brought into force to deal with two social problems: Cats destroying
native wildlife and injuries to children caused by dog attacks.
In R v Jones (District Court, 1996, unreported) the Court considered section 6 of the
Act. Among other things, the Court found that a cockatoo was a domestic animal.
For the purposes of this question do not consider whether any other legislation may
have been breached.
Citing and using the relevant rules of statutory interpretation, advise in relation to the
following:
Question 1. ( 15 marks)
Richard lives in outback NSW and likes to hunt. He is President of his local Dog
Obedience Club, and he and his dog Rover have won numerous awards in
obedience competitions. He has trained Rover to hunt possums and other vermin.
In March 2005 Richard and Rover were camping on a friends isolated property 50
km from the nearest small town.
The property has been overrun with possums. In return for the campsite, Richard
agrees to hunt possums with Rover. Rover kills 25 possums.
Richard takes the possum skins into town to Marys sewing shop to have a possum
skin rug made for his mother for Christmas. Marys husband is the local policeman.
Noticing Marys new commission he inquires of Richard how the possum skins were
obtained.
Richard is charged with breaching the Act. Advise Richard.
Question 2. ( 15 marks)
Beth has just moved to Orange, and is very excited because her registered dog Molly
has just given birth to five pups. Beth needs to start her new job in the Orange
Metropolitan Development Office but is confident that her puppies will be safe as her
backyard is well fenced.
Gladys, the local neighbourhood watch captain, drops in while Beth is at work, to
welcome her to the neighbourhood. Through the cyclone fence, she notices the
puppies frolicking freely in Beths yard. She calls the police, and Beth is charged with
breaching the Act. Advise Beth.
Question 3. ( 20 marks)
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Frank loves his pet magpie, Maggie, which serves as the mascot for his U12 Sydney
Football team. Maggie comes to all the games with Frank. In March 2004, Frank,
watched by Maggie, is playing in the park at the end of his street with school friends.
Unexpectedly, Maggie swoops and injures his friend. Frank runs home to fetch his
mother for help.
Later that day, the police knock at Franks door and charge Franks parents with
breaching sections 4 and 5 of the Act. Advise Frank and his family.
Section 3:
What are the elements of s3 which must be satisfied?
Domestic animal
Registered
Is Rover a domestic animal? Why?
How is domestic animal defined? Where is this definition? Which
statutory interpretation tool are you using?
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How does the law (i.e. what is a domestic animal) apply to the facts of
Rover?
If Rover is a domestic animal, is it registered?
What information do we have about this matter? If it is unclear, then
both alternatives should be mentioned.
If Richard is in breach of s 3 what is the penalty, and where in the Act
would it be found?
Section 5:
What are the elements of s5 which must be satisfied?
Owner
Control
Domestic animal
At all times
Is it relevant that Rover has killed native animals? Where in the Act is
this an offence?
Do we need to consider purpose at this point? What is the relevant
law? What governs our approach to interpretation? Common law or
statute? Consider s33 as interpreted by Dawson J in Mills v Meeking.
Does consideration of purpose open a second construction, which is to
be preferred? Where would you look to determine the purpose of the
legislation? (Remember, unless you have satisfied the tests for
extrinsic material, you cannot use it. What intrinsic material can
you refer to?)
CONSIDER WHETHER THE WORDS OF THE SECTION HAVE
MORE THAN ONE MEANING.
What is your conclusion?
(Note the process we are using: find the meaning of the word (legal
question) and then look at how/if on the facts, that legal test has been
met. In other words, in solving a statutory interpretation problem we:
1. Isolate the relevant section and its elements
2. Determine the legal meaning of each of the elements, using the
relevant legal tools of interpretation; and
3. Then seek to apply the law to the facts, and test whether or not
on the facts we have available to us, the relevant law has been
satisfied/applies.
This approach will be common to any legal problem solving.)
