Citation: Korsman v Douglas Dick & Anor [2000] NSWSC 398
Court: Supreme Court of New South Wales (Common Law Division)
Date: 16 May 2000
Judge(s): Master Malpass
Background
A fisheries officer (the plaintiff) laid informations against two defendants under the Fisheries Management Act 1994, alleging contraventions of conditions on a Commercial Fishing Licence. The proceedings came before a Local Court Magistrate at Nowra on 15 September 1999, listed for final hearing. A Police Prosecutor appeared for the plaintiff; defence counsel appeared for the defendants.
At the outset, defence counsel raised a legal point: that an essential element of the offence, the existence of a "lobster fishery" as defined by reference to a proclaimed schedule, could not be established because no relevant proclamation appeared to have been made. The Police Prosecutor sought and obtained a short adjournment of approximately one hour to seek instructions on that point.
After the adjournment, the prosecutor returned unable to respond to the legal argument and applied for a further adjournment of one to two weeks. The Magistrate refused that application. With nothing further to put before the court, the prosecution could not proceed, and the information against the second defendant was dismissed. Costs were awarded against the plaintiff. The plaintiff then sought Supreme Court review of both the dismissal and the costs order.
Legal Issues
- Whether the Magistrate erred in law by requiring the prosecution to prove the existence of a proclamation as an element of the offence.
- Whether the dismissal of the prosecution constituted a decision made on a point of law, or was instead a dismissal for want of preparedness.
- Whether the costs order against the plaintiff was supported by "other exceptional circumstances relating to the conduct of the proceedings by the prosecution" under s 81(4)(d) of the Justices Act 1902.
Decision
Master Malpass found that the Magistrate had not required the prosecution to prove the existence of a proclamation. The transcript made clear that the dismissal was explicitly based on the prosecutor's inability to proceed following the refusal of the adjournment, not on any ruling that the prosecution had failed to establish a legal element. The Magistrate had said as much directly to the prosecutor at the time.
No error of law was established in the decision to dismiss. Once the adjournment was refused and the prosecutor indicated she had nothing further to put forward, it was open to the Magistrate to dismiss the proceedings. The Supreme Court noted that the plaintiff did not challenge the refusal of the adjournment, and that the options available to the Magistrate in those circumstances were limited.
On the costs question, the Supreme Court held that the circumstances plainly amounted to "other exceptional circumstances" sufficient to justify a costs award under s 81(4)(d). The matter had been listed for final hearing at Nowra; the second defendant had attended to defend it; a prior adjournment had already been granted on the plaintiff's application; and the prosecutor was unable to offer any explanation for her failure to prepare a response to a legal argument central to the prosecution's case.
The appeal was dismissed. Master Malpass also noted, without deciding, that parties are generally bound by the course adopted at trial, and that some arguments raised on appeal may not have been available to the plaintiff for that reason. That point was not fully argued and was left aside.
Orders Made
- The appeal is dismissed.
- The plaintiff is to pay the costs of the proceedings (save for costs between the plaintiff and the original second defendant, which were reserved).
Key Takeaways
- A dismissal for prosecutorial unpreparedness is distinct from a dismissal on a point of law: the Supreme Court confirmed that the Magistrate's own statements in the transcript determined the true basis of the dismissal.
- No error of law arose where a Magistrate dismissed proceedings after refusing a further adjournment and the prosecutor indicated she had nothing further to put before the court.
- Under s 81(4)(d) of the Justices Act 1902, "other exceptional circumstances relating to the conduct of the proceedings by the prosecution" can be established by a combination of factors: a prior adjournment already granted to the prosecution, attendance by the defendant at a provincial hearing, and a complete failure to prepare for a known legal argument with no explanation offered.
- Parties are generally bound by the course adopted at trial, and grounds not raised below may face difficulty on appeal, though this principle was noted rather than applied in this case.
- The Supreme Court's costs order required the plaintiff to meet the costs of the appeal proceedings, reinforcing that an unsuccessful challenge to a costs award can itself attract further costs liability.
Legislation and Cases Referenced
Legislation:
- Fisheries Management Act 1994 (NSW), ss 18(2), 104(7), Sch 1
- Justices Act 1902 (NSW), ss 81(4)(d), 109
- Fisheries Management (General) Regulation 1995 (NSW), cl 119A
Cases:
- Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors [1999] NSWCA 11