Evans v Strachan (No 2) - [1999] TASSC 129

[1999] TASSC 129

CITATION: Evans v Strachan (No 2) [1999] TASSC 129

PARTIES:  EVANS, Kim Ronald
  v
  STRACHAN, David Campbell (No 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  M305/1998
DELIVERED ON:  26 November 1999
DELIVERED AT:  Hobart
HEARING DATES:  6, 8 October, 19, 22 November 1999
JUDGMENT OF:  Slicer J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Applicant:  F C Neasey
             Respondent:  G Wendler
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Baker Tierney & Wilson

Judgment Number: [1999] TASSC 129
Number of Paragraphs: 17

Serial No 129/1999
File No 305/1998

KIM RONALD EVANS v DAVID CAMPBELL STRACHAN (No 2)

REASONS FOR JUDGMENT SLICER J

26 November 1999

The application for the making of a control order against the respondent, pursuant to the Living Resources Management Act 1995 ("the Act"), has involved two issues. The first, whether the legislation was within power, has already been determined by the Court. The second is whether, in the exercise of discretion, such an order ought be made. The scheme of the Act has been considered in the judgment relating to constitutional power (Evans v Strachan [1999] TASSC 115), and does not require repetition.

Preconditions

The Court is satisfied that the Secretary has properly exercised his discretion in the making of the application. The preconditions to that decision are:

(1)the application is made against a person in respect of whom 200 demerit points are in force;
(2)that person has been convicted of a relevant offence contrary to a law of Tasmania or another State;
(3)that the Secretary believed, on reasonable grounds, that the respondent is a person likely to commit further offences contrary to the Act.

It is not necessary to express a concluded view on the extent to which a court, exercising power pursuant to the Act, s253, is required to consider the reasonableness of the decision of the Secretary's belief as to the likelihood of future conduct. Presumably if the Court itself was not satisfied on the evidence placed before it that it was reasonable to believe that a person was likely to commit further offences, then any view it formed as to the reasonableness or otherwise of the belief of the Secretary would be academic. Conversely, the Secretary might have paid regard to relevant material which was not admissible on the hearing held pursuant to the Act, s253 and had greater reason for holding the requisite belief. The material might persuade the Secretary, but not persuade the Court. The questions are interconnected, but not necessarily identical. Had the Act, s253(1)(a) required the Court to issue a control order upon satisfaction that the preconditions had been met, then the reasonableness or otherwise of the belief of the Secretary would become central to the determination. In this case, the Court is satisfied that the Secretary had, at the time of the making of the application, a belief, which was reasonable, that the respondent was likely to commit further offences against the Act.

Evidence

The respondent was a professional fisherman. The…

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 Evans v Strachan (No 2)

Details

AGLC: Evans v Strachan (No 2) [1999] TASSC 129
Case: [1999] TASSC 129
Decision Date: 26 November 1999

CaseChat Overview and Summary

Evans v Strachan (No 2) involved an application for a control order against David Strachan under the Living Resources Management Act 1995. The application, brought by the Attorney-General on behalf of the Director of Public Prosecutions, sought to prevent Strachan from engaging in further illegal fishing activities in Tasmanian waters. The case centred on whether, given Strachan's extensive history of fisheries-related offences, both in Victoria and Tasmania, a control order was justified to prevent him from committing further offences under the Act. The court had to determine whether the Secretary of the Department of Primary Industries, Water and Environment had properly exercised his discretion in making the application and if such an order should be made.

The court examined the preconditions for the application, including Strachan's accumulation of 200 demerit points, multiple convictions for fishing offences, and the Secretary's belief that Strachan was likely to commit further offences. The court found that the Secretary had reasonably believed that Strachan was likely to commit further offences based on his past conduct. Strachan's history of repeated violations, including multiple convictions for illegal fishing activities and breaches of court-imposed bonds, provided a compelling basis for this belief. Furthermore, observations of Strachan in Tasmanian waters, engaging in suspicious activities in isolated areas known for illegal fishing, reinforced the likelihood that he would continue to engage in such activities. The court concluded that the purpose of the legislation, to promote sustainable management of living marine resources, would be undermined if Strachan were not subject to a control order.

The court rejected arguments that the application was delayed or harsh and unjust. It found that the Secretary appropriately waited for the disposition of Strachan's appeals before making the application. Additionally, the court determined that the control order did not unjustly restrict Strachan's social or political rights but rather aimed to prevent his illegal commercial activities. Therefore, the court granted the application with modifications to the proposed control order to ensure that the Secretary could properly consider reissuing Strachan's licence at the end of the disqualification period. The final orders prohibited Strachan from being a crew member or passenger on a vessel under 90 meters in length in Tasmanian state waters and from possessing or controlling fishing apparatus in those waters without written consent from the Secretary, both for a period of five years.

Orders