Adams v Executive Director, Fisheries WA
[2000] WASC 34
•21 FEBRUARY 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ADAMS & ANOR -v- EXECUTIVE DIRECTOR, FISHERIES WA [2000] WASC 34
CORAM: McKECHNIE J
HEARD: 12 AUGUST 1999
DELIVERED : 21 FEBRUARY 2000
FILE NO/S: CIV 1423 of 1999
BETWEEN: TERRENCE JOHN ADAMS
FLORENCE MERILYN ADAMS
ObjectorsAND
EXECUTIVE DIRECTOR, FISHERIES WA
Respondent
Catchwords:
Fisheries - Administrative law - Estoppel - Extent to which estoppel operates in public law - Discretion to grant authorisation - Whether discretion controlled or conditioned - Whether management plan inconsistent with Act and ultra vires - Delegation of power - Extent to which public servant can bind statutory office holder
Legislation:
Fish Resources Management Act 1994 (WA)
Result:
Application dismissed
Representation:
Counsel:
Objectors: Mr J A Thomson
Respondent: Mr G I Macnish
Solicitors:
Objectors: Cocks Macnish
Respondent: State Crown Solicitor
Case(s) referred to in judgment(s):
Commonwealth v Verwayen (1990) 170 CLR 394
Enoka v Shire of Northampton (1996) 15 WAR 483
Formosa v Department of Social Security (1988) 46 FCR 117
Joint Property Ownership v City of Subiaco (1998) 97 LGERA 269
Metropolitan Transit Authority v Waverley Transit Pty Ltd (1991) 1 VR 181
Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Minister of Fisheries v Matthews [1956] 1 KB 148
Nicholas v Western Australia [1972] WAR 168
Re Nicoletta Ciffolilli; Ex Parte Peter Phillip Rogers, Executive Director of the Fisheries Department of Western Australia [1999] WASCA 205
Southend‑on‑Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416
Thompson v Palmer (1933) 49 CLR 507
Western Fish Products v Penwith District Council (1981) 2 All ER 204
Case(s) also cited:
Ansett Transport and Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Cudgen Rutile (No 2) v Chalk [1975] AC 520
Harrington v Lowe (1996) 136 ALR 42
In re Exchange Securities & Commodities Ltd (in liq) [1988] 1 Ch 46
Laker Airways v Department of Trade [1977] 1 QB 643
Lambidis v Commissioner of Police (1995) 37 NSWLR 320
Minister for Immigration & Ethnic Affairs v Petrovski (1997) 73 FCR 303
Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98
Moses (alias Moss) v Parker & Ors; Ex parte Moses [1896] AC 245
Parramatta City Council v Palmyra Freeholds Pty Ltd & Anor [1974] 2 NSWLR 83
Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Limited (1943) 67 CLR 25
Project Blue Sky Incorporated & Ors v Australian Broadcasting Authority (1998) 153 ALR 490
Qantas Airways v Gibbon & Ors (1992) 28 NSWLR 26
R v Adams; Ex parte Barbeler (1981) 46 LGRA 227
R v Joske & Ors; Ex parte Shop Distributive and Allied Employees Association & Ors (1976) 10 ALR 385
Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11
Roberts v Repatriation Commission (1992) FCR 39 FCR 420
Rubrico v Minister for Immigration & Ethnic Affairs (1989) 23 FCR 208
Sue v Hill (1999) 163 ALR 647
The Administration of the Territory of Papua and New Guinea & Anor v Daera Guba (1973) 130 CLR 353
The Watson's Bay & South Shore Ferry Company Limited v Whitfield (1919) 27 CLR 268
Trittenheim Pty Ltd v Gill (1994) 63 SASR 434
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
McKECHNIE J: Important questions of law have arisen before a Tribunal established under the Fish Resources Management Act 1994 (the "FRMA").
As a result the Tribunal has stated a case for opinion by this Court pursuant to FRMA s 155:
The factual basis of the case
To better understand the questions, it is necessary to know the factual background which, for the purposes of the case stated only, is by way of a statement of these agreed facts (which have been extracted from the Amended Grounds for Objection):
"1.On the 29th July, 1997 TJ & FM Adams ('the Objectors') applied for a Class A Zone 1 permit under the West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery ('the Fishery' and 'the Permit' respectively) pursuant to the West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery Management Plan, 1997 ('the Plan').
2.On the 14th November, 1997 the Executive Director notified the Objectors in writing of his proposed decision to refuse to grant the Objectors a Permit.
3.In or about August, 1989 the Objectors proposed to:
(a)purchase Licence No. 2334 attached to LFB B25 'City of Perth' ('B25') which was endorsed with a net drum endorsement ('the Endorsement');
(b)transfer the catch history associated with the B25 and the Endorsement to Licence No. 2328 attached to LFB B93 'Helinika' ('B93'); and
(c)sell B25 to the Fisheries Adjustment Scheme ('the FAS').
