Jaggers v McMillan & 1 Ors [2007] NSWSC 90

New South Wales Supreme Court

CITATION : Jaggers v McMillan & 1 Ors [2007] NSWSC 90

HEARING DATE(S) : 15/02/2007

JUDGMENT DATE : 16 February 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The order of dismissal and the order as to costs is set aside. The matter is remitted back to the Local Court for determination according to law. The defendant is to pay the plaintiff's costs of these proceedings. No order is made as to costs concerning the Attorney-General.

CATCHWORDS : Appeal from Local Court - logging operations - offence of failure to comply with request - structure of Regulation - proviso - individual request - costs

LEGISLATION CITED : Forestry Regulation 1999 Interpretation Act 1987 (NSW)

James Jaggers PARTIES : Jennifer McMillan Magistrate David Heilpern

FILE NUMBER(S) : SC 14070/05

Mr M. W. Anderson (Pl) COUNSEL : Ms A. D. Gibbons (Def) Ms R. A. Pepper (Intervenor)

Griffiths Tierney (Pl) SOLICITORS : Clark Rideaux Solicitors (Def) Crown Solicitor's Office (Intervenor)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : Q2145 09/05 BKB-E

LOWER COURT JUDICIAL OFFICER : Magistrate Heilpern

LOWER COURT DATE OF DECISION : 12/08/2005

LOWER COURT MEDIUM NEUTRAL CITATION : Forestry Commission NSW v McMillan

- 10 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

16 FEBRUARY 2007

14070/05 James JAGGERS V Jennifer MCMILLAN & ANOR

JUDGMENT 1 HIS HONOUR: The plaintiff is, and at all relevant times has been, an employee of State Forests of New South Wales (as a sales manager). 2 On 24 March 2004, logging operations (the operations) were in progress in an area of Yambulla State Forest (the area). The operations attracted a number of protesters (a group of some seven or eight people). The defendant was one of the persons in the area. 3 The plaintiff issued a number of penalty infringement notices pursuant to the then Forestry Regulation 1999 NSW (the Regulation). Three of them were issued to the defendant (each in the sum of $100). 4 It has been said that her motor vehicle was blocking a bridge/crossing. It was further alleged that she approached the operations within a distance of 100 metres on two separate occasions. It was also alleged that she failed to leave the area after being requested to do so pursuant to Clause 15 of the Regulation. The Clause has since been repealed. 5 At the time, the relevant clause was as follows:- "(1) An authorised officer may request a person to leave a forestry area if: