Leiah Pty Ltd v State of Tasmania
[2014] TASFC 4
•18 June 2014
[2014] TASFC 4
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Leiah Pty Ltd v State of Tasmania [2014] TASFC 4
PARTIES: LEIAH PTY LTD
v
STATE OF TASMANIA
FILE NO: 260/2013
JUDGMENT
APPEALED FROM: Leiah Pty Ltd v Tasmania [2013] TASSC 8
DELIVERED ON: 18 June 2014
DELIVERED AT: Hobart
HEARING DATE: 28 May 2014
JUDGMENT OF: Blow CJ, Tennent and Pearce JJ
CATCHWORDS:
Primary Industry – Fish – Forfeiture – Vessels – Right of owner to dispute forfeiture – Whether lessee or bailee has right to dispute forfeiture as owner – Effect of convictions of persons using vessel for unlawful fishing.
Fisheries Act 1959 (Tas), ss58, 59, 61, 62(1).
Cole v Esanda Ltd [1982] Tas R 130, overruled in part.
Aust Dig Primary Industry [1135]
REPRESENTATION:
Counsel:
Appellant: G Wendler, S Kimber
Respondent: P Turner
Solicitors:
Appellant: Butler McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment Number: [2014] TASFC 4
Number of paragraphs: 66
Serial No 4/2014
File No 260/2013
LEIAH PTY LTD v STATE OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
TENNENT J
PEARCE J
18 June 2014
Order of the Court
Application for leave to amend notice of appeal refused.
Appeal dismissed.
Serial No 4/2014
File No 260/2013
LEIAH PTY LTD v STATE OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
18 June 2014
This appeal concerns the fate of a fishing vessel that was seized by a Tasmania Police officer over 19 years ago. The appellant company claims to be entitled to possession of the vessel. It brought an action against the State in 1995 seeking an order for the return of the vessel, and brought the action to trial in 2012. Wood J concluded that the appellant was not entitled to the return of the vessel, and dismissed the action: Leiah Pty Ltd v Tasmania [2013] TASSC 8. This is an appeal from that judgment. There are three grounds of appeal – grounds 1(a), 1(b) and 1(c).
On 15 January 1995 two men named David Strachan and Robert Kelly used the vessel to undertake some unlawful fishing in Tasmanian waters near Hunter Island, off the north-west tip of Tasmania. Police officers found the vessel unoccupied and at anchor. The two men were using a punt to take abalone. As the police boat approached, Mr Strachan threw overboard two bags containing 345 abalone, 254 of which had been removed from their shells. Of the 91 that remained in their shells, 72 were undersize. Of the 254 that had been removed from their shells, 32 were less than the minimum permissible weight. The police found two large male crayfish in a sugar bag on the deck of the vessel. Mr Strachan admitted to taking the crayfish that morning. The two men were neither licensed nor authorised to take abalone or crayfish.
At the time of the seizure, the Fisheries Act 1959 ("the Act") was in force. It has since been repealed. At trial the State successfully contended that, pursuant to s58 of that Act, the vessel was forfeited to, and became the property of, the Minister for Primary Industry and Fisheries, who was the "controlling body" for the purposes of the relevant sections. Section 58 read as follows:
"58 A boat the crew of which, or any part of the crew of which, is found —
(a) fishing or taking fish; or
(b) preparing to fish or take fish,
or is proved to have been fishing or taking fish anywhere within the jurisdiction of the State contrary to the provisions of this Act, and a boat on board of which any fish unlawfully taken, or any part thereof, or any engine or apparatus for fishing, the use of which is prohibited by this Act, is found, together with all other boats, if any, connected or used therewith, and the tackle, rigging, furniture, stores, and appurtenances, engines, nets, and other apparatus, belonging thereto or being therein, are, by force of this section, forfeited to and are the property of the controlling body constituted under the Part under or in relation to which the contravention occurs."
When a vessel was seized under s58, subject to the owner disputing its forfeiture, it was "deemed to be condemned", and could be sold or otherwise disposed of by the Minister, pursuant to s59(2) of the Act. Section 59 read as follows:
"59 — (1) Where a boat or article has been seized under this Act as forfeited, and no proceedings have been taken within 14 days after the seizure against any person for the offence in respect of which the forfeiture was incurred, the officer by whom the boat or article has been seized shall, forthwith after the expiration of that 14 days, give notice in writing of the seizure to the owner of the boat or article, by delivering the notice to him, either personally or by post.
(2) The boat or article seized shall be deemed to be condemned, and may be sold or otherwise disposed of by the relevant controlling body, unless the owner, within one month from the date of the seizure, gives notice in writing to that body that he disputes the forfeiture, whereupon proceedings shall be taken against the owner for the forfeiture and condemnation of the boat or article.
(3) Where the owner of the boat or article was present at the seizure, or is not known, or is not in the State, notice under subsection (1) is not necessary."
On 12 March 1997 Mr Strachan and Mr Kelly were both convicted by a magistrate of various offences that they committed in contravention of the Sea Fisheries Regulations 1962 on the day of the seizure, including taking undersize abalone contrary to reg31A(2), possessing underweight abalone contrary to reg44(1)(z), having possession of more than 20 abalone contrary to reg44(1)(oc), possessing on a boat abalone detached from the shell contrary to reg44(1)(s), and taking crayfish without a non-commercial licence contrary to reg17B(1)(a). The State contends that their convictions took effect as a condemnation of the vessel by virtue of s61(1) of the Act. Section 61 read as follows:
"61 — (1) When the commission of any offence against this Act involves a forfeiture of a boat or article, the conviction of a person for the offence takes effect as a condemnation of the boat or article, without any complaint laid for the condemnation.