4.In or about August, 1989, Mr Peter Millington ('Millington'), on behalf of the Fisheries Department (WA) ('Fisheries') [Executive Director], represented to the Objectors that:
(a)Fisheries would transfer the catch history and Endorsement from B25 to B93 ('the Catch History') on the conditions that:
(i)Licence No. 2334 attached to B25, without the Endorsement, would be sold to the FAS; and
(ii)once the Endorsement was transferred to Licence No. 2328 upon which was endorsed a Southern Demersal Gillnet and Demersal Longline Limited Entry Fishery permit No. 2049 ('LEF 2049') then attached to B93 it could not be separated; and
(b)the Objectors would qualify for entry to the Fishery under any proposed management plan in respect thereof when that plan came into force and when the Fishery was declared by:
(i)purchasing B25;
(ii)transferring the Catch History and the Endorsement to B93; and
(iii)selling B25 to the FAS.
((a) and (b) together 'the First Representations').
PARTICULARS OF THE FIRST REPRESENTATIONS
(A)During a telephone conversation between the Objectors and Millington in or about August 1989, the First Representations were made to the Objectors.
(B)On the 28th August, 1989, the Objectors wrote to Millington acknowledging the telephone conversation and the First Representations.
5.The Objectors acted in reliance upon the First Representations and would not, but for the First Representations, have completed the purchase of B25.
PARTICULARS OF RELIANCE
In or about August, 1989, the Objectors:
(a)purchased B25 and paid the fee of $39.00 for the transfer;
(b)applied to transfer the catch history and the Endorsement from B25 to B93; and
(c)sold B25, without the Endorsement, to the FAS for $30,000.00.
8.In or about August, 1989, Millington, on behalf of Fisheries, made the First Representations to the Objectors.
The Objectors repeat paragraph 4 hereof to the extent that the First Representations relate to the transfer of the Catch History and Endorsement from B25 to B93.
PARTICULARS OF THE FIRST REPRESENTATIONS
The Objectors repeat the Particulars of the First Representations as set out in paragraph 4 hereof.
9.The Objectors acted in reliance upon the First Representations and would not, but for the First Representations, have completed the purchase of B25.
PARTICULARS OF RELIANCE
The Objectors repeat the Particulars of Reliance as set out in paragraph 5 hereof.
11.In or about September, 1995, the Objectors proposed to:
(a)transfer the:
(i)Catch History of B93, which included the Catch History of B25;
(ii)LEF 2049; and
(iii)the Endorsement,
to Licence No. 2344 attached to LFB B42 'Gina' ('B42'); and
(b)sell Licence No. 2328 which was attached to B93 to the FAS.
12.In or about September, 1995, Kym Mulhall ('Mulhall'), on behalf of Fisheries, represented to the Objectors that the Catch History of B93 would be transferred with the Endorsement and LEF 2049, to B42 ('the Second Representations').
PARTICULARS OF SECOND REPRESENTATIONS
During a telephone conversation between the Objectors and Mulhall in or about September 1995, the Second Representations were made to the Objectors.
13.The Objectors have acted in reliance upon the Second Representations and would not, but for the Second Representation, have:
(a)sought to transfer the Catch History, the Endorsement or LEF 2049 from B93 to B42; or
(b)sell Licence No. 2328 attaching to B93 to the FAS.
PARTICULARS OF RELIANCE
In or about October, 1995, the Objectors:
(a)applied to transfer the:
(i)Catch History of B93, which included the Catch History of B25, to B42;
(ii)LEF 2049 and the Endorsement attaching to Licence No. 2328 to B42 and paid the fee of $310.00 for the transfer;
(b)sold B93, without LEF 2049 and the Endorsement, to the FAS for $55,000.00."
Paragraph 15 was not agreed.
"16.By reason of the matters referred to in paragraph 15 hereof, B42 satisfies the criteria set out in clause 15(1)(a) of the Plan.
PARTICULARS OF SATISFACTION
At the commencement of the Plan, B42 was endorsed to authorise the Objectors to fish in Western Australian waters off the west coast between 32 degrees 41 minutes south latitude and 26 degrees south latitude using a power net drum.
17.By reason of the matters referred to in paragraph 15 hereof, B42 satisfies the criteria set out in clause 15(1)(b) of the Plan.
PARTICULARS OF SATISFACTION
(A)Throughout the period 1991 to 1993 inclusive B93 had attached to it LEF 2049. LEF 2049 was subsequently transferred to B42.
