Absel Fish Exports Pty Limited & Anor v State of Victoria- Alpack Fish Exports & Anor v State of Victoria

[1994] HCATrans 150

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne      No M7 of 1994

ABSEL FISH EXPORTS PTY LIMITED AND ANOTHER

and

STATE OF VICTORIA

Office of the Registry

Melbourne    No M8 of 1994

ABPACK FISH EXPORTS PTY LIMITED AND ANOTHER

and

STATE OF VICTORIA

For judgment

DAWSON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 15 DECEMBER 1994, AT 9.30 AM

(Continued from 9/12/94)

Copyright in the High Court of Australia

HIS HONOUR:   In each of these two matters a summons has been issued by the defendant, the State of Victoria, seeking to have the matter dismissed for want of prosecution or, alternatively, for an order staying proceedings until the hearing and determination of certain prosecutions in the Magistrates Court of Victoria.  The plaintiffs in each of the two matters have issued a summons seeking directions. 

The plaintiffs are involved in the processing of abalone. The prosecutions in the Magistrates Court relate to the alleged failure of the plaintiffs to comply with the conditions of their processors' licences and for breaches of a regulation forbidding the possession of more than 10 abalone not accompanied by the required docket. The matters in the Magistrates Court were set down for hearing on 2 August 1993 but were adjourned on the application of the plaintiffs (the defendants in the Magistrates Court) to enable the issue of notices of motion seeking the removal of the prosecutions to this court pursuant to s.40 of the Judiciary Act 1903 (Cth) as matters involving the interpretation of the Constitution.

A notice of motion was issued by each of the four plaintiffs but no steps have been taken to bring the motions on for hearing.  Subsequently, these actions were commenced in this court in which the plaintiffs claim declarations that the relevant sections of the Fisheries Act 1968 (Vict.) and the relevant regulations are void by reason of s.92 of the Constitution. The statement of claim in each matter alleges that the abalone which are the subject of the prosecutions in the Magistrates Court were acquired in the course of trade or commerce for the purpose of export and were in the course of transportation to South Australia in accordance with and subject to the provisions of the Export Control Act 1982 (Cth) and the regulations and orders thereunder.

Each statement of claim further alleges that the effect of the Victorian Fisheries Act and the regulations is to prohibit any person possessing, controlling, conveying or transporting in the course of trade, abalone which were not taken in Victorian waters or, alternatively, which were not originally landed in the State of Victoria by a Victorian licensed fisherman.  It is further alleged that the effect of the State Act and regulations is to prohibit the sale of abalone by a Victorian licensed fisherman to any person other than a Victorian licensed processor. 

It is said that by reason of these circumstances, the State Act and regulations are contrary to s.92 and void. The State of Victoria delivered a defence in each of the actions on 31 March 1994 and the time for delivery of a reply has expired. No step has been taken in either action since the delivery of a defence.

The plaintiffs do not now wish to continue with their notices of motion and, accordingly, I have by consent dismissed each of the motions with costs.  The plaintiffs (the defendants in the Magistrates Court) no longer seek to postpone the hearing of the prosecutions against them and there is, therefore, no reason why those prosecutions should not proceed without any further delay.

No doubt the hearing of the charges in the Magistrates Court may involve the finding of facts relevant to the s.92 issue and the determination of that issue in those proceedings, but that is no reason to delay the proceedings until the outcome of the civil actions is known. At the same time, I can see no reason to dismiss the civil actions for want of prosecution or to stay those actions pending the hearing and determination of the prosecutions. It is apparent that the real reason for the application made by the State of Victoria is to ensure that the existence of the actions is not any longer used to delay proceedings in the Magistrates Court. As I have said, with the dismissal of the notices of motion, there is no reason why the prosecutions should not proceed.

The State has not sought to point to any prejudice suffered by it as a result of the delay in setting the actions down for trial.  The existence of the prosecutions may constitute some explanation for that delay, but it cannot, in any event, be described as inordinate or inexcusable.  There have apparently been some preliminary negotiations between the parties with a view to having a case stated to a Full Court, but it seems that the facts cannot be agreed for that purpose.  The obvious reluctance of this court to try the issues of fact raised by the pleadings and the desirability of having the matters remitted to another court for that purpose may constitute another explanation, if not excuse, for the delay.  The parties have now indicated to me that, if the matters are to be remitted, the appropriate court to try them is the Supreme Court of Victoria and the plaintiffs wish to proceed with the actions.  I do not think that in the circumstances the dismissal of the actions for want of prosecution would be justified.

Nor do I think that I should stay the actions pending the hearing and determination of the prosecutions.  No doubt the wide discretion conferred by Order 63, rule 1, would enable me to do so, but it seems to me that since the civil actions no longer constitute any impediment to the prosecutions, the latter should be allowed to proceed without any direction which would interfere with the course of the civil actions. 

The State concedes that if the abalone in question were not taken in Victorian waters or were not originally landed in Victoria by a Victorian licensed fisherman, the prosecutions cannot succeed, but the plaintiffs wish to contend that, even if all the abalone were not taken in Victorian waters or landed in Victoria by a Victorian licensed fisherman (as the State contends), the act and regulations are nevertheless too wide and cannot be read down.  The two sets of proceedings need not, therefore, run a parallel course and there is no sufficient basis for requiring one to be pursued to completion before the other.

Accordingly, I refuse the application for dismissal for want of prosecution or to stay the actions.  I direct that the civil actions, Matters No 7 and 8, be remitted to the Supreme Court of Victoria for hearing and determination.  I reserve costs and certify for counsel. 

AT 9.45 AM THE MATTER WAS ADJOURNED
INDEFINITELY