Absel Fish Exports Pty Ltd & Anor v State of Victoria M7/1994 [1994] HCATrans 165 (9 December 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M7 of 1994

In the matter of -

ABSEL FISH EXPORTS PTY LIMITED

AND ANOTHER

and

STATE OF VICTORIA

Office of the Registry

Melbourne No M8 of 1994

ALPACK FISH EXPORTS PTY LIMITED AND ANOTHER

and

STATE OF VICTORIA

DAWSON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 DECEMBER, AT 9.35 AM

Copyright in the High Court of Australia

MR G.T. PAGONE: If your Honour pleases, I appear on behalf of the defendant in both matters, the applicant in the application before your Honour.

HIS HONOUR: Yes, Mr Pagone.

MR H.C. BERKELEY QC: If your Honour pleases, I appear with my learned friend, DR J.F. BLEECHMORE, for the defendant, for the plaintiff, your Honour, the respondents to the application.

HIS HONOUR: Yes, Mr Berkeley. Now, how many matters are there?

MR PAGONE: There are two.

HIS HONOUR: Yes.

MR PAGONE: It is one of those permutations of combinations matters, your Honour. Perhaps if I just outline briefly where we are and how we get here and that may help.

HIS HONOUR: Yes.

MR PAGONE: What your Honour has today in matters number M7 and M8 are two applications, one in each. There is an application by my client, the State of Victoria, to have writs that have been, or the proceedings that have been commenced by writ dismissed or in the alternative stayed, and on 7 December applications were made by my learned friend's clients for directions in those proceedings, M7 and M8, so that the principal issues today, your Honour, are should the matters in M7 and M8 be dismissed, or alternatively stayed, and if not then there is my learned friend's summons for direction.

HIS HONOUR: And there are prosecutions - - -

MR PAGONE: Pending in the Magistrates Court.

HIS HONOUR: And there are four of those, are there?

MR PAGONE: No, your Honour, there are more than four prosecutions.

HIS HONOUR: More than that, are there?

MR PAGONE: Yes, indeed. Perhaps if I just outline briefly the background, and that may save a lot of time. Your Honour, between December 1992 and February 1993, Mr Hutton, who has sworn the principal affidavit in this matter today, filed charges against two companies, Abpack, Absel and two individuals, Mr Romeo and Mr Selway, charging them with various breaches under the Fisheries Act, being state legislation. I will not take your Honour to that at the moment unless your Honour wants, but the - - -

HIS HONOUR: No.

MR PAGONE: The nub of the charges is found in Mr Hutton's affidavit at paragraphs 5 and 7, and the charges themselves are set out in an exhibit, indeed they are photocopies of the charges in exhibit 1.

HIS HONOUR: Yes.

MR PAGONE: The charges, your Honour, are numerous, but they are - - -

HIS HONOUR: Are the companies and the individuals related in any way?

MR PAGONE: Yes, they are, your Honour, yes.

HIS HONOUR: Yes.

MR PAGONE: In effect, Abpack is the company that is controlled or associated with Mr Romeo, and Absel, as the name suggests, is the company controlled or associated with Mr Selway, hence Absel, the Ab presumably being reference to abalone and the sel being reference to Mr Selway.

HIS HONOUR: My intelligence had missed that. Yes. But are Abpack and Absel related?

MR PAGONE: That I am not sure about, your Honour.

HIS HONOUR: It does not matter.

MR PAGONE: No, it does not matter, your Honour. Your Honour, the charges are numerous, but essentially they are of three different types. The first type one might regard - calls the bag limit charges, and it is a charge that related or is under regulation 8 sub-regulation 3 of the Fisheries Abalone Regulations of 1988. In effect, your Honour, what that regulation provides for is that if you happen to have more than 10 abalone in your bag you have got to have a docket. So it is essentially concerned to ensure that people who are catching abalone for recreational and private purposes can do so up to 10, but above that you have got to have a docket. And there are a number of charges in respect of that.

In fact, Mr Romeo has 37 charges in respect of the bag limit, Abpack has another 37 charges in respect of the bag limit, and Selway, Mr Selway and Absel each have 15 charges against them in respect of the bag limit charges. The second broad charge, your Honour, the second charge can broadly be described as a breach of condition. What happens, your Honour, is that under the Fisheries Commercial Regulations of 1992 it is made a condition of a licence that the licensee make a complete, true and accurate return in effect to the Victorian Government. There are quite a number charges that - - -

HIS HONOUR: The licensee being a licensee of?

MR PAGONE: Of the individual or the company.

HIS HONOUR: But of premises?

MR PAGONE: No, no, your Honour. It is a personal licence.

HIS HONOUR: It is not a licence to fish forever then, it is a licence to - - -

MR PAGONE: It is a licence to fish abalone, your Honour. I am trying to be relevantly selective in the facts I give your Honour, but yes, your Honour, that is so. And broadly there are 12 such charges in relation to Mr Romeo.

