Bienke, Brian Clarence v Crean, Simon Minister for Primary Industry and Energy

[1993] FCA 1069

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGIST	Ry ) No. NG 547 of 1993
GENERAL DIVISION	1

BETWEEN:  BRIAN CLARENCE %IENKE ~ r . IRENE ANNE BIENKE and BRIAN TREVOR BIENKE

Applicants

AND:  $IMON CREAN. THE MINISTER FOR PRIMARY INDUSTRY AND ENERGY

First Respondent

AUSTRALIAN FISHERIES

MANAGEMENT AUTHORITY

Second Respondent

29 September 1993

REASONS FOR JUDGMENT

-	L
The applicants commenced this proceeding on 26 July 1993 by filing an application in which they challenge, amongst other things, the validity of the Northern Prawn Fisheries Management Plan. Their grounds of attack are many and are set out in the amended application filed in this matter. The relevant fishing season commenced in March or April this year and finishes at the end of November this year. The applicants foreshadowed recently that they would seek an urgent interlocutory hearing to allow them to fish in the waters which are covered by the relevant fisheries management plan at least during the month of November before the conclusion of the season.
Today, the applicants seek an early date for a hearing of their application for an interlocutory injunction restraining the
respondents from preventing the applicants from using their vessel to trawl for prawns in the relevant waters. The case has had a fairly leisurely history and it is only recently, as I understand it, that the applicants have sought an urgent interlocutory hearing.
I should note that I have read the affidavit of M r Warwick La Hood of 29 September, 1993, and I have read sufficient of the affidavit of Brian Clarence Bienke of the 19 July, 1993 to understand the basis on which todays application is made.
In addition there is subject to a reserve judgment of a Full Court of this Court in the matter of Fitti v Minister for Primary Industry and Energy, a case which raises a large number of the issues that are raised in the present application. The resolution of the Fitti case by the Full Court of this Court may well resolve this case or much of it.
I am not persuaded that a case has been made out for allowing this matter to be heard on an urgent interlocutory footing, such that there would be a hearing and a judgment before the end of October. Mr O'Connor for the applicants has said that if the judgment is not given before 1 November, then the interlocutory application would be of little, if any, practical use to his clients. If the applicants wish in the future to take out a formal motion supported by evidence as a result of the judgment in Fitti, then that is a matter for them. I have no
idea when the judgment in Fitti will be given.
I therefore decline to allow the matter to be given an urgent date. The Court will, however, do what it can to enable the parties to have a final hearing of the substantive issues raised in this matter so that the whole question can be resolved before the commencement of the 1994 season in the northern prawn fisheries area.

I certify that this and the

preceding two (2) pages are a
true copy of t

judgment her

Dated: 29 September 1993

Solicitors for the Applicants :  Thomson Rich OfConnor

Counsel for the Respondents	:	P Roberts
Solicitors for the Respondents:	Australian Government Solicitor
Date of Hearing	29 September 1993
Date of Judgment	29 September 1993