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Chapter 11 - Animals and Commerce

Animals are used in commerce for food, entertainment and as a tradeable commodity. However, animals are also sentient beings who humans relate to, at many different levels, and to some extent in contradictory ways. Those who consume animal products, for example, might make decisions based on whether their food has been cultivated in accordance with claims indicating that it is organic or free-range. As the decision in Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 4) [2013] FCA 665 highlights, consumer law can be a powerful tool for animal advocates. Moreover, consumers themselves are equally powerful stakeholders.

Other cases in this Chapter explore whether animals can be the subject of specific performance in contract law, and whether laws relating to the protection of animals as a natural resource can offend the protection of interstate trade contained within of s 92 of the Australian Constitution.

11.1 Fergusson v Stevenson [1951] HCA 49; (1951) 84 CLR 421

Prepared by Alexandra Jackson


High Court of Australia


Stevenson, the defendant, was the Australian manager of an English company which bought and graded animal skins then exported them to tanneries in the United States.

In the course of conducting this business Stevenson knowingly had in his possession 1,318 kangaroo and wallaroo skins from animals who had been killed in Queensland and delivered to Stevenson in New South Wales for grading and exportation.

Stevenson was charged under s 19 of the Fauna Protection Act 1948(NSW) (‘the Act’). Section 19(1) provided that “any person who knowingly buys, sells, offers or consigns for sale or has in his possession, house or control any protected fauna at any time shall be liable to a penalty.” Section 4 of the same Act defined “protected fauna” as “any fauna not mentioned in the First Schedule to this Act” and included the skin or any other part of such fauna. Kangaroos and wallaroos were not listed in the first schedule of the Act and were thus classed as protected fauna.

The killing of the kangaroos and wallaroos and the possession of them was lawful in Queensland; however s 19(1) of the Act also stated that the provision applied “whether such fauna was killed, taken or bought in or received from any State or Territory of the Commonwealth or the Dominion of New Zealand.”

This case originated in the Central Court of Petty Sessions in Sydney. However, it was heard in the High Court as the Attorney-General exercised the power under s 40 of the Judiciary Act 1903 (Cth) to remove any case pending in a State into the High Court where the cause arises under the Australian Constitution or involves its interpretation.

  • Whether Stevenson, in transacting and possessing the animal skins, acted unlawfully
Decision and Reasons for the Decision

The Court found unanimously in favour of the defendant and the case was dismissed with costs. McTiernan J found for the defendant on different grounds from the majority and submitted a separate judgment.

The State argued that s 19 of the Act existed for the purpose of the protection and preservation of fauna and that s 92 should not be used to give inter-State transactions freedom from adhering to those laws. The Court rejected this argument and found that the relevant facts were that the defendant had received the skins in the course of a transaction of interstate trade and commerce and that the allegedly unlawful possession arose directly from the interstate transaction. As freedom of interstate trade and commerce was protected by s 92 of the Australian Constitution, the Court held that the Act could not prohibit the transaction.

McTiernan J examined the definitions of “fauna” and “protected fauna” in the Act and found that the words “protected fauna” applied only to fauna originating in New South Wales. This excluded the wallaroo and kangaroo skins which were the subject of the charge, as the animals had been killed in Queensland. Thus, McTiernan J found that the facts did not fall within s 19 of The Act. Accordingly, His Honour did not need to consider the question of whether s 19 was incompatible with s 92 of the Australian Constitution.

Significance of the Case

This case reveals some of the problems that may be attributed to fragmented and inconsistent legislation among the states. Possession of the skins was lawful in Queensland and unlawful in New South Wales, which led the Court to find that the New South Wales law contravened the freedom of interstate trade and commerce enshrined in the Australian Constitution.

This decision effectively made the possession of the animal skins legal provided they were being transacted between states, or on the minority decision, killed interstate and then transported to New South Wales. The Court’s application of the legislation in light of the Constitution substantially diluted the intended effect of s 19 of the Act, which was to regulate the sale and possession of fauna - the definition of which encompassed their skins - for the purpose of protecting and preserving them.

11.2 The Millstream Pty Ltd v Schultz [1980] 1 NSWLR 547

Prepared by Betty Ming Wai Yeung


Supreme Court of New South Wales Equity Division


On 3May 1979, the managing director of Millstream Pty Ltd (‘Millstream’), the plaintiff, agreed to purchase 40 fallow deer from Schultz, the defendant. The deer were to be delivered to Millstream's property no later than mid-July 1979 at a price of $20,000, with a third of this sum payable up front and the balance payable upon delivery.

Millstream paid Schultz $6,700 on 11 May 1979 as an upfront payment. The delivery date was postponed to 1 September 1979 by agreement of both parties. However, on that date Schultz did not deliver any deer and “repudiated the obligation to deliver.”

On 3 October 1979, Millstream sought specific performance of the contract for sale. On 10 October 1979, Millstream obtained an interlocutory injunction to restrain “the defendant from selling or disposing of the deer.”

At the trial the defendant was not in a position to deliver the deer. Evidence suggested that he had them on or about 1 September 1979, but that he disposed of them elsewhere. On the second day of proceedings, the plaintiff abandoned the claim for specific performance, and sought only declarations and orders relating to damages.

