Practice - High Court - Appeal from Supreme Court of State - Security for
costs- Notice to respondent of lodging security - Delay in giving - Rules of the High Court 1911, Part II., Sec. III., r. 12.
Sec. 36 of the Fisheries Act 1889 (Tas.) makes it an offence for a person to have in his "possession or control" fish under a certain size
Held, that on the construction of this section a charge of having in posses- sion or control' is not a charge of two separate offences.
Semble: When an information charges two offences it is the duty of the magistrate to tell the informant of his right of election to proceed on either charge.
Decision of the Supreme Court of Tasmania: Hedberg v. Woodhall, 8 Tas. L.R., 66, affirmed.
Where security for the costs of an appeal has been duly lodged within the time prescribed by the Rules of the High Court 1911, Part II., Sec. III., r. 12, the appeal will not be struck out merely because the appellant has not given the respondent notice of the lodging of the security until after such time had expired.
APPEAL from the Supreme Court of Tasmania.
The respondent was charged under sec. 36 of the Fisheries Act 1889 (Tas.) with unlawfully having in his "possession or control" flounders of a size less than that prescribed. After the evidence for the prosecution was given the respondent took the objection that the information was bad in that it disclosed two offences. The magistrate upheld the objection, and dismissed the informa- tion. The Full Court, on appeal by way of special case, dis- missed the appeal Hedberg v. Woodhall 1.
Special leave to appeal to the High Court against the decision of the Supreme Court was granted to the informant on 23rd September 1912, and notice of appeal was served on 11th October. The security for the costs of the appeal was lodged on 16th October, but notice of its having been lodged was not served upon the respondent until 31st January 1913.
A preliminary application was now made on behalf of the respondent to have the appeal struck out on the ground that it was not properly instituted.
Shields, for the respondent. Under the Rules of the High Court 1911, Part II., sec. III., r. 12, the appellant should have given the security and the notice thereof within three months
after the service of the notice of appeal. The giving of the security is not complete until the notice is given, and the rule provides that…
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 Hedberg v Woodhall
Sign in free to access the full text
Details
AGLC
Hedberg v Woodhall [1913] HCA 2
Case
[1913] HCA 2
Decision Date
CaseChat Overview and Summary
The High Court heard an appeal from the Supreme Court of Tasmania concerning a charge laid against the respondent under section 36 of the *Fisheries Act 1889* (Tas.). The respondent was accused of unlawfully having in his "possession or control" undersized flounders. The magistrate had dismissed the information, accepting the respondent's objection that the charge disclosed two separate offences. The Supreme Court of Tasmania affirmed this decision, leading to the informant's appeal to the High Court. A preliminary application by the respondent to strike out the appeal due to a delay in providing notice of security for costs was dismissed by the Court.
The primary legal issue before the High Court was whether the phrase "possession or control" in section 36 of the *Fisheries Act* created one offence or two distinct offences. A secondary issue, considered by the magistrate and the Supreme Court, was the proper procedure when an information is alleged to disclose more than one offence. The Court also considered the effect of section 1 of the *Magistrates Summary Procedure Act 1855* (Tas.) on objections to informations.
The High Court allowed the appeal, holding that the charge of having fish in "possession or control" constituted a single offence. The Court reasoned that in the context of the *Fisheries Act*, possession necessarily implies control, and the legislature intended to penalise the act of having the fish, regardless of whether it was through direct possession or mere control. Furthermore, even if the information were considered to disclose two offences, the Court found that the magistrate's dismissal of the information was erroneous. Citing *Rodgers v. Richards*, the Court held that under section 1 of the *Magistrates Summary Procedure Act*, such a defect in substance or form does not justify dismissing the information; rather, the magistrate should have called upon the informant to elect which charge to proceed on.
The Court ordered that the appeal be allowed, the decision of the Supreme Court of Tasmania discharged (except as to costs), and the case remitted to the magistrate to adjudicate upon the charge on its merits. The appellant was ordered to pay the costs of the appeal.