Korsman v Douglas Dick & Anor [2000] NSWSC 398

New South Wales Supreme Court

CITATION : Korsman v Douglas Dick & Anor [2000] NSWSC 398 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12482 of 1999 HEARING DATE(S) : 19 April 2000 JUDGMENT DATE : 16 May 2000

Gregory Colin Korsman (Plaintiff) PARTIES : v Douglas Dick (First Defendant) Ian North (Second Defendant) JUDGMENT OF : Master Malpass

LOWER COURT Local Court JURISDICTION : LOWER COURT Local Court Nowra; FILE NUMBER(S) : 15 September 1999 LOWER COURT Douglas Dick, LCM JUDICIAL OFFICER :

Mr S Russell (Plaintiff) COUNSEL : N/A (First Defendant) Mr S J Longhurst (Second Defendant) Crown Solicitor - I V Knight (Plaintiff) SOLICITORS : Crown Solicitor - I V Knight (First Defendant) submitting appearance Maguire & McInerney (Second Defendant) CATCHWORDS : Dismissal of prosecution - was a decision made on a point of law - dismissal for lack of preparedness of prosecutor and inability to proceed further with prosecution - award of costs - "other exceptional circumstances". Fisheries Management Act 1994, s 18 (2), s 104 (7), Sch 1. LEGISLATION CITED : Justices Act 1902, s 81(4) (d), s 109. Fisheries Management (General) Regulation 1995, cl 119A. CASES CITED : Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors (1999) NSWCA 11. DECISION : See paragraph 27.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

