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Legal History |
SIMON SMITH[*]
Constance May Bienvenu (1912-1995) was a passionate animal welfare activist. She was also the fifth person declared as a vexatious litigant by the Victorian Supreme Court (1969) and the first woman declared by the High Court (1971). In the 1960s Bienvenu led a reform group that challenged for control of a conservative RSPCA (Victoria). Though unsuccessful, there were significant consequences from the legal challenges. This article explores the passion and extraordinary determination of Bienvenu and her supporters. It traces the responses of a conservative RSPCA and its legal advisers struggling to maintain the status quo and notes the unintentional consequences of involving the legal system in community disputes. Finally, by tracing Bienvenu’s determination to secure substantive reform, this article demonstrates the challenge self represented activism presents to a legal system more comfortable with arcane procedures and legal form.
Constance May Bienvenu (1912-1995) was a passionate animal welfare activist. In the 1960s she led a reform group that challenged for control of a conservative Royal Society for the Prevention of Cruelty to Animals of Victoria (RSPCA). Though unsuccessful, there were significant consequences from the unsuccessful legal challenges. In 1968 the Victorian Parliament was forced to pass retrospective validating legislation to remove legal uncertainty about the structure and operations of the RSPCA back to 1895. This included some democratic reforms. Secondly, having been excluded from active involvement and membership in the RSPCA, Bienvenu and her supporters set about recasting the Victorian animal welfare landscape by establishing a new ‘hands on’ organization, the Australian Animal Protection Society. Finally, Bienvenu’s litigious battles in the Victorian Supreme and High Courts resulted in both courts declaring her a vexatious litigant. She was only the seventh Australian (and fourth woman) in forty years to be barred from issuing future legal proceedings without first obtaining the leave of the court. She was also the first woman declared in the High Court and the second person to achieve the ‘double’ declaration. A decade after her declaration she prompted further legislative reform, this time to the vexatious sanction itself, when she challenged its ‘draconic’ life sentence nature.
This article explores the passion and extraordinary determination of Bienvenu and her supporters. It traces the responses of a conservative RSPCA and its legal advisers struggling to maintain the status quo and the unintentional consequences of involving the legal system in community disputes. It also reveals for the first time the active role of an anonymous adviser ‘Mr X’ in encouraging Bienvenu’s legal struggle with the RSPCA after 1967. Disillusioned with her legal advisers before that date, Bienvenu was a receptive participant in the legal strategies proposed by ‘Mr X’. This article also notes the forces of the traditional establishment arraigned against her and the challenge that activism, reform movements and self-representation present to a legal system more comfortable with arcane procedures and legal form than the substance of a reform struggle.
In seeking to understand the determination, even obsession, of Bienvenu with her cause it is important to have an understanding of the forces that established and sustained the early animal protection movement. Historically, the Australian movement finds its roots in the cause espoused by the English social reformers of the 19th Century. There, in 1822, Richard Martin MP assisted by anti slavery advocate William Wilberforce MP had steered through the English Parliament the first legislation to protect farm animals.[1] Two years later, in 1824, they with the Rev Arthur Broome, were instrumental in the formation of a charity to promote and enforce the law. This was the Society for the Protection of Cruelty to Animals (SPCA).[2] Nearly fifty years later the movement reached the Australian colonies when in 1871, in Melbourne, the Victorian Society for the Prevention of Cruelty to Animals (VSPCA) was established.[3]
The view of Jennifer MacCulloch is that in the 19th century, the cause of animal protection operated as an umbrella term in which a number of social processes such as education and health reform, religion, law, philanthropy and the role of women were accommodated. The language used reflected those motivations with emphasis on compassion, love and kindness. Supporters were mainly conservative, middle class urban men and women with an interest in social reform. They were not, however, extreme in their views and the use of the term cruelty was selective. Meat was eaten, furs were worn and animals generally viewed as being for the benefit of humans. The theme was amelioration of systemic animal cruelty rather than total abolition. The latter would be a focus of the Animal Rights movement that emerged toward the end of the 20th century.[4]
By the twentieth century the dynamics of the animal protection movement had altered. This reflected the changing place of animals in the workplace. As society industrialised, the role of the working animal changed and thus its exposure to cruelty was reduced. The car and the bus took over from the horse as transport and the tractor replaced the horse drawn plough. This saw a shift in focus towards pets and domestic animals and a greater emphasis on animal welfare. As the cause lost its appeal for men the consequent feminisation of the movement began with women playing leading, even dominant roles in running and funding the movement.[5]
In 1950s post World War II Melbourne, in common with other cities, animal protection had become something supported by government but effectively under policed. There was support through legislation but it was more value as a symbol of good faith than a reflection of an active response to a pressing political issue.[6] Responsibility for delivery of services and promotion of the cause was instead shared between three main Melbourne based charities: the Lost Dogs Home (estab.1910),[7] the Animal Welfare League (AWL: established1927) that ran the Lort Smith Animal Hospital (established 1936)[8] and by the then renamed Royal Society for the Protection of Cruelty to Animals (RSPCA).[9] While they shared the workload, the determined nature of the personalities involved such as Mrs Louisa Lort Smith and Dame Mabel Brookes,[10] meant they found it difficult to cooperate. Sources of disagreement, even dispute, were responsibility for an after hours service, methods of animal transport and slaughter and styles of lobbying on anti cruelty issues.[11]
The RSPCA saw itself as the senior animal protection agency and the one most recognised by government. It was the one with vice regal patronage. There was a conservative, even self-congratulatory confidence in its performance. In theory, it had the wider remit with a focus beyond domestic animals and a role to initiate prosecutions for cruelty. In reality, it was a modest operation. There was a 2-person ambulance service and a three-person inspectorate that investigated instances of alleged cruelty and put down maltreated, neglected and ill animals. There was also a small fulltime secretariat that handled both administrative matters and a modest schools educational programme.[12] As an organization it eschewed overt campaigning for reform preferring quiet lobbying. Not for it the ‘fanatical’ public meetings convened by the Anti- Cruelty committee of the AWL.[13]
RSPCA governance was through an honorary committee. Determinedly male with a cap on women members set at six,[14] it was drawn from religious, professional, police and retired military classes.[15] It met monthly to review finances and set policy but left administration and implementation to the fulltime Secretary, the formidable Miss Victoria Ethelberta Carter (1900–1991).[16] For its part, the variable membership of a few hundred to a thousand was more in the nature of silent financial support. Kept at a distance from any ‘hands on’ engagement, they received for their subscriptions, regular newsletters and an invitation to the Annual General Meeting.
This was the animal welfare landscape that Constance Bienvenu encountered when invited by a friend to attend her first RSPCA Annual Meeting in 1959. It shocked her:
I went along with interest but was very much surprised that none of the officers of the Society placed any concrete plans before the members (NOTE: The Annual General Meeting is the ONLY general meeting held in a year). I was conscious of the animals in the circuses, in rodeos, in stock transports, in scientific research, in traps crying out silently for human voices to speak out for them. Some people tried to speak but they were silenced. However, after the ‘officers’ of the Society had made congratulatory remarks to each other, tea and scones were served. I could only think that this was wasted time and that instead of politely enjoying the refreshments, the time would have been more profitably spent on seeking ways to combat existing cruelties, as the members would not be together again for another twelve months.[17]
At the meeting Bienvenu had tried to speak on topics of banning live bird trap shooting and improved cooperation between ‘sister’ societies but had received a non-committal response. For her, the experience was a catalyst for reform activism. For Victoria Carter, it was a dark omen. Henceforth, Carter’s approach would be to repel all boarders.[18]
As an urban child born in 1912, Constance May Bienvenu nee’ Wilmott, encountered the usual array of domestic animals of the time; cats, dogs, rabbits etc. One of three children, she grew up in South Melbourne where her father managed some horse stables for a shipping company. She would later say that her interest in animal welfare was first kindled ‘when, as a girl of seven she startled a wagon owner with her vehement protests over his treatment of a horse’.[19] Her passion grew from then.
To the immediate family her early adulthood was unremarkable and showed no indication of her later activism. She was employed in sales and secretarial positions with the Myer Emporium and then marriage in 1937 to self-taught engineer Albert (Ben) Henry Bienvenu. In 1943, the couple started a small general engineering works in South Melbourne. It was named Wellcome Products, a play on their French based surname. Having no children, the Bienvenu’s devoted themselves to the business. One of the major items they made and distributed to local councils throughout Australia, in those pre microchip times, was registration tags for animals, especially dogs.[20] Constance Bienvenu’s other interest was animal welfare.
During the 1950s, she had assumed formal positions in the animal welfare world when she became Honorary Secretary to the Committee for World Animal Week (Victorian Division) and the Combined Animal Welfare Organisations of Victoria. [21] The major activity of World Animal Week was promotion of ‘education in kindness to animals’ through a publicity week in the October of every year. This involved distribution of self printed leaflets and posters to schools featuring Australian fauna and iconic images such as ‘Simpson and his Donkey’.[22] For over twenty years Bienvenu ran this from the South Melbourne business and appears to have been its main force and provider of funds.