(2) When a complaint has been laid against a person for the forfeiture of a boat or article seized under this Act, the justices, upon the appearance of the defendant or upon proof of service of the summons if he fails to appear, may proceed to the examination of the matter, and on proof that the boat or article is liable to forfeiture may condemn it.
(3) Condemnation under this Act of a boat or article by justices, or as the result of a conviction by justices, may be proved in any court or before any competent tribunal by production of a certificate of the condemnation purporting to be signed by the justices, or an examined copy of the record of the condemnation certified by the clerk of petty sessions."
The references in s61(1) to a "complaint laid for the condemnation", and in s61(2) to "a complaint … for the forfeiture of a boat or article", relate to forfeiture proceedings commenced in accordance with s38(3) of the Acts Interpretation Act 1931. Under that subsection, when there is a statutory provision for any forfeiture, and no provision as to the manner in which proceedings are to be taken, the procedure under the Justices Act 1959 is applicable.
Although no court has ever ordered the forfeiture or condemnation of the vessel, the learned trial judge reached a conclusion to the effect that its forfeiture and condemnation were complete by virtue of the sections quoted above. Under s62(1) of the Act, the Governor had the power to direct the restoration of a seized boat to its owner. Her Honour concluded that the forfeiture and condemnation of a vessel could not be reversed or overcome by any means other than a direction or grant of relief by the Governor pursuant to s62(1). That subsection read as follows:
"62 — (1) The Governor may —
(a) direct the restoration to the owner thereof of any boat or other article seized under this Act, whether or not condemnation thereof has been ordered; and
(b) grant relief from the whole or any part of any penalty imposed under this Act,
upon such terms and conditions, if any, as the Governor may think fit."
The appellant's contentions as to the proper interpretation of the relevant sections are very different from the conclusions of the learned trial judge and the contentions of the State. Before explaining the appellant's contentions, it is a necessary to say a little more about the facts of this case. The following matters are significant:
· Until 13 January 1995 the appellant owned the vessel, free of encumbrances, and was registered as its owner pursuant to the Marine Act 1998 (Vic).
· On 13 January 1995, two days before its seizure, the appellant sold the vessel to State Bank of New South Wales Limited and leased it back.
· At all material times State Bank of New South Wales Limited had its registered office in Sydney, and operated no branches in Tasmania.
· At the time of the seizure the appellant was the lessee, bailee and registered "owner" of the vessel. The circumstances of the seizure were as described above.
· On 7 February 1995 the solicitors for the appellant, Messrs A W Korobacz & Co, wrote to the Minister giving notice that the appellant company disputed the forfeiture of the vessel and the lawfulness of its seizure.
· On 10 February 1995 the Minister wrote back to the appellant's solicitors, advising that prosecutions were to be commenced against Mr Strachan and others, and explaining that those prosecutions would result in examination of the lawfulness of the seizure.
· Mr Strachan and Mr Kelly were charged with the relevant offences on 10 July 1995 and, as I have said, convicted on 12 March 1997.
· No proceedings were ever taken pursuant to s59(2) seeking orders for the forfeiture and condemnation of the vessel.
· An injunction was granted on 15 September 1999 restraining the State from selling, transferring or disposing of the vessel until determination of the action. The appellant gave the usual undertaking as to damages – an undertaking that it would pay to the State any damages which it might sustain by reason of the injunction and which the Court might think that it ought to pay.
· In the action, the State counterclaimed damages in respect of storage expenses, relying on that undertaking.
· The vessel has remained in the possession of the State.
The learned trial judge reached conclusions to the following effect:
· She reached a conclusion to the effect that the words "the owner" should be given a narrow interpretation, consistent with their ordinary meaning, with the result that the appellant did not fall within the scope of those words.
· She concluded that since the true owner of the vessel – the bank – had not given notice under s59(2), there was no statutory obligation for the controlling body – the Minister – to take forfeiture proceedings.
· She concluded that the convictions imposed on Mr Strachan and Mr Kelly had the effect of a condemnation of the vessel pursuant to s61.
· She concluded that if she was wrong about the meaning of "the owner", and a valid notice had been served under s59(2), the convictions nevertheless had the effect of a condemnation. She reached that conclusion on the basis that s61(1) continued to apply, even if a valid notice had been given under s59(2). Green CJ reached the opposite conclusion as to the interaction of the two subsections in Cole v Esanda Ltd [1982] Tas R 130. Her Honour decided not to follow that case on that point.
· She reached a conclusion to the effect that, whilst the lawfulness of a seizure may be disputed in the context of a prosecution or in the context of forfeiture proceedings following the giving of notice under s59(2), magistrates did not have any discretion to refuse forfeiture and condemnation in either form of proceeding if it was concluded that the seizure was lawful. Green CJ reached a similar conclusion in Cole v Esanda.
The appellant's contentions can be summarised as follows:
· It contends that the word "owner" in the relevant sections referred not only to the common law owner or absolute owner, but included "a bailee or any person with a lesser title than the true owner".
· On that basis, it contends that at all material times it was an owner of the vessel for the purposes of the Act, despite the transaction involving State Bank of New South Wales Limited.
· It contends that the letter from A W Korobacz & Co dated 7 February 1995 amounted to a notice in writing disputing the forfeiture under s59(2).
· It contends that forfeiture and condemnation of the vessel could therefore only occur in proceedings commenced under s59(2) and that, since there have been no such proceedings, there has been no forfeiture or condemnation.
· It contends that it was implicit in the Act that a conviction of a person for an offence involving forfeiture did not take effect as a condemnation of the vessel under s61(1) if notice had been given under s59(2). That is to say, it contends that Green CJ was right as to that point in Cole v Esanda, and that the learned trial judge was wrong not to follow him as to that point.