TUESDAY 16 MAY 2000

12482 of 1999 GREGORY COLIN KORSMAN v DOUGLAS DICK & ANOR JUDGMENT 1 The plaintiff laid certain Informations under the Fisheries Management Act 1994 (the Act). One related to an alleged offence against the original second defendant pursuant to section 18 (2). Another related to an alleged offence against the original third defendant pursuant to section 104 (7). The matters came on for hearing before the first defendant (a Local Court Magistrate sitting at Nowra). 2 The matters were listed for hearing and finally disposed of on 15 September 1999. Prior to that day, there had been adjournment granted on the application of the plaintiff. 3 A Police Prosecutor appeared on behalf of the plaintiff. The said second and third defendants were represented by counsel (Mr Longhurst). Both matters were dismissed and costs were awarded against the plaintiff. 4 On 13 October 1999, the plaintiff commenced these proceedings by Summons. The Summons sought inter alia the quashing of the orders made by the first defendant and a remitting of the matter back to the Local Court to be heard and determined according to law pursuant to s 109 of the Justices Act 1902. 5 The Summons was heard on 19 April 2000. On the day of hearing, the plaintiff filed in court a number of documents. There was an Amended Summons. There was a Notice of Discontinuance against the then second defendant. There was an affidavit sworn by Stephen Neil Hogan on 18 April 2000. In addition an Outline of Submissions was handed up to the court. 6 In the Amended Summons, Ian North (formerly the third defendant) became the second defendant. The relief sought was restricted to the offence alleged against him. It contained the following grounds:- "1. That the First Defendant erred at law in requiring evidence of a proclamation that the events giving rise to the complaints occurred within a proscribed area. 2. That the First Defendant erred at law in awarding costs against the plaintiff as there were no exceptional circumstances apparent." 7 The affidavit deposes to material which is in part narrative and in part submission. It inter alia annexes a copy of the relevant Information And Summons, a copy of the transcript and a copy of the Commercial Fishing Licence held by the second defendant at the relevant time. 8 The transcript records that at the outset the court was informed that the facts were not basically in dispute and that the issue between the parties was what was described as a straight legal point. 9 The legal point put by Mr Longhurst is recorded on page 2 of the transcript. It was put in the following terms:- "LONGHURST: It is a condition of a commercial fishing licence that it is endorsed under the Act for the taking of lobster in the lobster fishery, that the holder of a licence is (a), (b)'s not relevant, attach a tag to Eastern Rock Lobster taken for sale before it is landed on the shore. So basically the prosecution here is that they were in a lobster fishery, you are subject to a licence and you had to tag those lobsters before they got off the boat. The trouble with the Fisheries prosecution is this, it wasn't a lobster fishery, because if you go to, and this is a huge defect, if you go to the definitions under 119A - I'll hand these up because you won't have them all - lobster fishery means the lobster share management fisheries specified in Schedule 1 to the Act, and we know the Act is the '94 Fisheries Management Act, we go to the schedule, nothing there but they can specify to fishery management by proclamation they haven't proclaimed their interest, there's no offence. I had the Bar Association research this this morning, they rang Fisheries, Fisheries said to them, and it's not up to you to prove this anyway, Fisheries said to them, no proclamations." 10 In substance, the offence alleged against the second defendant was that there had been a contravention of the conditions of the Commercial Fishing Licence. An element of that offence was that there be a "lobster fishery". Such expression is defined in clause 119A of the Fisheries Management (General) Regulation 1995 as the lobster share management fishery specified in Schedule 1 to the Act. 11 It appears that the only copy of the Act available at the time was one had by Mr Longhurst. The Schedule 1 in that document did not contain any definition of "Lobster fishery". Mr Longhurst had sought some assistance from the Bar Association on this matter. This action elicited some material from "Fisheries" to the effect that there were "no proclamations". The copy of the Act was made available to the learned Magistrate during the course of the submission. From material made available to the court during this hearing it appears that the copy of the Act may have been out-dated. 12 Following the putting of the submissions on the legal point by Mr Longhurst, the learned Magistrate then gave the Police Prosecutor an opportunity to put her submissions. The Police Prosecutor then indicated that she would like to get instructions and applied for a short adjournment. An adjournment was granted. It was in the order of an hour or so. 13 Following the short adjournment, the Police Prosecutor informed the court to the effect that she had been unable to get instructions and was unable at that stage to put any submissions in relation to Mr Longhurst's legal point. The Police Prosecutor then applied for a further adjournment. It was sought for a period in the order of a week or two. 14 The learned Magistrate then heard from the parties on the question of the further adjournment. The application was strenuously opposed by the second defendant on the basis that the matter had been listed for hearing and that the plaintiff should have been in the position to prove his case. The Police Prosecutor was unable to offer any explanation for her lack of preparedness to deal with the legal point. There was exchange between the Bench and Mr Longhurst concerning the significance of the question and there was reference to "whether or not this has been gazetted" and "whether or not Schedule 1 has got anything in it, its got nothing in the Act". 15 The learned Magistrate refused the application for adjournment. At this stage, it is convenient to record that the plaintiff brings no challenge to the decision made by him in refusing the adjournment application. 