Van Eden v State of New South Wales - [2008] NSWSC 629

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CITATION: Van Eden v State of New South Wales [2008] NSWSC 629

HEARING DATE(S): 3-5 June 2008

JUDGMENT DATE :
20 June 2008

JURISDICTION: Common Law Division

JUDGMENT OF: Hislop J

DECISION: Final orders deferred.

LEGISLATION CITED: Fisheries Management Act, 1994
Civil Liability Act, 2002

PARTIES: Franciscus Maria van Eden (Plaintiff)
State of New South Wales (1st Defendant)
Bradley Harrison (2nd Defendant)
Robert Charles Moxham (3rd Defendant)

FILE NUMBER(S): SC 11189/06

COUNSEL: R.B. Wilson (Plaintiff)
J. Klarica (Defendants)

SOLICITORS: Langes (Plaintiff)
Crown Solicitor (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Friday 20 June 2008

11189/06 FRANCISCUS MARIA VAN EDEN v STATE OF NEW SOUTH WALES & ORS

JUDGMENT
Introduction

1 The plaintiff since 1991 has held an oyster lease on the Brisbane Waters. He there farms Sydney rock oysters. His method of aquaculture is to grow the oysters in floating baskets essentially constructed of plastic pipes set in a rectangular form from which a plastic mesh basket is suspended.

2 A problem for oyster farmers in the Brisbane Waters has been the presence of Pacific oysters. These oysters are larger and faster growing than Sydney rock oysters and would take over a lease if not controlled. They were not permitted to be cultivated in the Brisbane Waters and leaseholders were required to destroy them if found on leases.

3 The Pacific oysters spawned each year. The spawn would travel on the tide. Ultimately it would attach itself to an object where it would commence to grow. The growing Pacific oyster would not be visible to the naked eye for some months after attaching. Thus Pacific oyster spawn could attach to the outer surfaces of the plaintiff’s baskets and could enter the plaintiff’s baskets and attach to the basket or to the Sydney rock oysters therein.

4 The plaintiff had two large pontoons upon which he had constructed special lifting apparatus which enabled him to lift the baskets five at a time and hold them suspended whilst he harvested fully grown oysters, inspected, cleaned and repaired the baskets. He would remove any Pacific oysters. If he harvested all the oysters he would clean out the basket and float it upside down so that the mesh would dry, killing any unwanted marine growth and Pacific oysters. He would then reuse the basket.

5 Prior to 1999 the plaintiff had noticed some Pacific oysters on his lease. He had destroyed them. In June 1999 he noticed a large number of Pacific oysters on the lease. He commenced to destroy them and notified the Fisheries Department. The fisheries officers inspected the lease and gave him notice to remove the Pacific oysters. In mid 2000 he observed a large number of Pacific oysters. He reported their presence to the Fisheries Department. The fisheries officers inspected the lease and a further removal notice was issued.

6 In mid 2001 he noticed a much larger number of Pacific oysters on the lease. He commenced to remove and destroy them. He reported their presence to fisheries officers. On 13 August 2001 his lease was inspected by fisheries officers. On 27 August 2001 he was issued with a notice to remove Pacific oysters from the lease. On 9 November 2001 his lease was again inspected by fisheries officers. On 19 November 2001 a further notice was issued to remove Pacific oysters. On 4 December 2001 fisheries officers again inspected the lease. During the interim the plaintiff had been continuing to lift baskets and remove Pacific oysters. He estimated on 4 December 2001 that he had about 90 baskets to do of the 450 baskets that were in the water growing oysters. Between 4 December 2001 and 22 January 2002 he lifted a further 14 baskets and removed the Pacific oysters.

7 On 19 December 2001 he received by post a notice signed by the Fisheries Department Regional Manager North dated 12 December 2001 requiring him to remove Pacific oysters from his lease within seven days and that a further inspection would be carried out in seven days from the date of the letter and that

Fisheries Management Act

8 On 17 January 2002 the second defendant, a fisheries officer, together with the third defendant, an oyster farmer in the area, inspected the lease in the absence of the plaintiff.