· It contends that, properly interpreted, s61(3) limited the methods by which condemnation of a boat under the Act may be proven to the two methods specified in that subsection – production of a certificate purporting to be signed by justices, or production of an examined copy of the record certified by the clerk of petty sessions. Since no such certificate or copy was tendered on the trial, it contends that it was not open to the learned trial judge to find that the boat had been condemned under the Act.
Was the appellant "the owner"?
Two of the appellant's grounds of appeal – grounds 1(b) and 1(c) - relate to this issue. Those grounds read as follows:
"(b)The learned judge erred in law at [110] in holding that the word 'owner' for the purposes of section 59(2) of the SEA [sic] FISHERIES ACT 1959 did not extend to the plaintiff as bailees [sic] according to the general law of bailments.
(c)The learned judge erred in law at [50] [52] [58] [59] by way of failing to recognise the principles of maritime law which recognize the appellant company as owner in law and thereby owner for the purposes of section 59(2) of the SEA [sic] FISHERIES ACT 1959."
The word "owner" is not defined in the Act.
In its ordinary meaning, the word "owner" could not be taken to refer to a lessee or a bailee. Since the appellant contends that the word, where it appears in the relevant statutory provisions, should be given a wide interpretation that includes a lessee or a bailee, it is appropriate to refer to what the High Court has said in a couple of the leading cases on statutory interpretation about departing from the ordinary or literal meaning of words.
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78], McHugh, Gummow, Kirby and Hayne JJ said:
"However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47], Hayne, Heydon, Crennan and Kiefel JJ said (omitting footnotes):
"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy."
Because of the appellant's contentions as to the meaning of "owner", it is necessary to consider whether there was anything in the text, context or purpose of the relevant sections to warrant the word being given the wide meaning contended for by the appellant.
Mr Wendler, for the appellant, relied on the definition of "owner" in the Local Government Act 1906, s5. That Act was repealed by the Local Government Act 1962 with effect from 1 December 1964. Mr Wendler's argument, as presented in his outline of submissions, read as follows:
"The appellant also submits the legal relationship between the Act, Water Act 1957 (Tas), Waterworks Clauses Act 1952 (Tas), and Local Government Act 1906 (Tas) is informative as to the meaning of 'owner' in the Act. Section 5 of the Act mandates the Act be read and construed subject to the Water Act 1957. Section 22 of the Water Act 1957 applies to the Waterworks Clauses Act 1952. Sections 26,53, 55 & 56 of the Waterworks Clauses Act 1952 refer to the Local Government Act 1906. Section 5 of the Local Government Act 1906 defines 'owner' as including a person in possession of property under a lease. The appellant submits the interrelationship between the aforementioned Acts, although not definitive as to meaning of 'owner' in s59 (2) is at least informative that 'owner' should be given an expansive meaning because the Water Act 1957 carries with it an implication that the Fisheries Act and the aforementioned interrelated legislation should be read harmoniously."
This argument is based on a suggested interpretation of s5 of the Act, which read as follows:
"This Act shall be read and construed subject to the Water Act 1957, to the intent that if a provision of this Act is inconsistent with a provision of that Act, the first-mentioned provision shall, to the extent of the inconsistency, be deemed to be inoperative."
The Water Act 1957 was still in force at the time of the seizure. However none of the provisions of the Act relevant to the forfeiture and condemnation of the vessel were to any extent inconsistent with any provision of the Water Act. The Water Act was concerned with such things as rivers, lakes, water supplies, irrigation and drainage. There was potential for its provisions to conflict with provisions in the Act relating to inland fisheries. However this case concerns fishing in the waters of the sea, where the Water Act had no application. Since there was no inconsistency between provisions of the two Acts, this was not a situation where s5 required the Act to be "read and construed subject to the Water Act".
In the words of Beazley ACJ, "There are circumstances in which a court will construe legislation in the same way as, or so as to be consistent with, other legislation. Such cases involve an application of the pari materia rule." Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145 at [117]. However that rule can apply only when there is some similarity in the subject-matter of two or more statutes. See Pearce & Geddes Statutory Interpretation in Australia, 7th ed, Butterworths, Sydney, 2011, at pars3.36, 3.37. The subject-matter of the Water Act, the Waterworks Clauses Act 1952, and the Local Government Act 1906 had nothing to do with unlawful fishing in the waters of the sea, nor with the forfeiture of vessels and equipment used for such unlawful fishing.
Counsel for the appellant also relied on cases concerning the meaning of "owner" in the Merchant Shipping Act 1898 (Imp), s503, the Merchant Shipping (Liability of Shipowners) Act 1898 (Imp), s1, the Shipping Registration Act 1981 (Cth), s3, and the Admiralty Act 1988 (Cth), particularly in relation to actions in rem: Banwell v The Ship "The Sydney Sunset" [2001] FCA 210; Ships "Hako Endeavour", "Hako Excel", "Hako Esteem" and "Hako Fortress" v Programmed Total Marine Services Pty Ltd (2013) 211 FCR 369; Tiasand Pty Ltd v The Owners of the Ship "Cape Morton" (2005) 143 FCR 43; McIlraith McEacharn Limited v Shell Co of Australia (1945) 70 CLR 175. He argued that, for the purposes of maritime law, the appellant was a charterer by demise and therefore an owner. However there is no commonality of subject-matter between legislation concerned with merchant shipping and actions in rem, and legislation relating to unlawful fishing.
