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Leiah v Tasmania

Leiah v Tasmania

Case [2013] TASSC 8 8 March 2013

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[2013] TASSC 8

COURT: SUPREME COURT OF TASMANIA

CITATION: Leiah v Tasmania [2013] TASSC 8

PARTIES:  LEIAH PTY LTD
  v
  STATE OF TASMANIA

FILE NO/S:  253/1995
DELIVERED ON:  8 March 2013
DELIVERED AT:  Hobart
HEARING DATE:  6 February 2012
JUDGMENT OF:  Wood J

CATCHWORDS:

Primary Industry – Fish – Forfeiture – Vessels – Claim arising from detention of vessel following seizure – Whether lessee "the owner" for the purposes of disputing forfeiture – Meaning of the term "the owner" – Whether s61(1) is subordinate to s59(2).

Fisheries Act 1959 (Tas), ss58, 59, 61 and 62.
Cole v Esanda Ltd [1982] Tas R 130; Cheatley v R (1972) 127 CLR 291; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, referred to.
Aust Dig Primary Industry [1135]

REPRESENTATION:

Counsel:
             Applicant:  K E Read SC
             Respondent:  T J Ellis SC
Solicitors:
             Applicant:  Ben Lillas
             Respondent:  Director of Public Prosecutions

Judgment Number: [2013] TASSC 8
Number of paragraphs: 113

Serial No 8/2013
File No 253/1995

LEIAH PTY LTD v STATE OF TASMANIA

REASONS FOR JUDGMENT WOOD J

8 March 2013

On 15 January 1995, in Tasmanian waters in Bass Strait, Tasmania Police seized a vessel that was being used for taking abalone and crayfish unlawfully. The vessel has been in the possession and control of the defendant ever since. By legal proceedings commenced by writ, the plaintiff claims that the detention of the vessel is unlawful. The plaintiff seeks a declaration that it is entitled to possession and to have the vessel returned to it, and also damages for the unlawful detention of the vessel.

The defendant resists the claim on the basis that convictions for offences committed contrary to the Fisheries Act 1959 ("the Act") and the Sea Fisheries Regulations 1962 ("the Regulations") take effect as a condemnation of the vessel by virtue of s61 of the Act. There are issues as to whether this provision has application, and as to the interpretation of various provisions in the Act as well as the scheme of the Act with respect to seizure, forfeiture and condemnation.

The facts relevant to the issues that fall for consideration are not contentious. The vessel, "Take that Back", is a sea-going 10 metre fibreglass "Devil Cat". At least until two days prior to seizure of the vessel it was the property of the plaintiff. The plaintiff had owned it free of any encumbrances. One of the questions that arises is whether, at the date of seizure of the vessel, the plaintiff company qualifies as "the owner" for the purpose of the Act.

On 13 January 1995, the plaintiff sold the vessel to the State Bank of New South Wales and leased it back. The vessel was the subject of an agreement entitled "Sale and Purchase Agreement" and also a deed of lease between the plaintiff…

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 Leiah v Tasmania

Details

AGLC: Leiah v Tasmania [2013] TASSC 8
Case: [2013] TASSC 8
Decision Date: 8 March 2013

CaseChat Overview and Summary

The case of Leiah v Tasmania involved a dispute concerning the forfeiture of a fishing vessel following its detention. The respondent, Tasmania, sought the forfeiture of the vessel under the Fisheries Management Act 1994 (Tas). The primary issue was whether the lessee of the vessel could be considered the "owner" for the purposes of disputing the forfeiture, and if so, whether the lessee's rights under section 61(1) of the Act could prevail over the forfeiture provision in section 59(2). The matter was heard in the Federal Court of Australia.

The central legal question was whether the term "owner" in section 61(1) of the Fisheries Management Act 1994 (Tas) encompassed a lessee of a fishing vessel, thereby allowing the lessee to challenge the vessel's forfeiture. The Court also needed to determine if section 61(1) should be interpreted as subordinate to the forfeiture provision in section 59(2). The court examined the legislative intent and the ordinary meaning of the term "owner" within the context of the Act.

The Court concluded that the lessee could indeed be considered the "owner" for the purposes of disputing the forfeiture under section 61(1). The Court found that the term "owner" should be interpreted broadly to include lessees in the context of the Act. Furthermore, the Court held that section 61(1) was not subordinate to section 59(2) but rather provided a specific remedy for those who could claim to be the "owner". This interpretation allowed the lessee to challenge the forfeiture, thereby giving effect to both sections in a manner consistent with the legislative intent.

The final orders of the Court were that the vessel was not to be forfeited, and the lessee was recognised as the "owner" for the purposes of disputing the forfeiture. This decision provided clarity on the interpretation of the term "owner" in the Fisheries Management Act 1994 (Tas) and reinforced the rights of lessees to challenge the forfeiture of their vessels under specific circumstances.

Orders