HIS HONOUR: Is Mr Romeo an abalone diver?

MR PAGONE: I believe he is, your Honour.

HIS HONOUR: And Mr Selway?

MR PAGONE: I am instructed, no, he is not actually a diver, no. He is a processor. Both of them are indeed processors.

HIS HONOUR: That is why I asked is the licence in relation to the processing or the fishing of abalone.

MR PAGONE: Perhaps I really ought to have gone back, your Honour, and explained it in greater detail. The licences they have as processors - - -

HIS HONOUR: Well, as I understand it, so that perhaps it might make things shorter, the abalone diver has a book with three dockets. He retains one, and he has to send two to the processor with the abalone.

MR PAGONE: That is right, your Honour.

HIS HONOUR: Yes. And the processor must inform the authorities if in fact he gets abalone without the two dockets which are necessary, and that is what these charges relate to.

MR PAGONE: Exactly, sir. Yes.

HIS HONOUR: And that is what these charges relate to.

MR PAGONE: Exactly, so, your Honour. Yes, yes, your Honour. And to add to the complication, those charges which are now charges that arise under regulation 20 sub-regulation 2 sub-regulation (i) were the same regulations under the 1982 set of regulations as 11(l), so that when one looks at the charges for a period of time they are referred to as charges under regulation 11(l) and thereafter sub-regulation 22(i). Your Honour will also see that in the statement of claim that my learned friend settled, that is more or less conceded, that one replaces the other.

The third set of charges, your Honour, is another breach of condition, and that is a failure to notify, and that is because the regulations are of two kinds. The 22(i) talks about making a complete, true and accurate return to the director-general and regulation 22(d) requires a notification. So they are in effect aspect of the same event but relevantly two charges, and that one, 22(d) used to be regulation 11(g). Now, your Honour, I do not think it really matters very much to into the detail of the charges save to indicate in broad terms that they are three categories of charges; the bag limit charges, and the two categories of breaching of condition charges.

They are numerous, and they span a long period of time. In relation to Mr Romeo, for example, the charges, the 37 charges that I mention for the bag limit span the period of 28 February 1992 to 7 September 1992, and the failure to notify and lodge returns or the failure to lodge correct returns spans from 14 January 1992 to 14 December 1992. So it is charges alleged to have occurred and events alleged to have occurred over a long period of time. And on 24 December 1992 there was one set of charges. Actually, on 17 December there was one set of charges, then there was another set of charges on 24 December 1992, and then there was a fresh set on 5 February 1993.

Now, your Honour, the charges were set down for hearing in the Magistrates Court on 2 August 1993, five months or so after the last set of charges was laid, and on that day counsel for the defendant sought an adjournment to issue a notice of motion seeking to have the proceedings in the Magistrates Court removed from the Magistrates Court into the High Court. That is referred to in Mr Hutton's affidavit at paragraph 8. On 10 August 1993 notices under section 78B were given, and of course I should have said that on 2 August the proceedings in the Magistrates Court were adjourned.

The notices of motion for removal were issued on 9 December 1993, and those notices of motion sought obviously enough the removal of the matters of the proceedings in the Magistrates Court into the High Court. Your Honour, it may be useful to note that those notices of motion are matters numbers M150 to M153, and they are referred to in Mr Hutton's affidavit. And in respect of those notices of motion, relevantly speaking no further steps have been taken.

HIS HONOUR: And there are three notices of motion, because - - -

MR PAGONE: I think four.

HIS HONOUR: Four, because there are four parties.

MR PAGONE: Four parties, yes, your Honour. On 9 February 1994 two writs were issued in the original jurisdiction of the High Court. Your Honour, defences were filed on 31 March 1994, and no reply has been filed or served and indeed, we say nothing has happened. In Mr Hutton's affidavit it appears that there were to be sought today orders to dispose both of the notices of motion as well as the writs. The paper work, as it were, was prepared to deal with the notices of motion but they were not issued because the registry took the view that that was a matter that needed to go to the full court and it may not matter in any event, because there are some statements made by Mr Ellinghaus in an affidavit he has sworn which suggests that maybe they are not going to proceed with those in any event.

I only mention that, your Honour, to explain why there are some things said in the affidavit which are not formally before the court today. So that in the events that have occurred, your Honour, the only thing before the court is the summons dated 23 November seeking to have the writs dismissed or in the alternative stayed. Now, your Honour, that seems to have provoked the summons dated 7 December 1994 which simply seeks directions and also the affidavit of Mr Ellinghaus in response on 8 December. Your Honour, I will not hand it up at the moment, but there are some affidavits in reply to Mr Ellinghaus's affidavit of yesterday.