(B)Between 1st July, 1991, and 30th June, 1992, B93, pursuant to LEF 2049, caught the following amounts of fish by demersal gillnet:
(i)July 1991 - 1,576 kg;
(ii)August 1991 - 2,012 kg;
(iii)September 1991 - 3,502 kg;
(iv)October 1991 - 2,239 kg;
(v)February 1992 - 4,192 kg;
(vi)March 1992 - 3,428 kg;
(vii)April 1992 - 5,629 kg;
(viii)May 1992 - 3,800 kg.
The total amount of fish caught by demersal gillnet was 26,378 kg.
(C)Between 1st July, 1992, and 30th June, 1993, B93, pursuant to LEF 2049, caught the following amount of fish by demersal gillnet:
(i)December 1992 - 1,339 kg;
(ii)January 1993 - 1,298 kg;
(iii)February 1993 - 1,085 kg;
(iv)March 1993 - 1,672 kg;
(v)April 1993 - 2,653 kg;
(vi)May 1993 - 829 kg;
(vii)June 1993 - 459 kg.
The total amount of fish caught by demersal gillnet was 9,335 kg.
18.By reason of the matters referred to in paragraphs 15 and 17 hereof, B42 satisfies the criteria set out in clause 15(1)(c) of the Plan.
PARTICULARS OF SATISFACTION
The fish referred to in paragraph 17 hereof were taken by demersal gillnet and were recorded on statutory fishing returns that were furnished to Fisheries prior to 31st December, 1993.
19.By reason of the matters referred to in paragraph 1 hereof, B42 satisfies the criteria set out in clause 15(1)(d).
PARTICULARS OF SATISFACTION
The Objectors applied for a Permit before 31st July, 1997, namely, 29 July, 1997.
…
26.…"
Although par 26 was expressed to be agreed between the parties, the Executive Director's argument is in fact contrary to the first part of par 26, I have proceeded on the basis that what is agreed within par 26 are the particulars of circumstances as follows:
"(A)The Objectors' fishing returns furnished to Fisheries for B25 and B93 record a catch of fish in the Fishery in the following months in the respective years between 1986 and 1993:-
1986January, February;
1987September, October, November and December;
1988January, March, April, May, June, September, October, November, December;
1989January, December;
1990January, June, July, August; and
1993June, August.
(B)In each of the months referred to in sub‑paragraph 10(A) hereof, the Objectors caught fish by gillnet, handline or dropline.
(C)Between August 1989 and May 1991 inclusive the Objectors did not substantially fish in the Fishery due to their reliance upon the First Representations, namely, that they had already qualified for entry to the Fishery under the Plan when it came into force.
(D)Between May 1991 and August 1993 inclusive the Objectors did not substantially fish in the Fishery due to their sole reliance on the letter from Fisheries dated 10 June 1991."
The questions posed by the Tribunal
"1.By reason of the matters referred to in paragraphs 1 to 5 (inclusive) of the Amended Grounds for Objection, is the Executive Director estopped from refusing to grant to the Objectors an Authorisation?
2.If the answer to question 1 is 'yes', is the Tribunal then obliged to find that the Objectors are entitled to an Authorisation?
3.Is the exercise of the discretion of the Executive Director to grant to the Objectors an Authorisation pursuant to section 66(1) of the Act, conditional upon the Executive Director being satisfied that the criteria specified in section 66(1)(a) of the Act (namely, the criteria specified in the relevant management plan for the grant of the authorisation) have been satisfied?
4.Does the estoppel referred to in paragraph 15 of the Amended Grounds for Objection have the effect of satisfying the criteria specified in clause 15(1)(b)(i) of the Management Plan?
5.If the answer to question 4 is 'no', and clause 15(1)(b)(ii) of the Management Plan is not satisfied, is the Executive Director and the Tribunal then obliged to find that the Objectors' are not entitled to an Authorisation?
6.Is it open to the Tribunal, having regard to the terms of section 154 of the Act, to resolve the Objectors' objection in a manner other than by the application of established principles of law and equity?
7.Is the exercise of the Executive Director's discretion pursuant to section 71(2) of the Act, conditional upon the Executive Director being satisfied that the criteria specified in section 66(1)(a) of the Act (namely, the criteria specified in the relevant management plan for the grant of the authorisation) have been satisfied?
8.If the answer to question 7 if 'no', and the Objectors fail to satisfy the relevant criteria specified in clause 15(1) of the Management Plan, is the Executive Director in the exercise of his discretion under sections 66(1) and 71(2) of the Act, nevertheless entitled to grant an Authorisation?
9.To the extent that the Minister purports to make compliance with the criteria specified in clause 15(1) of the Management Plan mandatory for the grant of an Authorisation pursuant to sections 56(3) and/or 58 of the Act, is clause 15(1) of the Management Plan ultra vires as being inconsistent with sections 66(1) and 71(2) of the Act?"
The Fish Resources Management Act 1994: An overview
The FRMA is the latest in a series of measures over the years to provide a scheme for the overall management of one of the State's more important resources.
