Willmington v Burnett

Michael Anthony Willmington, the applicant, brought an appeal against the decision of the Stipendiary Magistrate at Caboolture who dismissed a complaint against Terry Wayne Burnett, the respondent. The complaint was brought under the provisions of the Fisheries Act 1994 and the Fisheries Regulation 1995. The primary issue before the court was the proper interpretation of certain regulations, although the respondent argued that even if the regulations were construed as the applicant contended, the complaint should still be dismissed.

The court examined the construction of the relevant regulations, specifically Regulation 22, which governs the use of beam or otter trawl nets in waters south of Cape Gloucester. The respondent contended that Regulation 22 should be limited to the waters near Bowen, but the court found that the regulation applied to all coastal tidal waters south of Cape Gloucester not specifically addressed in other regulations. The court emphasised that Regulation 22 was intended to cover a broader area, as supported by the overall context of the Act and Regulations. The court found that the respondent's vessel was within the area covered by Regulation 22 at the relevant time, and that the respondent had used nets that did not comply with the requirements of this regulation.

The court also addressed the issue of the particulars of the complaint, which incorrectly referenced Regulation 6(1), Part 1, Schedule 14 instead of Regulation 22, Part 2. The court noted that under Section 48 of the Justices Act 1886, the magistrate had the authority to amend the complaint if a variance existed between the complaint and the evidence. The court concluded that the magistrate should have amended the particulars to reflect the correct regulation, and that in light of the findings made, a conviction should have been recorded.

The appeal was allowed, the order of the Stipendiary Magistrate was quashed, and the matter was remitted to him to enter up all necessary adjournments and proceed according to law.