I hope not to have to rely upon that, your Honour, and it may be that we can dispose of the matter without having to. In fairness to my learned friend, he has only seen them almost a minute or two before your Honour came on the bench. Now, your Honour, our principal application is that the matter should be struck out pursuant to order 36 rule 9, and what that provides, your Honour, is that if the plaintiff does not give notice of trial within six weeks after he is first entitled to do so:

or (b) within the like period after a new period is ordered -

which plainly does not apply -

or (c) in either case within such extended time as the court or a justice allows -

and that has not occurred, your Honour -

then the defendant may before notice of trial given by the plaintiff give notice of trial or apply to the court or a justice to dismiss the action for want of prosecution.

And it is that, your Honour, that we rely upon. Rule 8 in order 36 provides that:

a notice of trial may be given with a joinder of issue closing the pleadings or with the reply or at any time after the close of pleadings or after the issues of fact are ready for trial.

And, your Honour, we say the pleadings have closed because order 28 rule 13 subrule 1 - - -

HIS HONOUR: Order 38?

MR PAGONE: 28, your Honour.

HIS HONOUR: Yes.

MR PAGONE: 13(1) says:

Where a party makes a default in delivering a reply or a subsequent pleading the pleading shall be deemed to be closed and all material statements of fact in the pleadings last delivered shall be deemed to have been denied and put in issue.

And, your Honour, order 24 provides for the time for the reply which is 14 days from the delivery of the defence or the last of the defences, and as your Honour will remember I indicated that the defence was served at the end of March, filed I believe on 31 March, so that pleadings closed in April, and your Honour, it is said that is a long time ago. And in respect of that matter, your Honour, on one view that is really all I need to say, and Mr Ellinghaus has filed an affidavit, and in my respectful submission nothing he says deals with that issue or justifies why there ought not to be a dismissal of the proceedings on that ground.

.D.

[9:50am]

Your Honour, in the alternative, and as an entirely separate basis upon which we put the application we say the matter ought to be stayed so as to allow the proceedings in the Magistrates Court to run their course. The court's power to stay the proceedings is found in order 63, rule 1, where it is provided that:

The court or a Justice may, at any time after the institution of a proceeding direct a stay of proceedings as to the whole or part of the proceeding or as to any proceedings under a judgment or order given or made in the proceeding -

your Honour, plainly it is a discretionary matter, whether to grant a stay or not and the reason that we seek a stay, your Honour, can be put on a number of different bases. Now the first basis, your Honour, which I think is fair to describe as fairly simple, is that the principal contention in the statement of claim settled by my learned friend is that there is a section 92 point, and the principal way in which that is put is that the effect of the regulations is to act to impede interstate trade, commerce and intercourse.

Your Honour, in order for my learned friend to get to that stage, one would have thought that he would need to show that in fact there was some interstate trade, commerce or intercourse, connected with the particular abalone transactions, because in our defence we say that we do not contend that the legislation has the effect, nor do we seek to operate it or apply it in the way contended. What we say, your Honour is, that in fact this was abalone caught in Victorian waters and it is on that basis only that we seek to lay the charges and pursue with the prosecutions. Your Honour, may I - - -

HIS HONOUR: Has any attempt been made to have the prosecutions resumed, or hearing of the prosecutions resumed in the Magistrates Court?

MR PAGONE: Your Honour, there were - the answer is yes and no, your Honour, but I wouldn't be able to answer your Honour more fully. I know that there was some indication given by the magistrate that it seemed an inappropriate matter, given the way the things had got to the court.

HIS HONOUR: I asked the question because you said that the stay is sought on the basis that it would allow the proceedings in the Magistrates Court to proceed; I do not see why they should not proceed anyway. I mean, the magistrate would even appreciate - I should not say that. The magistrate would appreciate that an application for removal of a Magistrates Court prosecution to the High Court would stand little hope of success

MR PAGONE: Your Honour, I do not think that the magistrate did take that view. I think the view taken by the magistrate was that there was an application for removal. It was being put by counsel, and not my learned friend I should add, but it was being put by counsel and - -

HIS HONOUR: But even if he did not take that view, after a certain amount of delay, he may take that view that the application was not proceeded with for obvious reasons.

MR PAGONE: Your Honour, and it may be that what should happen in any event is that those instructing me should seek to revive those proceedings but that is a separate matter, your Honour.

HIS HONOUR: But you say it is a practical problem, the existence of these proceedings in this court - - -

MR PAGONE: It is your Honour.

HIS HONOUR: - - - have constituted a barrier - - -

MR PAGONE: Indeed, your Honour.

HIS HONOUR: - - - for the prosecution of the charges in the Magistrates Court, yes.

MR PAGONE: And that is plainly so, your Honour, yes. Your Honour, may I just take you very, very briefly to the pleadings so as to make good that proposition so that at least one can see how the issue arises. Your Honour, as I said, there are two matters. Perhaps if I may take your Honour to the matter at M7, rather than M8, but if your Honour wants to go to M8 - - -

HIS HONOUR: No, no.