The FRMA provides for many matters. Part 6 provides for the management of fisheries and for management plans, having the force of subsidiary legislation, for those fisheries. The Part also provides for a system of licences.
Because there were earlier schemes, there were in existence at the time of the FRMA, geographical areas which were proclaimed fisheries. Because the FRMA has evolved from earlier models, it would appear that there were, from time to time, different policy considerations as to how a new scheme might work and what may be the criteria for entry into the fisheries. This explains both the representations made in this case and a letter written with the authority of the Executive Director to which I will shortly refer.
A management plan
The power to determine a management plan for an interim managed fishery vests in the Minister for Fisheries. Before declaring a plan, the Minister must consult with an Advisory Committee and answer any representations which are made. The plan must identify the fishery and may have an expiry date. An interim managed fishery can only become a managed fishery if there is a new management plan determined for that fishery.
An interim management plan may prohibit persons from engaging in fishing activity within an interim managed fishery unless authorised by permit. Such a plan may also specify the capacity of the fishery, or part of it, by reference to a number of factors, including the number of boats which may be used.
A management plan may specify entitlements conferred by a permit.
On 29 May 1997 acting pursuant to those powers, the Minister for Fisheries declared the West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery Management Plan 1997 ("the Plan"): "Government Gazette" No 79, 30 May 1997.
Clause 9 of that plan prohibited a person from fishing in the fishery without a permit.
Authorisation for a Permit
Although the power to make an interim management plan vests in the Minister, the power to grant permits to fish in the fishery vests in the Executive Director.
The procedure for authorisation is set out in the FRMA Division 4.
Section 66(1) provides:
"66. Grant of managed fishery licences and interim managed fishery permits
(1)If a person applies to the Executive Director for the grant of an authorization and -
(a)the Executive Director is satisfied that the criteria specified in the relevant management plan for the grant of the authorization have been satisfied; and
(b)if a procedure is specified in the plan for determining which persons are to be granted authorizations, the person is selected in accordance with that procedure,
The Executive Director may grant to the person an authorization".
I observe that although the Executive Director has a discretion to grant a licence indicated by use of the word "may", if a person satisfies the criteria and the specified procedure is followed, there would appear to be little scope left for the exercise of the discretion.
The provisions of s 71 are important in the case stated:
"71. Prior fishing confers no right to authorization
(1)The fact that a person engaged in fishing, or used any boat for fishing, in a fishery before a management plan was determined for the fishery is not to be taken as conferring upon that person any right to the grant of an authorization if a management plan is determined for that fishery.
(2)Despite subsection (1), the Executive Director is to take into account a persons past history of fishing in a fishery when determining whether or not to grant the person an authorization."
A number of matters arise from this section. First, as may be expected, when a new scheme replaces an existing scheme of management, past fishing within the area of the fishery provides no expectation of authorisation to fish in a newly created interim managed fishery.
Secondly, as may also be expected, a person's past fishing history is a relevant factor. This matter, to be taken into account by the Executive Director, is relevant to the exercise of the discretion, to which I have just referred, and provides another matter to be taken into consideration by the Executive Director.
The history referred to in s 71(2) is that of the fisherperson not the fishing boat. Plainly, the scheme envisages that the fish resource will be efficiently managed and exploited. I infer that if a person's history demonstrates an effective fishing technique, that matter will favourably affect the exercise of discretion. Conversely, if a person has a poor fishing history, the Executive Director, faced with a choice between two competing applicants, may legitimately choose the person, not boat, with the better history.
Criteria for a permit in the Interim Management Fishery
The criteria are set out in cl 15 of the Plan as follows:
"15. (1) An applicant for a Class A permit to authorise access to zone 1 of the Fishery must satisfy the Executive Director that-
(a)at the commencement of this Plan he or she is the holder of a current fishing boat licence and-
(i)that licence is endorsed to authorise the holder of that licence to fish in Western Australian waters off the west coast between 32° 41' south latitude and 26° south latitude using a power net drum; or
(ii)under the authority of that licence statutory fishing returns which recorded a catch of fish by demersal longline in the waters off the west coast between 33° south latitude and 26° south latitude during the period commencing 1 January 1988 and ending on 31 December 1993 were furnished to the Department; and
(b)under the authority of the fishing boat licence referred to in (a)-
(i)(A) a minimum of 1.5 tonnes of fish were taken by either demersal gillnet or demersal longline in the period commencing 1 July 1991 and ending on 30 June 1992; and
(B)a minimum of 1.0 tonne of fish were taken by either demersal gillnet or demersal longline in the period commencing 1 July 1992 and ending 30 June 1993; or
(ii)fish were taken by demersal gillnet or demersal longline but he or she did not meet the criteria specified in subparagraph (i)-
(A)solely due to reliance on information contained in a letter dated 10 June 1991 from the Director of Fisheries which advised the receiver that any fishing activity undertaken after 20 May 1991 would not be taken into account when determining future access to the Fishery; and
(B)he or she was the addressee of the letter described in (A);
(c)the fish referred to in (a) and (b) were recorded as having been taken by demersal gillnet or demersal longline on statutory returns furnished to the Department prior to 31 December 1993; and
(d)the applicant applies for a permit before 31 July 1997.