9 On 22 January 2002 the second and third defendants went to the plaintiff’s lease. The second defendant inspected each floating basket and seized those that exceeded the permitted criterion level of Pacific oysters. In all 126 baskets containing Sydney rock oysters and Pacific oysters were seized. These baskets were lifted singly by a hoist with a scissors apparatus and the contents tipped into drums. In the course of this operation there was spillage of some of the contents and some of the plastic pipes were cracked. The empty baskets were stacked on top of each other. 44 dozen live Pacific oysters were attached to the Sydney rock oysters in the baskets and another 107 dozen Pacific oysters were stuck to the baskets.

10 The second defendant had left a telephone message on the plaintiff’s phone at 7.11 am on 22 January 2002 advising that he was going to the lease. He did not recall if he said in the message he was going to be removing Pacific oysters from the plaintiff’s lease that day. The plaintiff did not receive this message until late in the day. Upon receipt of it he attended at the lease site. He observed the baskets being removed. The second defendant told him they were seizing the baskets that had Pacific oysters in them. He asked the second defendant to stop as the baskets were being damaged but they did not. He did not offer to assist or make available his specialised lifting equipment.

11 The third defendant culled the Sydney rock oysters. Fifty percent were found to be dead and the remaining 50 percent were placed on feeding grounds where approximately 50 percent of them died. Ultimately 22 bags of Sydney rock oysters survived and were sold for $7700. The third defendant kept $700 of this as commission and the balance was paid to the first defendant. Each bag contained approximately 130 dozen oysters.

12 The plaintiff was given notice of seizure pursuant to s 272 of the Act. He served a notice disputing the seizure on the Minister pursuant to that section. Proceedings were commenced against him for a fisheries offence. The proceedings were dismissed in December 2003. No order for forfeiture was made - see, generally, ss 271-275.

13 The plaintiff has claimed damages for the loss of the Sydney rock oysters and the 126 baskets. In relation to liability, counsel for the plaintiff said:

Fisheries Management Act

Counsel for the defendant also relied upon s 43 of the Civil Liability Act , 2002. Counsel for the plaintiff accepted that the s 268 defence was available to each of the three defendants.

Statutory provisions

14 Section 5 of the Act provides that “fish” includes oysters. The Act defines “noxious fish” as “fish declared under Division 6 of Part 7 to be noxious fish”. Pacific oysters were, at the time of seizure, declared to be “noxious fish”.

15 Section 211 provides:

211. (1)

(2)

16 Section 213(1) provides “A fisheries officer may seize and destroy any live noxious fish.”

17 Section 240(1) defines “fisheries offence” as “means an offence against this Act or the regulations, and includes any such offence that there are reasonable grounds for believing has been, or is to be, committed”.

18 Section 240(2) provides:

(2)

(a) a thing with respect to which the offence has been committed; or

(b) a thing that will afford evidence of the commission of the offence; or

(c) a thing that was used, or is intended to be used, for the purpose of committing the offence.”

19 Section 242 provides:

“(1)

(2)

(a) a power to remove the thing from the place where it is found…”

20 Section 250(1) provides:

(1)

(a) enter the premises; and

(b) search the premises for any such thing…”

21 Section 253 provides:

“A fisheries officer may, at any time of the day, enter any area the subject of an aquaculture permit and examine the area and the aquaculture undertaken in the area.

22 Section 263 provides:

“In the exercise of a function under this Part, a fisheries officer is to do as little damage as possible.”

23 Section 264 provides:

“A fisheries officer may seize anything (other than a boat or motor vehicle) that is found by the officer in any search under this Part and that the officer has reason to believe is connected with a fisheries offence.”

24 Section 267 provides:

(1)

(2)

25 Section 268 provides:

“The State, a fisheries officer or any other person is not liable for a seizure under this Part for which there was reasonable cause.”

