Australian Fisheries Management Authority v P W Adams Pty Ltd
[1996] FCA 350
•17 MAY 1996
CATCHWORDS
PRACTICE AND PROCEDURE - appeal - point relied on by appellant at hearing of appeal overlooked by Full Court - order dismissing appeal not entered - consideration of circumstances in which court will vary or rescind its earlier order - consideration of relevant facts and circumstances.
Federal Court Rules, Order 35 rule 7
Australian Fisheries Management Authority v P.W. Adams Pty Ltd
No. NG 815 of 1995
CORAM: SHEPPARD, TAMBERLIN AND LEHANE JJ
PLACE: SYDNEY
DATE: 17 MAY 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 815 of 1995
GENERAL DIVISION )
On appeal from a Judge of the Federal Court of Australia
BETWEEN:AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Appellant
AND:P.W. ADAMS PTY LTD
Respondent
MINUTES OF ORDER
CORAM: SHEPPARD, TAMBERLIN AND LEHANE JJ
PLACE: SYDNEY
DATE: 17 MAY 1996
THE COURT ORDERS THAT:
The orders made by this Court on 18 December 1995 be rescinded.
The orders made by Sackville J on 11 October 1995 be varied by omitting paragraphs 1 and 2 thereof.
The appeal and the amended notice of motion filed by the appellant on 26 April 1996 be otherwise dismissed.
The costs of the appeal and of the notice of motion abide the outcome of the further hearing by the Administrative Appeals Tribunal provided for in paragraph 3 of the orders made by Sackville J or, in the event of there being an appeal from the decision of the Tribunal to this Court, the outcome of that appeal.
There be liberty to apply on seven days' notice in relation to the question of costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 815 of 1995
)
GENERAL DIVISION )
On appeal from a Judge of the Federal Court of Australia
BETWEEN:AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Appellant
AND:P.W. ADAMS PTY LTD
Respondent
CORAM: SHEPPARD, TAMBERLIN AND LEHANE JJ
PLACE: SYDNEY
DATE: 17 MAY 1996
REASONS FOR JUDGMENT (NO. 2)
THE COURT: The first judgment in this matter was delivered on 18 December 1995 ((1995) 134 ALR 51). That judgment dismissed an appeal from a judgment of a Judge of this Court (Sackville J) in which Sackville J had allowed an appeal by the respondent from a decision of the Administrative Appeals Tribunal.
On 28 December 1995 the appellant filed a notice of motion seeking a number of orders. This was replaced during the hearing of that motion on 26 April last by an amended notice of motion which is the motion now to be considered. The orders sought in that motion are that this Court reconsider its reasons for judgment and/or vary or set aside its orders dated 18 December 1995, that the appeal be allowed and that declarations and an order made by Sackville J on 11 October 1995 be set aside.
The essence of the first judgment was that the allocation of the quota of fish permitted to be fished by the respondent's vessel, the "Wellington Cape", was arrived at erroneously because the appellant had failed to take into account a relevant factor namely the maximising of economic efficiency in the exploitation of fisheries resources; see para. 3(1)(c) of the Fisheries Management Act 1991 ("the Act").
It was said in the first judgment (at 53 and 70) that one of the points relied upon by the respondent both before Sackville J and before the Full Court had not been taken before the Administrative Appeals Tribunal but it was also said that the appellant did not claim to have suffered prejudice as a consequence of this. The appellant brought this motion because it considered that the Court erred in saying it had not claimed to have suffered prejudice, and that this error affected the outcome of the appeal.
In passing it should be mentioned that at the hearing of the motion counsel for the respondent sought to demonstrate that, although not put to the forefront of the respondent's submissions to the Tribunal, the point in fact had been raised. Having considered the various matters to which we were referred by counsel we are not satisfied that this was so. It seems plain on the face of the record of the proceedings before the Tribunal that the point was not raised.
At the conclusion of the reasons for judgment of Sheppard J it was said (at 70) that counsel for the appellant had made it clear that the appellant was not prejudiced by the taking of the point for the first time before Sackville J nor would it have been prejudiced if the point had been taken for the first time by his Honour himself after he reserved his decision. Sheppard J added, "This was because the appellant had had every opportunity of raising the matter before this court and because it did not suggest that, if the matter had been raised before the tribunal, the evidence would have come out any differently from the way it did." What was said was said in the context of an earlier discussion in the reasons for judgment concerning the question whether the matter had been appropriately brought as an appeal to the Administrative Appeals Tribunal or whether it should preferably have been brought as an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977; see at 53.
