Many people have opened their lives to the unswerving loyalty and boundless affection which only a pet dog can provide. For reasons not entirely clear even to their owners, other people have chosen to adopt a cat. As I remain stuck under various levels of restricted movement in Paris, I have faced increasing pleas from my four-legged research assistant. While he is convinced that his cries were asking for more food, I have instead decided that he asked me to consider the unique place of cats in the Australian legal landscape.
Cats on high
Where better to begin than in the High Court of Australia, where one may be surprised to learn that what we know now as the tenets of statutory interpretation could have looked considerably more furry. In Australian Timber Workers’ Union v George Hudson Ltd [1925] HCA 31; (1925) 36 CLR 431, Higgins J was tasked with analysing the terms of an award of the Commonwealth Court of Conciliation and Arbitration. In a clear nod to the Quixotic nature of both cats and complex documents, his Honour said at 438:
“There are pictures of trees in which a cat is deftly concealed. The first impression given is that there is no cat; but when one once discerns the cat, it is obvious to him for ever. So with the meaning of clause 40 (a) of this award.”
Sadly, his Honour was not in the majority and, to the eternal loss to the Australian legal landscape, the High Court have pointedly avoided reliance on feline analogies to aid in the interpretation of contractual terms. Arguably the practice of law is all the poorer for that decision.
Contemptuous cats?
It would be rare for a cat to be found anywhere other than in contempt, whether that be contempt of court, contempt of the affection shown by its owners, or just general contempt for the universe. Limiting the discussion to contempt of court, Marty the Siamese cat made an appearance in ACCC v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74.
In that case the respondents (including Allergy Pathway) were found to have breached undertakings given to the Federal Court to not make false, misleading, and deceptive representations regarding the performance of their allergy treatment products. The judgment identified various statements which breached the undertakings.
One such statement which breached Allergy Pathway’s undertakings was a testimonial on the Allergy Pathway website provided by “Melanie”. Ensuring that cats never stay far away from trouble, Melanie said:
“… I am happy to confirm that I no longer suffer from any of those reactions and we are now the proud owners of a Siamese kitten called “Marty”. We have had Marty home for one week and I have had no allergic reaction to him except initially when he found dust and cobwebs in every crevice in our house … He jumps all over me and nuzzles my neck and I have even walked around with cat fur on me! … P.S As I have been writing this testimonial, I have had to negotiate it with Marty crawling over me and the keyboard.”
Marty the cat was not called for examination as to the truthfulness of the allegations as to his behaviour. Nor was Marty subject to any investigation as to whether his actions were also in contempt of court.
The (non)existence of a right to yell at cats
In New Zealand, Heke v Police [2012] NZHC 2334 was an appeal against a finding of disorderly behaviour. The appellant’s impugned behaviour was her practice of wandering the neighbourhood at night, shouting loudly to the local stray cat population, with the aim of enticing them to come and eat food which she provided.
Priestley J considered section 4 of New Zealand’s Summary Offences Act 1981, which provided:
“4 Offensive behaviour or language
(1) Every person is liable to a fine not exceeding $1,000 who, —
(a) In or within view of any public place, behaves in an offensive or disorderly manner”
So, is informing the local stray cat population that dinner is served, behaving in an offensive or disorderly manner? Priestley J gave a thorough and detailed consideration to the development of the law of offensive behaviour (such analysis is not addressed here in detail, being as it is far too serious and reasoned to fit with the tone of this article) before asking (at [67]) the important question:
“… it is problematic whether the appellant’s right to freedom of expression arises at all. Can calling for cats constitute expressive conduct deserving s 14 protection?” (s14 refers to the New Zealand Bill of Rights Act, which provides “everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form”.)
Much turned on the content of the appellant’s calls to the cats, and whether such calls were expressions of information or opinion for purposes of the New Zealand Bill of Rights (at [75]):
“Whether calling for cats is expressive conduct for s 14 purposes, is not easily answered in the absence of any native test. Policy considerations tug strongly both ways … Care must be exercised to ensure that “expression” which has a protected status is not confused with mindless human utterances or sounds.”
The stronger tug in that case was that the calls to the stray cats did not constitute an exercise of freedom of expression. The appellant “… was not making any statements about felines, domestic or stray. Certainly she was not imparting information or opinions” (at [81]). The appellant’s conviction was upheld.
Any would-be feeders of stray cats in New Zealand should therefore be aware of the need to modulate their clarion calls so as to avoid disturbing their (human) neighbours. One alternative would be to consider whether calls to stray cats could be re-phrased to represent protected freedom of expression. From personal experience, it is difficult to justify protection under the law being extended to any discourse I have with my cat.