MR PAGONE: - - - for a particular reason, I am happy to do that. The relevant critical paragraph, your Honour, is paragraph 16 of my learned friend's statement of claim. After having set out the charges, and so on. In paragraph 16 what is pleaded is that:

The effect of the provisions of the State Act and regulations referred to above (a) is to prohibit any person processing, controlling, conveying or transporting in the course of trade abalone which was not taken in Victorian waters; or alternatively which was not originally landed in the State of Victoria by Victorian licensed fishermen. (b) Is to prohibit the sale of abalone by Victorian licensed fishermen to any person other than a Victorian licensed processor.

Your Honour, in response, in the defence filed by the State in paragraph

14, what is said is that - first of all it denies the allegations in paragraph 13, but in paragraph 14 says:

The defendant does not assert or allege that the provisions of the State Act and regulations have the effect alleged in paragraph 16; (b) the plaintiffs have failed to establish support or provide any evidence that any of the abalone to which the charges and summonses relate was taken other than in Victorian waters or were originally landed in the State of Victoria; (c) whether the provisions of the State Act regulations have the effect alleged in paragraph 16 thereof, is not an issue which is alleged to arise against the plaintiffs in respect of the charges, the defendants concede -

and your Honour, perhaps one should note that, the defendants concede -

that it cannot succeed in any charge which relates to abalone which was not taken in Victorian waters or which was not originally landed in the State of Victoria by a Victorian licensed fishermen. In the premises the plaintiffs lacked standing to assert that the State Act and regulations have the effect alleged and (f) if the provisions of the State Act and regulations are capable of being construed to produce the legal effect then they should be read down to operate consistently with section 92 of the Constitution and as applied and enforced by the defendant in fact.

Your Honour, whilst I am there, may I just take your Honour briefly, so that I can refer back to it later to paragraph 16, your Honour will see that further to what I have just read out it is also said that there is no breach of section 92; (a) because they are not discriminatory in favour of Victorians in a protectionist sense; (b) they do not inhibit in law or in fact the freedom of trade; (c) they - and it is really (c) and (d) that I want to refer to your Honour:

They assist in the protection and conservation of an important natural resource, named the stock of abalone in Victorian waters -

and -

(d) are laws genuinely regulating intrastate and interstate trade and commerce and as such are permitted by section 92 of the Constitution.

HIS HONOUR: Cole and Whitfield defence, yes.

MR PAGONE: Yes, your Honour, but the reason I refer to that is because that will be essentially a question of fact, I think. There will need to be evidence about what is reasonable in relation in the context. That in part explains why your Honour has as exhibit 2 a rather fat document. Those are matters of fact which we would say just make this reasonable regulation.

Now your Honour, before mentioning that point, in relation to whether the issue arises or does not arise, we rely upon the well-established authority that state legislation should be interpreted as consistent with its constitutional power and, I think one needs to go to the cases. There is Jumbunna's case in [1908] HCA 87; 1908, 6 CLR 309 at p.363 and Wienholt's case 1915 20 CLR 351 at p.540. I think I said 351, I meant 531 at p.540 where the principle, your Honour, is clearly enough stated that when interpreting legislation you interpret it - you assume that the legislature did not intend to accede its power, and if it has the effect that my learned friend says it does, and we say well, it should not be interpreted in that way.

But in relation to the question of a stay, your Honour, my first point is that it just does not arise because they need to establish something which if established we say we give up, and so one never gets to the Constitutional question. There is a section 109 point, your Honour. We respond to that differently. It is said that there is an Export Control Act of the Commonwealth and that this act interferes with, or enters upon an area covered exclusively by the Commonwealth. In response to that, your Honour, all I need to say is that we deal with section 109 point differently. The fact is that there is Commonwealth legislation.

The Commonwealth legislation provides for the common rules in the State to enter into co-operative arrangements, and your Honour, a co-operative arrangement has been entered into between the Commonwealth and the State. It is referred to in Mr Hutton's affidavit at paragraph 24 and what we exhibit as exhibit 3 is the gazetted agreement which has the effect - it is the 1988 agreement - which has the effect of saying that the fisheries is to be managed -sorry. There are lots and lots of definitions and there is the question of what is the fishery, and it basically defines all of Victorian waters, and then it says in paragraph 2:

The fishery is to be managed in accordance with the law of Victoria.