Counsel for the appellant submitted that the Court proceeded under a misapprehension. As we understood the submission, what counsel was saying was that the position before us was no different from the position which prevailed before Sackville J but that the taking of the point both before him and before us did prejudice the appellant because, if the point had been raised before the Tribunal, it was likely - certainly it was distinctly possible - that the appellant would have led economic evidence which would have tended to establish that, notwithstanding the way the Authority approached the matter in determining the allocation of the quota and the issuing of the permit, it in fact did take into account the matters which it was required to take into account by subsec.3(1) of the Act.
Counsel for the appellant relied upon remarks made during the course of his submissions at the hearing of the appeal in order to support his case that the matter now relied upon by the appellant was raised before us then. The remarks were made in the course of explaining to the Court that the point upon which the respondent succeeded before Sackville J did not emerge clearly during the hearing before him. Counsel said that the purpose of his remarks was to explain how the matters which he was asking us to take into account were not spelt out as clearly as they could have been before Sackville J "and also to make the major point that this was something which could have been answered before the AAT by evidence and we [i.e. the appellant] were precluded from doing so." Counsel was asked whether that matter had been raised before Sackville J. He said that it had not, "because we did not think this issue was - it was a tiny issue buried in a paragraph and we did not address on it and his Honour did not put it to us. My friend hardly mentioned it."
The discussion with counsel then proceeded:
"TAMBERLIN J: I appreciate the difficulties but forensically, should that not have led to some protest that we need more evidence in the AAT if that point were going to be taken later?
MR BENNETT: Yes, and it is because of that that I am taking your Honours to this, in order to rebut that suggestion and my answer to it is as a matter of strict theory yes, but the way the point was raised was such that we were as a practical matter unaware of it. Certainly theoretically it was there and theoretically that point should have been made but it never occurred to anyone that that was the point his Honour was going to regard as the crucial point in the case and decide the case on and indeed, as your Honours will see, the way the argument goes leaves us in that same situation.
TAMBERLIN J: There are many different ways people put their cases. Some people concentrate on one or two points, others believe it is better to put up in a whole series. It is a question of forensic tactic to some extent.
MR BENNETT: It has worked here, your Honour. But when one says that we should have protested, in a sense that is a matter which does not matter because this court is in the same position as his Honour to deal with that and that is why I have not relied on any natural justice suggestions or anything like that. The matter can be argued before this court and there is really no prejudice arising from the fact that we did not make the protest below. Had we made the protest the decision might have been different but this court is in no worse position to consider the effect on us of the matter not being raised in the AAT than his Honour was."
Counsel went on to refer to some authorities which were referred to again during the argument on the motion. Eventually he said, "In relation to the matter not being argued before the AAT, my friend is caught by that principle. In relation to our not raising it before his Honour rather than your Honours, it is on the other side of the line because that is something which, not involving evidence, can be dealt with equally."
We feel obliged to agree with counsel that the principal judgment failed to draw the distinction which was drawn by counsel in the original hearing between the proceedings before the Tribunal and the proceedings before Sackville J. The point counsel was making, which is now clear, is that it made no difference to his position for the point to be dealt with before us but that did not mean that his case was not one in which he claimed to have suffered prejudice as a consequence of the point not being raised before the Tribunal. One thing that needs to be said, however, is that at the original hearing counsel for the appellant did not spell out, as he has done on the hearing of the motion, what the nature of the evidence he would have led would have been had the point been raised in the Tribunal or give any indication of why it was or how it was that the matter might have proceeded differently if the point had been raised there. Counsel did not leave matters in that state when the motion was heard. He handed up an affidavit which he said, if the matter had been raised before the Tribunal, would have been relied upon before it. Over the objection of counsel for the respondent we read the affidavit of Barry Charles Kaufmann sworn 4 April 1996. It is unnecessary to refer to the detail of the affidavit but it does set out the material upon which the appellant would rely to establish that its method of determining the quota did take into account all relevant factors including the maximising of economic efficiency in the exploitation of fisheries resources as required by para. 3(1)(c) of the Act. We express no view, of course, on whether the evidence of Mr Kaufmann, if accepted, would establish the matters contended for by counsel.
