Brown, Graeme Maxwell v Petrie, Robin Charles (No 2)

[1998] TASSC 142

142/1998

PARTIES:  BROWN, Graeme Maxwell
  v
  PETRIE, Robin Charles (No 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 68/1998
DELIVERED:  18 November 1998
HEARING DATE/S:  11 November 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

Statutes - Acts of Parliament - Operation and effect of statutes - Retrospective operation - Declaratory and validating Acts - Validating Acts - Effect on pending proceedings - Fisheries prosecution.

Bawn Pty Ltd v Metropolitan Meat Industry Board (1971) 92 WN (NSW) 823, applied.
Brown v Petrie 154/1997, referred to.
Fisheries Rules (Validation) Act 1997 (Tas).
Aust Dig Statutes [75]

REPRESENTATION:

Counsel:
             Applicant:  F C Neasey
             Respondent:  G A Hay
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Glenn Hay & Associates

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  142/1998
Number of pages:  4

Serial No 142/1998
File No LCA 68/1998

GRAEME MAXWELL BROWN v ROBIN CHARLES PETRIE

REASONS FOR JUDGMENT  UNDERWOOD J

18 November 1998

This is the second time the applicant has sought a review of an order of dismissal made in favour of the respondent in a court of petty sessions.  See Brown v Petrie 154/1997. 

The complaints in both cases allege that the respondent breached provisions of the Fisheries Rules 1996.  Appellate litigation in both cases arose out of the fact that the Fisheries Rules 1996, purportedly made on 20 May 1996, were made without legislative authority.  That authority was bestowed by retrospective legislation which came into effect on 3 September 1997.  To explain this, I set out the following from my reasons for judgment in Brown v Petrie (supra) at 2:

• The Living Marine Resources Management Act 1995 received Royal Assent on 15 September 1995.

• For a management plan consisting of "rules relating to a specified fishery". Part 3, Div2, deals with the procedures for the creation of a management plan, which include the drawing up of a draft management plan, public exhibition and the receipt of public comment. The Act, s45, enables the Minister, by notice published in the Gazette, to declare rules referred to in a draft management plan to constitute an interim management plan and if he does so, such interim management plan takes effect as if it were the final management plan approved, pursuant to the Act, s47.

• The Act, s2, provides that the provisions of the Act commence on a day or days to be proclaimed.

• On 20 May 1996, the Fisheries Rules 1996 were purportedly made pursuant to the Act.

• The problem was that by virtue of the Act, s2 and Statutory Rule No 53/1996, the Act did not commence until 31 May 1996, eleven days after the Rules were made.

• No attempt was made to give the Fisheries Rules 1996 any force and effect by virtue of the Act, s45, until 11 June 1997 when the Minister published a notice in the Gazette as provided by that section declaring the Fisheries Rules 1996 an interim management plan. (It might be noted that this was three months after the day the respondent allegedly fished in breach of those Rules.) However, this notice in the Gazette had no effect because the Rules were not authorised by any legislation.

• The Fisheries Rules (Validation) Act 1997, which took effect on 3 September 1997, was enacted to overcome the problem that the Fisheries Rules 1996 were made without legislative authority. The Validation Act, s3 provided:

"The Fisheries Rules 1996 purportedly made under the Living Marine Resources Management Act 1995 are taken to be validly made and are valid as if they had been declared to constitute an interim management plan under section 45 of that Act with effect from 31 May 1996."

In Brown v Petrie, the respondent pleaded guilty to two breaches of the Fisheries Rules on 9 July 1997.  He was not then represented by counsel.  The retrospective validating legislation had not then been enacted so his plea of guilty was to offences not known to the law.  The prosecutor told the learned magistrate that she "wanted to get in before he pleaded" and ask for an adjournment of the hearing of the complaint.  The learned magistrate refused the prosecutor's application and dismissed the complaint, notwithstanding the plea of guilty.  The motion to review that order of dismissal failed upon the basis that, at the time the complaint was called on for hearing, the learned magistrate was without jurisdiction as it disclosed no offence known to law. 

The history of this complaint is a little more tortuous.  It was made to a justice on 17 December 1996 and a summons issued requiring the respondent to appear in the Court of Petty Sessions, Hobart on 5 February 1997.  The record of proceedings discloses that the respondent did not appear on that day.  The hearing of the complaint was adjourned to 7 April 1997.  On that day, the respondent appeared by his solicitor and a plea of not guilty was entered.  There was a further appearance on 15 May 1997 when the hearing was adjourned to 28 July 1997.  On the latter occasion, the prosecutor applied for an adjournment, no doubt on the same basis as the prosecutor applied for an adjournment in the other case, viz, to await the enactment of validating legislation.  The application for an adjournment was opposed by counsel for the respondent, but granted by the learned magistrate.  Clearly that application should not have been granted.  At that time, the complaint alleged offences not known to the law and it was the duty of the learned magistrate, had he been aware of that, to dismiss the complaint as he was without jurisdiction to deal with it.  See Brown v Petrie (supra); Stait v Colenso (1902) 28 VLR 286.

There was no motion to review the order of adjournment and the complaint was listed for hearing on 27 March 1998.  By that date, the Fisheries Rules (Validation) Act 1997 had been enacted and taken effect. There was another adjournment and, finally, on 30 June 1998, the complaint was called on for hearing.

At that hearing, counsel for the respondent submitted to the learned magistrate that the complaint should be dismissed, notwithstanding the enactment of the retrospective legislation.  Counsel submitted that although the validating legislation retrospectively proscribed as quasi criminal conduct the act which formed the subject of the complaint, it did not retrospectively validate any proceedings which, on the date that it came into effect, were pending in a court.