  • Whether there was an enforceable contract between the two parties which had been breached
  • The quantum of damages payable
Decision and Reasons for the Decision

Existence and breach of contract

McLelland J came to the conclusion that there was a contractual agreement between the parties under which the defendant would sell the forty head of fallow deer to the plaintiff on the terms described on 3 May 1979.

The Court ruled that a contract was formed between the parties on 3 May 1979 with specific terms and that these terms were not too uncertain to form a contract.

By failing to deliver the deer on the 1 September 1979, Schultz breached the contract and repudiated his obligation to deliver the animals.

Award of damages

The Court held that as it could not be demonstrated that at the time the proceedings were commenced, the Court could have awarded specific performance, damages under s 68 of the Supreme Court Act (NSW) were not available.

Schultz argued that Millstream’s initial request for specific performance was inconsistent with an election to terminate the contract as repudiated by Schultz, and that as such, the Millstream’s cause of action for damages for loss of bargain had not accrued at the time the proceedings were commenced. The Court rejected this argument, finding that in the context of a claim for damages for loss of bargain, the “relevant cause of action is the breach of the contract, [which] accrues upon the occurrence of the breach”.

The Court concluded:

In the present case, the relevant breach is the failure of [Schultz] to deliver deer in accordance with the terms of the contract. That breach is to be taken to have occurred and, therefore, the [Millstream’s] cause of action to have accrued, on 1st September, 1979… [I]t is now too late for [tSchultz] to remedy his breach because, in my opinion, the claim of the [Millstream] to recover the $6,700 part payment together with interest…was a sufficient election to terminate the contract.

In addition, the Court found that it would not be appropriate to imply a term that a particular percentage of the pregnant does which were contracted for would produce live fawns. Further, Millstream was unable to recover the $6,700 as a debt, because the right to do so only came into being when the contract was terminated, which was after the commencement of proceedings.

Millstream was awarded damages for the breach, equal to the value of the gross benefit of which Millstream had been deprived as a result of Schultz’s breach, less the unpaid balance of the purchase price. The $6,700 part payment which had been made by Millstream was taken into account in the assessment of damages.

Significance of the Case

This case illustrates the way in which the law of contracts applies to transactions involving animals, a consequence of their property status.

11.3 Cole v Whitfield (Tasmanian Lobster case) [1988] HCA 18; (1988) 165 CLR 360

Prepared by Pamela Kalyvas


High Court of Australia


The appellant was a senior inspector of the Tasmanian Fisheries Development Authority (‘TFDA’), the body responsible for the enforcement of the provisions of the Fisheries Act 1959 (Tas) (‘the Act’) and the Sea Fisheries Regulations 1962 (Tas) (‘the Regulations).

Whitfield, the respondent, was the operations manager of the Boomer Park Crayfish Farm, Dunalley in Tasmania (‘Boomer Park’). Boomer Park purchased and marketed live crayfish throughout Australia and internationally. On 5 January 1983, a district fisheries inspector employed by the TFDA inspected Boomer Park and discovered sixty male crayfish and thirty-seven female crayfish who were under the prescribed minimum size for crayfish in Tasmania. These undersized crayfish were part of a delivery from South Australia.

Whitfield was charged with possession of undersized crayfish in violation of the provisions of regs 31(1)(d)(ix),(x) and 44(3) of the Sea Fisheries Regulations 1962(Tas). Whitifield pleaded not guilty and sought to rely upon the protection of s 92 of the Constitution of the Commonwealth of Australia, which provides:

On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

  • Whether regs 31(1)(d)(ix) and (x) of the Regulations were inconsistent with s 92 of the Australia Constitution
Decision and Reasons for the Decision

The Court decided that regs 31(1)(d)(ix) and (x) of the Regulations, when applied to the possession of the crayfish, were compatible with the freedom guaranteed by s 92 of the Australian Constitution. As such, the charges laid with respect to possession of undersized crayfish were valid.

The Court referred to the history of s 92 and the intention of the drafters of the Australian Constitution. Their Honours reasoned that although the provision was intended to eliminate all border customs duties, there was no suggestion that it was intended to prevent the enactment of regulations necessary for the conduct of business.Accordingly, while s 92 was designed to preclude the imposition of protectionist burdens, the section did not guarantee a measure of freedom with respect to trade and commerce that would leave parties immune from all legislative or executive oversight. The “absolute freedom” of s 92 was said to relate to immunity from discriminatory burdens of a protectionist kind. The Court distinguished between different types of laws:

A law which has its real object the prescription of a standard for a product or service or a norm of commercial conduct will not ordinarily be grounded by protectionism and will not be prohibited by s 92. But if a law, which may be otherwise justified by reference to an object which is not protectionist, discriminates against inter-State trade or commerce in pursuit of that object in a way or to an extent which warrants characterization of the law as protectionist, a court will be justified in concluding that it nonetheless offends s 92.

The Court considered whether the burdens of the regulations imposed on interstate trade in crayfish were so disadvantageous “to interstate trade in crayfish as to raise a protective barrier around Tasmanian trade in crayfish.” It held that prohibitions against the sale and possession of undersized crayfish had no discriminatory protectionist purpose and the object of the prohibitions was “to assist in the protection and conservation of an important and valuable resource, the stock of Tasmanian crayfish.”