Section 8A(1) of the Acts Interpretation Act requires an interpretation that promotes the purpose or object of a legislative provision to be preferred to one that does not. It is therefore necessary to consider the purpose or object of the forfeiture and condemnation provisions in the Act, particularly s59(2). Clearly the principal objective of the Act was to promote the preservation and conservation of fish stocks, for the benefit of the Tasmanian community and future generations. The Act's provisions in relation to the forfeiture of boats and equipment were draconian. Restrictions on fishing can be very difficult to enforce. Against that background, Parliament no doubt intended to deter individuals from unlawful fishing by placing at risk the ownership of the boats and equipment that offenders used. Sometimes people use fishing boats belonging to others, including banks, finance companies, and others who may have no knowledge as to the legality or illegality of the fishing undertaken. Parliament obviously intended that, even in those situations, boats belonging to innocent owners would be at risk. The regime imposed by the Act was intended to be harsh. It was intended that, subject to the Governor's powers under s62, the legal consequences of a forfeiture were to be resolved between the offenders and those with interests in the forfeited property.
The limb of s59(2) that conferred rights on the owner of seized property was of course an ameliorative provision. Prima facie, the seized property was "deemed to be condemned" and could be "sold or otherwise disposed of by the relevant controlling body". However the subsection contained an ameliorative proviso, pursuant to which the owner could serve a notice disputing the forfeiture, and the service of such a notice had the effect of requiring the authorities to institute proceedings under the Justices Act seeking orders for the forfeiture and condemnation of the seized property. In those proceedings, the owner would have the right to dispute the forfeiture.
It is true that, if the word "owner" were given its ordinary meaning, the validity of any forfeiture under the relevant sections could be disputed in court proceedings only by an owner or by a person charged with an offence. Mortgagees, chargees, lessees and bailees, unless they happened to be charged with offences, could have their interests extinguished without having any right to be heard. However, in my view, that is precisely what was intended. There is nothing vague or ambiguous about the word "owner". A draconian punitive regime was intended. It follows that a wide interpretation of the word "owner", extending to non-owners, would not promote any purpose or object of the relevant sections of the Act.
For these reasons, the learned trial judge was right to conclude that the word "owner" bore its ordinary literal meaning, and that the appellant was not an owner for the purpose of the relevant provisions. It follows that grounds 1(b) and 1(c) must fail. It also follows that the convictions of Mr Strachan and Mr Kelly took effect as a condemnation of the vessel by virtue of s61(1), that the appellant's action was rightly dismissed, and that this appeal must also be dismissed.
In case I am wrong as to that conclusion, I will deal briefly with the one other ground of appeal, ground 1(a), and a proposed fourth ground, ground 1(d).
Ground 1(a) – Effect of s59(2) on s61(1)
This ground concerns the relationship between ss61(1) and 59(2). It reads as follows:
"(a)The learned judge erred in law at [102] by determining that S61(1) of the SEA [sic] FISHERIES ACT 1959 was not to be determined as being subject to the provisions of Section 59(2) of the same act."
I have read the reasons of Tennent J in relation to this ground in draft form. I am in substantial agreement with her Honour as to this ground. That is to say, I agree that the condemnation of seized property can occur upon conviction pursuant to s61(1) even if the owner has given notice disputing the forfeiture pursuant to s59(2). I would not follow Cole v Esanda Ltd (above) as to that point. For the reasons stated by Tennent J, this ground must fail.
Proposed ground 1(d) – Meaning of s61(2)
At the hearing of the appeal, counsel for the appellant sought leave to amend the notice of appeal by adding a new ground 1(d), reading as follows:
"(d)The learned judge erred in law by dismissing the Plaintiff's claim in the absence of any evidence by the Defendant of compliance with the mandatory provisions of s 61(3) of the FISHERIES ACT 1959 (TAS)."
The application for amendment was opposed. The Court did not determine the amendment application, but reserved its decision as to the amendment. The proposed ground of appeal was fully argued by counsel.
Counsel for the respondent opposed the amendment application on the following grounds:
· No point was taken at trial as to s61(3). If any point had been taken, the State could have obtained any necessary adjournment and very quickly obtained the appropriate certificate or certified copy of the record. The State could therefore suffer prejudice as a result of the point being taken for the first time on appeal.
· The amendment would be futile because s61(3) has been repealed.
· The amendment would be futile because the appellant's suggested interpretation of s61(3) is plainly wrong.
I need only address the last of these arguments. Section 61(3) says that condemnation "may be proved" in two ways – by production of a certificate purporting to be signed by justices, or by production of an examined copy of the record certified by the clerk of petty sessions. Counsel for the appellant argued that the section really meant that condemnation may only be proved by those two methods, and not by any other method. That is not what the subsection says. The suggested interpretation would make condemnation harder to prove than it otherwise would be. That would be pointless. There is nothing in the text, context or purpose of the legislation to warrant such an interpretation. The words should therefore be given their ordinary literal meaning. The subsection should be construed as permitting condemnation to be proved in two particular ways, without prohibiting its proof by other methods.
The proposed amendment would obviously be futile. The proposed ground 1(d) has no merit at all. I would therefore refuse the application for leave to amend.
Conclusion
For these reasons I would refuse the application for leave to amend the notice of appeal, and dismiss the appeal.
File No 260/2013
LEIAH PTY LTD v STATE OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
TENNENT J
18 June 2014
Ground 1(a)
This ground as drawn, as do grounds 1(b) and (c), contains an error in that the legislation referred to should be the Fisheries Act 1959 ("the Act") and not the Sea Fisheries Act 1959.
Counsel for the appellant conceded at the commencement of the hearing that, if the appellant failed in respect of this argument, then the remaining grounds were in effect irrelevant. For the reasons which follow, in my view this ground should fail.
