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. His Honour below endeavoured to invoke this power and made an order which he was pleased to describe as an order staying the refusal to grant a licence. However, the appellant submits this is not correct. The order notionally must be a refusal to renew a licence. It is impossible to stay such an order. No doubt in certain circumstances there are some orders which can be stayed but a refusal to renew a licence is not one of them. $123 does not provide any source of power in the District Court to allow an expired licence to become, as it were, unexpired, not does it provide a source of power to allow the District Court to allow the respondent to fish lawfully in the form of issuing some form of interim licence pending an appeal. 2 UNREPORTED JUDGMENTS In order to reach the conclusion which his Honour reached below, it would be necessary to accept two propositions: (1) that an order granting a licence is a stay of a decision refusing to renew a licence and (2) that the pendency of an appeal against refusal to renew a licence operates in some way as a continuation of the licence once the renewal is refused. Neither proposition is tenable. The fallacy inherent in each proposition is apparent from the statement of the proposition itself. I therefore propose that 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. Those are the orders which I propose should be made. Samuels JA I agree. Clarke JA I also agree. I therefore propose that 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. The case stated is returned to the same District Court judge. We make no order for costs of the case stated. Counsel for the appellant: M Joseph Solicitor for the appellant: HK Roberts, Crown Solicitor Solicitor for the respondent: Draper, Finch and Cribb.