Significance of the Case

The case recognised that laws protecting natural resources may impact on trade between states. Such laws are nevertheless vital to the long-term maintenance of natural resources.

This case also exemplifies the predominance of profitability in the context of trade in animal products. That possession of undersized sea animals was prohibited to preserve the stock of the “resource” rather than for the purpose of protecting young animals highlights how animal interests are often only upheld incidentally in commerce.

11.4 Fares Rural Meat And Livestock Co Pty Ltd v Australian Meat And Live-Stock Corporation and Others [1990] FCA 139; (1990) 96 ALR 153

Prepared by Barnaby Austin


Federal Court of Australia


The Australian Meat and Live Stock Corporation (‘the Corporation’), the first respondent, was responsible for issuing licences to export live sheep. Fare Rural Meat and Livestock Co Pty Ltd (‘Fares’), the applicant, was the holder of a licence from the Corporation. On 22 August 1989, the Corporation issued an order to licence holders not to export or sell sheep to Saudi Arabia. This order remained in force until 21 December 1989, from which time export to Saudi Arabia could resume, subject to close monitoring on a shipment-by-shipment basis.

On 23 March 1990, Fares sold a shipment of 90,000 sheep to Multitrade, pending approval from the Corporation to export the sheep to Dammam, Saudi Arabia. The approval was received on 26 March 1990. The terms of the contract meant that ownership of the sheep passed from Fares to Multitrade as the sheep boarded the vessel.

In early April, shipments of sheep exported to Saudi Arabia and Jordan by other Australian export companies were rejected because of the presence of “scabby mouth disease” in some sheep. On 10 April 1990, Multitrade on-sold the shipment of sheep to Mr Sulaiman Ali Al Khalaf, for delivery at Dammam, Saudi Arabia. On 17 April 1990, the Corporation issued an order to Fares rescinding the approval to export sheep to Saudi Arabia and instead granted approval to export sheep to a country other than Saudi Arabia.

In response, Fares sought judicial review of the decision in the Federal Court.

  • Whether the approval granted by the Corporation was defective
  • Whether the Corporation could direct a shipment elsewhere
Decision and Reasons for the Decision

The Federal Court rejected both of the Corporation’s arguments and found for the Applicant.

The approval

The Court held that the effect of Fare’s contractual arrangements with Multitrade was that it could export the sheep without contravening any condition of its live export licence.It was held that Fares “was nonetheless an exporter because it acted upon a contract with Multitrade made before the necessary approval to the implementation of that contract.” The approval was not therefore invalidated by the contractual arrangements with Multitrade.

The Court also dismissed on factual grounds the claim that the application for approval was defective because it failed to stipulate a consignee.

A power to direct shipments elsewhere

The Court held that the conditions of the licence obliged Fares to ensure the cargo was taken to the port of discharge first, in this case in Saudi Arabia, after departing Australia.

Jurisdiction to make the decision

The Federal Court agreed with the Applicant’s submission that the Corporation could not rescind its approval, as it had not been given subject to any condition subsequent, so could not be withdrawn in the way attempted on 17 April 1990.The Court found:

Subject to the qualification arising from the conditions that were imposed, the scheme of control established by the Order and Directions in question had been worked out with the giving of approval, the prohibition on export thereby being lifted. The scheme did not provide for such a rescission of approval after the licensee in question had made its final arrangements on the faith of the operation of the approval in accordance with its terms.

Accordingly, the Court held that “the communication of 17 April was ineffective to re-impose upon the applicant a prohibition upon export to Saudi Arabia of the live sheep in question.”

Although the Court disposed of the matter by finding that the Corporation lacked the requisite power to make the decision, it considered the other grounds raised by Fares. Fares claimed that the decision was an improper exercise of power. The Court rejected the argument that the decision was unreasonable within the terms of the ADJR Act and that the Corporation had failed to have regard to relevant considerations. However, the Court held that had it not granted relief to Fares on the basis of the primary ground argued, it would have allowed review for denial of natural justice.

The Federal Court of Australia made three orders in its decision on 24April 1990:
  1. To set aside the order made by the Corporation on 17April 1990, which rescinded the applicant’s permission to export live sheep to Saudi Arabia;
  2. To declare that the order from the Corporation on 27March 1990 that gave approval to the applicant to export sheep to Saudi Arabia not be rescinded and remained in effect.
  3. That the Corporation pay the applicants costs.
Significance of the case

This case illustrates the way in which administrative law, and in particular judicial review, does not always serve animal interests. In this way, it exemplifies how administrative decisions made to protect animal welfare are not immune from review.

11.5 Borg v Howlett [1996] NSWSC 153

Prepared by Marta Nottidge


Supreme Court of New South Wales


Borg, the plaintiff, was the successful bidder of a horse and thought he or she was purchasing the horse of Lot 109. Howlett, the defendant, was the vendor. The purchase price was $2000. Howlett did not intend to sell the horse of Lot 109, rather intended to sell only the horse of Lot 101. It was discovered almost one year later that Borg had actually received the horse of Lot 101. Borg sought specific performance of the contract which would vest him or her with ownership of the horse of Lot 109. Borg was willing to surrender the horse of Lot 101. Howlett resisted the order for specific performance, raising several defences.