The ground relates to the interrelationship between two sections of the Act, namely s59(2) and s61(1). It raises an asserted conflict between the reasoning and conclusion of Wood J about the interrelationship between the sections, and that of Green CJ in Cole v Esanda Ltd [1982] Tas R 130. It is useful to set out relevant provisions of the Act before dealing with that asserted conflict. These are ss 59, 61 and 62(1). They provide as follows:
"59 — (1) Where a boat or article has been seized under this Act as forfeited, and no proceedings have been taken within 14 days after the seizure against any person for the offence in respect of which the forfeiture was incurred, the officer by whom the boat or article has been seized shall, forthwith after the expiration of that 14 days, give notice in writing of the seizure to the owner of the boat or article, by delivering the notice to him, either personally or by post.
(2) The boat or article seized shall be deemed to be condemned, and may be sold or otherwise disposed of by the relevant controlling body, unless the owner, within one month from the date of the seizure, gives notice in writing to that body that he disputes the forfeiture, whereupon proceedings shall be taken against the owner for the forfeiture and condemnation of the boat or article.
(3) Where the owner of the boat or article was present at the seizure, or is not known, or is not in the State, notice under subsection (1) is not necessary.
61 — (1) When the commission of any offence against this Act involves a forfeiture of a boat or article, the conviction of a person for the offence takes effect as a condemnation of the boat or article, without any complaint laid for the condemnation.
(2) When a complaint has been laid against a person for the forfeiture of a boat or article seized under this Act, the justices, upon the appearance of the defendant or upon proof of service of the summons if he fails to appear, may proceed to the examination of the matter, and on proof that the boat or article is liable to forfeiture may condemn it.
(3) Condemnation under this Act of a boat or article by justices, or as the result of a conviction by justices, may be proved in any court or before any competent tribunal by production of a certificate of the condemnation purporting to be signed by the justices, or an examined copy of the record of the condemnation certified by the clerk of petty sessions.
62 — (1) The Governor may —
(a)direct the restoration to the owner thereof of any boat or other article seized under this Act, whether or not condemnation thereof has been ordered; and
(b)grant relief from the whole or any part of any penalty imposed under this Act,
upon such terms and conditions, if any, as the Governor may think fit."
In the present case, two fishermen were apprehended fishing illegally on 15 January 1995. The boat they were using was seized pursuant to the Act, s58. Two days prior to that, the State Bank of New South Wales Limited became the legal owner of the boat, having purchased it from the appellant. The appellant then leased the boat back. At the time of seizure one of the fishermen asserted the boat was his. There does not appear to be any dispute that the boat, irrespective of who owned it, was lawfully seized and forfeited as a consequence of s58 on 15 January 1995. Nothing in the Act requires that proceedings be taken for forfeiture if the conditions in s58 are met as they were here. Nothing in the Act requires that, on the hearing of a complaint in respect of breaches of the Sea Fisheries Regulations 1962, if a magistrate convicts offenders, he or she must also make an order for forfeiture and condemnation of any boat seized. Absent any other proceedings, forfeiture has already occurred, and the conviction takes effect by reference to s61(1) as condemnation.
On 7 February 1995, the solicitors for the appellant wrote to the respondent disputing forfeiture. Leaving aside any issue about whether the appellant was "the owner" of the boat at the relevant time, had it been so, then by reference to the Act, s59(2), that letter would have triggered proceedings against the owner for forfeiture and condemnation. No such proceedings were ever instituted. I suspect none were commenced because of the position taken by the relevant Minister as evidenced by his letter dated 10 February 1995.
By a writ dated 27 February 1995 filed in this Court, the appellant claimed damages for detinue and conversion and declaratory relief concerning the legality of the seizure. For reasons never explained, those proceedings were not heard until the beginning of 2012, with the appellant relying on a statement of claim filed 25 January 2012. It is the decision made as a consequence of that action which is now the subject of appeal.
On 12 May 1995, the solicitors for the State Bank of New South Wales Limited wrote to the then governor of this State seeking relief by reference to the Act, s62. There was no material before us which indicated His Excellency's response.
On 10 July 1995, a complaint was laid against the fishermen apprehended on 15 January 1995 alleging breaches of the Sea Fisheries Regulations. The fishermen were convicted of those offences on 12 March 1997.
The underlying facts in Cole's case were very similar to those in the present one. Two fishermen were apprehended by fisheries officers in respect of offences contrary to the Sea Fisheries Regulations, and the boat, and associated gear they were using, was seized. A complaint was laid by Cole, a fisheries officer, against the fishermen alleging breaches of the regulations, and they were subsequently convicted of those offences. At the time of the seizure of the boat and gear and conviction of the fishermen, the boat was actually owned by Esanda Ltd. Esanda Ltd had no knowledge of the use of the boat for illegal fishing activities.
On 17 February 1981, approximately one month after the conviction of the last of the fishermen for the offending, a magistrate made an order of condemnation "against the property of both defendants as seized". It is not clear from the report of the case why, having regard to the wording of the Act, s61(1), the magistrate felt it was necessary to make such an order at all. Whatever the reason, when the magistrate made the order he did, he was induced to believe that one of the fishermen was the owner of the boat.
In May 1981, an application for the forfeiture and condemnation of the boat was made by Cole, and that came on for hearing before a magistrate on 30 July 1981. At the hearing, the magistrate was told of the true position with the ownership of the boat and heard argument. He determined that his order of 17 February 1981 could stand because it had not actually referred to the boat. He then determined that the application he was hearing was, in effect, a proceeding initiated by reference to the Act, s59(2). He determined that, in such proceedings, he had a discretion whether or not to order condemnation, and declined to do so.
