Brooks v Smith
[1987] TASSC 84
•14 April 1987
Serial No B14/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Brooks v Smith [1987] TASSC 84; B14/1987
PARTIES: BROOKS
v
SMITH
FILE NO/S: LCA 131/1986
DELIVERED ON: 14 April 1987
JUDGMENT OF: Nettlefold J
Judgment Number: B14/1987
Number of paragraphs: 13
Serial No B14/1987
List "B"
File No LCA 131/1986
BROOKS v SMITH
REASONS FOR JUDGMENT NETTLEFOLD J
14 April 1987
Notice to review an order made by a magistrate on 28 October 1986 in the Court of Petty Sessions at Burnie upon the hearing of an application made by the respondent pursuant to s76A of the Justices Act 1959 that special penalties imposed upon the respondent in the Burnie Court of Petty Sessions on the 31 July 1986 upon the respondent being convicted on complaint of several offences under the Sea Fisheries Regulations 1962, namely:–
"1Using a fishing boat for the taking of fish whilst not the holder of a subsisting fisherman's licence contrary to Regulation 8(1)(a) of the Regulations – conviction recorded.
2Taking abalone whilst not the holder of a subsisting commercial abalone licence contrary to Regulation 17A(1)(a) of the Regulations – fined $40, special penalty of $7,830.00.
3Taking abalone less than 127 millimetres in width contrary to Regulation 31(1)(c) of the Regulations – fined $40.00, special penalty of $1,490.00.
4Possessing abalone less than 127 millimetres in width contrary to Regulation 31(1)(c) of the Regulations – Fined $40.00, special penalty of $1,490.00
5Taking female crayfish having eggs or spawn attached thereto contrary to Regulation 20(1)(a) of the Regulations – Fined $40.00, special penalty of $20.00.
6.Possessing female crayfish having eggs or spawn attached thereto contrary to Regulation 20(1)(a) of the Regulations Fined $40.00, special penalty of $20.00.
7.Taking a soft–shelled crayfish contrary to Regulation 20(1)(d) of the Regulations – Fined $40.00, special penalty of $20.00.
8Possessing soft–shelled crayfish contrary to Regulation 20(1)(d) of the Regulations – Fined $40.00, special penalty of $4.00.
9Possessing on land in Tasmania more than 10 unprocessed abalone without possessing a return with respect to the abalone contrary to Regulation 17B(6) of the Regulations – Fined $40.00, special penalty of $7,810.00.
10Possessing on a boat abalone that had detached from their shells contrary to Regulation 44(1)(s) of the Regulations – Fined $40.00, special penalty of $7,810.00."
be vacated on the grounds that the special penalties were not in conformity with the law whereby the magistrate set aside all the special penalties.
The grounds set out in the Notice to Review are the following–
"1The Learned Magistrate erred in law in that he had no jurisdiction pursuant to Section 76A of the Justices Act 1959 to set aside any of the said special penalties.
2The Learned Magistrate erred in law in setting aside the said special penalties in relation to offences involving crayfish
3The Learned Magistrate erred in law in setting aside the said special penalties in relation to offences involving abalone.
4The Learned Magistrate erred in law in considering that he was bound to set aside the said special penalties."
The basis of the application to the magistrate was the decision of the Full Court given on 23 September 1986 in the matter of Munday v Cole, No 56/1986, to the effect that reg44( 5A) of the Sea Fisheries Regulations 1962 was ultra vires the Fisheries Act 1959 and invalid.
The Fisheries Amendment Act 1986, No. 76 of 1986, received Royal Assent on 30 October 1986. Section 2 of that Act provided that "This Act shall be deemed to have commenced on 23 September 1986".
Sections 4 and 5 of that Act read as follows:–
"4 – Section 9 of the Principal Act is amended as follows:–
(a) by omitting from subsection (1) (y) (iii ) 'not exceeding $100' and substituting 'of an amount to be determined by the court, or of an amount being a fixed amount no more and no less than the amount specified in the regulations.';
(b) by inserting after subsection (1) the following subsection:–
(1AAA)The amount of a special penalty referred to in subsection (1) (y) (iii) shall not exceed $100 and shall not be less than $10.