16 Following the refusal of the adjournment application, the Police Prosecutor was asked whether or not she had anything further to tender. In effect, this gave her an opportunity to put before the court any further material or matter relied on by the plaintiff in the prosecution. Nothing further was put forward. 17 Page 4 of the transcript inter alia records the following:- "BENCH: YOUR APPLICATION MUST BE REFUSED. Do you have anything further to tender? PATTERSON: No, not in relation to this matter your Worship. BENCH: ON THAT BASIS, THE INFORMATION IS DISMISSED. That's in relation to Mr North, just for the sake of the monitor. LONGHURST: Your Worship, I apply for costs in this case. BENCH: How are they quantified? LONGHURST: I can hand up a schedule prepared by my instructing solicitors. BENCH: Miss Prosecutor, it should be noted that the Court didn't find that it hasn't been gazetted, the Court found that you weren't properly prepared, that's the reason for the dismissal. The matter has been before the Court on a number of occasions, it was adjourned on the application of the prosecution, as indicated by Mr Longhurst, and having regard to the nature of these proceedings, one would expect the prosecution to have been prepared. Have you had a look at the schedule of fees? PATTERSON: Yes your Worship. BENCH: Anything to comment? PATTERSON: No, I don't have any comment your Worship." 18 I now return to the hearing of these proceedings. The plaintiff bears the onus of demonstrating an entitlement to relief. It is accepted that the plaintiff must demonstrate an error of law which justifies the disturbing of the orders. 19 The principal challenge that is made is directed to the decision of the learned Magistrate dismissing the proceedings. The attack mounted on behalf of the plaintiff seemed to be at times a somewhat elusive quarry. There were differences in how it was put in the Amended Summons, the affidavit of Mr Hogan, the Outline of Submissions and the oral submissions. 20 In the presentation of the submissions in chief, the attack seemed to be founded on a contention that the learned Magistrate had accepted the submission made by Mr Longhurst on the legal point. During submissions in reply, there seemed to be reliance also on an argument to the effect that there was error because the Magistrate dismissed the proceedings without deciding the legal point. The submissions were founded on the premise that the legal point agitated by Mr Longhurst was fallacious. 21 In my view, it is unnecessary to pursue the question of the validity of the legal point. These proceedings can be disposed of without dealing with that question. 22 At no stage, did the Police Prosecutor put any submissions in opposition to Mr Longhurst's legal point. The presentation of the Police Prosecutor was to the effect that she was not in a position to deal with it and that there was nothing further that she wanted to put before the court on the matter. I am not satisfied that the learned Magistrate made any finding or reached any decision in relation to the legal point. The plaintiff has not been able to identify any passage in the transcript which records any such finding or decision. I do not accept the submission that it can be inferred from what appears in the transcript. Indeed, it seems to me to be contrary to express observations made by the Bench and recorded in the transcript. Whilst it has not been argued, it may well be that in the circumstances of this case the making of some determination adverse to the plaintiff would not affect the result of this appeal. Further, I do not accept that failure to decide the point assists the plaintiff in this case. I should add that in my view it is erroneous to assert that the learned Magistrate either requested or required proof of a proclamation. 23 I am not satisfied that there was any error of law made by the Magistrate in dismissing the proceedings. In my view, it is abundantly clear that the proceedings were dismissed because the Police Prosecutor found herself unable to proceed further following the refusal of the adjournment application because of her lack of preparedness. In the circumstances that then prevailed, it was open to the learned Magistrate to dismiss the proceedings. Indeed, in those circumstances his options were limited. 24 For completeness, I should mention that generally parties are bound by the course adopted at the trial of a matter ( Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors (1999) NSWCA 11). It may be that points now sought to be taken by the plaintiff should not be allowed to be put. For present purposes, I put these considerations aside as they were not fully argued. 25 The plaintiff's material also challenges the costs order made by the learned Magistrate. This received little agitation during the course of argument. The material suggests that the challenge was founded on a lack of exceptional circumstances (s 81 (4) (d) of the Justices Act 1902). In my view, there is no substance in the plaintiff's contention. 26 The statutory provision refers to "other exceptional circumstances relating to the conduct of the proceedings by the prosecution". For this purpose, it suffices to merely refer to some matters (the reference is not intended to be exhaustive). The proceedings had been listed for hearing on 15 September 1999 at the provincial city of Nowra. The second defendant had come to court to defend the proceedings on that day. It was the plaintiff's responsibility to ensure that he was ready to prove and argue his case on that day. There had been a previous adjournment which had been granted on the application of the plaintiff. On the listed hearing day, the plaintiff was unable to proceed with the prosecution because of lack of preparedness and the prosecutor was unable to offer any explanation for that lack of preparedness. In my view, the decision that it was just and reasonable to award costs was also open to the learned Magistrate. 27 The appeal is dismissed. The court was asked to reserve the question of costs between the plaintiff and the original second defendant and did so. Save for those reserved costs, the plaintiff is to pay the costs of the proceedings. **********