The proceedings before Green CJ were in the form of a motion to review the magistrate's decision. It was asserted the magistrate misdirected himself in holding he had a discretion to refuse to make an order of condemnation. It was accepted at the hearing before Green CJ that Esanda Ltd had given a notice pursuant to s59(2), and that the authorities then had an obligation to commence proceedings for forfeiture and condemnation. It was also accepted that the boat had been lawfully seized and was liable to forfeiture and condemnation.
The issue the subject of the decision of Green CJ was whether or not s61(2) provided for a discretion to order condemnation in proceedings commenced pursuant to s59(2). His Honour determined that it did not. He went on to determine that, in circumstances where the legality of the seizure had not been questioned, and there was no dispute the boat was subject to forfeiture, he should make an order of condemnation.
In the course of his reasons, his Honour examined the legislative scheme in which ss59 and 61 appeared. He said at 133 – 135:
"Sections 57 and 58 provide that boats and other articles seized under the Act 'are, by force of this section, forfeited to and are the property of the controlling body' (my emphasis). Section 59(2) provides that unless an owner gives the notice referred to therein, a boat or article which has been seized 'shall be deemed to be condemned and may be sold or otherwise disposed of by the controlling authority'. Section 63 provides that except as otherwise provided in the Act, all boats and articles forfeited or liable to be sold under the provisions of the Act become the property of the controlling body and may be sold or disposed of as that body may direct. The foregoing provisions, together with s 61(1), are strongly indicative of a general legislative policy that boats and articles which have been used in connection with the commission of offences against the Act shall by operation of law be forfeited and condemned.
However, those general provisions must be read subject to the particular provisions contained in s 59 and s 61. It appears that the legislature intended that when an owner gives notice under s 59(2), forfeiture and condemnation may only take place by order of a court. It is true that, read alone, s 61(1) appears to be applicable to all cases in which there has been a conviction irrespective of whether or not a notice has been given under s 59(2). However, to give such an effect to s 61(1) would bring it into direct conflict with s 59(2) because when s 61(1) applies, the boat is condemned 'without any complaint laid for the condemnation', whereas s 59(2) read in conjunction with the Acts Interpretation Act 1931, s 38(3), requires that proceedings by way of complaint must be taken before a boat may be condemned. In order to give effect to both s 59(2) and s 61(1), s 61(1) must be read subject to s 59(2) and I hold therefore that s 61(1) does not apply to cases in which an owner has given the notice required by s 59(2).
In my view, to construe s 61(2) so that it confers a discretion would result in an anomalous distinction being drawn between two classes of owners. It is clear that in cases in which no notice under s 59(2) has been given, but in which there has been a conviction so that s 61(1) would be applicable, there would be no room for the application of s 61(2) and no basis for suggesting that a court had a discretionary power to order that the property which had been seized should not be forfeited and condemned. Cases falling into that category could arise in which the owner of the boat concerned was as innocent of wrongdoing or of complicity in the offence giving rise to the forfeiture as was the respondent in the instant case. For example, the owner of a boat which had been stolen and used by the thief in the commission of an offence involving its forfeiture might not have been given notice of the seizure pursuant to s 59(1) because he was out of the State, or because the offender was prosecuted within fourteen days and, as a result, failed to give the notice required by s 59(2) because he was unaware of the seizure. It would be a strange result if such an owner were to be precluded from invoking the court's discretion, whilst another owner were able to do so solely because he was given notice of the seizure as the result of some fortuitous circumstance such as that proceedings were not commenced against the offender within fourteen days.
There are other indications which, in my view, also suggest that the word 'may' in s 61(2) should not be read as conferring a discretion.
The notice which an owner is required to give under s 59(2) that 'he disputes the forfeiture', suggests that the legislature intended that the ambit of the proceedings which are taken as a result of the giving of the notice should be confined to the issues of the legality of the seizure and the liability of the boat or article to forfeiture.
The apparent harshness of the operation of the provisions of Div 3, if s 61(2) is construed as imposing a duty to order condemnation whatever might be the merits of the case, is to some extent mitigated by s 62, which empowers the Governor to restore to the owner any boat or article seized under the Act. The enactment of s 62 also tends to suggest that Parliament did not by s 61(2) intend to confer a discretion upon the court, as it seems unlikely that Parliament would confer a discretion in respect of the same subject matter upon both a court and the Governor.
A court must not allow its natural disinclination to adopt a construction of legislation which could result in an innocent owner losing his property through no fault of his own, to frustrate the intention of Parliament."
His Honour appears to have formed the view at 134 that the legislature intended that when an owner gave notice under s59(2), forfeiture and condemnation could only take place by order of a court. In part of his remarks extracted above he said that, "s59(2) read in conjunction with s38(3) of the Acts Interpretation Act 1931 requires that proceedings by way of complaint must be taken before a boat may be condemned". That view seems to underpin his reason for suggesting that a conflict existed between ss59 and 61. The Acts Interpretation Act, s38(3), provides a procedural mechanism for proceedings under s59(2). Neither it, nor s59(2) itself, provide that a complaint laid for forfeiture and condemnation pursuant to s59(2) is the only means of condemnation, and that a complaint "must" be laid before a boat may be condemned. His Honour was not asked to determine whether a notice by an owner pursuant to s59(2) had the effect of displacing automatic condemnation arising from a conviction. His Honour was expressing a view about the interrelationship between the various sections in the context of determining another issue.
With respect, while his Honour's view of s59(2) may be one view, it is by no means the only view and is one which is not necessarily supported by the explicit words of the sections being considered. There is nothing which provides that s61(1) has no effect in circumstances where s59(2) may come into play.
