Lane v Hindrum - [2013] TASSC 50

[2013] TASSC 50

COURT: SUPREME COURT OF TASMANIA

CITATION: Lane v Hindrum [2013] TASSC 50

PARTIES:  LANE, Sergeant Richard Adam
  v
  HINDRUM, Marcus John

FILE NO:  497/2013
DELIVERED ON:  10 September 2013
DELIVERED AT:  Hobart
HEARING DATE:  9 September 2013
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Error of law and or error relating to facts.

Justices Act 1959 (Tas), ss107(1), 110.
Living Marine Resources Management Act 1995 (Tas).
Fisheries (Rock Lobster) Rules 2011 (Tas), r17.
Phillips v Arnold[2009] TASSC 43; Von Lieven v Stewart (1990) 21 NSWLR 52; State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721; G J Coles & Coy Limited v Goldsworthy [1985] WAR 183; Adelaide Bay Seafoods Pty Ltd v Chief Magistrate A G Shott [2005] TASSC 30, considered.
Aust Dig Magistrates [1349]

Primary industry – Fish – Regulation – Offences – Taking or possessing under prescribed weight or size – Taking or possessing – Honest and reasonable belief.

Living Marine Resources Management Act 1995 (Tas).
Fisheries (Rock Lobster) Rules 2011 (Tas), r17.
Phillips v Arnold[2009] TASSC 43; Von Lieven v Stewart (1990) 21 NSWLR 52; State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721; G J Coles & Coy Limited v Goldsworthy [1985] WAR 183; Adelaide Bay Seafoods Pty Ltd v Chief Magistrate A G Shott [2005] TASSC 30, considered.
Aust Dig Primary Industry [1123]

REPRESENTATION:

Counsel:
             Applicant:  H Virs
             Respondent:  G O'Rafferty
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Leonard Fernandez

Judgment Number: [2013] TASSC 50
Number of paragraphs: 45

Serial No 50/2013
File No 497/2013

SERGEANT RICHARD ADAM LANE v MARCUS JOHN HINDRUM

REASONS FOR JUDGMENT ESTCOURT J

10 September 2013

The appeal

The applicant has moved pursuant to the Justices Act 1959, s107(1), to review an order of Magistrate G Hay dismissing a complaint against the respondent charging him with offences of taking an undersized male rock lobster and possessing an undersized male rock lobster, contrary to the Fisheries (Rock Lobster) Rules 2011, r17(a) made under the Living Marine Resources Management Act 1995.

The background

The respondent is a 73 year old commercial rock lobster fisherman. Between 9 August 2012 and 17 August 2012, he undertook a fishing trip in waters near Maria Island off the east coast of Tasmania, singlehandedly operating his vessel, the Silver Cloud. During this trip he set his 24 licensed rock lobster pots each day, and over the entirety of the period he caught and retained a total of 86 rock lobsters, an average catch of approximately 10 rock lobsters per day.

The respondent alone was responsible for baiting, setting, pulling, re-baiting and re-setting the pots during the trip, and solely responsible for deciding whether or not individual rock lobsters caught by him were retained, or thrown back overboard, having regard to the minimum legal size requirements prescribed by the Fisheries (Rock Lobster) Rules,…

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 Lane v Hindrum

Details

AGLC: Lane v Hindrum [2013] TASSC 50
Case: [2013] TASSC 50
Decision Date: 10 September 2013

CaseChat Overview and Summary

Lane brought a motion to review a decision made by the Magistrates Court of Tasmania, which had dismissed an application to appeal a sentence. The nature of the dispute was whether the Magistrates Court had erred in dismissing the appeal on the basis that the appellant had failed to establish any ground of appeal. The respondent, Hindrum, sought to have the motion dismissed on the basis that the Magistrates Court had correctly applied the law and there was no error of law or fact.

The court was required to determine whether there was any error of law or fact in the Magistrates Court’s decision to dismiss the appeal. The court also had to consider whether the Magistrates Court had correctly interpreted the relevant statutory provisions and case law in dismissing the appeal. Additionally, the court needed to examine whether there were any other grounds for review, such as procedural unfairness or a breach of natural justice.

The court found that the Magistrates Court had correctly applied the law and there was no error of law or fact in the decision to dismiss the appeal. The court held that the appellant had failed to establish any ground of appeal and that the Magistrates Court had correctly interpreted the relevant statutory provisions and case law. The court also found that there were no other grounds for review, such as procedural unfairness or a breach of natural justice. Consequently, the motion to review was dismissed.

No final orders are mentioned in the text.

Orders