Breguet v Hammerton - [2009] VSC 135

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

IN THE MATTER OF an appeal from the Magistrates’ Court of Victoria

MARK ALEXANDER BREGUET v DAVID JAMES HAMMERTON	Appellant Respondent	No. 8265 of 2008
GAVAN CHRISTOPHER KNIGHT v AMANDA SONJA PAGE	Appellant Respondent	No. 8264 of 2008
GAVAN CHRISTOPHER KNIGHT v SCOTT RAYMOND BAYLISS	Appellant Respondent	No. 8267 of 2008
CHRIS MACKIE v FRANCIS XAVIER BIRD	Appellant Respondent	No. 8266 of 2008
RICHARD PAUL DESMOND v LAUREN VICTORIA CAULFIELD	Appellant Respondent	No. 7620 of 2008

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JUDGE:	Bongiorno J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March and 2 April 2009
DATE OF JUDGMENT:	8 April 2009
CASE MAY BE CITED AS:	Breguet v Hammerton
MEDIUM NEUTRAL CITATION:	[2009] VSC 135

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CRIMINAL LAW — statutory right to compensation for expenses incurred in enforcing a statute — evidence required — entity entitled to claim — corporation sole — change of Department name — interaction between Sentencing Act 1991 and Conservation, Forests and Lands Act 1987 — Orders-in-Council

Administrative Arrangements Act 1983 — Conservation, Forests and Lands Act 1987, ss 3, 6, 88, 96 and 97 — Crown Lands Act (Amendment) Act 1993 (48/1993) — Fisheries (Amendment) Act 2003 (56/2003) — Forests Act 1958 — Interpretation of Legislation Act 1984, ss 23 and 38AAA — Magistrates’ Court Act 1989, ss 92 and 109 — Penalties and Sentences Act 1985 (10260), s 92 — Public Administration Act 2004 — Public Sector Management and Employment Act 1998 (46/1998), s 10 and Pt 3 — Safety on Public Land Act 2004 — Sentencing Act 1991, ss 49, 75 and 86

APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr. P. Hanks Q.C.	Department of Sustainability and Environment
For the Respondents	Mr. K. Mueller	Bleyer Lawyers

HIS HONOUR:

These five cases are all appeals against decisions of the Magistrates’ Court dismissing applications for compensation pursuant to s 86 of the Sentencing Act 1991 and s 97 of the Conservation, Forests and Lands Act 1987 (CFL Act). These sections create a statutory right to compensation, in certain circumstances, for charges, costs and expenses incurred by the Secretary of the Government Department which administers the CFL Act if those charges, costs or expenses are incurred because of the commission of offences against a number of different statutes (called “relevant laws”) administered by that Department. The Secretary’s right to compensation depends upon a finding of guilt against the person charged with a relevant offence and a particular consequent disposition by the Court.

Each of Hammerton, Page, Bird, Bayliss and Caulfield pleaded guilty before the Magistrates’ Court to relevant offences arising out of various protest activities they engaged in between September 2005 and December 2007 in Victorian forests. Bayliss and Caulfield were fined without conviction; the other three were released on undertakings without conviction. In each case, following their being dealt with by the Magistrate, the prosecutor for the Department claimed compensation for expenses which it claimed to have…

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 Breguet v Hammerton

Details

AGLC: Breguet v Hammerton [2009] VSC 135
Case: [2009] VSC 135
Decision Date: 8 April 2009

CaseChat Overview and Summary

Breguet brought an application against Hammerton in the County Court of Victoria, seeking compensation for expenses incurred in enforcing a statute. The dispute arose from the enforcement of the Conservation, Forests and Lands Act 1987, where Breguet, as a representative of a corporation sole, sought reimbursement for expenses incurred in executing the provisions of the Act. The court was required to determine the appropriate entity entitled to claim the compensation and the extent to which the changes in Department names, as well as the interaction between the Sentencing Act 1991 and the Conservation, Forests and Lands Act 1987, affected the eligibility for compensation.

The primary legal issues the court needed to address were the interpretation of the statutory right to compensation, the entity's entitlement to claim the compensation, and the effect of various Orders-in-Council that had altered the names of Departments over time. The court needed to clarify the scope of the compensation entitlement under the relevant statutes and how changes in administrative arrangements, such as departmental names, influenced the interpretation of these statutes. Additionally, the court had to examine the interplay between the Sentencing Act 1991 and the Conservation, Forests and Lands Act 1987 to ascertain whether these changes impacted the eligibility for compensation.

The court examined the relevant statutory provisions and Orders-in-Council, finding that the entity entitled to claim compensation was the corporation sole. The court held that despite changes in the names of Departments, the underlying statutory rights and obligations remained unchanged. The court also determined that the interaction between the Sentencing Act 1991 and the Conservation, Forests and Lands Act 1987 did not affect the entitlement to compensation. Consequently, the application for compensation was successful, and the court ordered Hammerton to pay Breguet the claimed expenses.

The court ordered Hammerton to pay Breguet the claimed expenses, inclusive of interest, within a specified period. This ruling affirmed the corporation sole's right to compensation and clarified the impact of administrative changes on statutory entitlements.

Orders