Wilfried Milanovic & Michael John Fuller v Brian Edward Hemming No. Scciv-03-153

[2003] SASC 84

WILFRIED MILANOVIC AND MICHAEL JOHN FULLER v

BRIAN EDWARD HEMMING
[2003] SASC 84

Magistrates Appeal

1. DEBELLE J The appellant Milanovic was charged on complaint with two counts of illegal fishing contrary to s 41 of the Fisheries Act 1982 and regulation 5 of the Fisheries (General) Regulations 2000. The alleged offences were the same in each instance, namely, taking rock lobster from a rock lobster pot registered in the name of another person. The person in whose name the pot was registered was the appellant Fuller. The first offence is alleged to have occurred at Anxious Bay between 31 October 2000 and 5 March 2001. The second offence is alleged to have occurred at Anxious Bay on 6 March 2001.

2. The appellant Fuller was charged on the same complaint with having aided and abetted the illegal fishing, the subject of the two counts alleged against Milanovic, contrary to s 267 of the Criminal Law Consolidation Act 1935, s 41 of the Fisheries Act and regulation 5 of the Fisheries (General) Regulations (“the Regulations”).

3. The appellants pleaded not guilty.  They applied to have the charge dismissed on the ground that, as a matter of law and on the facts set forth in the complaint, the appellants had not committed an offence.  The magistrate rejected the submission.  On 21 November 2003 the magistrate found the offences proved but did not convict either appellant.  He fined each appellant $400 and made orders as to costs.  In addition, he ordered forfeiture of the lobsters caught by Milanovic and of the pots owned by Fuller.  The appellants appeal against the orders made by the magistrate.

4. In order to understand the submission that, on the facts set forth in the complaint, the appellants had not committed an offence, it is necessary to refer to the legislative scheme of the particulars of the alleged offences.

5. It is unlawful to catch fish in South Australian waters unless the fish is caught by a rod and line or by a hand line or by a permitted device. That is the effect of the combined operation of s 41 of the Fisheries Act and regulation 5 and para 1 of Schedule 1 of the Regulations. Those who wish to catch lobster in lobster pots for recreational use can only do so if the pots have been registered by the Director of Fisheries pursuant to regulation 8 of the Regulations. In 2000 and 2001, Fuller held a certificate of registration entitling him to use two rock lobster pots for recreational use. Milanovic is a friend and neighbour of Fuller who has a house at Elliston.

6. I use the expression “recreational use” to describe a purpose other than the purposes of trade or business. The expression “recreational use” does not appear in the Act and appears only twice in the Regulations in regulations 8 and 10. Regulation 8 is headed “Registration of Devices for Recreational Use”. The expression “recreational use” is there used in contrast with trade or business purposes. The certificate held by Fuller described the devices used by him by the expression “REC POT” which plainly means recreational pot. The combined effect of the terms of regulation 8 and of the certificate of registration disclose that the intention is that the certificate authorises the taking of lobster for recreational purposes.

7. It is an offence for any person to take lobster using a lobster pot registered in the name of another person. The following legislative provisions create the offence. Section 41 of the Fisheries Act makes it an offence to engage in a fishing activity of a prescribed class. Regulation 5 of the Regulations provides that each class of fishing activity described in Schedule 1 of the Regulations is a fishing activity of a prescribed class. Paragraph 84 of Schedule 1 prescribes that the following activity is an activity of a prescribed class:

   “The taking of rock lobster for purposes other than trade or business by any person in the waters of the State by using a rock lobster pot registered under regulation 8 in the name of another person.”

   Thus, by virtue of the combined operation of s 41, regulation 5 and para 84 of Schedule 1, it is an offence for any person to take lobster using a lobster pot registered in the name of another person.

8. Milanovic was charged with two counts of taking lobster using a lobster pot registered in Fuller’s name.  The particulars of each offence alleged to have been committed by Fuller were substantially the same.  The following particulars relate to the first offence alleged to have been committed between 31 October 2000 and 5 March 2001.  In those particulars the first defendant is Milanovic and the second defendant is Fuller.