For its part, the Combined Animal Welfare Organisations of Victoria (CAWO) was a loose umbrella group of eleven animal welfare associations formed in this period to campaign on anti-cruelty issues.[23] A key advocate, friend and supporter of Bienvenu, was Reverend L L Elliott, the chairman of the Anti Cruelty Committee of the AWL.[24] Predictably, the conservative RSPCA had declined to associate with the CAWO.[25]
Not long after the 1959 AGM, Bienvenu had her first conflict with Carter, by now the public face of the RSPCA.[26] Significantly, it was over posters, educational initiatives that both women organised. For a number of years Carter had organised the RSPCA poster competition for school children.[27] In December 1959 she learnt that Bienvenu had retained children’s posters sent to her in error. As a result the posters missed being considered for the annual prize and had caused the RSPCA, and Carter in particular, embarrassment.[28]
Thereafter, the momentum of Bienvenu’s correspondence and general engagement with the RSPCA grew steadily.[29] Although it would be four years before she launched her first legal proceedings she showed increasing frustration with the RSPCA and they with her. At no stage did they seek to bring her ‘into the tent’. Instead, her focus and that of her supporters, increasingly turned to reform of the RSPCA. An early 1960 skirmish was Bienvenu’s request to Carter, just prior to the AGM, for information on voting procedures. She was promptly rebuffed. Writing on CAWO letterhead, Bienvenu complained immediately to the President:
A polite request was made by the writer today by telephone to the RSPCA in which nomination forms for your committee were asked for if available, and if not available, the date which nominations close. Miss Carter who answered the telephone, said that nominations were closed. On asking the date on which they closed, Miss Carter on the grounds that I was not a member, refused to tell me. It seems rather odd that such a matter is kept secret.[30]
The President sent two letters in reply. The first outlined membership and electoral procedures but made it clear that the RSPCA controlled who could come to the AGM and who could speak.[31] The second was undoubtedly ghosted by Carter and locked the Committee squarely behind her. It advised that the Committee
expressed its genuine regret at the clash of personalities between you and Miss Carter – particularly as you are both unselfishly devoted to a common cause – it strongly affirmed its complete confidence in our Secretary’s fidelity to the Society’s objects, her work as our Secretary, and her zeal to promote the interests of animals.[32]
Voices of dissent next erupted following the 1962 AGM when the President closed the meeting without allowing questions. ‘There is no question time on the agenda’ and ‘When you become a member of this Society you are bound by its rules’ was his blunt response to two members who had wanted to discuss the ill treatment of poddy calves in Gippsland. They felt ‘gagged’.[33] Carter’s unsympathetic follow-up action was to seek advice from the Society’s solicitor, Roy Schilling, on how the committee could expel troublesome members. He advised that there was no specific power in the By-Laws and it would be necessary to follow the common law rules relating to natural justice.[34]
By 1963, a letter and leaflet campaign to reform the RSPCA had gained momentum and spilt over into the public arena.[35] Bienvenu, by this time a paid up member of the RSPCA,[36] personalised the campaign when she was quoted in the Herald as saying ‘Carter should be censured severely for condoning use of animals in experimental laboratories’ and that the RSPCA was ‘wealthy but won’t use its money’.[37] Public Notices appeared in the press that announced the formation of a six person ‘RSPCA Reform Committee’. Led by Bienvenu it called upon RSPCA members to support a ‘MORE ACTIVE POLICY’ and to vote for them at the forthcoming AGM.[38] Bienvenu’s passion shone through when she was quoted saying:
An animal revolution is in progress throughout the world. It will be the same type of revolution, which put an end to child labor last century only this time it will be the animals, which will benefit.[39]
Beneath the rhetoric she outlined proposals for a 24 hour veterinary service; more money for direct animal welfare; small clinics placed strategically throughout Victoria (attended by voluntary veterinarians) and greater public education. The RSPCA committee immediately countered with a notice saying that the group were ‘self appointed and has no recognition by nor status under the Society’.[40] It also distributed a three page circular letter to members mounting a vigorous defence of its position. It made clear its view, although somewhat defensively, whose support was superior:
The Society is proud to enjoy the confidence of the Government of Victoria, Victoria Police, the Graziers Association, the Fisheries and Wildlife Department, the Departments of Health and Agriculture, the Victorian Dairy Farmers Association, Meat and Allied Trades Federation and many of the Shires and Councils in Victoria.[41]
The 1963 AGM was a public relations disaster for the RSPCA. Critics heckle RSPCA Chief,[42] RSPCA chief heckled,[43] and Look Out! The Animals are in revolt[44] were just some of the headlines over the next few days. The scenes at the meeting had, however, confirmed Carter’s resolve to ‘rid ourselves of such people as members’ and she set about ensuring that proposed new By-Laws included exclusion powers as existed in the English RSPCA rules.[45] For its part the RSPCA committee still failed to understand the depth of feeling against them and focussed instead on ‘fully examining (the) possibility of action being taken re the recent attack made upon the Society by certain members’ and considered that ‘it was important to ascertain who constituted the group “Combined Animal Welfare Organisations”’.[46] They made no moves to review their policy direction.
The meeting was also a failure for Bienvenu and the Reform Group. Although a fairly close contest,[47] not one of their candidates was elected. Bienvenu believed the election to be unfair, even unethical, as ballot papers had been marked to indicate retiring committee members, presumably to their advantage.[48] To support her view she had requested a copy of the Society’s list of contributing members as marked off by the Returning Officer on Election Day. It was refused.[49] The RSPCA had won that round.
Undeterred by this setback Bienvenu had then thrown herself into campaigning before a further reform attempt at the 1964 AGM. Through the press she called for better conditions and supervision of long haul cattle trucks;[50] reproved the RSPCA for approving ‘Buckjumping’ rodeos at the Royal Show[51] and criticised as ‘disgusting’ the fact that Victoria was ten years behind a New South Wales ban on live hare coursing.[52] She also continued to tackle the RSPCA head on. She wrote complaining about the failure of the Society to respond promptly to a call to attend an injured dog;[53] their failure to invite her as an RSPCA member to the annual Children’s Poster Exhibition, ‘no doubt an oversight by the Secretary’[54] and was persistent in seeking copies of the Society’s unpublished Balance Sheets for 1960/61 to 1962/1963.[55]
The continuation of the reform campaign became public news again in June 1964 when Bienvenu wrote to the Herald foreshadowing that the Reform Committee would again nominate and that ‘it would require that the ballot be conducted in a fair and unbiased way, and that the reform committee be given their rights under the of the society’.[56] Lady Gwenda Manifold,[57] a doyen of the establishment immediately rebuked her: ‘surely Mrs Bienvenu might better assist the aim of the society with helpful support (through fundraising), than with uncalled-for criticism’.[58] Not to be silenced so easily Bienvenu responded referring to the pre-marked ballots at the 1963 election and noting the fact that for some years there had not been a full committee, asking ‘Why there is such urgency being displayed by some members to divert the normal process of change in committee membership by fair election?’[59] Ominously for the RSPCA, it was confirmation that Bienvenu had become a student of the RSPCA By-Laws.
This time around the Reform Committee ran a fuller campaign and distributed a thirteen-page information booklet. It claimed credit for improved financial reporting by the RSPCA; analysed past annual reports and provided profiles of its ten candidates, Bienvenu and the Reverend L L Green included. There was also detailed plans on how they would proceed if elected including the holding of more general meetings for ‘open discussion and formulation of policy’; more prosecutions for cruelty and the promise that funds would be ‘released immediately for an all out war on cruelty’.[60]
To ensure the widest circulation of the manifesto amongst the membership, Bienvenu requested a list of RSPCA subscribers.[61] She was advised that she could view it at the AGM[62] effectively giving the incumbent committee full and sole prior access to the membership in the forthcoming contest. By this time Bienvenu’s study of the By-Laws had revealed that Carter was wrong in advertising seven vacancies rather than twelve and was improperly curtailing the hours the poll was to be open. From the 1963 elections she also held reservations about the integrity of the ballot papers. These facts suggested an unfair, even undemocratic, election and she sought legal advice from Gillott, Moir and Ahern, Solicitors. After checking with her husband that Bienvenu was a person of means and could pay their bill, on the 25th August 1964, just seven days before the AGM, the Solicitors wrote to Carter saying:
Unless the Society is prepared to cancel the present proposed poll and conduct one in accordance with the requirements of the Hospital and Charities Act and the Society’s By-Laws, our instructions are to apply to the Supreme Court for an injunction to retrain [sic] the proposed poll next Monday.[63]
Defiantly, Carter wrote back that same day ‘The Society denies the validity of your client’s contention and will resist the proceedings threatened.’ She advised that Roy Schilling and Co had been authorised to accept service.[64] The decision to defend appears to have been made without reference to the committee.[65]
Three days later, Sholl J granted Bienvenu, as an RSPCA member, an interlocutory injunction stopping the election of the General Committee until the RSPCA complied with the procedures under the Hospital and Charities Act 1958. He was dissatisfied with certain of the By-Laws and said it ‘was a matter of importance that the Committee should be validly elected’.[66] Against this troubled background the RSPCA proceeded with the scheduled AGM on the 31 August 1964. Once more it was a public relations disaster with two and a half hours of heated arguments, interjections and continual heckling. Only limited business was transacted, mainly release of the Annual Report and the election of office-bearers. Newspaper reports the next day referred to Snaps, Snarls, Growls Provide Theme for RSPCA Talk,[67] and RSPCA Uproar as Speakers Clash. [68]
On 12 October, 1964, having satisfied the necessary electoral rules, the AGM reconvened to finalise the election of the General Committee. Again, it was a disappointment for Bienvenu and the Reform Committee. They were comprehensively defeated by 600 votes to 289, for all 12 committee positions.[69] However, issues relating to the work of the RSPCA were not discussed, the President ruling that the Society was still before the court and they ‘would have to be brought up again at the next annual meeting or at a general meeting’.[70] Round two to the RSPCA Committee.
In 1965, the battleground became the By-Laws. For different reasons Bienvenu and the Committee had an interest in them. Even before Sholl J’s comments had created legal uncertainty the committee had commenced a rewrite of the 1943 By-Laws, amongst other things, to include a power to expel troublesome members.[71] For Bienvenu the focus was on securing rules that ensured a fair electoral process. For her that was the road to wider RSPCA reform. To bring that about she gathered signatures from twenty subscribers and petitioned Carter on 30 March 1964 for a Special General Meeting. Its purpose was to adopt By-Laws that mandated election processes as set out by the Hospitals and Charities Act 1958. On 1 April, the irony of the date no doubt not lost on her, Carter totally rejected the request, stating that Bienvenu had ‘misinterpreted’ the By-Laws upon which she relied. She did however indicate that a complete re-draft had been prepared by Roy Schilling and would shortly come before a Special General Meeting for confirmation.[72] At the same time Carter again sought urgent legal advice, this time from Schilling’s partner Alan Missen,[73] on how to expel Bienvenu. In providing his advice his comments indicated a certain partisanship: ‘We feel that this expulsion should have been contemplated long before this.’[74] The Committee thought differently, deciding that it was ‘inexpedient to take action at this time’.[75]
The disclosure that there was a new set of By-Laws in the pipeline alarmed Bienvenu. She saw that voting on the By-Laws would take place before the next AGM and would most likely pre-empt her efforts at democratic reform and entrench unfair electoral processes. In particular, her examination of the proposed By-Laws showed that names but not addresses of subscribers would only be available through the new public register. To Bienvenu this:
placed unfair and unwarranted power into the hands of the existing Committee to post out any policy they wish to state, or any belittling propaganda about those who criticised the administration. This is a totalitarian method.[76]
Also, the proposed By-Laws gave the committee power to make ‘any regulation they liked, good or bad, regarding the conduct of elections’. To Bienvenu, the committee was ‘BULLDOZING’ through the 43 altered By Laws. They had to be stopped.[77]
With the Special General Meeting set for 25 May 1965, Bienvenu again consulted Gillott, Moir and Ahern. Despite a warning letter, the Society declined to postpone the meeting and on the 24 May 1965, new interlocutory proceedings (No 1720 of 1965) came before the Supreme Court. Relying on the 1943 By-Laws, Bienvenu’s counsel Mr Otto Strauss challenged the confirmation and electoral process and sought an injunction. However, Winneke CJ,[78] unlike Sholl J in the 1964 proceedings, saw no irregularities in the democratic process being followed and declined to grant the injunction. Accordingly, the meeting proceeded and the new By-Laws confirmed, despite ‘continuous interruptions’ by Bienvenu and Reverend Elliott.[79]
It would later become significant that the court dealt with two matters that morning. Apparently, without objection, Chief Justice Winneke had earlier dismissed the dormant 1964 proceedings (No 3256 of 1964) for want of prosecution. Although present at the back of the court Bienvenu would later claim she had not been consulted on that step and indeed at that stage did not know that there had been two legal proceedings on foot. In her view as a layperson, the 1965 hearing was simply a further part of the 1964 proceedings. This event would loom large in her later claims of professional negligence and conspiracy amongst lawyers.[80]
A few days later, with the second proceedings now adjourned and waiting a trial date, Bienvenu made a conciliatory gesture to the Society. Through her lawyers she offered first, to withdraw ‘on the basis that each party pay its own costs in both actions’. Missen, for the Society, rejected this immediately.[81] As an alternative, it was suggested that the matter be allowed to proceed with the Society agreeing not to seek any further order for costs. Gillotts suggested that this reflected the Society’s expressed view that ‘it now feels essential that it should have the courts ruling on the validity of the by-laws’.[82] This too was rejected upon advice of the Society’s counsel, Voumard QC and his junior Ivor Greenwood. Voumard QC advised that the Society should assume the By-Laws are valid and ‘should not proceed to explore the position at law’.[83] The assumption apparently was that so pressured, Bienvenu would concede and the problem would go away.