So we say that is the end of the 109 point and if it does not dispose of it, at least on the question of stay, it should relevantly dispose of it because we say it is not a particularly strong point, or at least it is not so obvious that they ought to - if I may use the vernacular - whiz up to the High Court before the other proceedings. Now, your Honour, if your Honour is not with us on all of those points, then really my final point is that, in addition we say that we rely upon what Mr Hutton says in his affidavit at paragraph 4, and then 13 through to 24. Paragraph 4 effectively summarises what appears later on in the other paragraphs, and what he says in a nutshell, your Honour, is: there are difficult questions of fact that need to be tested, and that the Magistrates Court is the appropriate place for those questions of facts to be agitated and decided upon at first instance, and if they are and there is an issue left that my learned friends can rely upon, then they can raise it there.

And that, your Honour, in a nutshell is our submission. That still leaves the question of the notices of motion which is an application for - their notices of motion of applications to remove the Magistrates Court proceedings, and the difficulty I have, your Honour, with that is this - - -

HIS HONOUR: Are those notices of motion returnable before a full court?

MR PAGONE: They are, your Honour, yes. Your Honour, I do not seek today to argue that it is returnable before your Honour although, for what it is worth, I think it is, but the fact is they are not before your Honour, so I am not taking that point. If we have to go to the full court, we will do that. The difficulty, your Honour, is a different one and that is that I am not absolutely sure what the position is in relation to notices of motion. The affidavit of Mr Ellinghaus suggests that they are to be withdrawn but when one looks at it carefully, it seems that they were to be withdrawn in a conditional kind of way.

That is to be say, if agreement could be reached for an agreed statement of facts, then they should have been withdrawn, and he deposes to conversations which presumably are designed to indicate that that was an agreement between him and my instructor. Your Honour, my instructors have a different view about what was agreed to, and it was for that that we have got the additional affidavits. Now, I am not sure whether my learned is going to put it that they will be withdrawn, but only if, or whether my learned friend says, no, no, we will stand or fall by the roots. I am perfectly happy to deal with that now, or perhaps after hearing my learned friend.

HIS HONOUR: Well, you would be better equipped if you heard what attitude Mr Berkeley is going to adopt. Has any - I am not suggesting it necessarily should have, or should not have, but has any attention been given to an agreed stated case?

MR PAGONE: Your Honour, yes, and I think it is fair to say it is likely to be impossible. An obvious reason why it be impossible is because the facts that we would want to lead by way of reasonable regulation for example are not likely to be accepted by my learned friend, but another and perhaps more direct is that my learned friend is unlikely to agree that the abalone was caught in Victorian waters. I mean, that is the very issue in dispute that the statement of claim - - -

HIS HONOUR: Yes.

MR PAGONE: If your Honour please.

HIS HONOUR: Thank you, Mr Pagone. Mr Berkeley.

.D.

[10:06am]

MR BERKELEY: Perhaps we can get the notice of motion out of the way. First, your Honour, there are four of them. As early as February it appears Mr Ellinghaus indicated to the government solicitor that they would be discontinued. And if my learned friend wants to move this morning that they be dismissed with costs, I am instructed to consent to such an order.

MR PAGONE: Yes. Needless to say, I so move, your Honour.

MR BERKELEY: Well, I so consent.

HIS HONOUR: Well, they will be dismissed with costs.

MR BERKELEY: Thank you, your Honour. I am not sure thank you is the right word, but at least it gets that out of the way. I wonder if I could briefly summarise this from our point of view, your Honour; I think I should say first of all I settled this statement of claim, your Honour, but I have not had any connection with the criminal proceedings, and there were counsel retained in there too. It was the junior who drew the statement of claim, but he is no longer in the matter. And it would appear - well, to start off with, this matter was adjourned by consent - this matter.

The criminal matters, the Magistrates Court matters, have been adjourned to a date to be fixed, and that was done by consent pending the resolution of the actions in the High Court. It appears from the material that Mr Ellinghaus has filed that he was under the impression, rightly or wrongly, that some discussions were going on with a view to getting an agreed statement of facts. Now, it appears from what my learned friend says, and told me yesterday, that that is not going to be possible, although I should say we would not dispute their facts as to reasonable regulation. I do not think there would be any difficulty about us agreeing on that.

I would have thought, your Honour, that the only factual issue that is going to be in dispute is where these abalone came from. And that is a live issue, and something we do not concede that they were caught in Victorian waters. But apart from that I would have thought the constitutional facts needed for a statement of facts would be agreed. We would certainly agree on the ones for reasonable regulation, partly because we think that that issue is irrelevant.

I was under the impression, your Honour, that Cole v Whitfield did away with reasonable regulation. That was one of the reasons why it was done away with because the court got into difficulties working out what was reasonable regulation and what was not. So that if you get discriminatory legislation, that is Victorian legislation which discriminates in favour of its own products, or against other products, by and large it does matter whether that is reasonable regulation or not.