  • Whether there was a valid contract
  • Whether any contract would be set aside in equity, as it would be unconscionable for Borg to enforce the contract in light of the mistake
  • Whether in receiving the horse of Lot 101, Borg received what he or she contracted for
  • Whether the terms of the auction sale prevented an application for specific performance
  • Whether specific performance was available in equity for this kind of contract
  • Whether the Court should deny specific performance on discretionary grounds
Decision and Reasons for Decision

Validity of the contract

The Court held that there was a valid contract, finding that “at this particular sale, where something was advertised in the catalogue and when there was an inspection, and when there was a successful bid at auction, it is very difficult to say that the parties did not intend to make any contract at all.” While the precise subject matter of the contract required ascertainment, there was no equivocation in the making of the contract.

Equitable intervention on the basis of mistake

The Court did not discern sufficient factual material to set the contract aside on the basis of a mistake. The mistake was solely the mistake of Howlett, the vendor, and there was little evidence arising on the facts to substantiate hardship as a consequence of the mistake.

The content of the contract

The Court held that “on the facts of this case the subject matter of the sale was not the horse which was physically inspected but the horse which was set out in the catalogue with all its details, that is, the subject matter of the contract was the horse” of Lot 109.

The terms of the auction sale preventing specific performance

The Court indicated that “the whole system which is implicit in the conditions, as well as occasionally explicit, was that the vendor was to supply the horse as detailed in the catalogue, the purchaser was able to purchase it from the catalogue and that the auctioneer was not to be sued if there was some mistake.” As such, the terms of the auction sale did not provide Howlett with a defence.

Availability of specific performance

The Court held that the “aspects of uniqueness and the conjecture as to damages” characterising the case rendered specific performance appropriate.

Discretionary grounds for refusing relief

The Court rejected Howlett’s claim that Borg’s conduct involved laches.

The Court accordingly awarded specific performance.

Significance of the Case

This case embodies the property paradigm with which the law conceives of animals, referring to the horse as a “chattel”. The decision differentiates between chattels with unique characteristics and those without them, a distinction relevant to the availability of specific performance.

11.6 Noah v The Attorney General (2003) HCJ 9232/01

Prepared by Alysha Byrne


Israel High Court of Justice


The Israeli Foundation of Animal Protection Organisations (‘Noah’), the petitioner, sought to have the force-feeding of geese, for the purpose of producing foie gras, deemed illegal. They also requested for the regulations to be annulled.

The Court described the practice of foie gras as follows. The force-feeding of geese would produce an enlarged and fatty liver within the goose, which would then be used to make foie gras. The goose would be fed by a tube forced into his or her oesophagus, and this procedure would be repeated several times a day. The amount of food that would be force-fed would significantly exceed that which the geese required, and thus, the liver would become several times larger than the size of a normal liver.

Section 2(a) of the Israeli Cruelty to Animals Law (Protection of Animals) 1994 (‘the Law’), specified that: “A person will not torture an animal, will not be cruel toward it, or abuse it in any way.” The Cruelty to Animals Regulations (Protection of Animals) (Force-Feeding of Geese) 2001 (‘the Regulations’) were designed to prevent the suffering of geese during force-feeding. These regulations also prohibit the establishment of new force-feeding farms and the expansion of existing farms.

  • Whether force-feeding constituted ‘torture’, ‘cruelty’ or ‘abuse’
  • If so, whether the process (and thus the regulations) should be deemed illegal
Decision and Reasons for Decision

The majority, consisting of T Strasberg-Cohen J and E Rivlin J, found that the force-feeding of geese constituted an abuse of animals and thus violated s 2(a) of the Law. As a result, the Court annulled the regulations regarding the force-feeding of geese. Grunis J dissented.

Strasberg-Cohen J held that the circumstances where human interests will supersede those of animals depend upon the “culture, values and worldview of society and its members.”As a result, Her Honour concluded that “agricultural needs” (as discussed by Grunis J in dissent) should not have a sweeping precedence over animal interests. Agricultural interests should be weighed against the suffering of the animal, the type of suffering and the severity of the suffering. Conclusively, Strasberg-Cohen J found that the regulations did not effectively seek to prevent suffering, and thus deviated too significantly from the purpose of the law. Her Honour decided, in agreement with E Rivlin J, that the regulations should be annulled and that force-feeding of geese should be prohibited. However, Her Honour took into account the obiter of Grunis J by establishing a delayed amendment banning force-feeding.

