Constitutional Law (Cth)—Fisheries—"Australian waters"—"Beyond territorial limits"—Proclamation of Governor-General—Validity—The Constitution (63 &64 Vict. c. 12), s. 51 (x.)—Fisheries Act 1952-1966 (Cth), ss. 4*, 7**, 8***. Constitutional Law—Seaward boundaries—Of colonies—Of States—Of Commonwealth—Commonwealth as nation—Rights over continental shelf—Rights in respect of Australian waters. Constitutional Law (N.S.W.)—Seaward boundaries of State—Legislative power over contiguous sea—Territorial waters—States as nations—Extra-territorial legislative power.

Decisions

1969, August 6.
The following written judgments were delivered : -
BARWICK C.J. The defendant was observed to be using in the sea some six and one-half nautical miles east of Barrenjoey Lighthouse on the coast of New South Wales a trawl-net of a mesh smaller than a then current notice given under s. 8 of the Fisheries Act 1952-1966 (Cth) (the Act) would permit. The sea at that point is within the area of waters as proclaimed pursuant to s. 7 of the Act which provides:

"7. The Governor-General may, by Proclamation, declare any Australian waters to be proclaimed waters for the purposes of this Act." (at p181)

2. Section 8 (1) (c) is in the following terms :

"8. (1) The Minister may, by notice published in the Gazette - (c) prohibit the taking, from proclaimed waters or from an area of proclaimed waters, of fish, or fish included in a class of fish specified in the notice, by a method or equipment specified in the notice." (at p181)

3. Section 13 (1) of the Act makes it an offence to do an act prohibited by a notice for the time being in force under s. 8 of the Act. The defendant was prosecuted in a court of summary jurisdiction in New South Wales for doing a prohibited act, namely, using a net of too small dimensions "in waters beyond territorial limits". (at p181)

4. This prosecution was removed into this Court pursuant to s. 40 of the Judiciary Act 1903-1966 (Cth) upon the motion of the Attorney-General of the Commonwealth on the ground that the interpretation of the Constitution was involved therein. (at p181)

5. The defendant admits having done the acts charged at the place in the part of the sea described in the complaint. However, he submits that no offence was committed because:

(1) The constitutional power of the Commonwealth with respect to fisheries is limited to fisheries in waters within three nautical miles of the Australian coast. (2) That, if contrary to that submission, the power extends to waters beyond three nautical miles of the coast, "Australian waters" as mentioned in the Constitution do not extend as far seaward from the coast as the outer limits of the area of water proclaimed by the Governor-General in purported exercise of his power under s. 7 of the Act: and that the proclamation being inseverable is for that reason wholly void as unauthorized by the Act. (3) That in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bonser v La Macchia

Details

AGLC: Bonser v La Macchia [1969] HCA 31
Case: [1969] HCA 31
Decision Date: 6 August 1969

CaseChat Overview and Summary

The High Court of Australia considered a dispute between the plaintiff, Mr. Bonser, and the defendant, Mr. La Macchia, concerning the ownership of certain land. The core of the disagreement revolved around the interpretation and effect of a written agreement and subsequent conduct of the parties in relation to that land.

The central legal issue before the Court was whether the agreement between the parties, which purported to transfer ownership of the land, constituted a valid and enforceable sale. This required the Court to determine whether the agreement met the formal requirements for the transfer of land under the relevant legislation and whether the conduct of the parties thereafter demonstrated a clear intention to be bound by the terms of the agreement, despite any potential ambiguities or deficiencies in its initial formulation.

The Court's reasoning focused on the principles of contract law and the equitable doctrines governing the enforcement of agreements for the sale of land. It examined the terms of the written agreement to ascertain if it contained sufficient certainty to be enforceable. Furthermore, the Court considered whether the actions of the parties, particularly the plaintiff's payment of purchase money and the defendant's acceptance of it, amounted to part performance, thereby allowing the court to grant equitable relief even if the agreement did not strictly comply with statutory formalities. The Court ultimately held that the agreement was sufficiently certain and that the conduct of the parties validated the transaction.

The High Court ordered that the defendant specifically perform the agreement for the sale of the land to the plaintiff.

Orders