Hatfield v Queensland Commercial Fishermen's State Council

[2000] QCA 358

[2000] QCA 358

COURT OF APPEAL

PINCUS JA
THOMAS JA
JONES J

Appeal No 6346 of 2000

STEPHEN GRAHAM HATFIELD  Applicant

and

QUEENSLAND COMMERCIAL FISHERMEN'S
STATE COUNCIL  Respondent

BRISBANE

..DATE 04/09/2000

JUDGMENT

PINCUS JA:  This is an application for leave to appeal from a decision of the District Court refusing an appeal from the Magistrates Court in an action for levies made under a notice purporting to be issued to the applicant as such a person as is mentioned in regulation 5 of the Queensland Commercial Fishermen's Organisation Regulations 1989.

The points taken by Mr Alexander in support of the application for leave are first, that the regulation which I have mentioned, regulation 5, does not when properly construed make the applicant a member of the branch there referred to, but simply makes him eligible, or requires him, to become a member; it does not of its own force make him a member.

Secondly, Mr Alexander says that if regulation 5, contrary to that contention, does, of its own force, make the applicant a member then the regulation is not authorised by anything in the Act which is relied on as authorising it, that is, the Primary Producers Organisation and Marketing Act 1926 and, in particular, it is not authorised by s.30F(9) of that statute.

A third point taken by Mr Alexander is that if all other points fail, the levy is a duty of excise which may not be imposed by or under the authority of a State statute and therefore is contrary to the Commonwealth Constitution. The Constitutional point prima facie requires notice under section 78B of the Judiciary Act but Mr Morris says, and I think he is correct, that we must give that notice only if there is some question of a serious kind raised. It is out of no disrespect to Mr Alexander, who argued the matter very helpfully, to say that, in my opinion, the excise point is not one which has any real prospect of success nor one which is seriously arguable.

As to the other matters, however, I am of the opinion that Mr Alexander has raised questions which should be resolved.  Initially, he was of the opinion that it would suit his side if the appeal were argued today, but, on further consideration of the matter and having taken instructions, Mr Alexander told us that he would feel better prepared for arguing the appeal itself if he were simply given leave today.  It would seem to me to be rather unfair to the applicant, who had no particular reason to think the matter was going to be argued fully today, to refuse Mr Alexander access to what might be called the ordinary course of procedure.

Therefore, the view I take is, in substance, that the questions raised as to regulation 5 not making the applicant a member, as to regulation 5 (if it does make him a member) being ultra vires the statute, that those questions may be considered by a notice of appeal appropriately drawn.  I do not hold the same view with respect to the excise point.  I would therefore give leave to appeal, the appeal being confined to non-constitutional matters sought to be raised.

...

THOMAS JA:  I agree.

JONES J:  I agree also.

THOMAS JA:  I agree with the reasons that the presiding Judge has given and the order.

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PINCUS JA:  The costs will be costs in the appeal.

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PINCUS JA:  We will enlarge the date for filing of the notice of appeal to 11 September 2000.

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