And secondly, the major charges, and at least half of them, are this, that the plaintiffs were conveying the abalone without an abalone docket. Now, you can only get an abalone docket if you are a fisherman, licensed to fish in Victorian waters, and the only way a processor can get an abalone docket is if he buys fish from a Victorian licensed fisherman. And indeed, your Honour, if you look at section 13D of the Fisheries Act, a licensed processor is prohibited from buying fish in effect because the docket system from buying fish from anybody other than a Victorian fisherman. And the fisherman is forbidden to sell his fish to anybody other than a Victorian licensed processor, because you have to have a docket. In other words, if you buy them without a docket, or sell them without a docket, you are committing an offence.

Now, the fact stated in the statement of claim is not limited; in a sense the Magistrates Court proceedings are a red herring. That is to say they are there, and they are the occasion for a writ being issued, but they are not related partly to those abalone, but these people in the business of buying and selling abalone, and they buy from people in three states and they sell to processor in Victoria who packs them for export, and they want to know what the constitutional question is, and it is no use my learned friend said, well the Victorian Government will concede their legislation only applies to the Victorian abalone, caught in Victorian waters.

That is all very well, your Honour, but that is not the question. The question is what does the legislation mean, and can it be read down, and when one looks at it, it is very difficult to see how it can be read down, because it does not refer to a particular type of abalone. It says you cannot be in possession of the abalone unless you have got a docket, and it would be a matter for the full court, your Honour, but just at the moment, and if I might say so, with respect, I do not see myself - we would suggest it is going to be very difficult to read that down in any sensible way so as to give effect to the intention of Parliament as far as non-interstate abalone are concerned.

So there is a live constitutional issue which has got nothing to do with the Magistrates Court proceedings, although the Magistrates Court proceedings for the occasion for the plaintiffs to ask for resolution of the constitutional question. It relates generally to their business of buying, processing and selling abalone, and particularly selling them to the export establishment in Adelaide where I think 100 per cent of their sales go to.

HIS HONOUR: There is no reason why the prosecution should not proceed, is there?

MR BERKELEY: I would not think so. It is a matter for the magistrate, your Honour, but this court is often enough - as far as I know, maybe made its views held, until this court decides that the State legislation is invalid, it has to be treated as valid legislation in the State of Victoria, and if that goes on, and of course, it may turn out that the constitutional question does not get considered at all. The informant, who is not a party to this action, may fail in his proof in some way. The magistrate may say, information is dismissed, and we will not get any answer to the constitutional question. I mean, there is no reason why they should not proceed that I can think of, your Honour. One can see why the plaintiffs would be anxious to put off the day of reckoning, but that is a matter for the magistrate, but I would not advance any arguments . . . . .inaudible. . . . . your Honour put to me.

HIS HONOUR: Well that means we can put the matter straight - put the court proceedings to one side.

MR BERKELEY: Well I would have thought so, your Honour.

HIS HONOUR: But that still leaves a problem in relation to this litigation.

MR PAGONE: Yes, your Honour.

HIS HONOUR: Which is the finding of facts.

MR PAGONE: Yes, your Honour, that - well, what we would ask for, and that is why we had the summons for directions. I concede it has been delayed, your Honour. It has been delayed for reasons - there was some failure of communication between the solicitor and the counsel who was handling this in the Magistrates Court. The solicitor thought discussions were taking place. Evidently from what the government solicitor said, discussions were not taking place, but they still want their constitutional question answered, and obviously enough, if we cannot agree - perhaps we can agree on two-thirds of the facts, but the outstanding issues of fact will have to be decided somewhere, and we would suggest they would be limited either to the Federal Court or the Supreme Court, state a case for the High Court, for the full court of this court.

HIS HONOUR: Well to hear the matter and find the facts and come to a conclusion and then you can take it - - -

MR PAGONE: I am sorry, your Honour.

HIS HONOUR: When I have remitted to hear the whole matter.

MR PAGONE: Well, yes, your Honour, somebody will have to ask for leave to appeal in that case. It is six of one and half a dozen of the other, your Honour.

HIS HONOUR: Well obviously this court is not going to find the facts and that is stated if the parties cannot agree something has to be done with it.

MR PAGONE: Yes, and would prefer to leave the matter in this court and just have the issued of fact remitted. But if your Honour is against us on it I would not oppose an order that the whole matter be remitted and to give the matter some hurry up my solicitor will undertake whatever court it is remitted to that he will take out elections within seven days after the papers get to that court.

HIS HONOUR: And the indication you have given here would be sufficient I think to answer any difficulties that might occur in the Magistrates Court and prosecutions.

MR PAGONE: Yes, your Honour. I do not want to mislead your Honour. Would your Honour excuse me a moment? I just wanted to make sure I did not want to have this discussion with your Honour and then find that when it goes back to the Magistrates Court the defendant's applying for an adjournment by reason of these proceedings. Now what my instructing solicitor says that when it was in the Melbourne Magistrates Court the attitude of the magistrate tended to be that it was not really appropriate to go ahead until the High Court proceedings had been determined. Now if you take that view it may well be that the - what I can say is, your Honour, that we will not make an application to have them adjourned. But if the magistrate is inclined to adjourn them we are not going to be very active - - -

HIS HONOUR: Why should he take that view?