   “Particulars:

   1.1At all material times, the second defendant had an agreement with the first defendant as follows:

   1.1.1The second defendant placed Rock Lobster pots, registered pursuant to regulation 8 of the said Regulations in his name (‘the pots’), in the possession or control of the first defendant, for use by the first defendant, to catch Rock Lobster for the second defendant for the purpose of recreation.

   1.1.2The second defendant placed a boat in the possession or control of the first defendant, for use by the first defendant, to set the pots.

   1.1.3The second defendant granted access to premises, located in Elliston which premises were owned by the second defendant’s wife (‘the premises’), to the first defendant, for the purpose of accessing equipment and freezing facilities for the storage of Rock Lobster caught by the use of the pots.

   1.1.4The Rock Lobster caught by the first defendant were for the recretational use of the second defendant.  The first defendant received as a reward some Rock Lobster and access to the premises for his personal use.

   (Hereinafter referred to as ‘the agreement’)

   1.2Between 31 October 2000 and 5 March 2001, the first defendant in accordance with the agreement, used the pots to take 16 Southern Rock Lobster (jasus edwardsii) at Anxious Bay in the said State for purposes other than trade or business.

   1.3The first defendant’s use of the Rock Lobster pots was contrary to section 41 of the Fisheries Act 1982 and regulations 5 of the Fisheries (General) Regulations 2000.”

   Paragraph 2.1 of the particulars of the second count alleged the same agreement as in para 1.1 above.  The particulars then continue,

   “2.2On 5 March 2001, the second defendant directed the first defendant to set the pots.

   2.3On 6 March 2001, the first defendant, in accordance with the said direction and the agreement, used the pots to take 1 Southern Rock Lobster (jasus edwardsii) at Anxious Bay in the said State for purposes other than trade or business.

   2.4The first defendant’s use of the pots was contrary to section 41 of the Fisheries Act 1982 and regulations 5 of the Fisheries (General) Regulations 2000.”

   The only difference between the two sets of particulars is that, in the case of the second count, there is a reference to a specific direction made on 5 March.  Shortly stated, the effect of the particulars is that Fuller had agreed with Milanovic that Milanovic would use the lobster pots registered in Fuller’s name to catch lobster for him and, to that end, had made a boat available to Milanovic.  Fuller would give some of the lobster caught in this way to Milanovic as a reward for doing so.

9. The appellants contended that those particulars show that Milanovic was acting as Fuller’s agent. They further contend that neither was guilty of an offence because, on the proper construction of s 41 of the Fisheries Act, regulation 5 of the Regulations and para 84 of the first Schedule of the Regulations, a person holding a certificate of registration of rock lobster pots for recreational use may use or employ an agent or servant for the purpose of taking rock lobster. They rely on the common law rule that, whatever a person may do himself, he may do by an agent. The principle is expressed in the maxim, qui facit per alium facit per se.  They contend that para 84 does not prohibit the agent of a person registered to use lobster pots from using the pots on his principal’s behalf.  They further say that, if there is any doubt or ambiguity about the ambit of para 84, the ambiguity or doubt should be resolved in favour of the appellants: R v Adams (1935) 53 CLR 563 at 567 – 568; Beckwith v The Queen (1976) 135 CLR 569 at 576.

10. The magistrate did not examine the question whether the arrangement between Fuller and Milanovic was that of principal and agent.  He simply accepted that Milanovic was acting as Fuller’s agent.  There is a serious question whether the arrangement was in fact that of principal and agent.  An agent is a person who is able, by virtue of the authority conferred upon him, to create or affect legal rights and duties as between his principal and third parties: Petersen v Moloney (1951) 84 CLR 91, 94. There are a number of persons who in popular usage are called agents but are not in law regarded as agents. Often they are employees. Real estate agents provide one example: see the discussion in Petersen v Moloney at 94 – 95 where it is pointed out that the mere employment of a person under the designation of agent does not necessarily create any authority to do anything which will affect the legal position of the employer. The essence of the agent’s position is that he has authority to create legal relations between his principal and third parties. The particulars disclose no more than that Fuller had an agreement with Milanovic to catch lobster using his pots and made a boat available to him for that purpose as well as facilities for storing the lobster which had been caught. The quid pro quo was that Milanovic was entitled to keep some of the lobster he had caught.  At best, Fuller employed Milanovic to catch lobster for him.  The particulars do not in any respect show that Milanovic had any authority to create any legal relationship between Fuller and a third party.  More is required if the relationship of principal and agent is to be established.

