By Jennifer Hird, University of Technology Sydney

This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.   

Citation: Animal Liberation Ltd v National Parks and Wildlife Service [2003] NSWSC 457

Court – Supreme Court of New South Wales
Judge – Hamilton J
Date of Judgment – 26 May 2003

FACTS OF THE CASE

The Director General of the National Parks & Wildlife Service (‘Director General’), the defendant, proposed to cull wild goats in the Woomargama National Park by conducting a shoot from a helicopter. Animal Liberation Limited (‘Animal Liberation’), the plaintiff, sought an interlocutory injunction to restrain the defendant in the Supreme Court of New South Wales. Animal Liberation argued that the aerial culling of animals constituted cruelty. This argument was based on the risk that some animals may not be killed outright, and would be left to suffer for some time prior to dying. Furthermore, it was unlikely that injured animals would be able to be located and euthanised.

In arguing their case, Animal Liberation referred to the aerial culling of wild goats on Lord Howe Island in 1999. After the cull, local residents took photographs of the animals’ remains, which were then examined by a forensic pathologist, Dr Kevin A P Lee. In his opinion, some of the animals showed clear signs of movement and others showed no visible evidence of injury. Dr Lee concluded that this strongly indicated that not all of the goats had been killed immediately in the shoot. Dr Lee also found no evidence of finishing up or coup de grace shots that would end the animals’ suffering. Finally, Animal Liberation asserted that the National Parks and Wildlife Service conducted or was associated with the Lord Howe Island cull.

On the other hand, the Director General claimed that cruelty could not be inferred from the evidence. Moreover, the Director General denied any connection with the Lord Howe Island cull. Finally, the Director General argued that the Court should not intervene to restrain a statutory agency, as part of the executive government, from carrying out its duty to manage national parks, where the actions did not involve unnecessary cruelty.

THE ISSUES

• Whether the Director General was involved in the Lord Howe Island cull.
• Whether the aerial cull presented a risk of cruelty.
• Whether the Court should award Animal Liberation the interlocutory injunction to restrain the aerial cull.

THE DECISION

Involvement with the Lord Howe Island cull

While Hamilton J found that the Lord Howe Island cull was conducted by the Lord Howe Island Board, His Honour was satisfied that the Director General had a representative on the Board and was consulted regarding the cull. Moreover, the defendant dealt with complaints and wrote letters regarding the satisfactoriness of the cull on behalf of the Minister. His Honour inferred that the defendant believed in the correctness of these views regarding the satisfactoriness of the cull, and that he held these views in his capacity as Director General as well as in any other capacity.

The risk of cruelty

Hamilton J noted that the Director General only provided a broad statement that the shoot would be conducted properly. However, the Director General gave similar assurances concerning the Lord Howe Island cull. Accordingly, Hamilton J did not regard the Director General’s assurances as negating the risk of cruelty in the proposed shoot.

The award of an interlocutory injunction

In deciding whether to grant an interlocutory injunction, the strength of Animal Liberation’s argument was weighed against other considerations including the balance of convenience: a balancing of the harm that would be suffered if the cull were carried out immediately against any damage that would be suffered by the defendant if an injunction were granted. On the balance of convenience, His Honour ordered an interlocutory injunction for a period of four to six weeks, the duration of which was to be determined at a final hearing. The prospect of cruelty to animals in an immediate cull was held to outweigh any damage that might have been suffered by the Director General.

COMMENTARY

While the decision did not stop the aerial culling, it nonetheless provided judicial recognition of animal sentience and the need to recognise such sentience in the decision to cull “feral animals”. It represents yet another example of the utilitarian approach to animal welfare that forms the foundation of animal regulation in Australia.