Clause 15(b)(ii) of the Plan is interesting. It is an unusual provision which acknowledges prior representations made concerning proposed future criteria.
The representations made by the letter seem to be representations of a public kind no doubt sent to many interested persons. Provided that an applicant shows that the minimum tonnage was unmet solely because of reliance on the information received in that letter then, in effect, the requirement to meet the criteria in (b)(i) of the Plan is waived. This representation is a different kind to the representations made in the present case and set out in the case stated.
Leaving aside persons who acted in reliance on the letter, the criteria set out in cl 15 of the Plan require, in essence, that an applicant for a permit was the holder of a current fishing boat licence, for waters which are included in the Plan, and endorsed to fish with a power net drum. Statutory returns had to have been furnished between 1988 and 1993 and a minimum tonnage of fish taken between 1991 and 1993.
The objectors claim that they fulfil the criteria under cl 15 of the Plan if the fishing history of their boat is taken into account. And it is to this history I now turn.
The catch history of the Christine Nerelle
The objectors made application for a permit on 30 July 1997 specifying the fishing boat as Christine Nerelle LFB B42, Fishing Boat Licence No 2344.
How that licence came to be attached to the Christine Nerelle is as follows:
In August 1989 the Objectors purchased Fishing Boat Licence No 2334, attached to the City of Perth LFB B25. The intended purpose was to transfer two entitlements associated with licence No 2334 to licence No 2328, which was then attached to the Helinika LFB 93. These two entitlements were:
(a)an endorsement on licence No 2334 permitting the licensee to use a power operated fishing net drum (the "Drum Endorsement"); and
(b)the "catch history" associated with the City of Perth LFB B25.
The licences in the book of documents show the transfer of the Drum Endorsement from licence 2334 to licence 2328.
After the purchase of licence No 2334, and the purported transfer of entitlements, this licence was sold to the Fisheries Adjustment Scheme for $30,000.
Licence No 2328 was later transferred from the vessel Helinika LFB B93 to the vessel Northerly. The Northerly thereby became LFB B93. The Drum Endorsement continued after the transfer.
In September 1995 the objectors proposed to transfer the Drum Endorsement and the catch history associated with LFB B93 (including the catch history of LFB B25) to another licence they held, Licence No 2344. This licence was attached to the Christine Nerelle (LFB B42).
In October 1995, the objectors sold licence No 2328 to the Fisheries Adjustment Scheme, believing that the Drum Endorsement and the catch history had been transferred to licence No 2344. The objectors were paid $55,000 for surrendering licence No 2328. The Drum Endorsement was shown on licence No 2344 until December 1997, when it was removed.
After some exchange of correspondence, the delegate to the Executive Director refused the application for a permit on 14 November 1997.
Does an estoppel arise?
The objectors' argument in summary is that the conduct of Fisheries Officer Millington creates an estoppel so that the Executive Director is bound to proceed on the basis that the catch history was transferred from the City of Perth to Helinika.
Next, the objectors argue that the conduct of Fisheries Officer Mulhall creates an estoppel so that the Executive Director is bound to proceed on the basis that the catch history was transferred from the Helinika (later Northerly) to the Christine Nerelle.
Central to the issue of estoppel is the nature of the catch history. It is not a proprietary right. It is a matter of fact proved, it would appear, by quarterly fishing returns submitted by a person acting under the authority of a fishing boat licence.
This raises the fundamental question as to what form of estoppel, if any, is applicable and the extent, if any, of such an estoppel.
The Executive Director argues that the objectors have been compensated for their loss of catch history on selling the licence to the Fisheries Adjustment Scheme. However, I consider this submission to be contrary to the agreed facts or alternatively, immaterial in view of agreed facts No 5 and 13.
There were two representations made by Fisheries Officer Millington.
The first representation was that the catch history would be transferred. The second representation was that the objectors would qualify for entry to the fishery under any proposed management plan when that plan came into force.
The contentions of the parties
The agreed facts say that there was reliance upon the representations and an action to the detriment of the objectors.
The objectors argue that in the circumstances an estoppel is created which does not affect the Executive Director's discretion, but rather is directed to a factual matrix which forms the basis for the exercise of the discretion.
It is common ground that an estoppel cannot operate to extend the power of a statutory authority beyond that given by statute: Nicholas v Western Australia [1972] WAR 168 at 174; Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 208.
