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

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

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

CaseChat Overview and Summary

The Federal Court of Australia heard a case between Brian Clarence Bienke and others, who sought to challenge the validity of the Northern Prawn Fisheries Management Plan. They also sought an interlocutory injunction to allow them to fish during the remaining part of the season before the conclusion of November. The case was before the court on an urgent basis, with the applicants requesting an early hearing to resolve their application. The court considered the affidavits submitted by the parties and noted that a related case, Fitti v Minister for Primary Industry and Energy, was also pending before a Full Court.

The legal issues before the court were the validity of the Northern Prawn Fisheries Management Plan and the applicants' entitlement to an interlocutory injunction. The court considered whether the matter could be heard on an urgent basis, given the applicants' request for an early hearing, and whether the interlocutory application would have practical use if not decided before the end of October. The court also considered the potential impact of the judgment in the related case of Fitti v Minister for Primary Industry and Energy.

The court declined to allow the matter to be heard on an urgent interlocutory basis, noting that the applicants had only recently sought an urgent hearing and that it was not persuaded that a case had been made out for such a hearing. The court emphasised that if the applicants wished to take out a formal motion in the future, they could do so based on the judgment in Fitti. The court also noted that it did not know when the judgment in Fitti would be given. However, the court committed to doing what it could to enable the parties to have a final hearing of the substantive issues raised in the case so that the whole question could be resolved before the commencement of the 1994 season in the northern prawn fisheries area.

The court did not make any final orders in this case, as it declined to allow the matter to be heard on an urgent interlocutory basis. However, it committed to doing what it could to enable the parties to have a final hearing of the substantive issues raised in the case.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established