THE DIRECTOR GENERAL OF THE DEPARTMENT OF AGRICULTURE v CRISDALE [1989] NSWCA 242

THE DIRECTOR GENERAL OF THE DEPARTMENT OF AGRICULTURE v CRISDALE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, CLARKE and MEAGHER JJA 16 August 1989, 16 August 1989 [1989] NSWCA 242

S$24C AND S25(1) OF THE FISHERIES AND OYSTER FARMS ACT 1935 — VALIDITY OF INTERIM ORDER BY DISTRICT COURT PURSUANT TO S123 OF THE JUSTICES ACT ORDERS 1. Appeal allowed. 2. Question (a) should be answered No, it does not empower a stay and it does not enable the appellant to fish lawfully; (b) No; (c) No.

Meagher JA In this matter, which has come to us by way of a Stated Case, the respondent had been issued with a licence to fish pursuant to s24C of the Fisheries and Oyster Farms Act, 1935. That licence was due to expire on 19 June 1987. On 9 June 1987 he applied for a new licence.

By a letter of 24 December 1987 he was advised by the appellant that the renewal of his licence had been refused. $25(1) of the Fisheries and Oyster Farms Act states:

"Where an application is made for renewal of a fisherman's licence and the renewal is not granted before expiration of the licence, the licence continues in force until the renewal is granted or refused." S119 of the same Act provides that an appeal from, inter alia, the refusal to renew a licence shall lie to the District Court in a manner provided by Pt5 of the Justices Act, 1982. It further provides that after a hearing by the District Court the determination of that court shall be carried into effect by the licensing authority.

The present respondent commenced proceedings to appeal in the District Court and sought and obtained, amongst other things, an interim order that he be permitted to fish as if licensed until the hearing of the appeal.

The proposed source of power which was argued by the respondent below, and which was upheld by his Honour Judge Herron, was s123 of the Justices Act. $123 provides that in a case where an appellant is not an accused person, but has lodged a notice of appeal within the time specified and who has evidenced the appropriate sureties and agreements, in those circumstances the execution of the conviction order shall be stayed.