Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy

[1992] FCA 223

IN THE FEDERAL COURT OF AUSTRALIA )

SOUTH AUSTRALIA DISTRICT REGISTRY ) 1

1

GENERAL DIVISION	) No.SAG 1 of 1992
B E T W E E N :
AUSTRAL FISHERIES PTY. LTD. A.C.N. 009 286 346

Applicant

- and -

THE MINISTER FOR PRIMARY

01 MAY 1992	INDUSTRIES AND ENERGY
FEDERAL COUm OF

AUSTRALIA	PRINCIPAL	Respondent
REGISTRY

RULING

Corarn: O'Loughlin J.
10 April 1992

During the course of his final submissions in reply, counsel for the applicant sought leave to re-open his case for the purpose of placing before the Court additional material. The case deals with an application for Judicial Review of an alleged decision by the respondent Minister to implement a new plan for the management of a Fishery. One argument advanced by the applicant in support of the claim for Judicial Review was that the respondent compiled numerous options (using different formulae) far the new plan, but ultimately chose one

material before me to substantiate that assertion. After all,	there was a possibility that identical treatment of a group of
people might satisfy questions of equity, fair play and natural justice even though the treatment was based upon some inherent defect - so long as all affected parties were treated in the same way.
Counsel sought to negative that proposition by applying to put before the Court what was called a "computer run". It was claimed (p.158 of the transcript) that the applicant and other representatives of the fishing industry had attended a "workshop" on 7-10 November 1991 at which officers of the respondent had circulated certain material; later, on 14 and 15 November, additional material was circulated to members of the fishing industry by officers of the respondent. That later material, so it was said, showed percentage and tonnage allocations to the boats in the fleet according to the various formulae. The affidavit of the applicant's manager, Mr. D.M. Ross sworn on 3 January 1992, exhibited the first five pages
of a 74 page handout that was distributed by facsimile transmission during the evening of 14 November 1991 and the
first page of a 7 page handout that was distributed personally at a meeting early in the morning of 15 November (Exs.T & U). The exhibited material summarised in Ex.T each of 24 options and in Ex.U each of a further three options. The exhibited material explained the information that was used in the compilation of each option and how the formulae were calculated. The material that was not exhibited (that is, the remaining 67 pages and the remaining 6 pages) showed the percentage and tonnage allocations to the boats in the fleet in respect of each of the options. Two of the 27 options, options 4 and 7, were said to be of material significance to option 25 - the option actually chosen by the respondent and the option now under review. This was because the formulae in options 4, 7 and 25 had common features (although the alleged defect that tainted option 25 was not present in the other
two) .
The applicant concluded its submissions by claiming that the additional material would provide evidence in the form of the tonnage allocations that each boat in the fleet would notionally enjoy under these three options. It was claimed that these tonnage allocations would show that there were severe aberrations in option 25 but that such aberrations were not present in option 4 and 7.
Counsel for the respondent, replied, in answer to a question from me, that subject to seeing the material and being assured that it was based on material that was already in evidence, he would have no objection to me receiving it. As the information that the applicant sought to tender was not then in Court, I ruled that if it were tendered with the written consent of counsel or the solicitor for the respondent, I would receive it in evidence; if that consent was not forthcoming I reserved liberty to the applicant to pursue its application. Unfortunately, the parties were unable to agree and it was necessary to hear further submissions.
Upon the resumed hearing, counsel for the applicant filed a further affidavit of the applicant's manager, W. Ross and sought leave to use it and the exhibits to it for the purpose of placing before the Court the additional material to which reference has earlier been made. The application having been contested, I resolved to receive the affidavit and its exhibits de bene esse; with the agreement of counsel I have now read the new material for the purpose of better understanding the issues that are in dispute.
I have concluded that, in a literal sense, it could not be said that the additional material is based upon material
to the information contained in Exs.T and U to the first that is already in evidence. However, it is clearly related
mentioned affidavit of M r . Ross. In my opinion, it is fair to say that it was always clearly understood that counsel for the applicant was seeking to place before the Court the tonnage allocations to the members of the fleet that were based on each of the three options. In particular, it was uppermost in his submissions that the huge aberrations disclosed by the flawed option 25 were not present in the application of either of the other options.
It is, of course, a fundamental rule of procedure that a party shall not split his case; in its practical application, this means that a party should not be permitted to lead further evidence once it has closed its case. Although the question is one for the discretion of the trial judge, there is a substantial body of case law, principally in the criminal and quasi-criminal jurisdictions, that contains guidelines as to how that discretion should be expressed. It has been suggested that the dearth of case law in civil proceedings is because applications to re-open in such proceedings have "aroused little controversy": Gilles: Law of Evidence in Australia p.142. The remarks of Fullagar J. in -Wv The Queen (1952) 85 C.L.R. 365 at 383, a case of murder, support that view; he made it clear that in civil cases the rule was not to be approached from the same point of view.

- option 25 - that was mathematically flawed.

During the course of counsel's submission that the utilisation of a mathematically flawed formula created, or might be seen to create, injustice to some of the members of the affected fishing fleet, I questioned whether there was

In South Australia, one of the better known expositions

on the subject is found in the judgment of Wells J. in Reid v

(1974) 9 S.A.S.R 367 where his Honour said:

"The power of a Court to allow one side to re-open its case is based upon considerations of natural justice where, owing t o inadvertence, misunderstanding or other similar cause, a party who has closed its case without covering a point now seen as necessary to be covered, is permitted, in the interests of justice, to make good the deficiency." (p.376)

This passage has subsequently been cited with approval by other Judges of the Supreme Court; see, for example McDonald v Cammerotto (1984) 36 S.A.S.R 66 at 73 per Cox J; Revnolds v Boaan Holdinas Ptv. Ltd (1984) 36 S.A.S.R. 193 at 201 per Bollen J. and Piszczvk v Bolton (1984) 38 S.A.S.R. 330 at 333

per Olsson J. I respectfully adopt it also.

This is a most important case; it could affect the livelihoods of many professional fishermen. It is most important that each party have every opportunity, within reason, to place before the Court all material which it considers may assist its case. ~t is true that the additional material was known to the applicants before trial; it was said that partly because of its bulk and partly because it was then assessed as being of marginal relevance only it was thought unnecessary to tender it as part of the applicant's case. However, as can sometimes happen, matters run off at a

tangent: a Judge expresses interest in a topic that has not

attracted the same attention of the parties. That is not to

say that the issue is always critical or vital. Sometimes
further inquiry establishes that it was a false alarm.

In this case the applicant has sought to answer an inquiry raised by the Judge by presenting a summary of some material that was compiled by officers of the respondent and supplied by the respondent to the applicant and other members

of the industry. In my opinion, the interests of justice require the acceptance of this additional material. I grant leave to the applicant to re-open its case for the purpose of tendering in evidence the annexures to the affidavit of Darby Matthew Ross sworn on 6 April 1992 (and incorrectly dated 10 April on page 1 of that affidavit).

I reserve to the respondent liberty to apply to the

matter within the next 14 days for further argument or relief
consequential upon this ruling.

I certify that this and the L

preceding pages are a true copy of the Reasons for Judgment of Mr. Justice O'Loughlin.

Associate B Dated: =l\Y 72

Counsel for the Applicant	Mr. R. Refshauge
Solicitors for the Applicant :	Messrs Macphillamy, Cummins
& Gibson

Counsel for the Respondent	Miss S. Singh
Solicitors for the Respondent : Australian	Government

Solicitor

Hearing Dates 8 April 1992