The respondent submits that to give effect to an estoppel would expand the scope of the statutory power conferred by FRMA s 66(1). An estoppel would remove an essential pre‑condition for the exercise of the discretion because the power would have to operate in factual circumstances where no power existed. This is because the conditions in cl 15 of the Plan are not fulfilled without recourse to the fishing history I have outlined. Therefore the Executive Director cannot be satisfied that the criteria in this interim management plan have been satisfied: FRMA s 66(1)(a).
In order to resolve these differing contentions, it is necessary to examine the legislative framework in more detail.
The FRMA s 58 provides for authorisations under a management plan.
Section 58(2)(c) provides "the management plan may specify criteria to be satisfied before the Executive Director can grant an authorization."
The Plan does just that under cl 15, requiring an applicant to satisfy the Executive Director that he or she meets seven criteria.
The Executive Director's authority to grant an authorisation is conditional upon his or her satisfaction that the criteria in cl 15 of the Plan are fulfilled.
Although the objectors argue that FRMA s 61(1) does not impose preconditions on the Executive Director's exercise of power and that the satisfaction of the criteria is merely the basis upon which the discretionary power is able to be exercised, I am unable to agree.
The Executive Director's discretion is not at large but is significantly controlled in its exercise by a range of matters in respect of which the Executive Director must be satisfied or must consider. The FRMA s 71(2) and s 72(2) provide examples of two matters. A person's past history and a prior authorisation are both facts which must be considered by the Executive Director.
On a proper construction of FRMA s 66(1)(a) and the Plan, the discretionary power to grant an authorisation is not triggered until the Executive Director is satisfied as a matter of fact that the seven conditions in cl 15 of the Plan have been fulfilled.
Once the power is triggered then, in the exercise of the discretion, the matters in FRMA s 71(2) and s 72(2) are weighed. The weight attributed to them is a matter of discretion which is why the discretion in FRMA s 66 is expressed in terms of a permissive power, not a mandatory power, cf Interpretation Act s 56.
If the representations as to catch history have any operation in the creation of an estoppel, they can only operate in the formation of the Executive Director's satisfaction under FRMA s 66(1)(a), a satisfaction necessary in order to trigger the exercise of the discretion.
Is there a private law estoppel in this case?
It is the essence of estoppel by conduct that a party may not be permitted to rely on true facts but will instead be bound by assumed facts.
The objectors submit the circumstances of this case give rise to a private law estoppel of the type recognised in Commonwealth v Verwayen (1990) 170 CLR 394 and Thompson v Palmer (1933) 49 CLR 507 at 547. They assert that the Executive Director is bound by a private law estoppel and cite in support Verwayen and Metropolitan Transit Authority v Waverley Transit Pty Ltd (1991) 1 VR 181.
I am unable to accept the submission. Verwayen was an example where the Commonwealth was a direct party to an action for damages for negligence. The Commonwealth, in defence of the action, did not plead a Limitation Act defence but later changed its policy and obtained leave to so plead.
Its actions had a direct relationship inter partes. The High Court by majority held that the Commonwealth was not free to depart from its earlier policy. Deane and Dawson JJ held that an estoppel prevented the Commonwealth from changing its position while the other two members of the majority, Toohey and Gaudron JJ, held that the Commonwealth had waived its right to rely on the Limitation Act.
Mason CJ, Brennan and McHugh JJ dissented, particularly in relation to the question of estoppel. From 444 Deane J distils, and then sets out in eight paragraphs, what he refers to as "the essential contents and operation of the doctrine". It is unnecessary to repeat this passage. I observe however, that Deane J's analysis depends upon the notion that estoppel is a matter raised inter partes.
In Metropolitan Transit Authority v Waverley (supra) the MTA had the power to go to tender. The basis for the decision on estoppel related to the terms of the contract between MTA and Waverley. I also note the discussion by Gummow J in Kurtovic at 215 as to the distinction between private and public estoppel.
In one sense it may be said that the matter before the Tribunal is inter partes. By the provisions of FRMA s 153, the Tribunal conducts hearings at which objectors and the Executive Director are able to appear and be represented. However, I do not consider the matter is inter partes in the way suggested by the cases where the government or its agent is a party to a legal relationship created by a cause of action.
In this case there is no such legal relationship. The Executive Director is exercising a power granted by the FRMA. The same statute sets out a procedure for challenging the exercise of the power but does not create the legal relationship necessary to ground a private law estoppel.
I hold there is no private law estoppel which arises in this case.
Is there a public law estoppel?
Both Verwayen and MTA can be contrasted with cases where the representations relied upon are made by a person with an administrative function to perform and whose representations are later contradicted by the person or another body.