On cats and the herding thereof
It is common knowledge that cats can be commanded to come, to stay, and to follow a particular route. It is also common knowledge that cats will only sit, stay, or follow that route, when they actually feel like doing so. This habit has been the focus of various judgments:
- In ACCC v The Australian Medical Association Western Australia Branch Inc [2003] FCA 686, Carr J considered allegations of price fixing in the medical industry. The question of whether the doctors involved could have exercised any degree of collusive conduct must have been called into question by the evidence, where one witness said (at [221]):
“At one stage of his evidence Dr Roberts referred to representing doctors as being “like herding cats”. This was in the context of the meeting of 6 December 1995.”
- Grima v RFI (Aust) Pty Ltd [2014] NSWSC 14 had to deal with the non-attendance of a (human, not feline) witness. At [42] Harrison J sagely observed in the context of ensuring the witness’ attendance:
“Solicitors’ work is both difficult and demanding and organising witnesses to give evidence in contested proceedings in a timely and efficient way is no exception: it is not unlike herding cats.”
- In R v Dowding, Grollo & Grollo [2000] VSC 274 Teague J made clear at [34] that even the judiciary are not immune from the urge to exercise resistance to going in a set direction:
“The work of supervising people and particularly lawyers is rarely an easy task. When assessing what was done here, I am reminded of the analogous saying that trying to organise judges is akin to herding cats”
I dare not add too much commentary here, for fear of inflaming the medical and legal professions alike. I can confirm that my cat can be coaxed to follow even complex instructions, with the aid of morsels of sashimi grade salmon. I leave it to others to attempt this in their dealings with members of the esteemed professions referred to above.
Cats in trees, and the perils faced by members of the fire and rescue service
It is common knowledge that cats, when required to be at ground level, will invariably be found instead halfway up the closest tree. It may then fall to the fire and rescue service to retrieve the insubordinate feline. As such, training on the rescue of cats from trees is an essential part of the job of the rescue services.
In Carter v Chief Officer, South Australian Metropolitan Fire Service [2018] SAET 92, Mr Carter was passed over for promotion to the level of Fire Station Officer, and brought a complaint relating to the promotions process. The assessment process for promotion included a practical test covering the retrieval of a cat from a tree. The judgment records (at [41]) the scenario faced by Mr Carter in the following manner:
“The expectation was that, upon being provided with minimal initial information, the candidate would ascertain the location of the cat (the set up was intended to present the possibility that the cat could be in any one of four trees in the immediate vicinity), the cat’s exact position within the identified tree (the height being critical), how it was trapped or stuck, and what had previously been done if anything in an attempt to rescue it. There was a stuffed toy representing the “cat” in the tree, which was tied to a branch and clearly visible once pointed out.”
I accept that the use of a stuffed, rather than a real, cat makes this decision borderline unsuitable for this considered assessment of the interaction of cats and the law.
Using words which should be treated as being of general application when dealing with felines, the Fire Service testing panel (at [91]) took the view of Mr Carter’s performance in rescuing cats from trees that:
“… to develop an action plan without ascertaining the specific location of the cat was a fundamental flaw”
Mr Carter appealed this decision to pass him over for promotion, but was unsuccessful in his appeal (see Carter v Chief Officer, South Australian Metropolitan Fire Service [2019] SAET 236). The appeal decision goes into a truly delightful level of detail on the various processes available for the extraction of cats from trees. At [92] the decision identified a matter of immense practicality to any would-be, but unqualified, cat rescuers:
“Work from a ladder that involves reaching out and grabbing an animal, and possibly carrying that animal (a cat or a container holding a cat) down the ladder involves creating unnecessary risk of serious injury to a fire fighter”
The judgment dealt also (at [124]) with an examination of the likely expectations of cat owners when seeking to have their precious murder bundle rescued from a tree:
“Community expectations that a portable ladder be used, or a cat owner’s distress at their cat being stuck up a tree for two days with a demand for something to be done ‘now’, or management’s reluctance to use available appropriate SAMFS resources, cannot validly make use of the CAPA [This refers to a Combination Aerial Pumping Appliance, a fire vehicle with an extendable platform from which fires are fought] reasonably impracticable”
For those eager to understand the decision making and risk assessment process involved in the extraction of recalcitrant cats from trees, this judgment makes for fine reading.
And finally – sign off from a cat family
It is sometimes the case that the most obscure of jurisdictions yield the most florid of prose. The decision from the Australian Coal Industry Tribunal in The Australian Coal and Shale Employees’ Federation and J & A Brown and Abermain Seaham Collieries Limited [1949] ACIndT 633 referred to the tribunal member visiting a mine site for the purpose of conducting a review. The decision refers at pages 13-14 to a following delightful description of a subterranean cat family:
“I have had available to me a comprehensive note which’ not only includes the essentials but also records the interesting, if irrelevant, information that in the depths of Bellbird colliery “a cat with kittens saluted the party in the usual feline way””
That seems an eminently appropriate place in which to end this meander.
Philip Gledson - Sydney Barrister 