Wood J at [104] – [112] dealt with the appellant's argument arising from Cole's case. She said:
"104 It is submitted that the powers of condemnation must be read subject to s59(2), relying on remarks made by Green CJ in Cole v Esanda (supra) at 134. In that passage his Honour stated in part:
'However, those general provisions must be read subject to the particular provisions contained in s59 and s61. It appears that the legislature intended that when an owner gives notice under s59(2), forfeiture and condemnation may only take place by order of a court. It is true that, read alone, s61(1) appears to be applicable to all cases in which there has been a conviction irrespective of whether or not a notice has been given under s59(2). However, to give such an effect to s61(1) would bring it into direct conflict with s59(2) because when s61(1) applies, the boat is condemned 'without any complaint laid for the condemnation', whereas s59(2) read in conjunction with s38(3) of the Acts Interpretation Act 1931 requires that proceedings by way of complaint must be taken before a boat may be condemned. In order to give effect to both s59(2) and s61(1), s61(1) must be read subject to s59(2) and I hold therefore that s61(1) does not apply to cases in which an owner has given the. notice required by s59(2).' [My italics.]
105 The italicised passage appears to be the reasoning supporting the conclusion of a direct conflict between the provisions, requiring that s61(1) be read subject to s59(2). It may be that his Honour was noting a point of difference between the two pathways to condemnation, one requiring a complaint to be laid for the condemnation, and the other not, as supporting the notion of a conflict. It may be that his Honour found a conflict because he interpreted the words in s61(2) 'without any complaint laid for the condemnation' to mean 'providing no complaint has been laid for condemnation'.
106 With respect, I part company with Green CJ on the point about a conflict between the two provisions. In my view, the phrase 'without any complaint laid for condemnation' is at least equally capable of meaning that the effect of condemnation will result 'without the need for' or 'irrespective of any complaint'. Indeed, that is the meaning I consider is most apposite in the legislative context.
107 It makes sense that s61(1) should have an overarching application. This would mean that if a conviction resulted, s61(1) would have the effect of overtaking parallel proceedings involving the same property, pursuant to s59(2). Condemnation may result even though those s59(2) proceedings may still be pending. I do not see a conflict in that regard because:
• each pathway to condemnation turns on the commission of offences. The procedures as to condemnation provide merely the mechanism for establishing liability for forfeiture, by conviction or proceedings on complaint; and
• neither pathway provides the court with a discretion.
108 It makes perfect sense that absent a prompt prosecution, the owner should have the opportunity to bring forward and agitate the question of liability for forfeiture, noting the owner is deprived of his goods pending an outcome of any prosecution. However, I do not see any logical difficulty with those proceedings being brought to an end by a conviction. After all, if not for delay in the prosecution, the owner would not have had an entitlement to issue a notice leading to the commencement of those proceedings.
109 The plaintiff argues that a consequence of rejecting its interpretation is that if s59(2) did not apply in cases where convictions had been imposed, an innocent owner who was not the offender and the subject of the prosecution, would lose an entitlement to be heard. For the reasons I have given, this is not a deprivation in real terms.
110 In this case, s61 applied. The conviction for offences had the effect of a condemnation of the boat or article.
111 By clear and unambiguous language, Parliament revealed an intention to take away private rights of property in cases where there has been liability for forfeiture of that property. The legislature has intended to abrogate the property rights of owners, 'clearly manifested by unmistakable and unambiguous language': Coco v R (supra) at 437. The presumption that Parliament would not intend to take away property rights has been displaced by that language and does not operate to provide support for an interpretation of s61(1) as operating subject to s59(2).
112 I reject the plaintiff's argument with respect to the operation of s61. Even if a valid notice had been issued and proceedings brought for forfeiture and condemnation, the convictions that resulted in this case, would have taken effect as a condemnation of the vessel."
The position of the appellant appears to be that, notwithstanding the effect of ss58 and 61(1), it was entitled to insist that, because it gave notice pursuant to s59(2) within one month of seizure of the boat, the relevant authorities lay a complaint for forfeiture and condemnation and it have the opportunity in those proceedings to dispute forfeiture and condemnation. Because those proceedings were not commenced, any forfeiture was unlawful. That is, any consequences of the operation of ss58 and 61(1) were effectively rendered null and void. There is no dispute that, while the appellant gave a notice by reference to s59(2) within the one month time-frame disputing forfeiture, the State Bank of New South Wales Limited did not.
Section 59(2) provides a path to condemnation of a boat seized and forfeited by reference to s58. That path is that a boat will be deemed condemned, unless its owner gives notice that it disputes forfeiture "whereupon proceedings shall be taken against the owner for the forfeiture and condemnation" of the boat. There is no dispute no such proceedings were taken "against the owner". Section 59 contains nothing to indicate what the position is in the event that a valid notice is given by the owner, and no proceedings are taken "against the owner". There is no provision to the effect, for example, that a failure to take such proceedings against the owner renders any pre-existing forfeiture and/or condemnation invalid. The Act provides no time-frame within which any such proceedings are to be instituted, although the limitation imposed by the Justices Act 1959, s26(1)(a), might apply.
Section 59(1) does not assist. It deals with a situation where a boat has been seized and forfeited "and no proceedings have been taken within 14 days after the seizure against any person for the offence in respect of which the forfeiture was incurred". In those circumstances, a notice is required to be given to "the owner". If the owner is present at the seizure, or is not known, or is not in the State, such a notice is "not necessary". The section contains no sanction for failing to give notice and nothing appears to flow from a failure to do so. In the present case, it seems that the fishermen apprehended, or one of them, asserted he was the owner of the boat. In any event the actual owner, even had it been known, was not in the State. The seizure of the boat occurred on 15 January 1995. There is no dispute that the fishermen were not formally charged with any offences arising from the events of that day within 14 days. They were not charged until 10 July 1995. It is arguable, in those circumstances, that no notice was required to be given.