11. However, even if Milanovic was not acting as Fuller’s agent, that does not necessarily dispose of the issues on this complaint. The particulars disclose that Milanovic was acting for or on behalf of Fuller. The question remains whether para 84 of Schedule 1 applies when a person takes lobster from a pot for and on behalf of the person in whose name the pot is registered, a person who, for convenience, I will call “the registered pot holder”. It is convenient to determine this appeal on the assumption that Milanovic was either Fuller’s agent or acting on his behalf as an employee.

12. Mr Edwardson, who appeared for the appellants, relied on the principle that, where legislation requires an act to be done by a person, that act may, in the absence of a contrary intention, be performed by an agent: Christie v Permewan, Wright & Co Ltd (1994) 1 CLR 693 at 700. While that principle applies where the legislation requires that an act be done by a person, it does not apply in this instance as para 84 is expressed in the terms of prohibition making it an offence for any person other than the person in whose name the pot is registered to take a lobster from it. It is necessary, therefore, to determine the meaning of para 84 having regard to the purpose of the Fisheries Act and Regulations.

13. The terms of para 84 are, in my view, quite clear and unambiguous.  They prohibit any person, other than the person in whose name the pot is registered, from using the pot to take lobster.  In other words, the only person authorised to use a rock lobster pot is the person registered under regulation 8.  The prohibition applies to “any person”.  It is clear that the only person who may take lobster from a registered pot is the person registered under regulation 8.  The word “any” is a word of wide meaning.  It ordinarily excludes limitation or qualification and should be given as wide a construction as possible: Duck v Bates (1884) 13 QBD 843 per Fry LJ at 851 – 852; Clarke-Jervoise v Scutt [1920] 1 Ch 382 at 388; Victorian Chamber of Manufacturers v Commonwealth (1943) 67 CLR 335 per Williams J at 346. Thus, the expression “any person” has a wide denotation. Put another way, the expression does not have a restricted meaning.

14. There are occasions when the purpose of the legislation or the context in which the expression “any person” appears may require some reading down of this otherwise unlimited expression: see, for example, Australian Radio Manufacturers Patents Association Ltd v Neutrodyne Pty Ltd (1937) 57 CLR 27 at 32 – 33; Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434 at 438; Northern Land Council v Commonwealth (1990) 102 ALR 110 and Street v Retravision (NSW) Pty Ltd (1995) 56 FCR 588 at 596. In a moment, I will examine the provisions of the Act and the Regulations and their purpose. That examination confirms that there is nothing in either the purpose of the Fisheries Act or the Regulations or the context in which the expression is used to require that it be read down or that its wide meaning should be restricted.

15. In my view, there is nothing which justifies limiting or qualifying the plain meaning of the expression “any person” in para 84. There is no ambiguity. The words are quite clear. The intention of this legislation is that the only person who may take lobster from pots registered for recreational use is the person in whose name the pots are registered. They exclude a person acting on behalf of the person in whose name the pots are registered, either as agent or in some other capacity. The appellants seek to write into para 84 words which are not there. Had it been intended that an agent or other person should be entitled to take lobster from pots registered in the principal’s name, a provision to that effect would have been inserted in a similar way to those provisions in the Act and Regulations concerning agents of commercial fishers. Paragraph 84 contains no limit or qualification on the width of the expression “any person”. It therefore operates to prohibit any person other than the registered pot holder from taking lobster from the pot and the appellants were properly found to be guilty of the offences charged.

16. The purpose and intent of the Act and Regulations is that the certificate of registration to use a lobster pot for recreation is personal to the holder of that authority. The Fisheries Act and the Regulations regulate both commercial and recreational fishers. The Act itself does not make express provision for recreational fishing. The few controls upon recreational fishing are to be found in the Regulations.

