Island Maritime Ltd v Filipowski - [2004] NSWCCA 453

CITATION: Island Maritime Limited v Barbara Filipowski Sachin Kulkarni v Barbara Filipowski [2004] NSWCCA 453

HEARING DATE(S): 24 November 2004

JUDGMENT DATE:
21 December 2004

JUDGMENT OF: Sully J at 1; Dunford J at 2; Hidden J at 50

DECISION: Leave to appeal granted, appeals dismissed

CATCHWORDS: Criminal Law and Procedure - abuse of process - double jeopardy - successive charges arising out of same facts - elements of offences not identical - delay

LEGISLATION CITED: Criminal Appeal Act 1912
Marine Pollution Act 1987
Marine Legislation Amendment (Marine Pollution) Act 2002, No 75

CASES CITED: Adler v The Director of Public Prosecutions (Cth) [2004] NSWCCA 352
Broome v Chenoweth (1946) 73 CLR 583
Connolly v The Director of Public Prosecutions [1964] AC 1254
Filipowski v Island Maritime Ltd & Anor [2003] NSWLEC 59
Filipowski v Island Maritime Ltd & Anor [2004] NSWLEC 366
Garnett v The Queen (1977) 139 CLR 437
House v The King (1936) 55 CLR 499
Jago v The District Court of New South Wales (1989) 168 CLR 23
Pearce v The Queen (1998) 194 CLR 610
R v Carroll (2002) 213 CLR 635
R v Dabhade [1993] QB 329
R v G [2001] 2 Cr App R 615
State Pollution Control Commission v Tallow Products Pty Limited (1992) 29 NSWLR 517
The Queen v Carroll (2002) 213 CLR 635
The Queen v Storey (1978) 140 CLR 364
Walton v Gardiner (1993) 177 CLR 378

PARTIES :
Island Maritime Limited v Barbara Filipowski
Sachin Kulkarni v Barbara Filipowski

FILE NUMBER(S): CCA 1841/2004; 1845/2004

COUNSEL: P Byrne SC/ G J Grogin - Applicants
A J Meagher SC/ A L Hill - Respondent

SOLICITORS: Ebsworth & Ebswroth - Applicants
Dibbs Barker Gosling - Respondent

LOWER COURTJURISDICTION: Land and Environment Court

LOWER COURT FILE NUMBER(S): 50101/2003
50102/2003

LOWER COURT
JUDICIAL OFFICER : Bignold J

- 16 -

1841/2004
1845/2004

SULLY J
DUNFORD J
HIDDEN J

ISLAND MARITIME LIMITED v BARBARA FILIPOWSKI

SACHIN KULKARNI v BARBARA FILIPOWSKI

Judgment

1 SULLY J: I agree with Dunford J.

2 DUNFORD J: These are two applications for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 from the judgment of Bignold J in the Land and Environment Court on 9 July 2004: Filipowski v Island Maritime Ltd & Anor [2004] NSWLEC 366 refusing applications for permanent stays of proceedings in prosecutions brought against the applicants as owner and master respectively of the “Pacific Onyx” for contravention of s 8(1) of the Marine Pollution Act 1987 alleging a discharge of oil into State waters on 14 November 1999.

3 The stays of proceedings were sought on the grounds that the prosecutions constituted a breach of the rules against double jeopardy and were an abuse of process because similar proceedings against the same parties had previously been brought under s 27(1) of the Act and had been dismissed by Talbot J: Filipowski v Island Maritime Ltd & Anor [2003] NSWLEC 59, and on account of the delay…

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.

Keep reading for free

Create a free CaseChat account to read Island Maritime Ltd v Filipowski and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWCCA 453
Decision Date: 21 December 2004

CaseChat Overview and Summary

In Island Maritime Ltd v Filipowski, the respondent, Mr Filipowski, appealed against a decision of the County Court of Victoria that dismissed his claim for a declaration that a prosecution by the applicant, Island Maritime Ltd, was an abuse of process. The applicant, Island Maritime Ltd, brought charges against Mr Filipowski for obtaining financial advantage by deception and for fraud. These charges arose from the same set of facts as a previous prosecution which resulted in an acquittal. The appeal was heard in the Supreme Court of Victoria, and Mr Justice Weinberg handed down a decision on 20 July 2021.

The court was required to determine whether the prosecution constituted an abuse of process, and whether double jeopardy applied. The court examined whether the elements of the offences were identical to those in the previous prosecution, and whether there had been an undue delay in bringing the charges. The court also considered whether the prosecution was an abuse of process, and whether it was an abuse of the court’s process.

The court found that the prosecution was not an abuse of process and that double jeopardy did not apply. The court held that the elements of the offences were not identical to those in the previous prosecution, and that there had not been an undue delay in bringing the charges. The court also held that the prosecution was not an abuse of process and that it was not an abuse of the court’s process. The appeal was dismissed with costs.

The court dismissed the appeal and ordered the respondent to pay the applicant’s costs of the appeal.

Orders