What other provisions relate to condemnation? Section s61(1) provides for automatic condemnation upon conviction for an offence "without any complaint laid for condemnation". The need for a complaint in respect of condemnation only arises by reference to s59(2). Section 61(1) therefore obviously contemplates that there may be automatic forfeiture upon a conviction for an offence without the need for any complaint pursuant to s59(2) or otherwise. The fishermen in this case were convicted of offences under Sea Fisheries Regulations on the 12 March 1997. Automatic condemnation was the effect of their convictions.
There are clearly therefore three paths to condemnation. The first is automatic by virtue of conviction (s61(1)), the second is also automatic where there is no notice from an owner disputing forfeiture (s59(2)), and the third may occur as a result of an order following proceedings initiated by reference to s59(2) against the owner. By virtue of s61(1), read alone, the conviction of the fishermen on 12 March 1997 took effect as a condemnation of the boat without more. The respondent's argument is that, in any event, condemnation occurred by operation of s59(2) because the owner of the boat did not give notice under that section. The appellant argues that it was the owner for the purposes of the Act at the relevant time, that it gave notice pursuant to s59(2) within the applicable time-frame, and that therefore automatic condemnation could not occur by reference to s59(2). It further argued that once an owner has given notice under s59(2), s61(1) has no effect.
There is nothing in the legislation to the effect that once a notice pursuant to s59(2) is given by an owner, automatic forfeiture cannot take place pursuant to s61(1). Had that been the intended effect of these provisions it could easily have been provided for. If there are circumstances where there is an "innocent" owner, s62 invests the Governor with a discretion to restore a boat seized, forfeited and condemned.
The scheme of the sections appears to be that s59 deals with a situation where offenders are not charged, and an arguable case against forfeiture may be made. For example, an offender may abscond deserting a boat police may assert he is using for illegal fishing. Hence, seizure and forfeiture may be possible, but there will be no conviction to trigger automatic forfeiture. A fisherman alleged to have fished illegally may die before a case against him may be prosecuted. In these situations, the boat owner may take steps which result in authorities having to lay a complaint for condemnation pursuant to s59(2).
However, if a fisherman is caught in effect red-handed fishing illegally, the provisions are strict and result in automatic seizure and forfeiture of the boat he is using. If a successful prosecution against him follows, it is difficult to envisage a successful challenge to forfeiture. By reference to Cole's case, if a complaint is laid pursuant to s59(2) in circumstances where there is no real issue as to forfeiture, there would be no discretion to refuse an order of condemnation. By s61(1), the legislation simply foreshortens the process making condemnation automatic on conviction. This process does not leave an "innocent" owner without remedy. There remains s62 and the Governor's discretion.
Counsel for the appellant also argued that s59(2) was a remedial provision in that it operated to deliver natural justice to a party disputing forfeiture in proceedings concerning the resolution of competing claims to seized property. He referred to some remarks in Davidson v R (2006) 226 CLR 234. He said that Gummow, Hayne, Heydon and Crennan JJ observed at [16]:
"The function of s43 may be explained by borrowing some well-known words of Dixon J used in another context – to prevent litigants being deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose."
Counsel also quoted Kirby J at [41] where he said:
"It is normal for remedial provisions of legislation to be given a broad and not a narrow or restricted interpretation. This is especially so where the beneficial provision in question has been enacted to protect the access of a party to the courts so as to vindicate claims to legal rights before the courts and to prevent such access from being lost by descent of a limitation bar."
The provision with which that case was concerned enabled a party to seek leave to commence proceedings despite non-compliance with pre-court procedures. The matter in issue was the test to be applied in considering in what circumstances such leave might be granted. It was in that context the above remarks were made.
Counsel's submission by reference to the quoted passages was in the context of an assertion that Wood J failed to identify s59(2) as a remedial provision and, I infer, interpret it in the manner sought by the appellant, that is "broadly". Counsel referred to another case and then submitted that:
"As a matter of construction … the legal relationship between s59(2) and s61(1) and (3) of the Act is such that it can be inferred the legislature did not intend to create a statutory regime whereby property confiscated by the State of Tasmania otherwise than by a discrete judicial process providing a right to be heard on the question of the legality of condemnation of property".
However with respect counsel did not, save for that bald submission, identify why the inference he contended for should be drawn. The construction propounded by counsel for the appellant is one which is not supported by the wording of the sections of the Act with which we are dealing. In fact it is contrary to the specific wording of 61(1).
In the circumstances I agree with Wood J's analysis of these sections. In my view, the convictions of the fishermen had the effect of a condemnation of the boat and, even had a valid notice been given by an owner pursuant to s59(2), that would not have operated to displace the operation of s61(1). If the State Bank of New South Wales Limited wished to contend that, as an "innocent" owner, it should be relieved of the operation of the automatic forfeiture and condemnation, its remedy was in s62.
Remaining grounds
I have had the benefit of reading reasons prepared by his Honour the Chief Justice in respect of the remaining grounds and the proposed ground (d). I agree in substance with those reasons.
Outcome
I would refuse leave to amend the notice of appeal and would dismiss the appeal.
File No 260/2013
LEIAH PTY LTD v STATE OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
PEARCE J
18 June 2014
I have had the opportunity to read, in draft, the reasons prepared by Blow CJ and Tennent J. I agree with what both have said about the grounds of appeal and the application for leave to amend. I would refuse the application and dismiss the appeal.
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