26 Section 274 provides:

(1)

(2)

(3)

The submissions

27 The seizure of the Pacific oysters was authorised by s 213(1) which is in Pt 7 of the Act. However, s 213(1) did not authorise the seizure of the baskets and Sydney rock oysters.

28 The defendant submitted there was a real risk that if the live Pacific oysters remained on the plaintiff’s lease they would spawn in February and, as the plaintiff’s lease was upstream from the other oyster farms, the spawn would travel on the tide, creating a detrimental effect for the plaintiff’s lease and for leases downstream of it. The plaintiff had been able to eradicate Pacific oysters from only 14 baskets between 4 December 2002 and the date of seizure. Thus 112 baskets remained to have the Pacific oysters removed. The plaintiff’s lack of funds and manpower and his method of eradicating the Pacific oysters was such that he could not cope and it appeared likely he would not have completed the eradication of Pacific oysters by the commencement of the spawning season in February. The defendant’s motivation in seizing the baskets and Sydney rock oysters therein was to prevent the spawning of the Pacific oysters by removing those which were attached to the Sydney rock oysters and the baskets. It was necessary to remove the baskets and Sydney rock oysters to enable removal of the Pacific oysters to be carried out. There was thus reasonable cause for the seizure of the baskets and the Sydney rock oysters therein. The seizure was made pursuant to the power in s 264 which was contained in Pt 9 of the Act. Thus, s 268 was enlivened.

29 The plaintiff submitted that the defence based upon s 268 was not made out, essentially for three reasons:

(a) there was no statutory power for seizure of Sydney rock oysters and baskets which was activated;

(b) the problem posed by the Pacific oysters was a developing one which the plaintiff was taking active steps to deal with;

30 As regards the statutory powers, it was submitted on behalf of the plaintiff that s 264, upon which the defendants relied to establish the s 268 defence, had no application as the plaintiff had not committed a fisheries offence nor were the baskets or the Sydney rock oysters things connected with a fisheries offence.

31 It was submitted the plaintiff did not commit a fisheries offence as:

(a) the prosecution of the plaintiff for an offence under s 211 was dismissed;

(b) the defence under s 211(2) was available to the plaintiff as he neither introduced nor maintained the noxious fish;

32 It was further submitted that if the plaintiff did commit a fisheries offence, then neither the Sydney rock oysters nor the baskets were connected with the fisheries offence as:

(a) they were not things with respect to which the offence had been committed;

(b) neither was a thing that would afford evidence of commission of the offence;

33 The defendants in response contended:

(a) it was irrelevant whether the plaintiff introduced or maintained noxious fish as s 211(2) refers to the satisfaction of the court and it is not for a fisheries officer to stand in the shoes of the court. It was sufficient that there was a possibility or suspicion the offence had been committed to invoke the section;

(b) as 44 dozen Pacific oysters were actually attached to the Sydney rock oyster stock and 107 dozen Pacific oysters were attached to the baskets, the oysters and the baskets were things that would afford evidence of the offence and establish a connection between that offence and the plaintiff;

(c) s 264 was applicable;

(d) the damage sustained in removing the baskets was minimal and was as little as possible in the circumstances.

Determination

34 Section 240(1) provides that a fisheries offence includes any such offence that there are reasonable grounds for believing has been committed. The relevant fisheries offence was the possession of live noxious fish. In my opinion, there were reasonable grounds at the time of the seizure to believe the offence under s 211(1) had been committed. This, in my opinion, was sufficient for the purpose of s 264. It is irrelevant that on a prosecution for the breach a court may be satisfied that the s 211(2) defence is established by the person charged, who bears the onus on this issue.

35 As each of the baskets contained a number of Pacific oysters attaching to the Sydney rock oysters and to the baskets, both the Sydney rock oysters and the baskets were things which, in my opinion, would afford evidence of the commission of the offence and were thus things that the fisheries officer had reason to believe were connected with a fisheries offence.