The Society having chosen to reject possible solutions, President Beattie also sought to ensure there was solidarity amongst the committee. At their meeting on the 15 June 1965 they spent considerable time discussing why committee member Mr N Allen had recently declined to formally second the new By-Laws confirmation motion. Here, it was known that Allen had an association with Bienvenu through her World Animal Week poster programme.[84] After pressing Allen on whether he had any ongoing concerns, the President closed the discussion but not before pointedly noting ‘that it was very important for all members of the committee to be in agreement on this matter’.[85]
Her peace offer having been rebuffed Bienvenu set about researching with new urgency the origins and validity of the By-Laws. Through the rest of 1965 and into 1966 she spent enormous amounts of time researching in the La Trobe Library,[86] making enquiries of the Attorney General,[87] the Minister for Health,[88] and even the Governor.[89] This caused exchanges of correspondence between government departments about the ‘breakaway group’ and saw tension develop between the Society and the Hospital and Charities Commission (HCC), the ostensible supervising authority.[90] By then it was becoming clear that when the Society first incorporated as a charity in 1895 (on the advice of then committeeman and honorary Counsel Hon. Alfred Deakin), the provisions of the Hospital and Charities Act 1890, required that By-Laws be confirmed and then published in the Government Gazette. Bienvenu could find no gazettal and nor could the Society.[91] But what did that mean?
By May, 1966 with another AGM looming, Bienvenu had become concerned that the case had not been heard and went to see her Solicitor at Gillotts, Mr A E O’Connor. She was surprised to learn that he was in Canada on leave and Mr A F (Tony) Smith was now acting for her. For the first time she learnt there had been two legal actions issued but Smith was unclear why the 1964 action had been dismissed. Though ‘far from happy’ Bienvenu ‘believed that what she was doing was right’ and now armed with what she clearly saw as a silver bullet, namely the non-gazettal of the original By-Laws, she insisted on amendments to the Statement of Claim to incorporate the point.[92]
Responding, the Society made two major points in their formal Defence. They raised an estoppel argument. How could Bienvenu now say there were no valid rules when she had relied on them in the 1964 litigation? Secondly, if there were no valid rules then she could not be a member and thus had no locus standi in the action.[93] By adopting such a defensive position the Society was closing off any discussion on reform of its electoral processes. At the same time their determinedness to see off Bienvenu and her supporters made it clear that they and presumably, their legal advisers, did not give full consideration to the wider legal implications for the Society of their line of defence actually being successful.
With pleadings closed the matter moved slowly towards a hearing but not before yet another fiery AGM. For two and half hours the meeting debated a series of motions put forward by Bienvenu and supporters. They canvassed the suffering of Brumbies, a call for intensive educational campaign on the speying of female dogs, refusal of membership to ‘horse slaughterers’ and a ban on the excessive flogging of racehorses. At times the meeting bubbled over and Bienvenu was accused of making ‘stupid suggestions’ to which she replied evenly ‘I would have hoped that the gentlemen in this meeting would have been able to control themselves to the extent of not making such remarks about ladies present.’[94] However, it was progress of sorts. Only four years earlier the AGM had been closed down without allowing questions at all.
Shortly thereafter on 16 September 1966, the case came on for hearing. It was a false start. It had been listed before Oliver Gillard J who ‘laughingly declined to hear the matter because he stated that he had been connected with the RSPCA some years prior’.[95] In fact he had been a member of the committee and joint architect of the 1943 By-Laws.[96] Bienvenu bore the cost of this adjournment, adding to her growing disenchantment with lawyers. The case would not be heard that year.
VII A LEGAL BOMBSHELL: RSPCA IN A ‘TANGLE’ AND LEGISLATIVE REFORM
Bienvenu’s long awaited ‘day in court’ came on 2 February 1967 but not before an unsettled start. At the last moment her chosen counsel Ashkanasy QC had dropped out and was replaced by the unknown (to her) Richard Searby.[97] For 3 days Searby and Otto Strauss argued the case before Starke J taking evidence from Bienvenu and her supporters such as Muriel Danilov, Alan Green and her sister Nance Simonds. More supporters sat in the public gallery. For the Society, Aiken QC and Haddon Storey[98] relied on Carter and former President and co-author of the 1943 By-Laws, Phillip Ettelson.[99]
On 9 March 1967 Starke J dropped his bombshell. He accepted that the Society had been without valid By-Laws since 1895. Bienvenu had been right! However, as a result there were no office bearers or contributors, including her. Therefore, she had no locus standi to bring the action. Further, she was estopped from succeeding as having relied on the by-Laws in the 1964 proceedings, she could not now seek advantage by saying they did not exist. He said: ‘I cannot conceive of a clearer case of blowing hot and cold.’[100] Having accepted the narrow legal points he went on to say: ‘There are various other matters argued before me but in view of the conclusions I have reached it is unnecessary to determine them.’[101] He thus dismissed Bienvenu’s attempts through the courts, to reform the Society’s electoral processes. As if to rub salt into the wounds, and what would subsequently be a major point of grievance, he awarded costs against her.[102]
The next day the decision was front-page news. Invalid since 1895. Judge decides RSPCA has no legal basis,[103] Court Ruling has RSPCA in a Tangle[104] and Does the RSPCA exist?[105] read the headlines. It was a cartoonist’s delight with both WEG and JEFF making the most of the opportunity.[106] Both parties explained their positions through the press. RSPCA Goes on with Job[107] and RSPCA is Still “Operating” – Secretary[108] explained Carter. Tangles with RSPCA cost $3000[109] said Bienvenu. Sensing an opportunity, the Reform Group moved to fill the void created by the ruling. With Bienvenu and Rev L L Green at the fore they petitioned the Hospital and Charities Commission to reconstitute the 1895 ‘Victorian Society for the Prevention of Cruelty to Animals’ by accepting them as the valid body. To garner support they distributed a letter addressed ‘Dear fellow member of the legally non-existent RSPCA (Victoria)’ outlining that the eventual aim of the reform was to ‘unlock a portion of the amount of money at present held (over $400,000) for immediate aid to animals’.[110] The President of the RSPCA (NSW) was quoted in support: ‘Your “Bombshell” as outlined in the press relative to the Victorian RSPCA, will bring some headaches to many people and it is hoped bring about some much needed reforms – congratulations on your courage and sincerity.’[111]
To head this off and ensure the Society was seen as the legitimate body, Carter successfully sought support from established friends.[112] Responding directly to government the Graziers Association of Victoria counselled that ‘it would be an ill-service to animals and to the livestock industry if control of the RSPCA should pass into more emotional and less responsible hands’.[113] Murray Byrne MLC was concerned that a ‘bogus body can, in circulars, attempt to misrepresent an organisation which, despite some legal friction, has carried out the work of a respected and honourable body’[114] and the Lost Dogs Home considered ‘that the work of animal protection in Victoria would suffer if the status of the RSPCA should be altered’.[115] Missen also lobbied heavily for the Society noting that ‘Its elected committee (whether technically elected, irregularly or otherwise) is composed of well known citizens of the highest repute, who are actuated by no other than philanthropic motives’. He urged rejection of the Petition.[116]
In this heated environment the Petition went nowhere as the Commission elected to await the opinion of the Crown Solicitor.[117] There was however, little doubt where the sympathies of some in government lay with Chief Secretary Rylah opining ‘With regard to the Interim Reform Committee this would seem to have little standing as far as I know and there seems little doubt that it is inspired by interests which have been carrying out a private war against the Government as well as the RSPCA for some time.’[118]
For the Society, the solution lay with the government. This followed the advice of Aikin QC that they could not appeal as they had won! He noted that the court had not ruled on the merits of the Bienvenu dispute and recommended an approach to the government for a legislative solution.[119] Consequently, in May 1967, Missen forwarded a ten-page submission to the government outlining the views of the Society.[120] Three months later, Bienvenu made her own lengthy submission direct to Premier Bolte and other Ministers. Showing the wordy style that would characterise her later legal documentation, it ran for eight pages with numerous under-linings for emphasis. In five appendices she outlined the main complaints against the RSPCA and the evidence supporting them. They were:
On the other side, as part of her on going lobbying, Carter gave wide circulation to the specially produced 96th Annual Report (1966-67). Her covering letter to subscribers explained the ‘technical breach’ of 1895, the expectation of remedial legislation and rather provocatively referred to:
the war of attrition which has been so sedulously carried on by a handful of people styling themselves “Reform Committee” over the past six years. The distraction and waste of time and money involved has been widely deplored.[122]
Her covering letter to Parliamentarians was more circumspect. It referred simply to the ‘interesting contents’ of the frontispiece and the wish that the report was ‘helpful’ when considering the forthcoming legislative measures designed to ‘regularise’ the 1895 technical ‘omission’.[123] Bienvenu took immediate objection to the Annual Report, particularly the inclusion of a letter that referred to the Reform Committee ‘robbing the RSPCA’. To her that was libellous and she sought its withdrawal and apology. Through Gillotts she indicated she was considering ‘further proceedings’.[124] Carter did not apologise and Bienvenu did not sue. Nor, however, did it signal an end to hostilities. It was a phoney peace.