In determining whether the force-feeding of geese constituted torture, cruelty or abuse, Grunis J turned to the case of Animals Live v Hamat Gader Recreation Enterprises (LCA 1684/96). In that case, the Court held that for an act to amount to torture, cruelty or abuse, the act ought to be regarded by a bystander as constituting torture, cruelty or abuse. The measure and extent of the pain or suffering need not be particularly great, and the Court must determine whether the procedures that caused the suffering are proportionate to the purpose for which they are used. Grunis J found that it was clear that a bystander would find the force-feeding of geese to be torture, abuse or cruelty. However, Grunis J also emphasised the importance of balancing the interests of the geese with “agricultural needs”. The purpose of the force-feeding process is to provide food for human consumption. Even though Grunis J noted that foie gras is a culinary delicacy, and thus would not be given the same weight as basic foods, he did acknowledge the detrimental effect on producers of deeming the process illegal. Grunis J sought to apply regulations in the European Union that minimised the process of force-feeding, yet did not prohibit it. In balancing the interests of the geese and “agricultural needs”, Grunis J found that the economic and social consequences to be faced by farmers would outweigh the suffering of the geese. His Honour’s minority decision held that the regulations were not invalid and thus the force-feeding of geese was not illegal. In obiter, Grunis J pointed out that if regulations on farming industries were to be altered, they should contain a transitional period to allow farmers to reorganise their methods and re-train employees.

Significance of the Case

This case established a precedent for the prohibition of the force-feeding of geese in the existing foie gras industry. The Court recognised the significant suffering experienced by the geese, and thus deemed the process unlawful.

11.7 Fitz-Alan v Felton [2004] NSWSC 1118

Prepared by Matthew Jones


Supreme Court of New South Wales


Adkins kept a horse named Dunnoon on behalf of Felton, the defendant. On 15 May 1997 Fitz-Alan, the plaintiff, approached Adkins to borrow Dunnoon. Adkins agreed, pending confirmation from Felton.

In June 1997, Fitz-Alan took her daughter to Adkins’ stables to test ride Dunnoon. After a successful test ride Adkins spoke words to the effect of “take him and try him, if he is not suitable bring him back, otherwise bring him back when Angela is finished with him”. Fitz-Alan then questioned if he wanted any money for the horse at which point Adkins replied with “No, provided he is looked after and returned when you are finished with him”.

In August 2000, after finding out that Angela was no longer living in the area and was therefore no longer caring for Dunnoon, Felton sued Fitz-Alan seeking the return of Dunnoon. In November 2003, the Local Court Magistrate found a breach of the agreement and ordered that Dunnoon be returned to Felton.

  • Whether the Magistrate erred in disallowing additional evidence
  • Whether the Magistrate erred in finding that the horse was lent
  • Whether the remedy was appropriately awarded
Decision and Reasons for the Decision

The appeal was dismissed and the orders of the Magistrate were affirmed.

Admission of statements into evidence

The plaintiff argued that the Magistrate erred in law by not allowing further statements into evidence. The details of the statements had no significant bearing on the findings of the case and therefore will not be outlined. The Court noted that the Magistrate had allowed some aspects of the further statements into evidence, There was no error of law.

The finding that the horse was lent

The plaintiff argued that the Magistrate’s finding that the horse was lent and given on the condition that it was to be used in equestrian-related events was made without reference to any significant evidence. The main issue the Magistrate dealt with was whether the oral agreement between Fitz-Alan and Adkins was a conditional loan or a gift.

It was found with reference to the evidence that Dunoon was not a gift and the arrangements were a conditional loan. This was emphasised by Adkins’ statement regarding the use of the Dunoon, which included terms that he or she be looked after and returned when Angela was finished with the horse. The evidence of Angela indicated that she moved to Sydney and used Dunoon “occasionally”. As this did not satisfy the terms upon which the horse was handed over, the Magistrate found that the agreement had been breached as the horse was not used as stipulated. The Court on appeal agreed with the Magistrate that there was sufficient evidence and facts to support such a finding and that there was accordingly no error of law.

The remedy

The Magistrate stated that the remedy was either the return of Dunnoon, or an award for compensation to be paid to Felton. Section 28A of the Local Court (Civil Claims) Act 1970 (NSW) clearly stated that the remedy was a discretionary one. Therefore, the Court affirmed the decision of the Magistrate to exercise the discretion by ordering that Dunoon be returned.

Significance of the Case

This case illustrates the way in which the property status of animals enables possession of them to be transferred according to the will of their owner. It also exemplifies how contract law may be used to protect animals where terms of the contract require them to be cared for.

11.8 New Jersey Society for the Prevention of Cruelty to Animals et al v New Jersey Dept of Agriculture 955 A.2d 886 (N.J. 2008)

Prepared by Hollie Harber


Supreme Court of New Jersey


Pursuant to Title 4, Agriculture and Domestic Animals, of the New Jersey Statutes Annotated (‘NJSA’), the Department of Agriculture (‘the Department’), the respondent, had authority to create regulations concerning the welfare of domestic livestock, including the “raising, keeping and marketing of farm animals.”The regulations were to be humane and in this respect, the Department was under an obligation to consult with the New Jersey Agricultural Experiment Station in its development of the regulations. The New Jersey Society for the Prevention of Cruelty to Animals (‘NJSPCA’), the appellants, were under an obligation to enforce the “humane” regulations.

The Department’s regulations were challenged by the NJSPCA on the basis that the Department “failed to comply with the legislature’s standard to ensure humane treatment of domestic livestock.” The Appellate Division Court dismissed the challenge, and the NJSPCA subsequently brought the appeal to the Supreme Court.

