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Queensland Fish Board v Wesley Bunney

 

[1979] FC 11

O.S.C. No. 42 of 1978

IN THE MATTER OF an application by WESLEY BUNNEY for an order under section 61(1)(b) of The Fish Supply Amendment Act 1972-1976

QUEENSLAND FISH BOARD

-v-

WESLEY BUNNEY

Ex parte: QUEENSLAND FISH BOARD

___________________________________

THE CHIEF JUSTICE

LUCAS J.

CONNOLLY J.

___________________________________

Revised Full Court judgment delivered on 23rd February, 1979

___________________________________

APPLICATION REFUSED”.

___________________________________

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. 42 of 1978

FULL COURT

BEFORE:

The Chief Justice

Mr. Justice Lucas

Mr. Justice Connolly

BRISBANE, 23 FEBRUARY 1979

(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)

-----

IN THE MATTER OF an application by WESLEY BULNNEY for an order under section 61(1)(b) of The Fish Supply Amendment Act 1972-1976

QUEENSLAND FISH BOARD

v.

WESLEY BUNNEY

Ex parte: QUEENSLAND FISH BOARD

JUDGMENT

THE CHIEF JUSTICE: We are all of the opinion that the Board is entitled to its costs in accordance with the normal rule of the court and order that the respondent pay the Board's costs of the appeal to be taxed.

------

THE CHIEF JUSTICE: In my opinion this application should be refused. I do appreciate that the applicant is in an unfortunate position in that he was put to expense because the only way he could recover money for the property which had been seized by the Board was by bringing an application such as he did and that resulted in his being out of pocket, but the order for costs would not have been made if the applicant had not sought it and in the result the Court of Appeal had no doubt that the order of the magistrate was not sustainable. I know we did reserve it but that was not because we were not all of the clear opinion that there was no jurisdiction to make the order for costs; the necessity for reserving the decision arose from a desire to be prudent in the expressions which were used in disposing of the appeal rather than doing it extemporarily when one cannot always choose the most appropriate word. Therefore, Mr. Tait, you are in a hard position. I feel constrained to refuse your application. It seems to me, though, that in circumstances in which your client finds himself it would be desirable for consideration to be given to making provision for the Board to bear costs. That is a matter for Parliament and not for this court.

MR. JUSTICE LUCAS: I agree, and I agree that it may be desirable to review the legislation for the reason that my brother has said. I only want to add one thing, which is perhaps not strictly relevant to this application, but it has seemed to me throughout that it may be that the costs incurred before the magistrate were incurred unnecessarily. The material before the court does not show that there was any effort made to ascertain the attitude of the Pish Board in advance of the hearing. If that had been done, it seems likely, in view of the attitude that the Fish Board did take up, that it might not have been necessary to bring any witnesses from Mackay at all.

MR. JUSTICE CONNOLLY: I agree, for the reasons given by the Chief Justice, that the indemnity certificate should be refused.

THE CHIEF JUSTICE: That will be the order of the court.

------

O.S.C. No. 42 of 1978

BETWEEN:

QUEENSLAND FISH BOARD

AND:

WESLEY BUNNEY

EX PARTE: QUEENSLAND FISH BOARD

___________________________________

CHIEF JUSTICE

LUCAS J.

CONNOLLY J.

___________________________________

Reasons for Judgment delivered by Connolly J. on 23rd February, 1979 the Chief Justice and Lucas J. concurring.

___________________________________

“ORDER NISI TO REVIEW MADE ABSOLUTE, ORDER OF MAGISTRATES COURT VARIED BY DELETING THE ORDER FOR COSTS.”

___________________________________

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 42 of 1978

IN THE MATTER of an application by WESLEY BUNNEY for an order under Section 61(1)(b) of The Fish Supply Management Act 1972-1976

QUEENSLAND FISH BOARD

v.

WESLEY BUNNEY

Ex parte: QUEENSLAND FISH BOARD

JUDGMENT - CONNOLLY J.

On 22nd June, 1977, an inspector in the employ of Queensland Fish Board entered premises occupied by the respondent at 12 Valley Street, North Mackay, and there seized certain fish and containers. In so doing, he may be taken to have acted under the authority of Section 59(1)(d) of the Fish Supply Management Act 1972-1976 which empowers an inspector to seize and retain any fish and any container in respect of which he reasonably suspects an offence against that Act to have been committed. Section 60(1) empowers the Board, where an inspector has lawfully seized any fish (whether with or without containers) to cause the fish and containers to be sold and the nett proceeds of sale retained by the Board until they are disposed of in accordance with an order of any court of competent jurisdiction, or in accordance with the provisions of Section 61. Although for the purpose of these proceedings the effect of Section 60(1) is to require it to be assumed that the inspector had formed the reasonable suspicion which is required by Section 59(1)(d), no proceedings for an offence against the Act were in fact instituted. Section 61(1) invests a Magistrates Court constituted under The Justices Acts 1886-1968 in certain events, of which the relevant one for present purposes is that a proceeding for an offence against the Act with respect to the fish sold by the Board has not been commenced within six months after the date of the seizure. In those circumstances a Magistrates Court, may upon application in that behalf by the Board or by any person claiming a proprietary interest in the proceeds of sale-

“(c) order that the nett proceeds of sale be paid into the general fund and become part of that fund if-

  1. any person has been convicted of an offence against this Act in respect of the fish sold;
  1. the person who would otherwise be entitled to the nett proceeds of sale or any part thereof is unknown to the chairman after reasonable inquiry in that behalf; or
  1. for any other reason the court considers it just so to do;

(d) order that the nett proceeds of sale be paid to the persons appearing to it to be entitled to them in such proportions as the court considers just;

(e) make any other order it considers just.”