In support of his principal submission that we should rescind or withdraw the order made on 18 December 1995 dismissing the appeal and substitute an order allowing the appeal thus restoring the decision of the Tribunal, counsel relied upon two decisions of the High Court. The first of these is the well known case of Suttor v Gundowda Pty Limited (1950) 81 CLR 418. The court there said (at 438):
"The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards. In Connecticut Fire Insurance Co. v. Kavanagh [(1892) A.C. 473] Lord Watson, delivering the judgment of the Privy Council, said, 'When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice, to entertain the plea. The expediency of adopting that course may be doubted, when the plea cannot be disposed of without deciding nice questions of fact, in considering which the court of ultimate review is placed in a much less advantageous position than the courts below.' [(1892) A.C., at p. 480] The present is not a case in which we are able to say that we have before us all the facts bearing on this belated defence as completely as would have been the case had it been raised in the court below. The decision whether or not to refuse specific performance in the exercise of the discretion is one peculiarly for the trial judge and his Honour should have been given an opportunity of exercising his discretion before being told that the appeal had been allowed upon a point he had no opportunity of considering..."
Suttor v Gundowda was referred to by Mason J in his judgment in Louinder v Leis (1982) 149 CLR 509. His Honour said (at 519):
"My reading of the evidence of the conversations does not convince me that it was fully explored in the sense that it now reflects the totality of the available evidence on the cl. 4 issue. The parties did not then have this issue in mind; neither examination nor cross-examination was directed to it. Had waiver of the alleged breach been raised, as it certainly would have been raised, it is at least possible that the evidence would have been explored more thoroughly. And such evidence as we have, viewed in the light of the findings actually made by Helsham C.J. in Eq., points in the direction of a waiver."
His Honour went on to quote in part the passage quoted from Suttor v Gundowda above. His Honour concluded that the Court of Appeal of New South Wales had been right in applying this principle and refusing leave to allow the point in question to be argued.
Counsel here of course emphasises the words "by any possibility" in the dictum from Suttor v Gundowda and the phrase "at least possible" in the judgment of Mason J in Louinder v Leis. He submits that that was sufficient to have warranted the allowance of the appeal. That is the order which he now asks us to make. Earlier we mentioned that counsel had referred to authorities in his submissions in the original hearing. The authorities to which he referred were Suttor v Gundowda and the decision of the Privy Council mentioned therein, Connecticut Fire Insurance Co. v Kavanagh. Kavanagh's case is authority for the proposition that, where a pure question of law not raised in the court below is raised on appeal and the leading of evidence could not make any difference to the outcome, the appellate court may allow the point to be argued.
In this respect reference may also be made to the decision of the High Court in Water Board v Moustakas (1988) 180 CLR 491. There Mason CJ and Wilson, Brennan and Dawson JJ said (at 497) that more than once it had been held by the High Court that a point could not be raised for the first time upon appeal when it could possibly have been met by calling evidence below. The judges added, however, that, where all the facts had been established beyond controversy or where the point was one of construction or of law, then a court of appeal might find it expedient in the interests of justice to entertain the point, but otherwise the rule is strictly applied. Reference was made to a number of authorities including Suttor v Gundowda Pty Limited. Later their Honours said (at 498):
"The point was, however, raised for the first time upon appeal and, because of the possibility that the employer may, if it had been raised below, have wished to call evidence in response to it, it ought not to have been entertained.
It is true that in Maloney [Maloney v Commissioner for Railways (NSW) (1978) 52 A.L.J.R. 292 at p. 294] it was recognized that in 'very exceptional cases' a plaintiff's omission to put at trial a case formulated on appeal may not be conclusive against him. But it was pointed out that the opportunity to assert the new case at another trial should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant."
The emphasis is added.
In Maloney Jacobs J, in whose judgment the other members of the Court agreed, said (at 294) that a court on appeal ought not "as of course" be prepared to seek out from the evidence a case different from that which the plaintiff relied on at the trial. Jacobs J continued (at 294):
"I say 'as of course' because there are very exceptional cases where the interests of justice may require a new trial on an issue of fact not litigated at the trial. This was an issue of fact not litigated at the trial. This was recognized by Samuels J.A. in the instant case when he stated: 'However, the plaintiff's omission to put at the trial the case now formulated is not necessarily conclusive against him. He might be entitled to the opportunity to assert it at a new trial, if the interests of justice require it, if the evidence already given is capable of sustaining it, and if such a course could be taken without prejudice to the defendant.'
But such a case is exceptional and the present is not such a case."
Against the background of those authorities it is necessary to consider what should now be done in relation to this case. There are a number of matters which it is relevant to take into account. These are as follows:
(a)The order dismissing the appeal has not been taken out; cf Order 35 rule 7 of the Federal Court Rules.