In such cases two main principles would seem to emerge. The first principle is that estoppel will not operate to extend the power of an administrative body beyond the regulations or law which creates the power.
The second principle is that even when the existence of an estoppel would not cause the administrative body to go beyond power, the court exercises a discretion whether in the public interest it will permit the person who asserts the estoppel to rely upon it.
Examples of the first principle can be found in Minister of Fisheries v Matthews [1956] 1 KB 148; Formosa v Department of Social Security (1988) 46 FCR 117 and Minister for Immigration & Ethnic Affairs v Kurtovic (supra)
In the latter case, Gummow J dealt extensively with estoppel in administrative law and ultra vires from 211. Although strictly his judgment on this aspect is obiter dicta, it is nonetheless highly persuasive.
An example of the second principle is Southend‑on‑Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416, a case with similarities to the present case.
In that case a building inspector made a factual representation as to the prior use of premises and a statement that planning permission was unnecessary. Subsequently, the council decided the factual basis was incorrect and planning permission was required. At a hearing the council sought to introduce facts showing the true factual basis but was estopped from so doing.
On appeal Lord Parker CJ stated at 424:
"… in a case of discretion there is a duty under the statute to exercise a free and unhindered discretion … estoppel cannot be raised to prevent or hinder the exercise of the discretion."
In that case the council had issued an enforcement notice. As Lord Parker said at 425:
"… it seems to me quite idle to say that a local authority has in fact been able to exercise its discretion and issue an enforcement notice if by reason of estoppel it is prevented from proving and showing it is a valid enforcement notice in that amongst other things planning permission was required."
To adapt the principle of that case to the present, the Executive Director, having refused an authorisation because the objectors cannot comply with the catch history for LFB B42 the Christine Nerelle, it is idle to say the Executive Director should be estopped from asserting the true position. To hold there was an operative estoppel would deny the Executive Director the discretion which Parliament has entrusted to him.
Another example is provided in Joint Property Ownership v City of Subiaco (1998) 97 LGERA 269.
One of the issues in that case was directed to the question whether estoppel could operate by way of a defence to a statutory defence.
In an examination of principles, with which I respectfully agree, Parker J considered this question at 285‑286. After quoting from Commonwealth v Verwayen per Mason J at 483, Parker J continued at 286:
"The notions of unconscionability and proportionality of remedy to detriment are relevant and adapted to civil proceedings in which the conduct of, and the competing interests of, the opposing parties may be weighed and compared so that justice may be done between them. In a statutory prosecution the court is not concerned to be dealing with the private interests of the opposing parties. At issue is the public interest in the enforcement of the statute".
Adapting this principle to the present case, the grant of an authorisation by the Executive Director pursuant to FRMA s 66 is a matter of public interest where Parliament has empowered the Minister to proclaim an Interim Management Plan and that plan specifies criteria to be met by an applicant.
A further example is supplied by Enoka v Shire of Northampton (1996) 15 WAR 483 where Steytler J neatly categorised the issues at 493:
"This kind of contention raises difficult questions concerning conflicting interests. There is, on the one hand, much to be said for the proposition that a good citizen who has no knowledge of the complexities of town planning matters and who takes the trouble to ensure that a proposed development, upon which he or she proposes to make a substantial expenditure, is authorised, should be entitled to rely upon an assurance given accordingly on behalf of the public body with authority to oversee such developments. There is, on the other hand, an obvious public interest in ensuring that the public authority concerned does not, by its conduct, render nugatory schemes which have been gazetted in the interest of an entire community and which are required to be approved of by the Minister."
This passage is relevant to the present case and identifies the competing issues.
Applying the principles I have outlined to the present circumstances, I find against the existence of any estoppel. Alternatively, I would exercise a discretion to deny the objectors reliance upon estoppel before the Tribunal.
There are a number of reasons for this.
As I have said, the catch history is a fact, not a proprietary right. The objectors sold B25 to the Fishing Adjustment Scheme and purportedly transferred the drum condition and the catch history to the next licence. I do not find that the drum condition was transferred from licence to licence. While this may be convenient a way of describing the situation, at law each issue of a licence was accompanied by a fresh condition as to the use of a net drum. Therefore the only thing purportedly transferred was a factual history.
In reality what that means is that when one looks to the quarterly returns submitted in respect of licence No 2344 for the Christine Nerelle, the reader is supposed to add to those returns the returns submitted in respect of the City of Perth LFB B25 and Helinika (Northerly) LFB B93.
Such a reading is contrary to the Plan cl 15(1)(a)(iv) which limits the record of the fish catch to the licence held at the commencement of the plan, namely that for the Christine Nerelle.
This deals sufficiently with the issue of the catch history under both the representations of Fisheries Officers Millington and Mulhall. I hold against the existence of any estoppel.