In November 1967, Attorney General Reid agreed to a legislative fix. He suggested a separate Act of Parliament that would retrospectively validate the RSPCA to 1895. It need not come under the supervision of the Hospital and Charities Commission. The Act would include a set of By Laws, most likely the 1965 ones, but should not include the contentious provisions of inspection of membership lists and postal voting. The Parliamentary Draftsman would be available to confer with the RSPCA and ‘to any groups interested’.[125] The Society took immediate objection to the exclusion of postal voting provisions that would disenfranchise many of the membership and place the Society at risk to ‘any unscrupulous or irresponsible group to sign up sufficient members and pack a meeting to obtain a small majority’.[126] Reid was less concerned. Noting that Bienvenu and supporters had taken successful legal action and that there was a genuine difference of opinion over elections it was ‘most undesirable for Parliament to resolve internal disputes in societies such as the RSPCA’. He suggested further discussions be with the Parliamentary draftsman.[127]
By March 1968 discussions between the parties had advanced, although sticking points remained. One was the By-Law amendment procedure. The Society was concerned about takeover. Unless agreement was reached on their preference for a tight procedure, the Society proposed to send a deputation to the Chief Secretary and Premier.[128] Missen was already showing his skill as political brinks man. Eventually, in April 1968, Reid introduced the validating Bill.[129] He acknowledged the incorporation of a number of Bienvenu’s representations including the right for members to inspect the full members register.[130] Other Parliamentarians also recognised the reforming role played by Bienvenu and others to make the RSPCA ‘a more active and effective organisation’.[131] Although persistent, she was ‘not a vexatious litigant’.[132] They were prophetic words.
On 11 May 1968 the Bill passed the Legislative Council.[133] The RSPCA was lawful again.
New By-Law six had been a ‘sleeper’ during the parliamentary debate. It gave the committee power to reject, refuse to renew or cancel any membership upon being satisfied:
6(a)(i) that the person concerned has made or caused to be made or published false, unfair, extravagant, fraudulent, derogatory or harmful statements concerning the Society or its activities or its General Committee, Office Bearers or Staff in the performance of their duties.
By virtue of paragraph 6(c) an aggrieved member could ‘request’ the Committee to appoint an Arbitrator from the Law Institute or Victorian Bar but no legal representation was to be allowed. Costs could be awarded. Importantly, it gave the power to control appeals to the Committee.[134]
The Committee wasted no time invoking the By-Law. Another AGM was approaching and the concern was to avert takeover by any reform group. At lunchtime on 28 June 1968 they ‘unanimously’ rejected the membership applications of Bienvenu and her husband. They relied on the presentation of a report from Missen. Bienvenu and her husband were not invited to attend nor ever told the factual basis of the rejection.[135] Roy Schilling’s 1962 advice on the rules of natural justice in such matters was overlooked.
Over the next few weeks, the Committee rejected a further eighteen applications including Bet Hardy, Muriel Danilov, Nance Simonds, Allan Green and Joan Richmond.[136] The approach of the Society quickly spilled into the public arena[137] and brought Carter a rebuke from Reid:
Some severe public criticism may be made to the effect that the Society has been somewhat oppressive in rejecting the applications of Mrs Bienvenu and other members in her position. I bring this matter to your notice at this stage since I understand that the annual meeting of the Society takes place on Friday next and you may wish to take the opportunity of reconsidering the decision of your committee.[138]
Following the 1968 AGM, which ‘took place in a spirit of harmony’, Carter responded defending the decisions, noting firmly that the ‘Society is confident that it can amply justify the action taken.’[139] Reid replied almost angrily, saying that he did not feel able to answer the suggestions that Bienvenu and her supporters had been ‘shabbily’ treated. He advised Carter that unless the applications were reconsidered ‘I will be submitting legislation to Parliament to establish their rights to membership of the Society’.[140] The Society responded saying it was ‘shocked’ and would view such a step as ‘the grossest form of interference with the internal management of this society’.[141] Then in December, Carter defiantly advised that the Committee had ‘unanimously’ decided not to reconsider the applications or submit them to arbitration.[142] Reid took no further action. The Society had stared him down. It was also the end of the Reform Group’s attempts to change the RSPCA. Bienvenu’s campaign would now move to a different arena.
During the struggle over membership, the Society had moved further on the offensive and had started to pursue Bienvenu for payment of the $3308.11 court costs. Rather surprisingly, Gillotts appear not to have advised Bienvenu to appeal the costs order. Instead, they accepted the traditional view that ‘costs follow the event’ and only tried to minimise the amount by reviewing the Taxing Masters order. Understandably, Bienvenu did not appreciate the distinction between these two review paths and was shocked when Gowans J, at the urging of RSPCA barrister Haddon Storey, dismissed her appeal. He ruled:
Whether or not it was within power, or a proper exercise of discretion, to order the plaintiff to pay costs for which the defendant was not liable was not raised before the learned trial judge, and was not a matter the Taxing Master could consider or which can be debated on a review of his taxation. It is now a matter for appeal alone.[143]
In Bienvenu’s eyes this was another technical decision, not fairness, and understandably, compounded her growing lack of confidence in her lawyers. Her disappointment is clear from entries in a surviving diary from that time:
It seems so strange to me that whilst I have only fought for the general good of the Society and its members, justice in the matter fails to reach me every time[144]
and:
Today my heart is heavy. Have all my efforts over the past nine years gone for nought? Why is it that, if one is truthful, honourable & works for the good of other creatures or other human beings, with no thought of gain for oneself, the odds seems stacked against one?[145]
Then, as publicity raged around this latest case, including a call for a public inquiry into the RSPCA,[146] an offer of help from an unexpected source. On 29 July 1968 Bienvenu took a telephone call from a man who would be the inspiration for her legal activities for the next two years. In her words:
Anonymous man with legal knowledge and who loves dogs has spent some hours talking to me on the telephone endeavouring to try and find some point of legal weakness in RSPCA case to help me. He has given me some very sound advice, but the long telephone conversation tires me (2 hours this morning and 2½ hours this afternoon).[147]
For the next year at least, when the diary entries finish, Bienvenu received 83 calls and spent hundreds of hours taking advice and dictated instruction from this anonymous man whom she variously described as ‘Mr X’, ‘Councillor’ [sic] and ‘Adviser’. He encouraged her to study law by buying books on contract, tort and the Supreme Court rules.[148] He also advised of her right to inspect Supreme Court files and to obtain the Gillott’s file. After reading court files at the Prothonatory’s office she noted ‘I have read through them and gather the impression that I have not been represented by my Solicitors as well as I could.’[149] The examination of the Gillotts file confirmed the impression: ‘I am afraid any belief or confidence I had in Solicitors is fading.’[150] This, together with her recent discovery that RSPCA President Beattie had been struck off the Solicitor Rolls in New Zealand in 1932 for professional negligence, further lowered her opinion of lawyers and the standing of people opposed to her at the RSPCA.[151]
Stirred on by Mr X her view hardened that Gillott’s had gone beyond tardiness in the conduct of the litigation. They had been negligent. Not only had they failed to protect her interests but they had been too close, even conspired with the other lawyers. Certainly her discovery of a letter before action to Schillings from her solicitor A E O’Connor confirmed that view. Sent immediately prior to the 1965 proceedings it said ‘We are giving you this prior notice in case it is of some assistance to you in any action you may wish to take regarding this matter’. Bienvenu’s interpretation was that this was the green light for Schillings to have the 1964 matter struck out without her knowledge thus causing her to lose before Starke J.[152]
On Mr X’s advice she dismissed her lawyers[153] and on 27 September 1968 issued her own Supreme Court writ (3572 of 1968) against Winneke, Smith and Gillotts claiming $32,000 damages under causes of action described as ‘actionable wrongs and breaches of contract’. Over the next fourteen months she issued a further seven Writs together with supporting affidavits and other documentation. Winneke, Smith and Gillotts are regularly named defendants but as the conspiracy argument took hold the list of defendants widened, peaking at 32 in one Writ in November 1969. They included broadcasters, judges and senior lawyers such as Keith Aikin, Norman Banks, W A Beattie, Victoria Carter, A E O’Connor, Phillip Ettleson, Alan Missen, Basil Murray, the RSPCA, Roy Schilling, Richard Searby, Haddon Storey, Otto Strauss, and Sir Henry Winneke. Although she continued to argue that the court should review the decision of Starke J, the causes of action also broadened and escalated in their stridency. They included ‘intimidation, conspiracy and infamous conduct’, ‘obtaining judgement by fraud’, ‘infamous professional conduct and defamation’ and ‘malicious publication of false and defamatory statements’. All the proceedings, save the first where a default judgement was set aside and then dismissed, was either struck out as hopeless, groundless, vexatious, an abuse of the process of the court or just lapsed. Costs were always awarded against Bienvenu.[154]
Running in tandem with this litigation was the bankruptcy proceedings started by the Society.[155] Although the formal bankruptcy order was made in August 1969 the RSPCA never recovered any costs. Instead, the proceedings provided Bienvenu with opportunities and federal forums, mainly the High Court, still located in Melbourne, to challenge previous judgments and restate her case. It unleashed a torrent of letters to officials and judges, applications, cross applications, and appeals most with lengthy supporting affidavits sworn by Bienvenu. A consistent theme was that the order for costs was not effective because Starke J found that there were no members or properly appointed officers of the RSPCA capable of collecting the costs. Thus she argued a Bankruptcy could not be founded upon it and nor did the validating RSPCA Act make good that defect.[156]
Named defendants were mainly connected to the RSPCA, most of the cases being appeals from the Bankruptcy proceedings. Increasingly, they include the suite of defendants named in the Supreme Court, High Court Registrars and politicians such as Attorney General Tom Hughes, as the cases made their way on appeal. Here again the documentation was dictated mostly by Mr X, and typed by Bienvenu, often into the early hours of the morning.[157] She then filed personally at the court registries where she met varying assistance from the counter staff. For example, ‘One of the clerks, one who takes the money and stamps the documents is a perfect pig of a man.’[158]
Bienvenu appeared for herself. In her diary she recalled a particular appearance in March 1969 when Gibbs J heard her challenges to both the Bankruptcy Notice and the Creditors Petition:
B Day (Bankruptcy Court)
Today was one to be remembered. Although I felt I would be unable to carry out my part up till the time I was seated at the Bar table in the Bankruptcy Court (I had been rather overawed by all the wigs and gowns of the barristers in the proceeding cases). Suddenly, I felt different somehow that inner peace reached me. And I was able to go on. Eileen Allen, Muriel Danilov, Betty Hardy, Nance and Sylvia Simonds and Ben were in court to support me. I was very happy when each one said I had carried out my task very well. The decision was reserved. Mr Justice Gibbs was very nice to me and I feel like he is fair judge. Mr Storey Barrister (my opposition) was in wig and gown. But I had a pretty lipstick pink suit and my hair done nicely & I felt assured in my appearance.[159]
By August 1971 she had issued 14 applications in the High Court. All were unsuccessful with the court refusing to review the decision of Starke J.[160] Throughout, although she appeared to have never discovered his identity,[161] she retained confidence in Mr X. ‘He is an interesting man.’[162] ‘He is a most brilliant man. Amazing memory and extremely well read.’[163] It is Bienvenu who had the self-doubt. ‘Very depressed today. Should I go on with legal battle. Am I a (fool) for accepting advice from someone whose name and address I do not know? Can I possibly win when all seems stacked against me?’[164] In the end it is her friends who provide the support. She noted in her diary: ‘What should I do? I am not a stupid or vexatious person, I only seek justice. Bet Hardy is absolutely wonderful. She is doing everything in the world to help.’ [165]
While the legal activity dominated her waking hours Bienvenu sought to lead as normal a life as possible. Her campaigning and family life simply merged with her affidavit typing and filing of documents. One day she issued a Supreme Court Writ and the next day she went to see Dame Janet Baker sing, ‘It was really wonderful’.[166] On another day she had a Taxing Masters appointment and then a meeting with Senator Mulvihill over presentation of a Petition opposing the export of Kangaroo meat.[167] She also continued to write protest letters to the papers,[168] baked and creamed twenty-four sponges in a day for a fundraiser[169] and found time to celebrate her birthday. ‘Ben and I had dinner at the RACV and went to see “Bedazzled”. Very poor show. But nice day generally.’[170]
However, her opponents had had enough of the legal battles. They moved to close her down.