  • Whether the Department “failed in general to comply with the legislative mandate that it create standards that are ‘humane’”
  • Whether the Department “created an impermissibly broad and vague category of permitted practices by referring to ‘routine husbandry practices’ as generally acceptable”
  • Whether the Department “failed to create an adequate regulatory scheme by utilising undefined or ill-defined terms that cannot serve as objectively enforceable standards”
  • Whether the Department “embraced a variety of specific practices that are either objectively inhumane or supported by inadequate scientific evidence as to their usefulness, or that fail to meet any accepted definition of the term humane”
Decision and Reasons for the Decision

The regulations were held to be valid as they were not arbitrary or capricious in their entirety.

Failure to comply with the legislative mandate

The appellants argued that regulations in their entirety failed to carry out their legislative function of embodying standards that were humane. However, the Court rejected this, holding that:

The specific challenges to the regulations, both as to particular practices and as to the safe harbor provisions, do not, in and of themselves, nor in the larger context of the regulatory process, suggest that the Department failed to propose and adopt regulations that are essentially grounded upon a determination about what practices are humane. In the absence of some evidence that the regulations include some pervasive defect in process or content, we decline to invalidate them in their entirety.

Language creating a safe harbour for acts meeting the definition of routine husbandry practices

The Court held that the NJSPCA’s contention regarding the Department’s definition of “routine husbandry practices” had merit. It held that:

By adopting a definition of exceptional breadth, by failing to create an adequate record in support of this decision, and by implicitly permitting techniques that cannot meet the statutory mandate to base its regulations on a determination about what is humane, the Department has adopted regulations that are arbitrary and capricious. We therefore strike as invalid the definition of routine husbandry practices.

Specific practices

The NJSPCA argued that certain practices specifically permitted by the regulations were demonstrably inhumane, and that the authorisation of them was not supported by science.

With respect to tail docking, the Court held that as there was an absence of evidence to support the practice or any attempt to confine it to circumstances where it was beneficial and objectively humane, the authorisation of the practice in the regulations could not stand.

The Court combined its analysis of de-beaking of chickens and turkeys, toe-trimming of turkeys and the castration of cattle, horses and swine. The Court found that there was “sufficient credible evidence… to support the agency’s conclusion that these techniques can be performed in a humane manner and should be permitted”. However, the Court found the regulations failed to define the terms “terms sanitary manner, knowledgeable individual, or minimize pain” or impose an “objective criteria against which to determine whether any particular individual performing the procedure measures up to these standards”. As such, the requirement in the regulations that the practices be performed in a sanitary manner by a knowledgeable individual in such a way as to minimize pain was meaningless.

The practice of crating and tethering veal calves and swine were found to be supported by sufficient credible evidence, and the regulations permitting them were therefore not arbitrary or capricious.

Finally, the Court considered the transportation of sick or downed animals. As the law prohibited the entry of a disabled animal into the food chain, the Department argued that “a downed animal simply will not be transported for slaughter and…the only instance of a sick or downed animal being transported at all would, in all likelihood, involve taking [him or her] to a veterinarian for treatment”. The Court concluded that “[a]lthough there is evidence in the record that a downed animal may suffer greatly… we cannot conclude that the Department’s decision to permit farmers the option of choosing transport for slaughter is arbitrary or capricious.”

Accordingly, the Court held:

The…challenge to the regulations in their entirety is rejected. The specific challenges to the reliance on routine husbandry practices as defined in the regulations, and to the reliance on knowledgeable individual and in such a way as to minimize pain are sustained. The specific challenges to the practices, with the exception of the practice of tail docking, are otherwise rejected.

Significance of the Case

The decision approves a utilitarian approach to animal welfare. At one point, the Court observed with respect to the confinement of veal calves and swine:

Far from simply adopting techniques already in place or embracing practices that serve only the economic ends of the agricultural community as petitioners suggest, these regulations reflect that the Department took seriously its mandate to identify humane practices, but did so in recognition of the need to balance those concerns with the interests of the farmers whose livelihood depends on such techniques and whose existence would be threatened were they to be banned.

11.9 Tilikum v. Sea World Parks & Entertainment, Inc. 1259, 842 F.Supp.2d 1259 (S.D.Cal. 2012)

Prepared by Brittany Kenaly


United States District Court: Southern District of California


Five wild-caught orcas, Tilikum, Katina, Corky, Kasatka and Ulises, were held captive in tanks at Sea World, the defendant, for public display and also to perform. People for the Ethical Treatment of Animals (‘PETA’), acting as the Next Friends for the plaintiff orcas, alleged that the marine mammals were unlawfully being held as slaves. PETA claimed that the orcas were “(1) held physically and psychologically captive; (2) without the means of escape; (3) separated from their homes and families; (4) unable to engage in natural behaviours…; (5) subjugated to the will and desires of Sea World; (6) confined in unnatural, stressful and inadequate conditions; and (7) subject to artificial insemination or sperm collection for the purposes of involuntary breeding.” PETA alleged that these practices violated the Thirteenth Amendment and brought an action on behalf of the orcas as their Next Friendsseeking declaratory and injunctive relief.

