Even if the first order sought in the notice of motion would not have been an appropriate order for the Court to make, in my opinion the second order sought in the notice of motion by way of alternative relief was an appropriate order to seek.
The plaintiff's solicitors gave notice on several occasions of their intention to file an application in respect of the defective defence. The defendants were directed to file and serve their evidence by 28 July , with the plaintiff to file and serve any evidence in reply by 11 August The defendants did not comply with that timetable. Discovery is virtually complete and the matter was ready for a date for trial, subject to the defendants filing their evidence. The defendants admit that they intentionally entered on the land occupied by the piggery without permission.
The defendants are in fact funded by Animal Liberation, the Executive Director of which has played an active part in the conduct of the litigation: The alleged trespass is at the heart of the proceedings. The defendants have been aware of this aspect of the pleadings since August and were put on notice by James J that an affirmative defence was to be specifically pleaded by 21 April For the purposes of this Act, a reference to an act of cruelty committed upon an animal includes a reference to any act or omission as a consequence of which the animal is unreasonably, unnecessarily or unjustifiably:.
Although stall sizes were not the size recommended under the code of practice pigs , the company managed this problem by placing larger sows in community pens. It is proposed to call expert evidence in that regard. This aspect of the defence will necessarily cause the plaintiff to seek out and call its own expert evidence.
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Expert evidence has not previously figured in the proceedings. The poor welfare of pigs shown in the Photographs and.. Film is capable of constituting cruelty within the definition of that term in the Prevention of Cruelty to Animals Act by the plaintiff in keeping pigs at the Windridge piggery which precludes the plaintiff in good conscience from any relief under a constructive trust in favour of the plaintiff against the defendants as owners of copyright in the Photographs and.. Otherwise they rely on the freedom of expression or communication in respect of government or political matters implied in the Constitution of the Commonwealth of Australia recognized in Lange v Australian Broadcasting Corporation CLR Of course, the exercise of the discretion assumes that the amendment will not be futile, in the sense that it would survive a motion to strike it out.
In this respect, it is said that the plaintiff is precluded from claiming in good conscience that the defendants hold copyright in the images on a constructive trust.
In other words, it is submitted that the plaintiff comes to equity with unclean hands. Second, the pleading assumes that those images provide a sufficient basis upon which an expert can express the opinion that the condition of the pigs is as a result of treatment by, or omission on the part of, the plaintiff that is capable of constituting cruelty under the Prevention of Cruelty to Animals Act.
I remain doubtful that an expert opinion derived in that manner would have the necessary factual basis, but for present purposes I am prepared to assume such evidence is available and admissible. Even so, the proposed defence falls short of alleging that the plaintiff has committed a legal wrong. At its highest, it claims that the plaintiff may have committed a legal wrong. I gratefully adopt what his Honour said, in particular: Loughrin v Loughrin US at No Court of equity will aid a man to derive advantage from his own wrong, and this is really the meaning of the maxim.
However, that remark must be seen in the context of the facts of that case.
The Court found that the relation between fraudulent practices, carried on by two persons over a period of time and later continued by one of them, and the equity sued for was that the practices were conducive to the understatement and disposal of stock in a company, and provided an essential part of the evidentiary material supporting the finding that the equity sued for existed. The Court found that the temporal and evidentiary connection was sufficiently close to justify the application of the unclean hands doctrine.
What are the circumstances relied upon by the plaintiff to ground the equitable relief pars. The answer is demonstrably, no. In relying upon that motive for the publication, the plaintiff does not, and need not, assert anything in relation to its treatment of the pigs. I do not regard this proposed defence as arguable.
To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept.
The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event. Later at , citing Lord Evershed M. The plaintiff became aware that Mr Pearson knew of the identity of the persons who had entered its property and took steps by way of a summons to obtain that information. In due course, Mr Pearson provided the names of two of those persons.
The document contains the following: I was subpoenaed to the New South Wales Supreme Court to give evidence as to the details of the individuals who allegedly trespassed and provided the evidence that was later given to the police. Interestingly the police refused to give the management a statement to assist their potential bringing of civil trespass charges. It was decided to give information to the piggery management because we decided it would be better to defend them the trespassers vigorously against any potential charges.
The reason for this decision is that we will be able to call a lot of evidence of how the industry fails to meet its own agreed code standards and how the RSPCA fails to pursue cases of cruelty of undersized stalls particularly after they had won such a case against Boen Boe piggery after I took A Current Affair there in Further, it is submitted that the proposed amendment to the defence is for the predominant purpose of "vindicating the defendants in the exercise of their exclusive rights as copyright owners Apart from putting the plaintiff to proof on its occupancy and exclusive possession of the property, the defendants have no arguable defence to the trespass.
The plaintiff offered, before the commencement of proceedings by way of Statement of Claim, to settle the matter by the recovery of its costs, an offer that was declined. There has been an attempt at mediation which has failed. Given that the relevant authorities failed to prosecute on the basis of that evidence, a remaining avenue is the construction of a defence that is designed to re-agitate that evidence. This finding constitutes an alternative basis upon which I would refuse the defendants leave to amend. The regulation of animal welfare within Australia is generally a responsibility of state parliaments and courts.
The parliaments of the states are provided for in the federal Constitution. Ultimately, they now draw their authority from that Constitution. The states are part of the "indissoluble Federal Commonwealth". The federal Constitution appears to contemplate that state parliaments, by analogy with the federal parliament, will be representative of the people of the state and democratically elected.
No other view would be compatible with the exceptional powers afforded to the parliaments of the states in relation to the composition of the senate.
It is further submitted that the regulation of animal welfare is an issue that was already in existence in the proceedings before the application to amend. The first proposition may be self-evident, however the second proposition once again refuses to acknowledge that the plaintiff has only ever taken proceedings for the tort of trespass. Alle prijzen zijn inclusief BTW en andere heffingen en exclusief eventuele verzendkosten en servicekosten. When a Dublin High Court judge is found dead - slumped in his chair, his neck snapped by a well aimed kick - many would say he got what he deserved.
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