Question 2: Beth
(Typically, different questions will raise different issues. While there will always
be some overlap, be careful to spot the particular issues raised in the question,
and discuss them, rather than just repeat your prior discussion.
Be careful also when referring to a previous discussion. You can always refer to
a previous legal discussion, but you must make sure that you consider how the
legal position applies to the different facts of each question.)
WHAT MUST WE CONSIDER TO INTERPRET A STATUTE?
WHAT ARE THE ELEMENTS OF STATUTORY INTERPRETATION?
Preliminary matters
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DATE:
You may refer to your earlier legal discussion of when the Act came
into force, but you cant simply say it applies. You have to consider
how/if it applies to the new facts of Beths question.
JURISDICTION:
This is an act of the NSW Parliament. Are there any issues with
respect to jurisdiction? If there are no issues, this matter does not need
to be dealt with.
Interpretation
FOCUS ON THE SECTION: WHAT SECTION ARE YOU
DEALING WITH? WHAT ARE THE KEY WORDS IN THE SECTION
WHICH NEED TO BE INTERPRETED?
Which section is relevant to Beth? It could be ss3, 4 or s5, so all will
need to be considered.
Remember, to be guilty of an offence, Beth must satisfy every element
(usually the key words) of the relevant section.
s.3 All domestic animals must be registered.
s. 4. The owner of any domestic animal in a metropolitan area shall
restrain the domestic animal at all times.
s.5. The owner must control the domestic animal at all times.
Section 3:
What are the elements of s3 which must be satisfied?
Domestic animal
Registered
There is no need to repeat your legal discussion of the meaning of
these words simply apply it to the new facts.
Is Molly a domestic animal? Are her puppies domestic animals? Why/
why not?
Is Molly registered? Are her puppies registered? What facts from the
question support your conclusion?
Is Beth in breach of s3? With respect to Molly? With respect to her
puppies?
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Section 4:
What are the elements of s4 which must be satisfied?
Owner
Domestic animal
Metropolitan area
Restrain
At all times
The only two new elements in this section which need consideration
are metropolitan area and restrain. It is not necessary to consider
the legal meaning of any other elements you may simply refer to
your previous discussion, but must consider how/if these legally
defined terms apply to the new facts. (You will not need to do this
with domestic animal as you have already applied it to the facts when
considering s3 above.)
What is your authority for referring to a prior discussion of the same
words used in a different section of the same Act? What legal principle
are you using? On what authority? (Presumption that all words in
legislation will have a consistent meaning?)
What does metropolitan area mean? Is it defined in the Act? What
other tools can you use to find the natural and ordinary meaning of
this word? Having determined the legal meaning of metropolitan area,
look at the facts. Were Beth and her dogs in a metropolitan area? What
facts suggest this?
Look closely at the question. Why does it give you such detail about
Beths new job? You are advised that her job is at the Orange
Metropolitan Development Office. How are you going to use this
information?
What does restrain mean? Is it defined in the Act? Where?
The statutory definition in s2 provides:
restrained means chained, secured on a lead, or attached to a fixed
object.
Section 3:
What are the elements of s3 which must be satisfied?
Domestic animal
Registered
There is no need to repeat your legal discussion of the meaning of
these words simply apply it to the new facts.
But consider, what legal definition of domestic animal have you
relied on previously? s2 relevantly provides:
domestic animal means dog, cat, ferret, mouse, guinea pig, horse or
other pet.
What was Rover? What were Molly and her puppies? What animal are
we dealing with in this question? This question will require a more
careful consideration of the definition of domestic animal.
Is Maggie a domestic animal? Specifically is she an other pet? How
we will interpret this general term which comes at the end of a list?
Using the ejusdem generis maxim?
What is the class of dog, cat, ferret, mouse, guinea pig and horse? Will
a two legged bird be part of a class of four legged mammals? Will
Maggie be considered an other pet?
(Check your findings against purpose)
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