In December 1969, the Victorian Government moved to invoke Section 33 of the Supreme Court Act 1958 against Bienvenu.[171] Inserted into the Act in 1928[172] the section empowered the court to declare a person vexatious once satisfied that they had ‘habitually and persistently and without reasonable ground instituted vexatious legal proceedings’. Once declared as a vexatious litigant that person must have the prior permission of the Court if they want to issue new proceedings. The Section gave the Attorney General the sole standing to initiate the application and it was with some irony that the task fell to Reid, who had provided support to Bienvenu in the parliamentary debates over the RSPCA legislation.
However, for Bienvenu, this was another suspect legal manoeuvre. Her research for the case discovered that the original 1927 Supreme Court (Vexatious Actions) Bill had been withdrawn by the Attorney General of the time and had never been presented again. How then could it be law? In her responding Affidavit she made her view clear. The section had ‘been illegally and fraudulently inserted in and printed as part of the Supreme Court Acts from time to time by various printers while the said printers were employed by the Government of the State of Victoria’. Then, for her, in uncharacteristic prose and suggestive of a change of adviser, ‘That the said section 33 is a fraudulent political device and gimmick of the obnoxious Establishment for the unlawful suppression of persons who refuse to be cravenly subservient to the Establishment.’[173]
Bienvenu had a point. There was something unusual, but not illegal, about the passage of the section. In 1928, in the hurry to enact the provision, the Bill had not been reintroduced. The Parliament had simply adopted in full the 1896 English equivalent as part of the 1928 Consolidation. This was an arcane point of legislative drafting that would both bewilder and fuel the conspiracy theories of more than one vexatious litigant.[174]
On 12 December 1969, in her absence, Gillard J declared her vexatious. She was the fifth person declared in Victoria since 1930. Unfortunately, for the Government, loose drafting of the order required a further court hearing in February 1970 to insert the word ‘such’ in the appropriate spot. This gave Bienvenu the opportunity to object to Gillard J’s involvement on the basis of bias. She had recalled that his prior RSPCA involvement had seen him stand down from hearing the ‘1965’ litigation. He was not as sensitive to perceptions this time and did not agree. It added further fuel to the conspiracy fire.[175] Her appeal to the High Court was dismissed on 25 February 1970.[176]
By this time most of Bienvenu’s litigation had progressed to the federal jurisdiction of either the Bankruptcy or High Court. Around February 1970, she started receiving advice from a second ‘Adviser’. He had approached her in the legal book section of the Public Library of Victoria and offered to ‘help me draw up legal documents’. An ‘expert’ in constitutional law he had purchased the law library of the former High Court, Chief Justice, Sir John Latham. Identified only as ‘Mr G Collins (alias Mr George)’,[177] research by the author makes it clear that this was Goldsmith Collins, former Fitzroy champion footballer of the 1920’s whose own legal battles had seen him declared as the first vexatious litigant in the High Court in 1952[178] and the third by the Victorian Supreme Court in 1953.[179] Indeed, legal legend confirms that Sir John Latham, an enthusiastic Fitzroy supporter, did in fact sell Collins his law library ‘at a very modest price.’[180]
An indicator of Collins involvement was the Bienvenu writ issued by Frank Jones, then Deputy Registrar of the Principal Registry, on the direction of Barwick CJ, naming Jones and the Principal Registrar Neil Gamble as defendants. The cause of action was that Gamble and Jones had conspired to deny Bienvenu her constitutional rights by refusing to supply her free of charge with a copy of the Constitution. Although dismissed by the Full Court it was modelled on the only successful court action Collins achieved when he has successfully sued the Northcote City Council. In the early 1950s they had failed in their statutory duty to supply him with a copy of the Council By-Laws.[181]
For the next few months Collins appears to have actively inserted himself into Bienvenu’s litigation. Certainly, there is an abrupt shift in the language used in the documents filed that is entirely consistent with Collins style of closely typed documents liberally strewn with emphasis and epithets bordering on invective. The sudden change to ‘scurrilous and intemperate language’ was even noticed by the judiciary.[182] For example the heading of a Notice filed in the Bankruptcy proceedings was worded:
BANKRUPTCY DISTRICT OF THE BOGUS No. “945” 1968
STATE OF VICTORIA
IN THE MATTER OF THE MANIFEST CRIMINALITY
FRAUDULENT MALPRACTICE INFLICTED ON ME,
CONSTANCE MAY BIENVENU, PARTICULARY
RE THE TREACHEROUSLY FRAUDULENT BOGUS
“BANKRUPTCY NOTICE” AND ALL OTHER
NECESSARILY CORRUPT ENSUING MALICIOUS
ATROCITY ACTS THERON THERAFTER
RE: BOGUS NONENTITY “ROYAL SOCIETY FOR THE
PREVENTION OF CRUELTY TO ANIMALS’ AND
THE MANIFESTLY FICTITIOUS NONENTITY
“OFFICE BEARERS” FRAUDULENTLY PURPORTING
MALICIOUSLY SCURRIOUSLY CRIMINALLY LIBEL
AND TO DEFAME ME AND TREACHEROUSLY INJURE
ME IN THE SAID “BANKRUPTCY NOTICE” DATED
4TH DECEMBER 1968
N O T I C E
TAKE VERY PARTICULAR NOTICE that I am now fully satisfied after ...’[183]
Suddenly ‘Mr George’ is gone and not to be found. Attempts to adjourn cases he was involved in so presumably she had access to further guidance, fail.[184] It appears that Bienvenu never made the connection that Collins was a declared vexatious litigant.[185] It seems unlikely that he was also ‘Mr X’.
By October 1970 a frustrated RSPCA was urging Missen to petition the Commonwealth Parliament to have Bienvenu declared vexatious in the High Court. Responding to Carter, Missen explained that a petition would neither be appropriate or wise as such requests are essentially political. He advised that his friend Ivor Greenwood (and RSPCA junior counsel in the 1964 litigation), now a Senator, was pressing the Attorney General for action. He urged that Committee members lobby ‘influential members’ to pressure the Attorney.[186] Showing the extent of his own conservative network he lobbied his local member and future parliamentary colleague, Andrew Peacock MHR.[187]
In February 1971, Crown Solicitor Hutchison finally made application to have Bienvenu declared vexatious under Order 63 Rule 6 of the High Court Rules. To demonstrate that she had been ‘unreasonably instituting vexatious proceedings’ he referred to her having taken fourteen unsuccessful actions in the High Court in the past two years. The matter was not heard until October 1971, by which time in another neat shift of positions, Greenwood had become Attorney General. Although Bienvenu made a preliminary application to have it struck out for ‘unwarranted delay’ and also challenged the validity of Order 63, she made no reference to perceived conflict or bias of the Chief Law Officer having regard to his prior involvement in the RSPCA case or his friendship with Missen. Barwick CJ dismissed the application. He said the: ‘rule is made in pursuance of the rule making power of the court which is ample to sustain it and not in conflict with any constitutional or statutory provision. In my opinion the rule is valid’.[188]
The case finally came before Walsh J a few days later. Material filed in Bienvenu’s defence reviewed the history of the RSPCA litigation and drew on Australian history to explain her position. The ‘Commonwealth of Australia seeks to gag me by placing legal restrictions and legal obstacles in my way and barring me from free access to the Courts by branding me a vexatious litigant and thus making me an outlaw like Ned Kelly’.[189] On 19 October 1971 Bienvenu made history of sorts when she became the first woman declared vexatious by the High Court.[190] Ironically, she joined Goldsmith Collins as only the second Australian (then) to have been declared vexatious by two superior courts
Even as the litigation cycle drew to a close the minds of Bienvenu and supporters had turned to another way of advancing the animal welfare cause. If the RSPCA could not accommodate them then they would establish their own Society. Bienvenu had taken tentative steps in May 1969 when she had registered the words ‘Animal Protection’ as a business name and, at the suggestion of her ‘Adviser’, publicly advertised ‘Free advice and assistance on animal welfare and cruelty complaints’.[191] In April 1970, Carter was alerted to this development by a ‘deep throat’ asking to remain anonymous. The informant advised that a group calling themselves ‘Animal Protection Society’ was setting up a company and although her name would not appear as one of the original subscribers, Bienvenu was the convenor. The writer suggested ‘one of the reasons for the adoption of this name is a long plan term plan to subvert public support for the RSPCA’.[192]
Missen immediately objected to the Official Receiver, suggesting Bienvenu as a bankrupt, should not be ‘using funds for this purpose’.[193] It was of no effect. In October 1971 Bet Hardy convened the first meeting of the Australian Animal Protection Society (AAPS) at the Malvern library and became its pioneering President. Active supporters (and fellow excluded RSPCA members) were Muriel Danilov, Joan Richmond, Bienvenu and her sister Nance Simonds. For many years after Bienvenu and her sister would be the nucleus of the Malvern Auxiliary that ran a fundraising shop that also served as early committee rooms.[194] Over the next 30 years the growth of the AAPS represented a significant recasting of the animal welfare landscape in Victoria. It developed a network of Auxiliaries through out Melbourne, provided accessible shelter for unwanted animals and cost effective Veterinary services. It participated in animal welfare policymaking and a provided a ‘welcome mat’ for volunteers wanting to be actively involved in the care of animals.[195] The RSPCA’s loss was animal welfare’s gain.