  • Whether the orcas were afforded protection under the Thirteenth Amendment
  • Whether the orcas had standing
Decision and Reasons for the Decisions

District Judge Jeffrey Miller was the first judge in U.S. history to consider the notion that the definition of slavery should not exclude any species. Judge Miller ruled that the plain language, historical context and judicial interpretation of the Thirteenth Amendment indicated that it only applies to human beings.

Applicability of the Thirteenth Amendment

The Court examined the development and rationale of the Thirteenth Amendment, concluding that “[a]s ‘slavery’ and ‘involuntary servitude’ are uniquely human activities, as those terms have been historically and contemporaneously applied, there is simply no basis to construe the Thirteenth Amendment as applying to non-humans”.


The Court identified the way in which the Constitution limited federal judicial power to “‘cases’ and ‘controversies’”. As there was “no likelihood of redress under the Thirteenth Amendment because the Amendment only applies to humans and not orcas”, the Court held that there was “no ‘case’ or ‘controversy’”, divesting the plaintiffs of standing and the Court of subject matter jurisdiction.

Significance of the Case

This case demonstrates that the law is still strongly based on the underlying presumption that animals are property and that wild creatures, in this case orcas, can be reduced to objects of possession by Sea World’s capture of them. The case also raises important issues relating to standing. At present there is neither societal recognition nor a “jurisprudential revelation” that animals must be afforded legal personhood based on their autonomy. While it is doubtful that animals will achieve equal status under the law, some writers, such as Maddux have notedthat in the context of a widespread growth of human rights in international law the Thirteenth Amendment argument in this case is compelling (Emma A. Maddux, ‘Time to Stand: Exploring the Past, Present, and Future of Nonhuman Animal Standing’, (2013) 47 Wake Forest Law Review 1243).

11.10 Zappia v Allsop [1994] NSWCA 355

Prepared by Pamela Kalyvas


New South Wales Court of Appeal


Allsop, the respondent, and his son were riding their bicycles along Clarke Street, Riverstone. A large dog emerged from Lot 24 Clarke Street, barking and growling at Allsop and his son. The dog ran towards the bicycles and collided with the rear wheel of Allsop’s bicycle causing him to be thrown to the ground, rendering him unconscious. Allsop was transported by ambulance to Blacktown hospital, where he was treated for concussion and minor abrasions. Allsop sued Zappia, the appellant, who was the owner of the property at Lot 24, Clarke Street for damages. Allsop relied on two causes of action. First, Allsop argued that Zappia was liable pursuant to s 20 of the Dog Act 1966 (NSW) ('the Act'). Second, Allsop argued that Mr Zappia was liable in negligence at common law

At first instance, Allsop succeeded on both actions, though the Court held that he was liable for contributory negligence. Zappia appealed, contending that he was not the owner of the dog and also that the Court erred in it its determination of the cause of action created by s 20 of the Act. Allsop cross appealed against the finding on contributory negligence.

  • Whether Zappia was the owner of the dog
  • Whether the elements of s 20 of the Act were established
  • Whether Allsop was contributorily negligent
Decision and Reasons for the Decision

The Court dismissed the appeal and upheld the cross appeal.

Ownership of the dog

The Court held that Mr Zappia was in fact the owner of the dog and therefore upheld the decision of the trial judge. The Court noted that an “owner” was defined in s 4 of the Act as “the person by whom the dog is ordinarily kept” and included at s 4(a) premises “where the dog is, at any particular time, ordinarily kept on any land or in any premises, the person who is the occupier of that land or those premises at that time…”

It was accepted that Mr. Zappia was the occupier of Lot 24, but he argued that the facts contained within the evidence did not establish that the dog was ordinarily kept on that land. The Court found that the evidence led to a divergent conclusion. Allsop recalled that the dog came out of Zappia’s property and chased him about thirty times in the three to four months prior to the accident. The Court held that this was powerful evidence that the dog was ordinarily kept at Zappia’s premises. The Court also relied on additional material, including that the dog was permitted to feed on Zappia’s land. The Court rejected Zappia’s argument that prior to the accident, the dog only came onto the property to scavenge and was chased away when he or she did. It held that “The combination of the respondent's evidence as to the events prior to the accident and the appellant's admission that the dog was kept on the premises from the day after the accident raise in my mind an irresistible inference that the dog was ordinarily kept there both prior to and after the accident.”

Satisfaction of s 20 of the Act

The Court observed that to establish liability under s 20 of the Act, “it is necessary for a plaintiff to establish, first, that he or she suffered bodily injury and, secondly, that the injury was caused by a dog wounding him or her in the course of an attack upon him or her.” The Court rejected Zappia’s argument that “the particular wording used in the section introduces the…limitation of liability to occasions of direct wounding by a dog”, deeming such a limitation to be artificial. As such, that Allsop was injured as a result of the collision was sufficient to establish liability under the provision.

Kirby P diverged from the majority on this point, finding that the phrase “dog wounding” imported a required of “direct contact between the dog and the injured person.”

Contributory negligence

The Court reversed the finding of contributory negligence, holding that Allsop had every right to use the road and that Allsop’s failure to complain to the Local Council or Zappia about the dog could not base a finding that he was contributorily negligent.