MR PAGONE: Well, I do not know, your Honour, perhaps they do not like long constitutional cases, but, I have heard magistrates take that point of view.

HIS HONOUR: Well as a matter of practicality so have I Mr Berkeley. But it is his duty to go ahead and hear the matters.

MR PAGONE: I would have thought so, your Honour. But I am not sure that I could persuade my client to urge that duty on the magistrate. But we will not make any application for an adjournment on that basis. I am not sure if I need to go any further, your Honour.

HIS HONOUR: Well I perhaps can hear from Mr Pagone what he says about what has emerged in the course of our discussion, anyway. Yes, Mr Pagone, there appear to be two problems, one is that the Magistrate's Court proceedings seem to have been held up wrongly; there is no reason why they cannot proceed.

MR PAGONE: Yes, your Honour.

HIS HONOUR: And if no opposition to their proceeding is now forthcoming, I cannot see any reason why the magistrate should not proceed.

MR PAGONE: Your Honour, with respect, we accept that. And obviously they should proceed, and what my learned friend has said is doubtless helpful, and I am sure that a note has been made, and - - -

HIS HONOUR: And there is a transcript of these proceedings, and no doubt that will solve that problem. But that does not solve everything.

MR PAGONE: No, it does not, your Honour; it still leaves these proceedings.

HIS HONOUR: Yes.

MR PAGONE: And the question is what should happen with those. Your Honour, it is still my submission that they should be stayed.

HIS HONOUR: There is one problem perhaps in the offing with the Magistrate's Court proceedings: no doubt, one or other party - and you can still appeal from a Magistrate's Court too.

MR PAGONE: I believe so, your Honour, yes.

HIS HONOUR: And no doubt an appeal would be forthcoming one way or the other.

MR PAGONE: Indeed.

HIS HONOUR: And if that was so, then of course it may be appropriate to delay that if these other proceedings are reaching some stage of finality until they are determined. That is something that can be worked out, can it not?

MR PAGONE: It is, your Honour, but - - -

HIS HONOUR: But as you say, in the Magistrate's Court, that the problem may have nothing to do with the problem which is sought to be raised in these proceedings.

MR PAGONE: And it would be undesirable, your Honour, to have in effect two inquiries as to fact in relation to the same parties which may turn out to produce different findings of fact on precisely the same matters, precisely the same litigation in effect, whereas the Magistrate's Court proceedings, now that we have heard what my learned friend has said, can take place early in the New Year. If we are successful my learned friend can appeal, and he can raise his constitutional point both in the Magistrate's Court and in the appellate court, and if my learned friend is not successful there, an application can be made for special leave to this court.

HIS HONOUR: And of course that does not mean that he should not be allowed to proceed with these proceedings.

MR PAGONE: I am sorry, I did not hear that.

HIS HONOUR: That does not mean that these proceedings - not the Magistrate's Court proceedings - should not be allowed to proceed in a proper manner. There is no reason why they should be stayed, is there?

MR PAGONE: Yes, your Honour, with respect, there is.

HIS HONOUR: Why?

MR PAGONE: Because, unless your Honour has in mind that the proceeding will be remitted to a Supreme Court.

HIS HONOUR: Yes, I do. I do not mean this court, no.

MR PAGONE: Yes. But, your Honour, in that event these proceedings would need to have facts found in respect of them, and they would be facts in respect of the same matter; indeed ideally they would be exactly the same facts as those that the magistrate would be finding for or against the parties.

HIS HONOUR: But, as I understood you originally, you said they would be different facts.

MR PAGONE: Your Honour, what I am saying is that it would be undesirable if they were different facts.

HIS HONOUR: No, no. What you are contending here is that the abalone which is in issue was caught in Victorian waters, is Victorian abalone in every respect.

MR PAGONE: Yes, your Honour.

HIS HONOUR: That is the abalone to which the charges relate.

MR PAGONE: Yes, your Honour.

HIS HONOUR: But what Mr Berkeley is contending is that, as a matter of interpretation, the act extends to abalone which is not Victorian abalone and for that reason it is invalid, and presumably there can be no severance and the act falls. Now that is really a different situation with different sets of facts, is it not?

MR PAGONE: Your Honour, it is true that the argument goes along the way that my learned friend says, but the facts that will be found as between the parties in the two proceedings - - -

HIS HONOUR: There would be some common facts, yes.

MR PAGONE: - - - ought to be the same, your Honour. It is the same fish. And it is undesirable, in my respectful submission, for one tribunal to be inquiring into the same matter as another.