Nor was it only in Victoria that Bienvenu’s influence was felt. In 1964 in South Australia, a kindred spirit, Joy Richardson had established the very successful Animal Welfare League and directly attributed its success to the inspiration and support provided by Bienvenu. Writing an open letter of support in 1970, Richardson explained that in 1959 she had written for help after being rebuffed by the local RSPCA. ‘I can never forget her spontaneous response – Not by vicious word or thought, of which I have her incapable, but she carted to me, free of any charge, her wonderful Animal Kindness and Educational leaflets.’[196]
The wheel was turning also for Carter and the RSPCA. After a decade of dealing with the challenge of the Reform Group there was belated recognition within the RSPCA that change was needed. Key to this was the arrival on the Committee in 1969 of future President Hugh Wirth and the retirement of Carter. The ‘unhappy but necessary departure’ occurred at the end of 1975.[197] Thereafter, the RSPCA set a proactive course. The Committee regenerated with younger progressive members more in tune with the times, restructured governance into active committees, rebuilt funding, membership and public relations and perhaps most significantly, initiated the Kindred Societies Liaison Committee ‘to bring together the proliferation of satellite animal welfare groups launched in Victoria during the RSPCA’s Carter era’.[198] Years later, long time RSPCA President Hugh Wirth would say that Bienvenu had been ‘more right than wrong’ and had been a catalyst for change.[199]
After 1971, Bienvenu’s life was quieter. She returned to work at Wellcome Products, her activism limited to caring for animals left at her front door,[200] writing letters of protest to the papers[201] and voluntary work with the AAPS. In 1977 she was discharged from bankruptcy without having paid the RSPCA anything, her husband having successfully established equity in her real estate.[202] However, in 1982 she returned to court for one last tilt, seeking to have the 1969 vexatious order of Gillard J set aside or revoked. She argued that he had erred in not assigning Counsel to her as required by Section 33 (2). Crockett J gave the argument short shrift. She should have asked at the time and in any event, it was an appeal point and out of time! An unintended consequence was that it did create new law with Crockett finding that the court had an inherent power to bring such orders to an end, if appropriate. In his view Parliament would not have intended it to be so ‘draconic’ as to be an effective life sentence. Nonetheless, he declined to make a revocation order although indicating that if the application was in the proper form it would be considered.[203] She took it no further. In what could be called the ‘Bienvenu amendment’ Parliament gave statutory recognition to the revocation option in 1986.[204]
Survived by her supportive husband Ben and sister Nance, Bienvenu died at Melbourne in 1995 aged 83 and was cremated. A short obituary in the AAPS newsletter said ‘This lady was a great friend to the Society and indeed to all animal welfare. Her fight for justice and fair play years ago in animal welfare is well known to many and she will be greatly missed.’[205] Ben died in 2000 and through his estate established the Albert and Constance Bienvenu Foundation for charitable purposes. It was a condition of his Will that no donations be made to the RSPCA.[206]
In the forty years since Constance Bienvenu first did battle with the RSPCA it now common ground that she was ahead of her time. Her vision for an active and interventionist animal welfare system is now recognised. Not least of all, her fight gave rise to a more democratic, accountable and active RSPCA. It is also clear that she was not alone in the struggle, either in Victoria or interstate, although it was her determination that drove the campaign for over a decade when others, less determined, would have wilted.[207] In Victoria Carter MBE, she came up against a woman who was equally determined that her conservative vision for animal welfare was the correct one. It is clear that they did not like each other. Indeed, had Carter and the RSPCA Committee been less defensive perhaps Bienvenu’s recourse to litigation might have been avoided and some reform achieved.
However, it was the inability of the legal system to provide solutions to help advance Bienvenu’s reform agenda that saw the litigation veer off in its own direction sweeping others up in its unintended consequences. In retrospect, Bienvenu and the RSPCA were not well served by their lawyers. Bienvenu’s were too loose in their conduct of the case while the lawyers for the RSPCA became personally involved to the point of clouding their professional judgment. However, it was the 1967 judgment of Starke J, focussing as it did on narrow legal points and not the underlying dispute that acted as the catalyst for her break from her lawyers. It was exacerbated by his harsh exercise of discretion to award full costs against Bienvenu. Had he not done that a major focus of continuing grievance would have been eliminated.
Not surprisingly the combination of passion for her cause together with her disappointment with the legal profession made her easy prey for a ‘Good Samaritan’ in the form of the mysterious ‘Mr X’. The extraordinary thing is that were two such ‘Advisers’ at play at various times and that at no time did the court or others involved, appear to recognise that there was an invisible hand guiding the litigation. This reflects the difficulty the adversarial legal system has, unlike the European inquisitorial system, of actively enquiring into disputes, relying as it does on procedures, form and professional advocacy to get to the core of a dispute.
One of the great ironies is of course that Bienvenu kept returning to the court looking for that elusive ‘justice’ after being rebuffed time and again. This almost blind faith is of course what distinguishes the vexatious from the ordinary litigant. The positive aspect of this is best summed up in the words of George Bernard Shaw:
The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man (Source: Man and Superman (1903) ‘Maxims: Fame’).[208]
[*] B Juris LLM (Monash).
[1] Cruel Treatment of Animals Act 1822 3 Geo IV c 71 1824.
[2] It obtained the Royal warrant in 1840. See further Antony Brown, Who Cares for Animals (1974) 12-21, and Barbara Pertzel, For All Creatures: A History of the RSPCA Victoria (2006) 3.
[3] Pertzel, above n 2, 5.
[4] See generally Jennifer MacCulloch. ‘Creatures of Culture: The Protection and Preservation Movement in Sydney 1880-1930’ (unpublished Doctor of Philosophy thesis, Library, University of Sydney, 1993).
[5] In her comprehensive study of the Sydney based New South Wales RSPCA McCulloch provides an extensive gender analysis of the reasons for and impact of the feminisation of the movement. See further McCulloch, above n 4, Chapter 2. See also Lyle Munro, ‘Caring about Blood, Flesh, and Pain: Women’s Standing in the Animal Protection Movement’ (2001) 9 Society and Animals 43.
[6] McCulloch, above n 4, 3.
[7] http://www.dogshome.com/aboutus (25 January 2007).
[8] See generally Felicity Jack, The Kindness of Strangers: A History of the Lort Smith Animal Hospital (2003).
[9] Since 1871 there have been three major name changes for the Victorian Society. The second change to Victorian Society for the Protection of Animals (VSPA) occurred circa 1913. In 1955, the grant of a Royal warrant saw a further change to the Royal Society for the Prevention of Cruelty to Animals (RSPCA). See further Pertzel, above n 2, 35 and 97.
[10] Lort Smith was an influential figure with both the AWL and RSPCA although she fell out with the latter. See further Heather Ronald, ‘Lort Smith, Louisa Eleanor (1875-1956)’ (2000) 15 Australian Dictionary of Biography 125; Jack, above n 8, 13-14 and Pertzel, above n 2, 99. Brookes was a formidable charity worker and President of the AWL. See Jack, above n 8, 12; J Poynter, ‘Brookes, Dame Mabel Balcombe (1890-1975)’ (1993) 13 Australian Dictionary of Biography 265-267.
[11] Pertzel, above n 2, Chapters 15-17.
[12] Pertzel, above n 2, Chapter 15.
[13] Pertzel, above n 2, 103.
[14] By-Law 4 of the 1943 edition reads inter alia: ‘All members of the general committee shall be contributing members and not more than six of them may be women’ RSPCA (Vic) Burwood.
[15] For example in 1963-64 the 14 members of the General Committee included, the Dean of Melbourne, two Generals, one Policeman, two Veterinarians, one Architect, one Doctor and one Lawyer. There were two women members. See Annual Report RSPCA (1963-64) 1.
[16] She was appointed to the salaried staff in 1944. Awarded an MBE in 1966 she retired in 1975. See Pertzel, above n 2, 136-137.
[17] Bienvenu to Richardson, January 1971, Miscellanious 2 Bienvenu, RSPCA (Vic), Burwood East. Unless otherwise stated this file and other RSPCA (Vic) files referred to are located at the Society’s Burwood East premises.
[18] Benvenu to Kennedy, 15 August, 1960, By-Laws (Continued) File 2.
[19] David Dark, ‘Look out! The animals are in revolt’, Truth, 31 August 1963.
[20] His description of the Bienvenu family background drawn from interviews with Graeme Bienvenu dated 2 and 12 March, 2006 and Nance Simonds dated 4 May and 28 July 2006. See also NAA: B160, 327/1969 Parts 1 and 2, Affidavit of Albert Henry Bienvenu, sworn 29 April, 1970.
[21] Bienvenu to Kennedy, 15 August 1960, Miscellanious Documents – Bienvenu Literature and Bienvenu to Secretary, 18 October 1962, By-Laws (Continued) File 2.
[22] Bienvenu to Richardson, January 1971, Miscellanious 2 Bienvenu. Examples of the posters are located in NAA: A10074, 1970/6. See also interview with Jim Hagekyriakou dated 1 March 2007.
[23] See Dark, above n 19.
[24] Jack, above n 8, 212.
[25] Pertzel, above n 2, 106.
[26] Pertzel, above n 2, 112.
[27] Despite her enthusiastic support for it since 1945 the Poster competition was not a major success having regard to the effort expended. See Pertzel, above n 2, 112.
[28] Committee Minutes of the Royal Society for the Prevention of Cruelty to Animals 1, 21 December 1959, 320. Unless otherwise stated further reference to the Society’s Minutes and their location will be in short form See also Pertzel, above n 2, 121.