The learned magistrate reserved his decision and on 28 July 1998, dismissed the complaint.  Written reasons were handed down.  The order of dismissal is the subject of this motion to review. 

The learned magistrate referred to Brown v Petrie and very fairly said with respect to his earlier order made over objection, that the hearing of the complaint be adjourned:

"On reflection and having been referred to the decision of Brown v Petrie 154 of 1997, a decision of his Honour Mr Justice Underwood, it seems that I was in error in not dismissing the complaint on that day."

In his reasons for judgment, the learned magistrate referred in some detail to Brown v Petrie and concluded:

"In my view, it offends commonsense and justice if in not carrying out my duty to dismiss the complaint on the 28th July 1997 (see Section 31 (2) of the Justices Act) the defendant is now deprived of the right to have the complaint dismissed. He undoubtedly had that right on that day it seems.

That result is not merely a variation of the defendant's rights but a substantial deprivation of them.

In my view the incurable defect from which the complaint suffered as at the 28th July 1997 has not been cured by the validating legislation.

It seems to me that as the complaint stands at the moment I am in the same position as Mr Mollard was in the case of Brown v Petrie to which I have referred.  I adopt with respect the words of his Honour Mr Justice Underwood and find that I have no jurisdiction to deal with the complaint.  In my view it would not be the parliamentary intention of the validating legislation to retrospectively vest the Court with jurisdiction that it did not have as at the 28th July 1997.

In my view the complaint ought be dismissed."

One can sympathise with the view that the learned magistrate expressed about the deprivation of the defendant's right to have the complaint dismissed by his order of adjournment on 28 July 1997, but nonetheless, the impugned order of dismissal (coincidentally made precisely one year after the order of adjournment) was erroneous in law.  The terms of the Fisheries Rules (Validation) Act 1997, s3, which I have set out, very clearly reflect an intention on the part of Parliament to "retrospectively vest the Court with jurisdiction that it did not have as at the 28th July 1997". Indeed, that was the whole point of the legislation, viz, to make unlawful as from 20 May 1996 the conduct proscribed by the Fisheries Rules 1996.  Accordingly, although the conduct of the respondent alleged in the complaint was not unlawful at the time it occurred, it was subsequently declared to have then been unlawful by the enactment of the validating legislation.

This is not the first time that the Parliament has had to pass retrospective legislation to validate invalid legislation concerning the fisheries resource.  See Kenny v Maher 102/1993.

The submission put by counsel for the respondent in the court below and again on the hearing of the motion to review that the Parliament did not intend to retrospectively affect proceedings pending in a court, even though it intended to retrospectively make unlawful conduct which hitherto had been lawful, is rejected.  With respect to that proposition, Mason J said in Bawn Pty Ltd v Metropolitan Meat Industry Board (1971) 92 WN (NSW) 823 at 842:

"Once it is accepted that the general principle of construction recognizes that a statute may operate retrospectively so as to disturb and alter substantive rights which accrued before the commencement of the statute, provided that the statutory intention in that behalf is manifested with sufficient clarity, it is not easy to see why any different rule should be applied to the possible operation of the statute on rights which have already accrued, but are the subject of pending proceedings, at the time when the statute commences to operate.  True it is that in the latter case an added element of injustice may arise in the form of a liability to costs in circumstances in which the award of costs lies not in the discretion of the court, but follows automatically the result of the litigation.  Nevertheless, it does not seem that the injustice which will or may result from an interference with substantive rights in pending suits is in general so much greater that a stronger presumptive rule should be applied in such a case, in particular a rule which, according to its formulation, insists on a specific or explicit reference to rights in pending actions as an essential preliminary to the application of the new statute to those rights."

For the above reasons, grounds 1, 2 and 4 of the motion to review are made out. 

Ground 3 of the motion alleges that the learned magistrate erred in law when he observed, in the course of his reasons for judgment, that the time for filing any fresh complaint expired six months after the occurrence of the events relied upon and consequently, before the enactment of the validating legislation.  His Worship referred to the Justices Act 1959, s26 for that proposition. In so doing, he fell into error. Counsel for the respondent did not contend to the contrary on the hearing of the motion to review. The Justices Act, s26(1) has no application to this complaint. The Living Marine Resources Management Act 1995, the legislative source for the Fisheries Rules 1996, provides, by s208, that despite the Justices Act, a complaint for an offence under the Act (and thus the Regulations) may be brought at any time within five years from the date on which the matter of complaint arose. 
  However, the learned magistrate's observations about the time limited for filing a new complaint for a breach of the Fisheries Rules 1996, was made in passing and did not form an essential part of the reasoning that led to the order of dismissal being made.

The remaining grounds of the motion to review were abandoned.

Counsel for the respondent submitted that if any of the grounds of the motion to review succeeded, nonetheless the motion should be dismissed in the exercise of the power conferred by the Justices Act, s110(2)(ab) which provides:

"110 ¾ (1)  ...

(2)   On the hearing of a motion to review, the court shall, upon consideration of the evidence and materials adduced and brought before the justices and such further evidence (if any) as it thinks fit, review the order so far as relates to the ground set forth in the notice to review, and thereupon may do all or any of the following things, namely:

(a)…

(ab)in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion;"

In support of this submission, counsel relied upon the respondent's deprivation of the right he had on 28 July 1997 to have the complaint dismissed. Such reliance is misplaced. The power conferred by the Act, s110(2)(ab) is to be exercised in a case where the error detected by appellate review caused no injustice to the parties. That is not the case here. The order of dismissal deprived the applicant of the right to have the complaint determined on its merits. That is a substantial miscarriage of justice.

The motion to review is allowed.  The order dismissing the complaint made on 28 July 1998 is quashed.  The complaint is remitted to another magistrate for hearing in accordance with law.