Konestabo v Brown

[2002] TASSC 34

[2002] TASSC 34

CITATION:              Konestabo v Brown [2002] TASSC 34

PARTIES:  KONESTABO, Eric Steven
  v
  BROWN, Graeme Maxwell

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 1/2002
DELIVERED ON:  6 June 2002
DELIVERED AT:  Hobart
HEARING DATES:  6 June 2002
JUDGMENT OF:  Underwood, Crawford and Slicer JJ

CATCHWORDS:

Statutes - Acts of Parliament - Interpretation - Rules of construction - Particular rules - Maxim expressum facit cessare tacitum.

Fisheries (Abalone) Rules 2000, rr17(1)(c), 20(1)(a) and 21(a).
Living Marine Resources Management Act 1995 (Tas), s264(1) and Pt 3, Div 1.
Aust Dig Statutes [16]

REPRESENTATION:

Counsel:
           Appellant:  T L McDermott
           Respondent:  F C Neasey
Solicitors:
           Appellant:  T L McDermott
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2002] TASSC 34
Number of Paragraphs:  8

Serial No 34/2002
File No FCA 1/2002

ERIC STEVEN KONESTABO V GRAEME MAXWELL BROWN

REASONS FOR JUDGMENT  FULL COURT
(DELIVERED ORALLY)  UNDERWOOD J

CRAWFORD J
SLICER J
7 June 2002

Order of the Court

Appeal dismissed

Serial No 34/2002
File No FCA 1/2002

ERIC STEVEN KONESTABO V GRAEME MAXWELL BROWN

REASONS FOR JUDGMENT  FULL COURT
(DELIVERED ORALLY)  UNDERWOOD J

CRAWFORD J
SLICER J
7 June 2002

1. Simply, but we hope accurately, stated, the appellant's argument in this appeal runs as follows:

1    The Living Marine Resources Management Act 1995 ("the Act"), s264(1) provides:

"A person who, without lawful excuse, has possession of fish with a value exceeding $5,000 is guilty of an indictable offence punishable under the Criminal Code."

2    Pursuant to the rule making powers, the Rules create a number of offences, an element of which is possession of fish and by doing so make the prescribed possession unlawful.

3 A breach or breaches of those Rules will constitute an unlawful possession proscribed by s264 in cases where the value of the fish possessed exceeds $5,000.

4 Upon its proper construction, s264 means that in the event of there being an unlawful possession of fish with a value in excess of $5,000, a prosecution may only be brought in accordance with s264. In such a circumstance there can be no prosecution for a breach of a rule which has as an element possession of fish. Thus the submission embraces the concept that Parliament intended s264 to regulate procedure as well as declare the substantive law.

1. In his written submission, the appellant contended:

"… there is a rule of law that when a statute specifically deals with a matter and makes it the object of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that limitation."

Two cases are cited in support of that proposition.

1. The submission is erroneous. There is no such rule of law. There is a canon of construction to like effect which may be prayed in aid where necessary. Recourse to it does not arise in this case. As the learned judge at first instance observed, the Act, s264, is not concerned with procedure, it simply creates an offence or, better expressed, a crime.

1. One of the cases relied upon by counsel for the appellant was Anthony Horden & Sons Pty Ltd v The Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1. In that case, the court was concerned to construe the meaning of a statutory provision which conferred a power and whether it should be read down in the light of a restriction imposed by another section in the same Act also conferring a power. That case has no relevance to the submission put on behalf of the appellant. The task at hand is simply to construe the intention of the Tasmanian Parliament by the enactment of s264(1). The subsection neither confers powers nor directs procedure. Its words are crystal clear. They create a crime and say nothing at all with respect to any procedural direction concerning the prosecution for an offence contrary to the Rules.

1. Although the appellant's notice of appeal to this Court does not assert that the Rules that make possession of fish an element of an offence are ultra vires, counsel for the appellant finally, and reluctantly, contended that they are ultra vires, if this Court cannot read them down to exclude those that made possession an element of an offence, as inapplicable to possession of fish having a value of more than $5,000.

1. In his submission after the luncheon adjournment, counsel for the appellant submitted that where the Rules, on their face, purport to deal with possession of fish with a value in excess of $5,000, the Rules are ultra vires.  The Rules do not purport to deal with possession of fish with a value in excess of $5,000.  They deal with possession of fish simpliciter, usually as one of a number of other elements making up an offence. Counsel's submission continued that the basis of invalidity was the enactment of the Act, s264. For good measure but without cogent reasoning, he added s262 as "perhaps" another basis for invalidity.

1. Whether or not a rule is ultra vires will depend upon the extent of the statutory rule making power. The Act, s42(a), expressly provides that Rules may be made providing that a contravention or failure to comply with any rule is an offence. The Act, s40C, expressly empowers the making of Rules with respect to the possession of "the size, number, weight or any other characteristic of fish which may be … possessed …".

1. The appellant contended at first instance that the Rules referred to in the complaint preferred against the appellant in a court of petty sessions which gives rise to this appeal, were ultra vires and we would adopt the reasons given by the learned judge at first instance for dismissing that argument.  The appeal is dismissed.