Significance of the Case

This case demonstrates how “ownership” of a dog may take a range of forms and provides an example of what it means to be “a person by whom the animal is ordinarily kept.”

Mirroring s 4 of the Dog Act 1966 (NSW) is s 7(1)(b) of the Companion Animals Act 1998 (NSW). The provision states that “the person by whom the animal is ordinarily kept” is the “owner” of a companion animal for the purposes of the Act. The “inclusions” provided for in the Dog Act 1966 (NSW) are no longer part of the current Act; however, the interpretation of where the animal is “ordinarily kept” is still relevant.

11.11 Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 4) [2013] FCA 665

Prepared by Emily Shipp


Federal Court of Australia


Turi Foods Pty Ltd, Baiada Poultry Pty Ltd, Bartter Enterprises Pty Ltd and the Australian Chicken Meat Federation Inc (‘the Federation’), the respondents, bred, grew, produced and supplied meat chickens in Australia and enjoyed a significant share in this market. The chickens produced by the respondents spent their lives in sheds which varied in size from 1000 square metres to 3000 square metres and at any one time the sheds held 30,000 to 40,000 chickens. The respondents represented on packaging and in advertising that the chickens were “free to roam” in large barns.

The Australian Competition and Consumer Commission (‘ACCC’), the applicant, contended that the respondents had been involved in contraventions of the Trade Practices Act 1974 (Cth) (now the Australian Consumer Law). Specifically, the ACCC alleged that the respondents had engaged in misleading or deceptive conduct, or conduct that was likely to mislead or deceive consumers, in contravention of s 52 of the Trade Practices Act 1974 (Cth) (‘the Act’) (now s 18 of the Australian Consumer Law).

The ACCC also contended that the respondents had falsely represented that the goods had a particular history, contravening s 53(a) of The Act. The ACCC further claimed that the respondents had misled the public as to the nature and characteristics of goods, contravening s 55.

The judgment referred in some detail to the evidence on population densities in the sheds where the broiler chickens spent their lives. The ACCC calculated that the average amount of space available to each chicken was equal to or less than the size of an A4 sheet of paper.

  • Whether the respondents had engaged in misleading or deceptive conduct by claiming that the chickens were “free to roam”, thus contravening s 52 of the Act
  • Whether the respondents had falsely represented that the chickens had a particular history, thus contravening s 53(a) of the Act
  • Whether the respondents had misled the public as to the nature or characteristics of the chickens, thus contravening s 55 of the Act
  • Whether the Federation could rely on the “media safe harbour defence” due to their being a “prescribed information provider”
  • The ordinary and natural meaning of the phrase “free to roam”
Decision and Reasons for the Decision

Contraventions of ss 52 and 53(a) of the Act

Tracey J held that the respondents had contravened ss 52 and 53(a) of the Act. His Honour found that the ACCC had made out their case and that the representation that chickens were “free to roam” in large barns was likely to mislead or deceive consumers as to the circumstances in which the chickens had been raised. Further, it was held that the respondents had promoted a “false history” of the living conditions of the chickens and so had also contravened s 53 of the Act.

Contravention of s 55 of The Act

Tracey J held, however, that the ACCC had not made out its case with regards to s 55 of the Act, which prohibits persons from engaging in conduct that is liable to mislead the public as to the nature and characteristics of goods. Tracey J held that the “free to roam” representations did not relate to the inherent qualities of the chickens themselves, with the result that there was no contravention of this particular section.

Media safe harbour

It was held that the Federation could not rely on the “media safe harbour defence” found in s 65A of the Act. Tracey J accepted that the Federation was a “prescribed information provider” and so could potentially be protected from liability by this defence. However, His Honour found that the Federation was not entitled to the defence, as the “free to roam” representation was made for the purpose of promoting the sale of chicken meat.

The meaning of “free to roam”

Tracey J concluded that the ordinary and natural meaning of “free to roam”, as understood by a significant number of hypothetical consumers, was “the largely uninhibited ability of the chickens to move around at will in an aimless manner”. In coming to his decision, his Honour undertook a review of the sheds as well as receiving evidence from both parties about the stocking densities of birds in the sheds. From the evidence his Honour concluded that the representation that the birds were “free to roam” was likely to mislead or deceive. His Honour did not accept the respondents’ contention that the reference to large barns would convey to the reader a sufficient understanding of the number and size of the chickens in the barns.

Tracey J stated that thousands of chickens were in such close proximity that very little, if any, or the floor surface could be seen. Until the numbers of birds in the sheds dropped at some point between the 33rd and 42nd days of the growth cycle, his Honour held that chickens could not be said to be free to move around the sheds at will and with a sufficient degree of unimpeded movement to justify the assertion that they were free to roam.

Significance of the Case

This case is an example of how consumer law can be indirectly invoked to improve the welfare of industrially farmed animals. It highlights the crucial role that consumers can play through their decisions to purchase particular products, and the motivations behind these decisions. The case also reinforces that entities involved in animal agriculture cannot dishonestly represent the nature of their farming methods. It is notable that any contribution consumer law makes to animal welfare is indirect; consumer law exists to protect the interests of humans in a commercial context.

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