(b)The Court has a discretion whether to accede to the application or not. A number of cases deal with the exercise of this discretion. We refer to State Rail Authority of New South Wales v Codelfa Construction Pty Limited (1982) 150 CLR 29 per Mason and Wilson JJ at 38, and to Autodesk Inc. v Dyason [No. 2] (1993) 176 CLR 300. In Wentworth v Rogers (No. 9) (1987) 8 NSWLR 388 Kirby P said (at 394):
"Various arguments were addressed concerning the Court's power to set aside or vary its own orders. This power, in the context of a final appellate court, was considered by the High Court of Australia both in the case involving the appellant herself (earlier referred to) and in State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29. Calling on the authority of Rajunder Narain Rae v Bijai Govind Singh (1839) 12 Moo Ind App 181; 18 ER 269 and Re Harrison's Share Under Settlement. Harrison v Harrison [1955] Ch 260, the High Court pronounced itself to be in no doubt that it had such a power: see Mason and Wilson JJ (ibid at 38) and Brennan J (at 45). Brennan J (at 45) suggested that the jurisdiction inherent in the High court of Australia was 'as a final court of appeal to prevent irremediable injustice being done by a Court of last resort'. But all judges in that case stressed that the power was one rarely to be used. Even if a party has inadvertently not been heard, the jurisdiction to set aside an order and to allow him a hearing is not a right but an 'indulgence'. The reason for this cautious attitude is obvious. It is stated by Mason and Wilson JJ in their judgment to be the public interest in maintaining the finality of litigation. Otherwise, a determined or wealthy litigant could postpone final judgment and exhaust the rights and funds of his opponent by continuously denying the finality of the judgment and seeking to reopen disputes which that judgment was designed to close, at least so far as the courts were concerned."
We respectfully agree with what Kirby P there said. It shows that the jurisdiction exists and exists in this Court but that it should be exercised with caution.
(c)It needs to be borne in mind that this is not a proceeding which originated in a court. It originated in the Administrative Appeals Tribunal, a tribunal designed to enable a full review of certain administrative decisions, of which the decision here was one, in an informal atmosphere. The Tribunal often hears cases in which the applicant is unrepresented. This was not such a case. We mention the matter only to indicate the very different nature of the Tribunal from that of a court notwithstanding that it is true to say that the Tribunal deals with matters of substantial significance and importance and that its procedures are in many respects similar to those of courts. The decision of the Tribunal is final, an appeal only being available on a question of law; s.44 of the Administrative Appeals Tribunal Act 1975. In these circumstances it may not be
right to apply the principles propounded in the various authorities to which we have referred to matters emanating from the Tribunal without taking into account its nature and its different character from that of a court. That does not mean that the principles have no relevance to a matter such as this. They provide general guidance and assistance to a court confronted with a problem of this kind. All we say is that they should not be applied with the same rigour as they are in relation to the ordinary courts nor without having in mind the different nature of the Tribunal.
(d)Hindsight is, of course, a great blessing to us all. It is easy after a close examination of the transcript to see that the point relied upon by counsel for the appellant was taken before us and should have been addressed in our earlier judgment. But the point was raised in the run of a complex argument dealing with the provisions of a statute which required close consideration. The matters upon which the respondent has succeeded before Sackville J and eventually succeeded before us were argued fully by both counsel. Excuses for our omission should not be made but it must be remembered that the matter now relied upon came to us in that setting. The error which was made in the earlier judgment was not to appreciate the distinction which counsel was drawing between the position as it was before us, the point not having been fully taken, at least in his submission, before Sackville J, and the position as it was both before Sackville J and ourselves as a consequence of the matter not having been raised in the Tribunal. We think it is fair to say that counsel for the appellant did not address the point with the same emphasis as he has done in the submissions on the motion now before us. It is true that he mentioned that evidence could be called or that it might have been called. But he did not indicate the nature of it or spell out in any way what difference there might have been had the point been raised in the Tribunal. At the hearing of the motion he said that, if he had been minded to do so, he could have said what Mr Kaufmann's affidavit said in arguendo and that it was not strictly necessary for the economic considerations to be found in the affidavit to be the subject of evidence. We express no view on that submission. But we do say two things. Firstly, if the matters deposed to in Mr Kaufmann's affidavit could have been said to us by counsel from the bar table but were not, the matter cannot be one in which the appellant suffered a possible injustice because the failure of the respondent to take the point did not in fact occasion the appellant any disadvantage. If counsel be right - we have reservations whether he is - the matters could have been put by him to us at the earlier hearing. They were not. Secondly, we do now have Mr Kaufmann's affidavit. During the original hearing, counsel did not spell out to us what the economic considerations were. It follows that the point now in question was not put to the forefront of the appellant's case. It was there but, so it seems to us, there was an understandable endeavour to succeed on the appeal, notwithstanding that the point had not been taken in the Tribunal, on the material which the Tribunal had and which was before the Court both at first instance and on appeal.