I now turn to consider the representation by Fisheries Officer Millington that the objectors would qualify for entry to the fishery under any proposed management plan, when that came into force, and when the fishery was declared, if the City of Perth LFB B25 was bought, sold to the Fisheries Adjustment Scheme, and the catch history transferred.
This statement by Fisheries Officer Millington falls a long way short of any possible promise or representation of future conduct.
I accept that Fisheries Officer Millington made the representations on behalf of the Executive Director. However, at the time the representation was made, a reasonable person would interpret the representation as no more than a prediction of possible future policy.
The law in Australia as to the extent to which public servants, acting apparently with authority, can properly bind statutory office-holders in the exercise of power is still evolving: see the discussion by Gummow J in Kurtovic at 213.
In this case the representations were made over five years before enactment of the FRMA and at a time when there was a different statutory regime, and, as a matter of judicial notice, a different Minister for Fisheries holding office under a different government.
It is not possible to construe representations made by a fisheries officer as to future provisions which might be contained within a fisheries management plan as effectively binding the exercise of discretion by an Executive Director under a later plan promulgated by a Minister in accordance with the authority of Parliament.
Any factual reliance by the objectors upon Fisheries Officer Millington's words cannot amount to promissory conduct on behalf of the Executive Director sufficient to give rise to an estoppel.
I regard the propositions I have just stated to be self-evident and not in need of authority.
Nevertheless a case which does give support to these propositions is that of Western Fish Products v Penwith District Council (1981) 2 All ER 204. Megaw LJ, in delivering judgment of the Court of Appeal at 219 said:
"The second reason why the plaintiffs' own case cannot succeed is this. The defendant council's officers, even when acting within the apparent scope of their authority, could not do what the 1971 Act required the defendant council to do; and if their officers did or said anything which purported to determine in advance what the defendant council themselves would have to determine in pursuance of their statutory duties, they would not be inhibited from doing what they had to do. An estoppel cannot be raised to prevent the exercise of a statutory discretion or to prevent or excuse the performance of a statutory duty (see Spencer Bower and Turner on Estoppel by Representation (3rd Edn, 1977, p 141) and the cases there cited). … The officers were appointed by the defendant council but the council's members were elected by the inhabitants of their area. Parliament by the 1971 Act entrusted the defendant council, acting through their elected members, not their officers, to perform various statutory duties. If their officers were allowed to determine that which Parliament had enacted the defendant council should determine there would be no need for elected members to consider planning applications. This cannot be".
Having set out the reasons for my conclusion on the various arguments which have been submitted, I return to the questions posed:
Question 1
For those reasons, I would answer "No" to question 1. It becomes unnecessary to answer question 2.
Question 3
For the reasons I have already expressed in answering the first question, the answer to question 3 is "Yes".
Questions 4 and 5
In the event it is strictly unnecessary to answer this question but the answer to question 4 is "No" and in light of my answer to question 3, the answer to question 5 is "Yes".
Question 6
After the hearing of the appeal, and while I was considering my decision, counsel for the Executive Director, without objection by counsel for the objectors, brought to my attention the Full Court decision Re Nicoletta Ciffolilli; Ex Parte Peter Phillip Rogers, Executive Director of the Fisheries Department of Western Australia [1999] WASCA 205.
Thereafter each side made brief submissions. I consider I am bound by that decision at par 53 and par 54 which it is unnecessary to repeat. I also respectfully agree with Parker J. Therefore the answer to question 6 is "No".
Questions 7 and 8
For the reasons expressed in answer to question 1, I consider the question is wrongly formulated. FRMA s 71 and s 72 are not of themselves the source of power to exercise a discretion. Rather they regulate the exercise of the power by requiring that the Executive Director take account of certain matters. The extent to which the Executive Director takes account of these matters in the exercise of discretion is a matter for the Director.
As question 7 proceeds on a wrong premise, it cannot be answered. It becomes unnecessary to answer question 8.
Question 9
I have expressed generally the view that cl 15 of the Plan is within power. I will now deal specifically with the issue whether it is inconsistent with FRMA s 71(2).
In my opinion there is no inconsistency. The criteria under cl 15 of the Plan relates to the catch history under a particular licence and provides minimum past catch criteria to be satisfied. The FRMA s 72(1) allows the Executive Director in exercising discretion whether to grant authorisations to persons, each of whom has fulfilled the minimum criteria, to choose in the public interest, by taking account of the individuals' fishing history, who may be the most efficient persons to be granted authorisation.
The reasoning of Parker J in Ex parte Rogers (supra) at par 50 is both binding and, with respect again, correct. Consequently, the answer to question 9 is "No".
Conclusions
I would answer the questions posed in the case stated as follow:
1.No
2.Unnecessary to answer
3.Yes
4.No
5.Yes
6.No
7.Decline to answer
8.Unnecessary to answer
9.No.
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