Rodney West v Graham Gerard Potts

RODNEY WEST v GRAHAM GERARD POTTS [2006]
ACTCA 12 (12 May 2006)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 2 - 2006
No. SCA 55 of 2005

Judges:        Crispin P, Connolly & Ryan JJ
Court of Appeal of the Australian Capital Territory
Date:           12 May 2006

IN THE SUPREME COURT OF THE     )          No. ACTCA 2 - 2006
  )          No. SCA 55 of 2005
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:RODNEY WEST

Appellant

AND:GRAHAM GERARD POTTS

Respondent

ORDER

Judges:  Crispin P, Connolly & Ryan JJ
Date:  12 May 2006
Place:  Canberra

THE COURT ORDERS THAT:

1. the appeal be upheld;

2. the orders of the Chief Justice be set aside;

3. the appeal from the Magistrate be upheld;

4. the orders of the Magistrate be set aside;

5. the Magistrate’s finding of the offence having been proven is confirmed;

6. in lieu of the penalty imposed by the Magistrate, the charge against the respondent be dismissed pursuant to s 402 of the Crimes Act 1900 (ACT).

IN THE SUPREME COURT OF THE     )          No. ACTCA 2 - 2006
  )          No. SCA 55 of 2005
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:RODNEY WEST

Appellant

AND:GRAHAM GERARD POTTS

Respondent

Judges:  Crispin P, Connolly & Ryan JJ
Date:  12 May 2006
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal against a decision of the Chief Justice upholding an appeal from Magistrate Burns in respect of orders made on 25 July 2005 convicting the respondent of an offence against s 33(1) of the Water Resources Act 1988 (ACT) and imposing a penalty consisting of a fine of $400.

1. In essence, the allegation against the respondent was that he took water from a bore on his property without a licence. The respondent appealed only against the perceived severity of the penalty, and in the proceedings before the Chief Justice sought an order that the penalty be set aside, and in lieu thereof, that the charge be dismissed pursuant to s 402 of the Crimes Act 1900 (ACT).

1. During the course of the appeal before the Chief Justice, his Honour referred to the decision of Crispin J in the case of Rashleigh v Environment Protection Agency [2005] ACTSC 18, which had raised issues as to the validity and construction of relevant provisions of the Act in the context of a then conceded position that proprietary rights attached to water, and raised a number of issues as to whether the offence had in fact been committed.  His Honour invited submissions on that issue.  Crispin J’s decision was subsequently overturned on appeal, it having been conceded that the earlier concession was wrong and that proprietary rights did not apply to water in this Territory.

1. During the course…