Two additional features of the legislation should be noted. By virtue of Section 61(2) where no proceeding. In relation to the fish or the nett proceeds has been commenced in any court, whether for an offence or otherwise, within twelve months after the date of seizure, the nett proceeds of sale shall without further authority be applied by the Board to its general use for the purposes of the Act. Second, there appears to be no provision which empowers, let alone requires, the Board to hand over the nett proceeds to the person who claims a proprietary interest in them, apart from an order of the Magistrates Court under Section 61(1)(d), On 19th June, 1978, no proceeding of any sort having been - instituted, the respondent instituted proceedings under Section 61(1) for an order that the nett proceeds of sale be paid to him as the person entitled thereto. The court, pursuant to Section 61(5) ordered that notice of the application be given to the Board and on 20th September, 1978, after hearing both the Board and the respondent, ordered that the nett proceeds being an amount of $2563.16 be paid to the respondent and it further ordered that the Board pay him costs in the sum of $648.08.

The Board neither resisted nor consented to the order for the payment over of the nett proceeds but submitted that the Magistrates Court had no jurisdiction to order the payment of costs. It now appeals to this court by order to review against the order for the payment of costs.

The respondent supports the order for costs on two alternative bases. First he relies on Section 157 of The Justices Act which provides that in all cases of summary convictions and orders the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable. This is not a case of a conviction but it may be assumed that an order within the meaning of the section was made. It may be assumed in the respondent favour that Section 61 of The Fish Supply Management Act invests jurisdiction in the Magistrates Court as such and does not constitute it a persona designata for the purpose of making the orders specified in that section. See Re Ascot Racecourse and Recreation Grounds Limited; ex parte Sydney Turf Club (1951) 51 S.R.N.S.W. 340 at page 343. It may therefore be further assumed that the Magistrates Court in exercising jurisdiction under Section 61 is clothed with all the powers contained in The Justices Act. The question therefore is whether the language of Section 157 is apt to cover this situation, and in particular whether the Board is a defendant within the meaning of that provision, “Defendant” is defined by Section 4 of The Justices Act to mean a person complained against before a Magistrates Court or before justices for a simple offence, breach of duty or an indictable offence. No question of an offence either simple or indictable arises and it is clear that no breach of duty is involved. As has been seen the Board is not empowered let alone obliged to pay over the nett proceeds of sale to the person appearing to be entitled to there save under an order of the Magistrates Court. A person claiming a proprietary interest who makes an application under Section 61 is exercising a statutory right but he is not seeking to enforce an antecedent obligation. The order for costs cannot be supported under Section 157 of The Justices Act.

In the alternative, the respondent relies upon Section 61(1)(e) which empowers the Magistrates Court to make any other order it considers just. Two answers suggest themselves to the argument based on Section 61(1)(e). First, it would seem natural to read that provision as relating, like paragraphs (c) and (d) to orders which deal with the nett proceeds of sale. Apart from this consideration however the question is whether the language of paragraph (e) is apt to cover an order for costs. It must be remembered that there is a well established principle that apart from the inherent jurisdiction of the court of chancery, costs are entirely the creation of statute and there is he common law jurisdiction in tribunals to grant costs: R. v. Justices of South Brisbane, ex parte Zagami (1901) 11 Q.L.J. 81 at page 83; Garnett v. Bradley (1878) 3 App. Cas. 944 at page 962. Some of the older decisions suggest that the power to award costs must be conferred in express terms. See e.g. Service v. Flateau (1900) 16 W.N.N.S.W. 248; Victorian Phillip-Stephan Photo-Litho Co. v. Davis (1890) 11 L.R.N.S.W. 257 but the better, view would seem to be that the power can be conferred expressly or by necessary implication: Spicer v. Carmody 48 S.R.N.S.W. 348 at page 350. Having regard to this principle however, the power must at least clearly appear. The language of paragraph (e) does not in terms refer to costs at all and it contains no clear indication of an intention to confer the power. It is of interest to note that in Booker v. Gill (1899) 15 W.N.N.S.W. the Full Court of New South Wales held that the court had no power to award costs under a provision which empowered it to make “all such other orders” as the circumstances of the case require.” The order for costs in this case cannot be supported under Section 61(1)(e).

In my own opinion therefore the order of the Magistrates Court should be varied by deleting the order for costs.

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Editorial Notes

  • Published Case Name:

    Queensland Fish Board v Wesley Bunney

  • Shortened Case Name:

    Queensland Fish Board v Wesley Bunney

  • MNC:

    [1979] FC 11

  • Court:

    QSC

  • Judge(s):

    Lucas J., Connolly J.

  • Date:

    23 Feb 1979

Litigation History

No Litigation History

Appeal Status

No Status