[29] In February 1960 she complained to the RSPCA over the treatment of animals at Ashton’s circus. See CMRSPCA 1, 15 February 1960, 324. In 1962 she complained about RSPCA endorsement of chariot races at the Royal Agricultural Show being ‘not in keeping with efforts to promote kindness to animals’. See Bienvenu to Secretary, By-Laws (Continued) File 2, 8 October 1962.
[30] Bienvenu to Kennedy, 15 August 1960, Miscellanious Documents – Bienvenu Literature.
[31] Kennedy to Bienvenu, 23 August 1960, Miscellanious Documents – Bienvenu Literature.
[32] See Carter to Kennedy, 24 September 1960 enclosing draft letter and Kennedy to Bienvenu, 14 October 1960, Miscellanious Documents – Bienvenu Literature. See also Pertzel, above n 3, 121.
[33] ‘RSPCA meeting gagging charge’, Sun, 31 August 1962, 13.
[34] Roy Schilling and Co to Carter, 19 November 1962, By-Laws (Continued) File 2.
[35] See for example Letter to the Editor of L Cranfield, ‘Treatment of Animals,’ Age, 27 July 1963, 2.
[36] She joined with her husband. See further Annual Report RSPCA (1962-63) 23. See also Pertzel, above n 2, 121 and ‘Woman’s Bid to Join RSPCA Rejected’, Age, 2 July 1968, 3.
[37] CMRSPCA 1, 17 June 1963, 423, RSPCA (Vic), Burwood and Pertzel, above n 2, 121-122.
[38] Herald, 21 August 1963. See also ‘Group Challenge to Reorganise RSPCA’, Age, 22 August 1963, 8.
[39] Dark, above n 19.
[40] Herald, 21 August 1963.
[41] By-Laws (Continued) File 2.
[42] Age, 27 August 1963.
[43] Sun, 27 August 1963.
[44] Dark, above n 19.
[45] Carter to Schilling, 2 September 1963, By-Laws (Continued) File 2. In responding to Carter’s letter about the Australian developments the Chief Secretary of the RSPCA (UK) expressed sympathy and advised ‘practically all that you mention in your letter had its exact parallel in similar unhappy proceedings at our own Extraordinary and Annual General Meetings in 1961’. See Hall to Carter, 9 November 1963, By-Laws (Continued) File 2.
[46] CMRSPCA 1, 17 September 1963, 431.
[47] The reform group received 216 votes and the RSPCA candidates 350. See Bienvenu to Richardson, January 1971, Miscellanious 2 Bienvenu.
[48] Dark, above n 19.
[49] CMRSPCA 1, 17 September 1963, 431. See also Ettelson to Carter, 5 September 1963, By-Laws (Continued) File 2.
[50] ‘Here’s an Answer to Animal Cruelty’, Herald, 21 February 1964, 52.
[51] ‘Buckjumping at Royal Show’, Age, 5 August 1964, 2. See also ‘The Cruelty behind Rodeos’, Age, 7 August 1964, 2.
[52] ‘Victoria’s Lag on Coursing “Disgusting”’, Herald, 19 August 1964, 18.
[53] Bienvenu to Ettelson, 15 March 1964, By-Laws (Continued) File 2. See also CMRSPCA 1, 13 April 1964, 450.
[54] Bienvenu to RSPCA Committee, 12 May 1964, By-Laws (Continued) File 2.
[55] Bienvenu to President, 8 June 1964, By-Laws (Continued) File 2. responding to the criticism in 1964 they were published in the Annual Report in line ‘with the modern trend in publishing accounts’. See Annual Report RSPCA, (1963-1964) 29.
[56] ‘RSPCA ballot’, Herald, 18 June 1964, 4.
[57] nee’ Grimwade, she was the wife of Sir Chester Manifold, grazier and racing administrator. See Andrew Lemon, ‘Manifold, Sir Thomas Chester (1897-1979)’ (2000) 15 Australian Dictionary of Biography 296-297.
[58] ‘RSPCA Ballot’, Herald, 25 June 1964, 4.
[59] Ibid.
[60] ‘To members of the RSPCA : The Case for the Reform Committee’, Miscellanious Documents – Bienvenu Literature.
[61] Bienvenu to Secretary RSPCA, 27 July 1964, By-Laws (Continued) File 2.
[62] CMRSPCA 2, 10 August 1964, 462.
[63] Bienvenu to Richardson, January 1971, Miscellanious 2 Bienvenu. See also By-Laws (Continued) File 2.
[64] Carter to Gillot Moir and Ahern, 25 August 1964, By-Laws (Continued) File 2.
[65] An examination of the committee minutes makes no reference to any discussion or ratification of the decision.
[66] ‘RSPCA ballot stopped’, Sun, 29 August 1962, 9. See also PROV, VPRS 6345/P0, Unit 310, submission from Roy Schilling and Co to Chief Secretary of Victoria dated 23 May 1967, paragraph 2.
[67] Age, 1 September 1964, 3.
[68] Sun, 1 September 1964, 3.
[69] ‘All returned in RSPCA’, Age, 13 October 1964.
[70] ‘All quiet again RSPCA: Committee returned’, Sun, 13 October 1964, 18.
[71] In 1964, the Society’s Solicitor Roy Schilling was authorised to prepare a new constitution on the understanding that appropriate fees would be charged. See CMRSPCA 1, 13 April 1964, 17 September 1963, 450.
[72] Carter to Bienvenu, 1 April 1965, By-Laws (Continued) File 2.
[73] From this point Missen takes a key role in providing legal advice to the RSPCA. In 1974 he entered federal parliament as a liberal Senator for Victoria. See further Anton Hermann, Alan Missen: Liberal Pilgrim: A Biography (1993).
[74] Schilling and Co to President, 7 April 1965, By-Laws (Continued) File 2.
[75] CMRSPCA 2, 22 April 1965, 483.
[76] Bienvenu to Richardson, January 1971, Miscellanious 2 Bienvenu.
[77] Ibid.
[78] Michael Winneke, the son of the Chief Justice, was by now a partner in the law firm acting for Bienvenu. In due course, Bienvenu would see this familial link as part of a wider conspiracy by the legal profession.
[79] The result (including postal votes) was 612 in favour 64 against. See Annual Report RSPCA, (1964-1965) 3 and Pertzel, above n 2, 124.
[80] This description of events drawn from Bienvenu to Richardson, January 1971, Miscellanious 2 Bienvenu, and PROV, VPRS 6345/P0, Unit 310, submission from Roy Schilling and Co to Chief Secretary of Victoria dated 23 May 1967, paragraphs 2 and 3.
[81] See Gillott, Moir and Ahern to Roy Schilling and Co, 28 May 1965, By-Laws (Continued) File 2 and CMRSPCA 2, 15 June 1965, 488.
[82] Gillott, Moir and Ahern to Roy Schilling and Co, 28 May 1965, By-Laws (Continued) File 2
[83] CMRSPCA 2, 28 June 1965, 492.
[84] Bienvenu to RSPCA, 12 May 1964, By-Laws (Continued) File 2.
[85] CMRSPCA 2, 15 June 1965, 488.
[86] Bienvenu to Richardson, January 1971, Miscellanious 2 Bienvenu.
[87] PROV, VPRS 6345/P0, Unit 310, 26 May 1966.
[88] Ibid 3 June 1966.
[89] Ibid 7 September 1966.
[90] As early as 1947 there had been doubt that the Society came under the supervising remit of the then Charities Commission. An opinion provided by the then Crown Solicitor, Frank Menzies, concluded that they did. See PROV, VPRS 6345/P0, Unit 310, Menzies to Secretary, Department of Health, 18 July 1947,
[91] PROV, VPRS 6345/P0, Unit 310, Carter to Secretary, Hospital and Charities Commission, 20 July 1966.
[92] Bienvenu to Richardson, January 1971, Miscellanious 2 Bienvenu.
[93] PROV, VPRS 6345/P0, Unit 310, submission from Roy Schilling and Co to Chief Secretary of Victoria dated 23 May 1967, paragraphs 2 and 3
[94] Transcript of 95th Annual General Meeting held 31 August 1966, By-Laws (Continued) File 2.
[95] Bienvenu to Richardson, January 1971, Miscellanious 2 Bienvenu.
[96] Pertzel, above n 2, 204 and CMVPSA 6, 21 August 1943.
[97] Interview with Richard Searby, Melbourne, 13 February 2007.
[98] Storey would later serve as Victorian Attorney-General in a liberal party government in the period 1978-1992.
[99] Bienvenu to Richardson, January 1971, Miscellanious 2 Bienvenu.
[100] Bienvenu v Royal Society for Protection of Animals [1967] VicRp 74; [1967] VR 656, 664.
[101] Bienvenu v Royal Society for Protection of Animals [1967] 665.
[102] Bienvenu v Royal Society for Protection of Animals [1967] 665.
[103] Age, 10 February 1967, 1.
[104] Herald, 9 March 1967, 1.
[105] Australian, 10 March 1967.
[106] See for example ‘Jeff and the RSPCA Tangle’, Sun, 10 March 1967, 27 and ‘Weg’s Day’, Herald, 10 March 1967.
[107] Age, 13 March 1967.
[108] Herald, 11 March 1967.
[109] Age, 10 March 1967.
[110] PROV, VPRS 6345/P0, Unit 310, Bienvenu to Secretary, Hospital and Charities Commission, 21 March 1967 and Elliott to Dear Fellow Member, April 1967. See also ‘RSPCA row see – saws by mail’, Herald, 18 April 1967 and ‘Clash over RSPCA Reform Move’, Herald, 24 June 1967.
[111] PROV, VPRS 6345/P0, Unit 310, Carberry to Bienvenu, 13 March 1967.
[112] For a summary of sources of support see Annual Report RSPCA (1967) 2-3.
[113] PROV, VPRS 6345/P0, Unit 310, Secretary to Rylah, 12 May 1967.
[114] Ibid, Byrne to Rylah, 4 May 1967.
[115] Ibid, Sallman to Rylah, 12 May 1967.
[116] Ibid, Schilling and Co to Commissioner of Health and Charities Commission 14 June 1967.
[117] Ibid, McLellan to Dickie, 19 June 1967. In May 1968, the Minister for Health formally decided against recommending acceptance of the Petition. See PROV, VPRS 6345/P0, Unit 310, Rogan to Lindell, 30 May 1968.
[118] PROV, VPRS 6345/P0, Unit 310, Rylah to Byrne, 5 May 1967.
[119] Aikin Opinion dated 14 March 1967 located as attachment at CMRSPCA 2, 10 April 1967, 543.
