IAN BEER v SMITH'S OYSTER SERVICES PTY LIMITED [1990] NSWCA 22

IAN BEER v SMITH'S OYSTER SERVICES PTY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, PRIESTLEY and HANDLEY JJA 25 June 1990

[1990] NSWCA 22

Gleeson CJ This is an application for leave to appeal against the decision of Carruthers Jgiven in this Court on 25 May 1990. The applicant for leave to appeal was the prosecutor in a proceedings brought before a magistrate.

The allegation was that the respondent sold oysters or a package containing oysters in contravention of certain provisions of the Pure Food Act 1908. That Act has since been repealed.

The respondent was successful before the learned magistrate hut his Worship stated a case on a point of law for the information of the Supreme Court and that is the matter that came before Carruthers J. Carruthers J decided the point raised in the case stated in a manner unfavourable to the prosecutor and reached the conclusion that the magistrate did not err in dismissing the information.

The nature of the point raised before the magistrate and Carruthers J and sought to be raised in this Court is fully set out in a written outline of argument which we have considered and which has been further explained in careful oral submissions made by counsel for the applicant this morning. We are told the point is still one of some significance for the reason that although the legislation has been repealed, the new legislation uses the term "package" and the question of construction raised by the matter might arise again.

Nevertheless I am of the view that the application should be dismissed. I do not consider that there is sufficient reason to doubt the correctness of the decision of Carruthers J to warrant the granting of leave to appeal, especially bearing in mind the added circumstance that the legislation governing the prosecution has been repealed. That combination of circumstances produces the result in my view that the application for leave to appeal should be dismisscd with costs.