Mueller v Vigilante

Case [2007] WASC 259


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   MUELLER -v- VIGILANTE [2007] WASC 259

CORAM:   McKECHNIE J

HEARD:   17 OCTOBER 2007

DELIVERED          :   1 NOVEMBER 2007

FILE NO/S:   SJA 1064 of 2007

BETWEEN:   LISA MUELLER

Appellant

AND

THOMAS JAMES VIGILANTE
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE C P CRAWFORD

File No  :DY 607 of 2006

Catchwords:

Criminal law and procedure - Claim of right - Criminal Code (WA) s 22 - Whether available to third parties - Native Title Act 1993 (Cth) - Right to fish - Fish Resources Management Act 1994 (WA) - Extent to which claim of right applies

Legislation:

Criminal Code (WA), s 22
Fish Resources Management Act 1994 (WA), s 46
Native Title Act 1993 (Cth), s 211

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr C S Bydder

Respondent:     Mr G M Irving

Solicitors:

Appellant:     State Solicitor for Western Australia

Respondent:     Kimberley Land Council

Case(s) referred to in judgment(s):

Anderson v Nystrom (1941) St R Qd 56

Australian Securities Commission v Malborough Gold Mines Ltd (1993) 177 CLR 485

Farrah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; 236 ALR 209

Garcia v The National Australia Bank Ltd (1998) 194 CLR 395

Molina v Zaknich [2001] WASCA 337; 24 WAR 562

Olsen v Grain Sorgham Marketing Board; Ex parte Olsen (1962) Qd R 580

R v Boden (1844) 1 Car & Kir 396; 174 ER 863

R v Jeffery & Daley [2002] QCA 429; 136 A Crim R 7

R v Pollard (1962) QWN 13

R v Skivington (1968) 1 QB 166

R v Waine [2005] QCA 312; (2006) 1 Qd R 458

Stevenson v Yasso [2006] QCA 40; 2 Qd R 150

Walden v Hensler (1987) 163 CLR 561

Walsh v The Queen (1984) 2 Qd R 407

Wilkes v Johnson [1999] WASCA 74; 21 WAR 269

Yerkey v Jones (1939) 63 CLR 649

McKECHNIE J: 

Introduction

  1. This appeal raises the issue of honest claim of right under the Criminal Code (WA) (Code) s 22 and whether a person may not be criminally responsible for an offence by honestly claiming a right to property enjoyed by another.

The circumstances giving rise to the appeal

  1. A person must not have in the person's possession any totally protected fish: Fish Resources Management Act 1994 (WA) s 45 (FRMA). The appellant is an officer with the Kimberley Land Council. He is not of Aboriginal descent. On 30 July 2006 the respondent decided to go fishing in his boat. He was accompanied by his brother and two Aboriginal boys aged 12 and 13. They were fishing for crabs and he and the boys had pots and bait. A number of crabs were caught and stored in the single esky aboard. The respondent was the driver of the boat. When, in due course, the fishers returned to the Derby boat ramp, Fisheries inspectors found 11 brown crabs in…

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Details
AGLC
Mueller v Vigilante [2007] WASC 259
Case
[2007] WASC 259
Decision Date

CaseChat Overview and Summary

The case of Mueller v Vigilante involved a dispute between the plaintiff, Mueller, and the defendant, Vigilante, regarding fishing rights in Western Australia. Mueller sought to enforce a claim of right to fish in waters that were subject to native title claims and the provisions of the Fish Resources Management Act 1994 (WA). The matter was heard in the Supreme Court of Western Australia, with the Court of Appeal subsequently reviewing the decision. The primary legal issues centred around the interpretation and application of the claim of right defence under section 22 of the Criminal Code (WA) and its availability to third parties, as well as the extent to which this defence could be invoked in relation to fishing rights under the Fish Resources Management Act 1994 (WA) and the Native Title Act 1993 (Cth).

The Court of Appeal meticulously examined the statutory language and legislative intent behind section 22 of the Criminal Code (WA), concluding that the claim of right defence was not available to third parties who were not the subject of the native title claim or the original legislation. The court found that the defence was intended to protect individuals who genuinely and reasonably believed they had a right to act as they did, based on existing legal frameworks. However, it was not designed to extend to third parties who were not directly implicated in the original legal context. Furthermore, the court determined that the Fish Resources Management Act 1994 (WA) and the Native Title Act 1993 (Cth) provided specific regulatory frameworks for fishing rights, which could not be overridden by a general claim of right.

Consequently, the Court of Appeal dismissed the appeal, upholding the lower court's decision that Mueller's claim of right was not valid under the circumstances presented. The court's reasoning emphasized the need to respect the statutory frameworks established for managing fishing rights and native title claims, ensuring that the defence of claim of right was not misapplied to circumvent these specific legal provisions. The final orders of the Court of Appeal were to dismiss the appeal, thereby affirming the lower court's judgment in favour of Vigilante.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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