(e)Counsel for the appellant relied on the statements in the judgments in Gundowda, Louinder and Moustakas to the effect that, where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards. Counsel emphasised the words "by any possibility". In order fully to understand the significance that these words have, it would be necessary to examine the facts of cases where this problem has arisen and been considered by courts. We have not made an exhaustive study of the facts and circumstances of each case but we are of opinion that the statements upon which counsel so strongly relies were not intended to indicate that a court should interfere in a situation in which a party relies upon some fanciful or ill defined set of circumstances in an attempt to deny the other party the right to rely on a new point. It is fair to say, we think, that we were not given any assistance, certainly not any detailed assistance, in relation to how the taking of the point before the Tribunal would have made the difference upon which counsel relies. We were not put in a position in which we were able to make a judgment whether there was likely to have been the possibility that evidence which it was claimed the appellant would have led had the point been taken before the Tribunal, may have made a difference to the situation.
(f)The order made by us on 18 December 1995 dismissed the appeal from Sackville J. It thus left in place his order and declarations. The order required the rehearing of the matter by the Tribunal according to law. We leave aside for the moment the effect which the two declarations may have. Subject to that matter, no injustice is occasioned to the appellant by the remission of the matter to the Tribunal because the rehearing will give both parties the opportunity of raising such points and leading such evidence as each may be advised. Neither party will suffer any prejudice other than that caused by the delay and expense of a further hearing which was provided for in any event in our original order.
With those various matters in mind we proceed to a consideration of what the outcome of the appellant's motion should be. As mentioned, the order made by Sackville J which our earlier judgment did not disturb directed that the matter be remitted to the Tribunal to be heard and determined according to law. Additionally, his Honour made two declarations. These were to the effect that the Tribunal had erred by giving effect to a policy which failed to take into account a relevant consideration namely, the objective in para. 3(1)(c) of the Act of maximising economic efficiency in the exploitation of fisheries resources. It seems likely that, if those declarations remain in place, and we do not vary or rescind our earlier order, the rehearing may be circumscribed to such an extent that the matters upon which the appellant wishes to rely will not be able to be raised by it. It follows that justice requires that, whatever else we do, those declarations should be set aside not because they are necessarily erroneous but simply because the facts and circumstances that are now before us make it necessary, in the interests of justice, if there is to be a further hearing of the matter before the Tribunal, that that hearing proceed unimpeded by any restriction on the leading of relevant evidence which either party may wish to lead.
But that outcome, whilst in a sense just, may not be the right one. The central question in this case is to determine whether, in all the circumstances, the Court, because of what it now appreciates, should take the view that the appeal should have been allowed. We have reached the conclusion that that would not be the correct conclusion because, if that order were made, a substantial injustice may be occasioned to the respondent. Without the benefit of knowing the detail of the evidence upon which the appellant would have sought to rely if the point had been raised in the Tribunal, we have held that, on the material before us and before Sackville J, the Tribunal's decision omitted an important consideration, namely, the maximising of economic efficiency in the exploitation of the relevant fisheries resources because that matter was omitted from consideration, at least so far as we could tell on the available material, when the respondent's quota was determined. The point remains good unless the evidence overcomes it. It may not have that effect, particularly as counsel for the appellant puts the matter no higher than a possibility. Justice requires that the appellant, the point not having been raised in the Tribunal, should have the opportunity of leading evidence such as is contained in Mr Kaufmann's affidavit and any other evidence it may be advised to rely upon, but it does not, in our opinion, require that the respondent be put out of court. The just result is a full rehearing but, of course, a hearing according to law.
In the result we would, accordingly, vary the orders made by us on 18 December 1995 by rescinding the orders then made and substituting the following orders.
(a)The orders made by Sackville J on 11 October 1995 be varied by omitting therefrom the declarations made in paras 1 and 2 thereof.
(b)The appeal be otherwise dismissed.
(c)The costs of the appeal and the costs of the notice of motion abide the outcome of the further hearing by the Administrative Appeals Tribunal and any appeal from its decision to this Court.
(d)There be liberty to either party to apply in relation to the question of costs of the appeal and the notice of motion on seven days' notice.
I certify that this and the nineteen (19) preceding pages are a true copy of the reasons for judgment herein of the Court.
Associate
Dated
APPEARANCES
Counsel for the Appellants: D.M.J. Bennett QC
P. Roberts
Solicitors for the Appellants: Australian Government
Solicitor
Counsel for the Respondent: A.W. Street
M.S.C. York
Solicitors for the Respondent: Thomson Rich O'Connor
Date of Hearing: 26 April 1996
Place of Hearing: Sydney
Date of Judgment: 17 May 1996
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