Ministry of Fisheries v Wills HC Auckland CRI-2011-404-294 [2011] NZHC 1920 (29 November 2011)

Last Updated: 2 February 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-294}

BETWEEN MINISTRY OF FISHERIES Appellant

AND STUART MASSY WILLS Respondent

Hearing: 28 November 2011

Counsel: A Longdill and K D Herlihy for the Appellant

Respondent in Person

Judgment: 29 November 2011

_{RESERVED JUDGMENT OF ELLIS J}

This judgment was delivered by me on 29 November 2011 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140

S M Wills, 53 Motu Road, Kumeu, Auckland 0891

MINISTRY OF FISHERIES V WILLS HC AK CRI-2011-404-294 29 November 2011

[1] Mr Wills went diving for scallops off a fishing vessel in the Bay of Islands on

12 January this year. He was accompanied by a friend who remained on the vessel while Mr Wills was diving. Mr Wills gathered 97 scallops by hand before getting back on the vessel and moving it to a nearby bay in order to shuck them.

[2] It was here that the vessel was inspected by Fishery Officers. By this time, Mr Wills had shucked 74 of the scallops. The remaining 23 were measured, and 18 of those were found to be less than the minimum length of 100 millimetres. Mr Wills said that he thought that the minimum permitted length was 80 to 90 millimetres. He also said that he understood that he could take 25 scallops for each person on the vessel, including his wife and four children. He initially said that they had been on board when he was diving, but later accepted that his family been dropped off earlier on an island, and that only his friend had accompanied him.

[3] Mr Wills was charged under reg 29(2) of the Fisheries (Amateur Fishing) Regulations 1986 (the Regulations) for contravening reg 19(3). Regulation 19 relevantly provides:

19 Daily allowances of shellfish

(1) The maximum number of shellfish that may be taken or possessed by a person on any day is the number specified in the following table:

Species of shellfish Maximum daily number (per person)

...

Scallops 20

(2) A person contravenes this subclause if the person, on any day, takes or possesses more than the daily limit of a species of shellfish specified in the table in subclause (1), but not more than 3 times the daily limit.

(3) A person contravenes this subclause if the person, on any day, takes or possesses more than 3 times the daily limit of a species of shellfish specified in the table in subclause (1).

...

(6) This regulation is subject to regulation 19A.

[4] Regulation 19A provides:

19A Daily allowance for dredge oysters or scallops when diving if safety person on board vessel

(1) Despite regulation 19(1) or any other regulations made pursuant to section 297 of the Act relating to daily limits, a person may take on any day, an additional amount of dredge oysters or scallops that is equivalent to —

(a) 1 times the daily limit of dredge oysters or scallops, if subclause

(2) applies; or

(b) 2 times the daily limit of dredge oysters or scallops, if subclause

(3) applies.

(2) This subclause applies if—

(a) the person takes the dredge oysters or scallops by the method of hand gathering when diving from a fishing vessel; and

(b) 1 safety person is on board the vessel at all times when the dredge oysters or scallops are taken.

(2A) For the purposes of subclause (2), no more than an additional amount that is equivalent to 1 times the daily limit of dredge oysters of scallops may be taken in total by all persons diving from the vessel.

(3) This subclause applies if —

(a) a person takes the dredge oysters or scallops by the method of hand gathering when diving from a fishing vessel; and

(b) 2 or more safety persons are on board the vessel at all times when the dredge oysters or scallops are taken.

(3A) For the purposes of subclause (3), no more than an additional amount that is equivalent to 2 times the daily limit of dredge oysters or scallops may be taken in total by all persons diving from the vessel.

(3B) To avoid doubt, any additional amount taken for a safety person in accordance with this regulation is not part of the daily limit for the purposes of regulation 19.

(4) In this regulation,—

daily limit, in relation to dredge oysters or scallops, means—

(a) the maximum daily number of dredge oysters or scallops specified in the table in regulation 19(1); or

(b) in any other case, the maximum daily number or maximum daily catches of dredge oysters or scallops specified in any other regulations made pursuant to the Act.

safety person means a person on board a fishing vessel who is assisting the safety of a person taking the dredge oysters or scallops.