36 Accordingly, in my opinion, there was statutory power under s 264 for the seizure of Sydney rock oysters and baskets and that power was activated.

37 The second basis advanced by the plaintiff, that the problem posed by the Pacific oysters was a developing one which the plaintiff was taking active steps to deal with, even accepting it to be factually correct, does not, in my opinion, impact upon the application of s 268.

38 As to the third basis advanced by the plaintiff, the plaintiff had alleged in the statement of claim breach of statutory duty under s 263 by the first defendant. The function, for the purposes of s 263, was the seizure of the baskets and their contents. It was necessary in order to perform this function that the baskets be lifted from the water using lifting apparatus available to the defendants. The baskets were lifted, some cracking of some of the plastic pipes did occur and the deteriorated nature of the some of the timber in the baskets was revealed. There was no evidence that this could be avoided unless the plaintiff’s purpose designed lifting apparatus was utilised. The plaintiff, when he arrived at the scene, did not offer to make such equipment available to the defendants. It was necessary for the oysters to be removed from the baskets. This task involved difficulty by reason of the presence of heavy marine fouling of the baskets. There was, of necessity, some spillage of Sydney rock oysters in the process. It was necessary to store the baskets after the contents were removed. The empty baskets, not unreasonably, were stacked together on the third defendant’s barge.

39 It is not clear that s 268 is subject to s 263 but, on the assumption that it is, it seems to me that the third basis advanced by the plaintiff fails as:

(a) it has not been established that, in the circumstances, a breach of s 263 had occurred in that it has not been established that, having regard to all the circumstances, the damage was not as little as possible;

Civil Liability Act

40 If it be relevant, having regard to the limited issue presented for determination, I would find that the relevant damage to the baskets and the loss of Sydney rock oysters due to spillage occurred during the seizure and removal of the baskets and Sydney rock oysters and that the defendants’ actions in dealing with the Sydney rock oysters by returning them to the water and placing them on a lease was in compliance with the powers contained in s 274.

41 I find there was reasonable cause for the purposes of s 268 for the seizure of the baskets and Sydney rock oysters. Prima facie, that is determinative of what was said by the plaintiff’s counsel to be the only issue on liability.

42 The proceeds of sale of the oysters of $7700 was paid to the first defendant less a commission retained by the third defendant. The first defendant retained the proceeds of sale pending the result of the prosecution proceedings and the possible forfeiture of the proceeds of sale.

43 Counsel for the defendants stated that if the defence failed he would accept there was a liability for $7700. However, as no order for forfeiture has been, or will be, made in respect of the proceeds of sale, it appears, prima facie, that the plaintiff may be entitled to recover the proceeds of sale notwithstanding that the s 268 defence has been successful.

44 In these circumstances I will defer making final orders to enable the parties, within 14 days, to make submissions, if the matter is the subject of dispute, as to whether there should be a verdict for the plaintiff in the sum of $7700 plus interest and costs or, if there is agreement, to provide an appropriate minute of judgment.

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Van Eden v State of New South Wales [2008] NSWSC 629

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CITATION:	Van Eden v State of New South Wales [2008] NSWSC 629
HEARING DATE(S):	3-5 June 2008
JUDGMENT DATE :	20 June 2008
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hislop J
DECISION:	Final orders deferred.
LEGISLATION CITED:	Fisheries Management Act, 1994 Civil Liability Act, 2002
PARTIES:	Franciscus Maria van Eden (Plaintiff) State of New South Wales (1st Defendant) Bradley Harrison (2nd Defendant) Robert Charles Moxham (3rd Defendant)
FILE NUMBER(S):	SC 11189/06
COUNSEL:	R.B. Wilson (Plaintiff) J. Klarica (Defendants)
SOLICITORS:	Langes (Plaintiff) Crown Solicitor (Defendants)