Filz v Whish-Wilson

[2001] TASSC 25

[2001] TASSC 25

CITATION:              Filz v Whish-Wilson & Ors [2001] TASSC 25

PARTIES:  FILZ, Roger Christopher
  v
  WHISH-WILSON, Geoffrey

POKE, Leonard Edward
BLAKE, David Edward

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 2/2001

LCA 3/2001
LCA 4/2001

DELIVERED ON:  27 February 2001
DELIVERED AT:  Burnie
HEARING DATES:  27 February 2001
JUDGMENT OF:  Underwood J

[Edited edition of reasons for judgment delivered orally]

CATCHWORDS:

REPRESENTATION:

Counsel:
           Applicant:  M A Stoddart
           Respondent Whish-Wilson:         B J Casey
           Respondent Poke:  B J Casey
           Respondent Blake:  I C Guest
Solicitors:
           Applicant:  
           Respondent Whish-Wilson:         Crisp Hudson & Mann
           Respondent Poke:  Smith & Glover
           Respondent Blake:  Ian Guest & Associates

Judgment Number:  [2001] TASSC 25
Number of Paragraphs:  4

Serial No 25/2001
File Nos LCA 2/2001

LCA 3/2001
LCA 4/2001

ROGER CHRISTOPHER FILZ v GEOFFREY WHISH-WILSON
ROGER CHRISTOPHER FILZ v LEONARD EDWARD POKE
ROGER CHRISTOPHER FILZ v DAVID EDWARD BLAKE

REASONS FOR JUDGMENT  UNDERWOOD J
(DELIVERED ORALLY)  27 February 2001

1. By consent, three motions to review were heard together.  The applicant is the same in each case, but there are three different respondents, namely Geoffrey Whish-Wilson, Leonard Edward Poke and David Edward Blake.  Each respondent pleaded guilty in a court of petty sessions to a breach of the Fisheries (Rock Lobster) Rules 1997, r28(1)(a) in that they were found to be using more than one rock lobster pot.

1. Each of the respondents was the holder of a recreational rock lobster pot licence, but they were seen pulling two pots into the boat that did not belong to any of them.  This act constituted a use of more than one rock lobster pot proscribed by the Rules.  The circumstances in which this was done were perfectly understandable as the licensees of those two pots were unable to get their boat started and thus, unable to retrieve their pots.  So, the respondents simply agreed to pull their pots for them as their boat was operational.  On that basis, a plea of guilty was entered and the learned magistrate proceeded to conviction and imposed the minimum penalty under the Fisheries Penalties Regulations 1996, namely, $100.  He also ordered payment of costs. 

1. It seems as though, by way of oversight, he overlooked the provisions of the Living Marine Resources Management Act 1995, s261, which provided for a mandatory special penalty upon the commission of an offence under the Act or Regulations relating to the use or possession of apparatus. This special penalty equals ten penalty units for each rock lobster pot used. To make sure there is no doubt about the mandatory nature of this penalty, the Parliament enacted, by subs(2):

"A court must not reduce a special penalty for any reason". 

1. As I say, the learned magistrate, appears to have simply overlooked that section and I do agree with both counsel for the respondents here today that its imposition in these circumstances is harsh in the extreme.  However, as I observed to them a moment ago, the introduction of mandatory penalties always produces cases that are harsh in the extreme.  Notwithstanding that, the intention of Parliament is quite clear, and that in addition to the minimum penalty there should have been imposed against each respondent, a special penalty of $2,000, being $1,000 for each pot used.  Accordingly, with respect to each motion to review, the following orders are made:

1    The order of fine of $100 and costs is quashed.

2    In lieu thereof, in each case, there be a fine of $100, costs of $35.65 and a special penalty of $2,000.

3    The fines and penalties are to be paid on or before 31 August 2001.

4    Each respondent will be granted a certificate pursuant to the Appeal Costs Fund Act, s8.