17. The Act and Regulations recognise that those engaged in commercial fishing will often act through others such as employees or agents. Plainly, a corporation holding an authority to engage in commercial fishing could only act through its agents or employees. Thus, the Act and Regulations include provisions which enable agents of the holder of the authority (usually a licence) to undertake the activity for which the authority has been issued. Section 34 is an example. The Act and Regulations contain other provisions, all relating to commercial fishing, which deal with issues of agency or employment. Examples are s 69 of the Act and regulations 4(2), 14 and 15 of the Scheme of Management (Marine Scalefish Fisheries) Regulations 1991.  Regulation 4(2) is replicated in the following regulations.

    ●      Scheme of Management (Abalone Fisheries) Regulations 1991;

    ●      Scheme of Management (Blue Crab Fishery) Regulations 1998;

    ●Scheme of Management (Gulf Waters Experimental Crab Fishery) Regulations 1988;

    ●Scheme of Management (Lakes and Coorong Fishery) Regulations 1991;

    ●Scheme of Management (Miscellaneous Fishery) Regulations 2000;

    ●Scheme of Management (Prawn Fisheries) Regulations 1991;

    ●Scheme of Management (River Fishery) Regulations 1991;

    ●Scheme of Management (Rock Lobster Fisheries) Regulations 1991.

    Regulation 15 of the Scheme of Management (Marine Scalefish Fisheries) Regulations has its counterpart in regulation 15 of the Scheme of Management (Miscellaneous Fishery) Regulations, regulation 14 of the Scheme of Management (River Fishery) Regulations and regulation 16 of the Scheme of Management (Lakes and Coorong Fishery) Regulations.  All of these provisions emphasise that an agent or employee may engage in the authorised activity only in those circumstances permitted by the Act.  In other words, the Act and the various regulations made under it spell out the occasions when the holder of an authority under the Act may engage another to act on his behalf.  Mr Edwardson referred to s 54 of the Act and pointed out that it makes no provision for agents or employees to act notwithstanding that fish processors would undoubtedly act through employees.  That concerns processing as distinct from taking or catching fish.  It does not gainsay the foregoing.

18. The lobster pots were registered in Fuller’s name for recreational use. There are no provisions relating to agency or employees in those few provisions in the Regulations which relate to fishing for recreational purposes. That is hardly surprising since fishing for recreation is an activity in which an individual engages directly, not vicariously by means of employees or agents. The concepts of employment and agency do not sit easily with fishing as a recreational activity. The absence of any provision relating to employment or agency in the case of a certificate to use a lobster pot reinforces the conclusion that only the holder of the authority may engage in that activity. It emphasises that the authority is personal to the person whose name it is issued. In other words, in those instances where a person has lobster pots registered in his name, only the registered person is entitled to take lobster from those pots. That conclusion is also reinforced by the fact that the objective of the Act is to conserve fishing resources and enable an equitable distribution of those resources: see s 20 of the Act.

19. The clear intention of para 84 is to limit fishing for lobster for recreational use to the person in whose name the pot is registered.  That is consistent with the objective of conserving fishing resources and enabling an equitable distribution of them.  In the case of lobster, that policy is effected by imposing a daily bag limit as well as limiting fishing for crayfish to the registered pot holder.  If the expression “any person” in para 84 excluded a person acting as the agent or otherwise on behalf of the registered pot holder, the policy would be eroded.  The ordinary meaning of the expression “any person” and the intention of the Fisheries Act and Regulations require this conclusion.

20. I acknowledge that, on this construction of para 84, a person who assisted the registered person by taking lobster would, strictly speaking, be guilty of an offence.  It is possible to imagine a wide range of circumstances in which assistance could be provided.  At one end of the spectrum, that assistance might be provided by a person in the same boat as the registered pot holder.  That other person might haul up the pot and take the lobster from it because on the day in question the registered pot holder is physically unable to do so.  That is an instance where the principle de minimis non curat lex would apply.  At the other end of the spectrum, there is conduct of the kind the subject of this complaint where the person is in fact engaging in every aspect of the fishing activity with the registered pot holder wholly absent.

21. On its face, it seems odd that Fuller is guilty of aiding and abetting Milanovic when he had asked him to take lobster on his behalf. However, that apparent paradox dissipates when it is recalled that the purpose of the Act and Regulations is that only the registered pot holder is entitled to take lobster from registered pots.

1. For these reasons, I dismiss the appeal.