5 – Regulation 44(4), (4A), and (5A) of the Sea Fisheries Regulations 1962 shall be deemed to be valid and effective on and from 23rd September 1986 as if it had been made under section 9 of the Principal Act as amended by this Act and all acts done, proceedings taken, and penalties imposed under that regulation on and from that day shall be valid and effective as if that regulation had been made under section 9 of the Principal Act as amended by this Act."
It will be noted that that Act received the Royal Assent two days after the date of the decision which must now be reviewed.
Upon the conviction of the respondent and the imposition of the special penalties in question the liability to suffer those penalties merged in the convictions and orders of the court and no longer depended upon the law under which liability arose. Hence, if for some reason the law imposing liability to conviction and the making of the orders requiring payment of the special penalties was subsequently revoked, the liability to pay the special penalties remained. That is because the convictions and orders for payment of the special penalties had become the source of liability. The convictions and orders continue in force because their operation do not depend on the law creating the offence but upon the authority of the orders of a competent court. (The Victorian Stevedoring & General Contracting Coy Pty Ltd v Dignan; Meakes v Dignan (1931) 46 CLR 73 at 106; see also p85).
The respondent did not appeal against the orders of 31 July 1986; consequently, at the expiration of the time for appeal, those orders were transactions past and closed (Dignan's case, supra, at p85). But, of course, that proposition is subject to any valid statutory provision to the contrary.
At the date the learned magistrate made the orders imposing the special penalties the regulation underpinning those orders was in law presumed to be intra vires in the absence of rebuttal of that presumption and it could not be rebutted except by a party to legal proceedings in a court of competent jurisdiction who has locus standi to challenge the validity of the regulation. Until effectively challenged the regulation remained a true source of liability "as effective for its ostensible purpose as the most impeccable of orders" (in this case regulations). (Hoffmann–La Roche & Co AG & Ors v Secretary of State for Trade and Industry [1975] AC 295 at 366–7, citing Smith v East Elloe Rural District Council [1956] AC 736, 769–770). Further, the presumption in favour of this regulation was strengthened by the decision in Cole v Dick & Parker, Neasey J, 77/79.
Leaving aside the retrospective legislation, for the reasons stated above the convictions and orders for special penalties were valid (Reg v Unger [1977] 2 NSWLR 990).
At the time the learned magistrate made the order setting aside the special penalties the time for appeal against those penalties had expired. If the respondent had wished to take advantage of the decision in Munday v Cole the usual course would have been for him to file an application for an extension of time to appeal against the decision imposing the special penalties. But it is clear on the authorities that such an application was by no means assured of success. (See R v Ramsden [1972] Crim LR 547; R v Unger (supra); the civil case of Piening v Wanless (1967–68) 117 CLR 498 contains a strong statement of principle which is by no means irrelevant notwithstanding that this is a quasi–criminal case. See, in particular, pp505–6 per Barwick CJ, pp509–510 per Menzies J).
It was not right to allow the respondent to avoid these difficulties by ruling that, Munday v Cole having decided that the relevant regulation was ultra vires, the penalties must be set aside. That was to re–open a transaction past and closed and to set at nought valid convictions and orders. The case did not fall within s76A and the learned magistrate should have refused to make the order sought. At the time the penalties were imposed they were imposed without any .challenge to the court's power to do so and in accordance with a regulation which in the circumstances was correctly presumed to be valid. It was not a case where the court imposed penalties which were "contrary to the law"; bearing in mind the absence of challenge to the regulation at the hearing, the penalties were imposed in accordance with what was correctly presumed to be the law. And, of course, the case did not fall within s76A(1)(b) or (c). If for some reason I am wrong about that conclusion, it was not correct to proceed on the basis that, because of the decision in Munday v Cole, a decision in favour of the applicant was a foregone conclusion. Assuming, contrary to the above conclusion, that the learned magistrate had jurisdiction, a correct exercise of it would have involved a weighing of the factors mentioned in these reasons and all the circumstances of the case.
The appeal is allowed. The order made on the 28 October 1986, whereby certain special penalties imposed on 31 July 1986 in the Court of Petty Sessions at Burnie were set aside, is quashed.
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