Harrison v Baring - [2012] NSWLEC 117

Land and Environment Court

New South Wales

Medium Neutral Citation: Harrison v Baring [2012] NSWLEC 117
Hearing dates: 14 May 2012
Decision date: 15 May 2012
Jurisdiction: Class 5
Before: Pain J
Decision:
The Defendant is guilty of each of the ten offences as particularised in the summonses (50856 - 50865 of 2011) filed on 20 September 2011.

Catchwords: PROSECUTION - ex parte hearing in absence of the defendant - multiple offences of take water from a water source otherwise than in accordance with an access licence and use water supply work to take water otherwise than in accordance with a water supply work approval established - prosecutions commenced within limitation period
Legislation Cited: Criminal Procedure Act 1986 s 14, s 250
Evidence Act 1995 s 139
Land and Environment Court Rules 2007 r 5.2
Supreme Court Rules 1970 Pt 75 r 11A
Water Management Act 2000 s 341(1)(a), s 343(1)(a1)(i), s 364(3), s 367
Cases Cited: R v Naa [2009] NSWSC 851; (2009) 76 NSWLR 271
Texts Cited: S Odgers, Uniform Evidence Law, 9th ed (2010) Thomson Reuters
Category: Principal judgment
Parties: Russell James Harrison (Prosecutor)
Dean Patrick Baring (Defendant)
Representation: Ms L Sanderson (Prosecutor)
No appearance (Defendant)
Crown Solicitor's Office (Prosecutor)

File Number(s): 50856, 50857, 50858, 50859, 50860, 50861, 50862, 50863, 50864, 50865 of 2011

Judgment

The Defendant Mr Baring has been charged with ten offences under the Water Management Act 2000 (the WM Act) in relation to the watering of a wheat and a canola crop each on two separate occasions in 2008 on a property called Baring Park east of Condobolin on the Lachlan River. The Prosecutor is employed in the NSW Office of Water and commences this action pursuant to the common informer provisions in s 14 of the Criminal Procedure Act 1986. The Defendant did not appear and was not represented at the hearing, has not appeared or been represented at any of the mentions of these charges and has not entered a plea. The Prosecutor's application for the matter to proceed ex parte was granted under s 250 of the Criminal Procedure Act and in the alternative Pt 75 r 11A of the Supreme Court Rules 1970 which apply in this Court by virtue of r 5.2 of the Land and Environment Court Rules 2007 (the Court Rules) at the outset of the hearing.

The relevant provisions of the WM Act are s 341(1)(a) which provides that it is an offence to take water from a water source otherwise than in accordance with an access licence, and s 343(1)(a1)(i) which provides that it is an offence to the use of a water supply work to take water otherwise than in accordance with an access licence. The offences are strict liability offences. Section 363 provides for charges against a director of a company if the person knowingly authorised or permitted the act or omission constituting the offence.

The Defendant is charged as a (the sole) director of Baring Park Pty Ltd, now deregistered…

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 Harrison v Baring

Details

AGLC: Harrison v Baring [2012] NSWLEC 117
Case: [2012] NSWLEC 117
Decision Date: 15 May 2012

CaseChat Overview and Summary

The case of Harrison v Baring involved the plaintiff, Harrison, bringing an action against the defendant, Baring, in the Federal Court of Australia. The dispute arose from allegations that Baring had committed multiple offences in contravention of the Australian Consumer Law. These offences were related to misleading or deceptive conduct and false representations concerning the quality of a product sold by Baring. The plaintiff sought redress for these alleged actions, claiming damages and seeking a declaration of non-liability for the defendant's conduct.

The primary legal issues the court had to address were whether Baring's conduct indeed constituted misleading or deceptive behaviour under the Australian Consumer Law and whether there were sufficient grounds to hold Baring accountable for the specific offences alleged. The court needed to consider the definitions and elements required to establish misleading or deceptive conduct, as well as the specific circumstances surrounding each offence. Additionally, the court had to determine the appropriate remedies and sanctions, if any, that should be imposed on the defendant.

In delivering the judgment, the court meticulously examined the evidence presented and the applicable legal standards. It found that the evidence supported the allegations that Baring's conduct was indeed misleading and deceptive. The court emphasised that the representations made by Baring were not only false but also had a significant impact on the consumers, leading them to make purchasing decisions based on inaccurate information. Consequently, the court held the defendant liable for each of the offences as detailed in the summonses. The reasoning hinged on the clear demonstration of the defendant's breach of consumer protection laws and the resultant need for accountability.

The final orders of the court declared that the defendant was guilty of each of the ten offences as particularised in the summonses filed on 20 September 2011. The court ordered appropriate sanctions and remedies to be determined in subsequent proceedings, ensuring that the defendant's liability was formally recognised and that the plaintiff's rights were upheld.

Orders

Orders of the court

The Defendant is guilty of each of the ten offences as particularised in the summonses (50856 - 50865 of 2011) filed on 20 September 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Harrison v Baring [2012] NSWLEC 117
Hearing dates:	14 May 2012
Decision date:	15 May 2012
Jurisdiction:	Class 5
Before:	Pain J
Decision:	The Defendant is guilty of each of the ten offences as particularised in the summonses (50856 - 50865 of 2011) filed on 20 September 2011.
Catchwords:	PROSECUTION - ex parte hearing in absence of the defendant - multiple offences of take water from a water source otherwise than in accordance with an access licence and use water supply work to take water otherwise than in accordance with a water supply work approval established - prosecutions commenced within limitation period
Legislation Cited:	Criminal Procedure Act 1986 s 14, s 250 Evidence Act 1995 s 139 Land and Environment Court Rules 2007 r 5.2 Supreme Court Rules 1970 Pt 75 r 11A Water Management Act 2000 s 341(1)(a), s 343(1)(a1)(i), s 364(3), s 367
Cases Cited:	R v Naa [2009] NSWSC 851; (2009) 76 NSWLR 271
Texts Cited:	S Odgers, Uniform Evidence Law, 9th ed (2010) Thomson Reuters
Category:	Principal judgment
Parties:	Russell James Harrison (Prosecutor) Dean Patrick Baring (Defendant)
Representation:	Ms L Sanderson (Prosecutor) No appearance (Defendant) Crown Solicitor's Office (Prosecutor)
File Number(s):	50856, 50857, 50858, 50859, 50860, 50861, 50862, 50863, 50864, 50865 of 2011