[120] PROV, VPRS 6345/P0, Unit 310, submission from Roy Schilling and Co to Chief Secretary of Victoria dated 23 May 1967. See also ‘Making RSPCA “Legal”’, Sun, 4 April 1968 and ‘Govt. Acts to make the RSPCA Legal’, Age, 4 April 1968.
[121] PROV, VPRS 6345/P0, Unit 310, Bienvenu to Bolte, 25 August 1967.
[122] Carter to Dear Sir/Madam, 31 August 1967, By-Laws (Continued) File 2.
[123] Carter to Dear Sir, 14 September 1967, By-Laws (Continued) File 2.
[124] Gillott, Moir &Winneke to Carter, 3 October 1967, By-Laws (Continued) File 2.
[125] Reid to Roy Schilling and Co, 3 November 1967, Attorney-General (G O Reid MLA) re By-Laws File.
[126] Roy Schilling and Co to Reid, 9 November 1967, Attorney-General (G O Reid MLA) re By-Laws File.
[127] Reid to Roy Schilling and Co, 16 November 1967, Attorney-General (GO Reid MLA) re By-Laws File.
[128] Roy Schilling and Co to Reid, 19 March 1968, located in MBRSPCA 2.
[129] See ‘Making RSPCA Legal’, Sun, 4 April 1968 and ‘Govt Acts to make RSPCA Legal’, Age, 4 April 1968.
[130] Victoria, Parliamentary Debates, Legislative Assembly, 3 April 1968, 4039.
[131] Ibid, 30 April 1968, 4511
[132] Ibid, 30 April 1968, 4510.
[133] Ibid, 1 May 1968, 4598. See also Royal Society for the Prevention of Cruelty to Animals 1968 Act (Vic).
[134] See Schedule to Royal Society for the Prevention of Cruelty to Animals Act 1968 (Vic).
[135] CMRSPCA, 28 June 1968, 578.
[136] See undated list on RSPCA letterhead in By-Laws (Continued) File 2.
[137] ‘Woman’s Bid to Join RSPCA Rejected’, Age, 2 July 1968, 3 and ‘Refusing Entry to RSPCA’ Age, 5 July 1968, 5.
[138] Reid to Carter, 28 August 1968, By-Laws (Continued) File 2.
[139] Carter to Reid, 9 September 1968, By-Laws (Continued) File 2.
[140] Reid to Carter, 24 October 1968, By-Laws (Continued) File 2.
[141] Carter to Reid, 12 November 1968, By-Laws (Continued) File 2.
[142] Carter to Reid, 10 December 1968, By-Laws (Continued) File 2.
[143] NAA: A10074, 1969/10, Exhibit B Mr Justice Gowan’s Judgement, 23 July 1968. See also ‘Battle over RSPCA Fees, Age, 20 July 1968, 20 and ‘Pay Costs says Judge. $6000 Goes To Prove Her Point’, Herald, 23 July 1968, 3.
[144] Entry for 23 July 1968 in Collins Mid-Year Diary 1968-69 in the possession (2006) of Mrs N Simonds, Melbourne, Victoria. Unless otherwise stated all further references to diary entries will be for the Collins Mid-Year Diary in the possession (2006) of Mrs N Simonds, Melbourne Victoria.
[145] Entry for 25 July 1968.
[146] ‘Seeks Public Inquiry into RSPCA’, Age, 24 July 1968 and ‘Case “Took Cash for Animals”’, Herald, 25 July 1968 and ‘RSPCA Legal Wrangle Unnecessary’, Age, 26 July 1968, 3.
[147] Entry for 29 July 1968.
[148] See for example entry for 24 January 1969.
[149] Entry for 30 July 1968.
[150] Entry for 6 August 1968.
[151] Entry for 15 July 1968 in Collins Mid-Year Diary 1968-69 in the possession (2006) of Mrs N Simonds, Melbourne, Victoria.
[152] Gillott Moir and Ahern to Roy Schilling and Co, 19 May 1965, referred to in Bienvenu to Richardson, January 1971, Miscellanious 2 Bienvenu.
[153] Entry for 29 August 1968.
[154] PROV, VPRS 12024/P3, Unit 2 see Affidavit of John Joseph Andrew Sharkey sworn 4 December 1969.
[155] Bienvenu had been warned that these were in train when her husband took a warning telephone call from a sympathiser who worked as a secretary in the office of Roy Schilling and Company. See interview with Jim Hagekyriakou 1 March 2007.
[156] NAA: A10074, 1970/22, Reasons for Judgement of Full Court, Hutchison v Bienvenu, 19 October 1971.
[157] For example ‘Adviser telephoned. Dictated another affidavit. I was typing same until 2am.’ See Entry for 19 March 1969.
[158] Entry for 10 April 1969.
[159] Entry for 19 March 1969.
[160] NAA: A10074, 1970/22, Reasons for Judgement of Full Court, Hutchison v Bienvenu, 19 October 1971.
[161] Interviews with Nance Simonds dated 4 May and 28 July 2006.
[162] Entry for 18 December 1968.
[163] Entry for 18 February 1969.
[164] Entry for 21 May 1969.
[165] Entry for 22 May 1969.
[166] Entries for 27 and 28 September 1968.
[167] Entry for 1 October 1968.
[168] ‘Ban those Rodeos’, Herald, 7 March 1969, 4.
[169] Entry for 23 October 1968.
[170] Entry for 9 May 1969.
[171] PROV, VPRS 12024/P3, Unit 2, File M7029 of the Supreme Court of Victoria.
[172] The provision was the response to the extraordinary flood of unsuccessful litigation in the 1920’s of Rupert Frederick Millane (1887-1969). Declared in 1930 he was Australia’s first vexatious litigant. For a history of the provision and Millane’s litigation see Grant Lester and Simon Smith, ‘Inventor, Entrepeneur, Rascal, Crank or Querulent: Australia’s Vexatious Litigant Sanction Seventy-five Years On’ (2006) 13 Psychiatry, Psychology and Law Journal, 1 and Simon Smith, ‘Vexatious Litigants and their Judicial Control: the Victorian Experience’ [1989] MonashULawRw 4; (1989) 15 Mon L R 48.
[173] PROV, VPRS 12024/P3, Unit 2. See Affidavit of Constance May Bienvenu sworn 11 December 1969.
[174] See further Lester and Smith, above n 172, 9.
[175] PROV, VPRS 12024/P3, Unit 2. See Affidavit of Constance May Bienvenu sworn 16 February 1970.
[176] Full Court Minute Book, Volume 14, High Court of Australia, Canberra. See also NAA: A 10074, 1969/44.
[177] NAA: A10074, 1970/8, Affidavit of Constance May Bienvenu sworn 13 May 1970.
[178] High Court File 80/0452. High Court, Canberra.
[179] Supreme Court of Victoria, File M 2073, Melbourne Victoria.
[180] Charles Francis, ‘Valete Goldie’ (Winter 1982) 20.
[181] Interview with Phil Opas dated 21 March 2005. See also Tony Blackshield, Tony Coper, and George Williams, The Oxford Companion to the High Court of Australia (2001) 698-699 and NAA: A10075, 1970/3.
[182] NAA: A10117, 1970/22, Hutchison v Bienvenu, See for example the comments of Walsh J in Reasons for Judgment, 19 October 1971.
[183] NAA: B160/0, 327/1969 Part 2, Notice dated 10 March 1970.
[184] NAA: A10074, 1970/8, Affidavit of Constance May Bienvenu Sworn 13 May 1970.
[185] Interviews with Nance Simonds dated 4 May and 28 July 2006.
[186] Roy Schilling and Co to Carter, 12 October 1970, Miscellanious 2 Bienvenu.
[187] Missen to Peacock, 26 October 1970, Miscellanious 2 Bienvenu.
[188] NAA: A10117, 1970/22, Bienvenu v Hutchison, Transcript of Full Court, 5 October 1971.
[189] NAA: A10117, 1970/22, Hutchison v Bienvenu, Affidavit of Constance May Bienvenu sworn 7 October 1971.
[190] NAA: A10117, 1970/22, Hutchison v Bienvenu, Reasons for Judgement, 19 October 1971. See also ‘No more actions, judge rules’, Herald, 19 October 1971.
[191] Entries for 1 May and 25 May 1969. See also ‘Public Notice’, Sun, 24 May 1969, 51.
[192] Penanaid to Carter, 8 April 1970, Bienvenu to Kennedy, 15 August, 1960, By Laws (Continued) File.
[193] Schilling and Co to Official Receiver in Bankruptcy, 22 April 1970, By-Laws (Continued) File.
[194] Sue Thompson, Twenty-five Years of Animal Protection: A History of the Australian Animal Protection Society (1997) 2-6 and also Interviews with Nance Simonds dated 4 May and 28 July 2006.
[195] ‘Presidents Report’, AAPS Newsletter, Keysborough, Spring 2006, 2-4.
[196] Richardson to Victorian Parliamentarians, October 1970, Miscellanious 2 Bienvenu. See also http://www.animalwelfare.com.au/AboutUs/History/tabid/55/Default.aspx (2 March 2007). Interestingly, the official history of the South Australian RSPCA makes only a passing reference to the Animal Welfare League and no mention of Joy Richardson. See further Wallace Budd, Hear the Other Side: A History of the Royal Society for the Prevention of Cruelty to Animals in South Australia 1875-1988, RSPCA (1988).
[197] Pertzel, above n 2, 137. Ironically, after she was ousted as Secretary, Carter was the one that made life difficult for Wirth. In his words: ‘She would come to the Annual Meetings, sit in the front row wearing her tam’ o’shanter and criticise me.’ See Lawrence Money, ‘The vet with bark and bite’ (2007) 75 Royalauto 45, 46.
[198] Pertzel, above n 2, Chapter 24.
[199] Interviews with Hugh Wirth dated 19 January 2006.
[200] Interviews with Nance Simonds dated 4 May and 28 July 2006.
[201] See for example ‘They’re not Sportsmen’, Herald, 7 December 1971 and ‘Roo Ignorance’, Age, 7 May 1984.
[202] NAA: B160/0, 327/1969 Part 2.
[203] Bienvenu v Attorney General for Victoria [1982] VicRp 58; [1982] VR 563.
[204] Victoria, Parliamentary Debates, Legislative Council, 5 December 1986, 1659. See also Section 21 (5) Supreme Court Act 1986 (Vic).
[205] ‘Presidents Message’, AAPS Newsletter, Keysborough, September 1995, 3.
[206] Interview with Jim Hagekyriakou 1 March 2007.
[207] Interview with Hugh Wirth dated 19 January 2006.
[208] Oxford Dictionary of Quotations (1992) 637:32.
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