[5] Mr Wills pleaded guilty to a charge under reg 29(1) for contravening reg 19(4), namely possessing scallops that were less than the minimum length. He also indicated that he would plead guilty to the lesser, infringement offence created by s 19(2). The Ministry nonetheless pursued a charge of breaching of s 19(3), which is termed a “serious non-commercial offence” and for which the maximum fine is $20,000. Forfeiture of equipment used in connection with the offending (including, in the present, case the vessel) will also usually follow a conviction under that provision. In Mr Wills’ case, however, my understanding is that the Ministry do not intend to pursue forfeiture of the vessel (which is valued at over $50,000 and belongs to an innocent third party).

[6] At the defended hearing in the District Court at Kaikohe on 27 May 2011 the facts were not in dispute. It was accepted that Mr Wills’ friend was a “safety person” for the purposes of reg 19A. Rather, the question for the Judge was the interpretation of the words “daily limit” in reg 19(3).

[7] In a reserved judgment delivered on 20 July 2011, the learned District Court Judge dismissed the information, concluding that reg 19A had the effect of increasing the daily limit, for the purposes of reg 19(3), from 20 to 40 scallops where the diver was assisted by a safety person on board the vessel.[1] This meant that Mr Wills had not contravened s 19(3) because three times this “daily limit” was 120 scallops.

[8] At the request of the Crown, the Judge stated a case for this Court in the following terms:

Was I wrong to conclude that, in calculating whether a person has taken more than three times the daily limit of scallops in breach of Regulation

_{19(3) Fisheries (Amateur Fishing) Regulations 1986, the effect of}

Regulation 19A is to increase the daily limit to 40 scallops where the scallops are hand gathered by one safety person who has remained at all material times on board the fishing vessel?

Discussion

[9] In my view the answer to the question stated for the Court is “yes”. Unlike the learned District Court Judge I do not see any conflict between regs 19 and 19A and I do not consider that the purposes of reg 19 and 19A diverge in any significant way. While I agree that reg 19 has a conservation focus and reg 19A has an additional safety purpose, it nonetheless achieves that purpose by permitting a further (but still limited) allowance for a safety person or persons. That can plainly be seen in the fact that there remain limits on the allowable catch where a safety person is involved. Regulation 19A(2A) and (3A) make it clear that the additional amounts allowed for a safety person or persons can never exceed two times the daily limit regardless of how many people are diving from the vessel concerned. Because there is no inconsistency of purpose (or, indeed, of application) there is no reason to call in aid the concept of implied repeals.

[10] The relevant daily limit under reg 19(1) is 20 scallops. That daily limit is incorporated by reference into reg 19A by reg 19A(4)(a). Regulation 19A(4)(b) has no application here as it is in my view referable to other daily limits for scallops set in other, regional, regulations such as reg 3A of the Fisheries (Challenger Area Amateur Fishing) Regulations 1986 (50 scallop daily limit) and reg 5 of the Fisheries (Southland and Sub-Antarctic Areas Amateur Fishing) Regulations 1991 (only 10 scallop daily limit). I record at this point that the existence of these other regulations does not appear to have been drawn to the learned District Court Judge’s attention and for that reason he may have found the terms of sub-reg (4) rather mystifying.

[11] Thus on the facts of Mr Wills’ case, the combined effect of reg 19A(1) and (2) is that he was permitted to take “an additional amount” of 20 scallops for his safety person. He has therefore contravened reg 19(3) because he took more than 80 scallops (that is, three times the 20 scallop daily limit plus that additional amount of

20 scallops). That the additional amount is to be separately counted is made quite

clear by reg 19A(3B) which, in my respectful view, is not ambiguous or capable of any other interpretation.

[12] In conclusion, while it may be that entry of a conviction and the potential penalty faced by Mr Wills seems out of proportion to the gravity of his offending, it seems to me that the relevant provisions are quite clear on their face. I have already recorded my understanding that forfeiture of the vessel is not sought in this case and no doubt any monetary fine imposed will reflect the relative seriousness of Mr Wills’ actions.

[13] So as I have said, the answer to the case stated is “yes”. The matter is to be remitted to the District Court for sentence.

Rebecca Ellis J

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[1] Ministry of Fisheries v Wills DC Kaikohe CRN11027500023, 14 July 2011 at [56].