HIS HONOUR: I have not made myself clear. As I understand it, he speaks in more general terms in the actions. He says, presumably - and I have not looked at it for this purpose - he says that he does deal in other than Victorian abalone, and therefore has standing, and that because the act is not restricted to Victorian abalone, its provisions and the provisions and regulations are invalid. I assume that is what he says.

MR PAGONE: Your Honour, if that is what he says, he only presumably has standing to run the point to the extent that there is a prosecution against him in relation to that matter.

HIS HONOUR: Why not as a fisherman who - - -

MR PAGONE: Well, perhaps as a fisherman. But that is, as I understand it, not presently in the proceedings. I do not think that - - -

HIS HONOUR: I did not think I had seen it, yes.

MR PAGONE: I do not think that has been enlivened in this proceeding, your Honour.

HIS HONOUR: Yes.

MR PAGONE: As I understand it, the only complaint that they have made is that there is a prosecution. If my learned friend has another case, well this should be stayed and another case should be commenced. But at the moment the only question is in relation to the prosecution. And, your Honour, there is this other question, and that is as a matter of practicality, if my learned friend wins in establishing his interstate connection, and we have said what we have said, we give up, rightly or wrongly but we are not going to pursue it, it is difficult to see how my learned friend would have any real interest in pursuing a constitutional question.

By that I do not mean interest in a legal sense, but I mean interest in a practical sense. I mean one might ask: why would he go to the trouble of pursuing the learning of the law on the issue, and doubtlessly spending money on legal costs etcetera when there are no consequences from a practical point of view. And he has got, in our defence, that we take the view that in respect of any interstate dealing we are not charging him. All he needs to do is to say: there is a fish; it has come from New South Wales; here is the proof. And then say: look, and you say you are not going to charge me. End of story.

.D.

[10:23am]

So that, your Honour, in reality it is much more sensible to have this matter put to one side, see what happens in the Magistrate's Court, and if there is any live issue thereafter, by all means pursue it. If your Honour pleases.

HIS HONOUR: Well, Mr Berkeley, what do you say to the proposition that as the pleadings stand in the actions at the moment, the only thing that really is complained of is the prosecution? You have not provided the basis - - -

MR BERKELEY: Yes, we have also had thousands of dollars of abalone seized, your Honour. That is alleged in the pleadings.

HIS HONOUR: Yes.

MR BERKELEY: And also we are carrying on a business of - an interstate business which is threatened by these proceedings, and like proceedings.

HIS HONOUR: Is that pleaded?

MR BERKELEY: Yes, your Honour. On page 30, your Honour, at paragraph 4 and paragraph 3.

HIS HONOUR: Yes. What Mr Pagone says is, but that is not really an issue between him and you because he concedes that the legislation does not apply to abalone which is caught in other than Victorian waters.

MR BERKELEY: But, your Honour, we also buy abalone that is caught in Victorian waters. That is pleaded.

HIS HONOUR: Yes.

MR BERKELEY: And in respect of that we say the act is insofar as it applies to abalone intended for export - - -

HIS HONOUR: There is no current dispute about any of that abalone, is there?

MR BERKELEY: Your Honour, it would be caught by the terms of the legislation.

HIS HONOUR: Yes.

MR BERKELEY: And we face the possibility of further seizures. Once you seize abalone it has had it.

HIS HONOUR: Yes, I appreciate that.

MR BERKELEY: It is probably destroyed. And the fact is, your Honour, the Magistrate's Court proceedings are criminal proceedings. These are civil proceedings. There will be distant burdens of proof. They are not analogous in any way. And we are entitled, with respect, to - there has been delay, but we are entitled to get these civil proceedings as far down the track as we can, and it will not - they will be limited and directed to the constitutional question. And it is completely a matter of speculation what will or may or may not arise in the criminal proceedings. It depends on how the prosecution conduct their case, and what sort of evidence they lead. And we do not say now that the prosecution will be held up because of the civil proceedings, but the opposite also applies.

HIS HONOUR: Yes. Well, I am not going to make a decision now. I will consider the matter. But if, and I do not know at this stage, but if an order for remitter were to be made, which is the appropriate court, of these proceedings that is?

MR BERKELEY: I will ask my learned friend if he has got any preference. It looks as though we will have to toss a coin, your Honour. Well, we agree on the Supreme Court if your Honour thinks that is appropriate.

HIS HONOUR: All right. Well, I will consider the matter, gentlemen.

MR BERKELEY: If your Honour pleases. Would your Honour excuse me from attendance when the matter comes back for judgment?

HIS HONOUR: Yes. That applies to Mr Pagone too. It will only be a few days.

MR BERKELEY: Thank you.

HIS HONOUR: But you are starting your vacation now, are you, Mr Berkeley?

MR BERKELEY: Yes.

AT 10.26 AM THE MATTER WAS ADJOURNED

INDEFINITELY