Lau v NSW Department of Industry

[2019] NSWLEC 77

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lau v NSW Department of Industry [2019] NSWLEC 77
Hearing dates:	10 May 2019, 22 May 2019, 7 June 2019
Date of orders:	07 June 2019
Decision date:	07 June 2019
Jurisdiction:	Class 6
Before:	Pain J
Decision:	(1) Appeal no 19/67254 is dismissed.  (2) No order as to costs.
Catchwords:	APPEAL – appeal against conviction in Local Court – no jurisdiction in Land and Environment Court – no power to transfer proceedings to District Court
Legislation Cited:	Crimes (Appeal and Review) Act 2001 ss 3, 11, 13, 31, 52 Fisheries Management Act 1994 s 18, Pt 7, Pt 7A, s 277 Land and Environment Court Act 1979 ss 21, 31, 77 Protection of the Environment Administration Act 1991 s 3 Supreme Court Rules 1970 r 6
Category:	Procedural and other rulings
Parties:	Wai Keung Lau (Appellant)   NSW Department of Primary Industries Cronulla (Respondent)
Representation:	COUNSEL: K Tang (Appellant) K Johnston, solicitor (Respondent)   SOLICITORS: N/A (Appellant) Norton Rose Fullbright (Respondent)
File Number(s):	19/67254
Decision under appeal	Court or tribunal: Batemans Bay Local Court Jurisdiction: Criminal Date of Decision: 1 February 2019 Before: Magistrate D Dick File Number(s): 2018/292939

EX TEMPORE Judgment

1. On 1 February 2019 the Batemans Bay Local Court convicted Mr Lau the appellant of one count of possessing more than the “possession limit of any fish” pursuant to s 18(2) of Pt 2 “General fisheries management” of the Fisheries Management Act 1994. He was fined $2,000 and ordered to pay $3,383 for the prosecution authority’s professional costs.

2. On 1 March 2019 Mr Lau filed a summons commencing Class 6 proceedings in the Land and Environment Court to appeal his conviction and sentence in the Local Court. The matter was listed in the usual Friday list on the first return date of 10 May 2019 before me as list judge. The NSW Department of Industry (the Department) filed a notice of motion in court on 10 May 2019 seeking orders that the proceedings be remitted to the District Court relying on ss 77 or 31 of the Land and Environment Court Act 1979 (LEC Act) or the Court’s inherent jurisdiction. An alternative order that the appeal be dismissed was also sought. The Department submitted that the Court has no power to hear an appeal from the Local Court in relation to offences under s 18(2) of the Fisheries Management Act. Any appeal of Mr Lau must be to the District Court. I stood the matter over until 22 May 2019 so that I could confirm that the Court had no jurisdiction, as I conclude below, and determine whether the Court has powers to transfer proceedings to the District Court. As Mr Lau had had no opportunity to make submissions about the notice of motion I referred him for urgent pro bono legal advice and stood the matter over to 7 June 2019 before finalising the matter.

Land and Environment Court has no jurisdiction

3. The Land and Environment Court has jurisdiction to hear appeals from the Local Court with respect to an “environmental offence” pursuant to s 31 of the Crimes (Appeal and Review) Act 2001 (the Appeal Act). “Environmental offence” is defined in s 3 of the Appeal Act as “an offence for which summary proceedings may be taken before the Land and Environment Court … and includes any offence arising under the environment protection legislation within the meaning of the Protection of the Environment Administration Act 1991”. The only Fisheries Management Act offences which may be dealt with summarily before the Land and Environment Court are offences against Pts 7 “Protection of aquatic habitats” and 7A “Threatened species conservation” or regulations under those parts per s 277(1)(c) of the Fisheries Management Act as referred to in s 21(gb) of the LEC Act. Further, environment protection legislation within the meaning of s 3 of the Protection of the Environment Administration Act does not include the Fisheries Management Act. The Land and Environment Court has no jurisdiction to hear Mr Lau’s appeal.

No power to transfer matter to District Court

4. Under s 11 of the Appeal Act Mr Lau had an appeal as of right to the District Court within 28 days against his conviction or sentence or both. Therefore his summons commencing an appeal should have been filed in the District Court within 28 days of the Local Court decision in accordance with s 11(2) of the Appeal Act. This time limit can be extended up to three months from conviction and sentence if an application for leave to appeal to the District Court is made under s 13 of the Appeal Act.

5. The Court has no power under the LEC Act or any other Act to transfer or remit proceedings to the District Court. The notice of motion refers to ss 77 and 31 of the LEC Act. Section 77 of the LEC Act allows the Court in relation to particular proceedings to give directions with respect to any aspect of practice or procedure for which the rules or practice notes do not provide. This does not provide a power to transfer proceedings to another court and is concerned with the conduct of the court’s internal business. Section 31 of the LEC Act concerns irregularity of proceedings. If any proceedings before the Court are not being dealt with in the manner appropriate to the class of jurisdiction to which they belong the Court can dismiss proceedings or order that the proceedings be dealt with in the appropriate manner. The Court’s power to make an order under s 31 is confined to ensuring that the proceedings are dealt with appropriately according to the class of jurisdiction to which they belong. This section also does not empower me to transfer or remit matters to the District Court.

6. Nor does the Court have inherent power to remit proceedings to another court.

7. The only order that I can make in these circumstances is that these proceedings be dismissed.

8. Mr Lau had until 2 May 2019 (three months from the date of his conviction on 1 February 2019) to appeal by leave of the District Court under s 13 of the Appeal Act. The first callover for the Class 6 proceedings in the Land and Environment Court was on 10 May 2019 which was unfortunately outside the time period in which Mr Lau could have appealed with leave in the District Court.

9. Mr Lau may be entitled to appeal his conviction to the Supreme Court but only on a question of law alone under s 52 of the Crimes (Appeal and Review) Act. An appeal must be commenced within 28 days of the Local Court’s decision on 1 February 2019. This time limit can be extended by the Supreme Court at any time under r 6 of the Supreme Court Rules 1970.

10. These are unfortunate circumstances for Mr Lau. I consider that I have no other option than dismissing his appeal aware that he is probably out of time to commence an appeal in the District Court. I would urge him to seek further advice from a registrar of that court in case I am wrong in my understanding of the relevant timeframes. I am not able to give legal advice as to whether he has any basis to pursue an appeal in the Supreme Court of NSW for which he needs leave of that court.

11. I would like to thank Mr Tang, who appeared today on a pro bono basis for Mr Lau, for his assistance.

Orders

12. The Court orders that:

1. Appeal no 19/67254 is dismissed.

2. No order as to costs.

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Decision last updated: 13 June 2019