Burton v Minister for Fisheries
[2010] WASC 20
•10 FEBRUARY 2010
BURTON -v- MINISTER FOR FISHERIES [2010] WASC 20
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASC 20 | |
| 10/02/2010 | |||
| Case No: | CIV:1151/2009 | 7 DECEMBER 2009 | |
| Coram: | MARTIN CJ | 7/12/09 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | First and second questions answered in the affirmative Third and fourth questions answered in the negative | ||
| A | |||
| PDF Version |
| Parties: | PETER FRANCIS BURTON FRANCES MAY BURTON PALMVILLE HOLDINGS PTY LTD AS TRUSTEE FOR THE BURTON FAMILY TRUST MINISTER FOR FISHERIES CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF FISHERIES THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Interpretation Amendment to fisheries management plan pursuant to the Fish Resources Management Act 1994 (WA) Whether amendment permitted during relevant season Whether alteration can be made to licences during the season Procedural fairness Whether plaintiffs entitled to opportunity to be heard before amending licence Trade and commerce Was the State of Western Australia engaged in trade and commerce in relation to the representations made about renewal of a fishing licence |
Legislation: | Fair Trading Act 1987 (WA), s 5, s 10 Fish Resources Management Act 1994 (WA), s 54(2), s 55, s 58(2), s 60(2), s 64, s 65, s 66, s, 68, s 142 Fisheries Adjustment Schemes Act 1987 (WA), s 3A Interpretation Act 1984 (WA), s 46, s 46(1a) |
Case References: | Concrete Constructions (NSW) v Nelson [1990] HCA 17; (1991) 169 CLR 594 Dockpride Pty Ltd v Subiaco Redevelopment Authority [2005] WASC 211 Finesky Holdings Pty Ltd v Minister for Transport (WA) [2001] WASC 87 Glorie v WA Chip & Pulp Co Pty Ltd (1981) 55 FLR 310 Oceaneer Fisheries Pty Ltd v Minister of Fisheries [2007] WASAT 184 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- FRANCES MAY BURTON
First Plaintiffs
PALMVILLE HOLDINGS PTY LTD AS TRUSTEE FOR THE BURTON FAMILY TRUST
Second Plaintiff
AND
MINISTER FOR FISHERIES
First Defendant
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF FISHERIES
Second Defendant
THE STATE OF WESTERN AUSTRALIA
Third Defendant
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Catchwords:
Interpretation - Amendment to fisheries management plan pursuant to the Fish Resources Management Act 1994 (WA) - Whether amendment permitted during relevant season - Whether alteration can be made to licences during the season - Procedural fairness - Whether plaintiffs entitled to opportunity to be heard before amending licence
Trade and commerce - Was the State of Western Australia engaged in trade and commerce in relation to the representations made about renewal of a fishing licence
Legislation:
Fair Trading Act 1987 (WA), s 5, s 10
Fish Resources Management Act 1994 (WA), s 54(2), s 55, s 58(2), s 60(2), s 64, s 65, s 66, s, 68, s 142
Fisheries Adjustment Schemes Act 1987 (WA), s 3A
Interpretation Act 1984 (WA), s 46, s 46(1a)
Result:
First and second questions answered in the affirmative
Third and fourth questions answered in the negative
Category: A
Representation:
Counsel:
First Plaintiffs : Mr R M Niall & Mr J Garas
Second Plaintiff : Mr R M Niall & Mr J Garas
First Defendant : Mr R M Mitchell SC
Second Defendant : Mr R M Mitchell SC
Third Defendant : Mr R M Mitchell SC
Solicitors:
First Plaintiffs : Lawton Lawyers
Second Plaintiff : Lawton Lawyers
First Defendant : State Solicitor for Western Australia
Second Defendant : State Solicitor for Western Australia
Third Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Concrete Constructions (NSW) v Nelson [1990] HCA 17; (1991) 169 CLR 594
Dockpride Pty Ltd v Subiaco Redevelopment Authority [2005] WASC 211
Finesky Holdings Pty Ltd v Minister for Transport (WA) [2001] WASC 87
Glorie v WA Chip & Pulp Co Pty Ltd (1981) 55 FLR 310
Oceaneer Fisheries Pty Ltd v Minister of Fisheries [2007] WASAT 184
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1 MARTIN CJ: (This judgment was delivered extemporaneously on 7 December 2009 and has been edited from the transcript.)
Introduction
2 The matter that comes before me is the trial of four preliminary questions that were helpfully settled by the parties prior to trial. The preliminary questions are as follows:
(a) Does s 54(2) of the Fish Resources Management Act 1994 (WA) (the Act) authorise the Minister to amend cl 14 of the West Coast Rock Lobster Management Plan 1993 (the Management Plan) during a season (as defined in the Management Plan), so as to alter:
(i) the maximum number of pots that may be operated under the authority of a licence granted under s 66 of the Act or renewed under s 68 of the Act and in force; and
(ii) the capacity of the fishery in terms of pot numbers,
during that season?
(b) If the answer to question (a) is 'yes',
(i) did the Act authorise the alterations to the plaintiffs' managed fishery licence by the documents referred to in pars 27 and 39 of the statement of claim and pars 19(c) and 29(b) of the defence; and
(ii) does the Act authorise alteration of the maximum gear usage (pots) in the plaintiffs' managed fishery licence for the 2009-10 season while that licence is in force, other than a variation on the request of the licence holder pursuant to s 142 of the Act, read with s 58(2)(i) of the Act?
(c) If the answer to question (b) is 'yes', was/is the Chief Executive Officer required to afford the plaintiffs an opportunity to be heard before so altering the licence?
(d) In:
- (i) making the unit value representation pleaded at par 44 of the statement of claim and admitted at par 34(d) of the defence; and/or
(ii) writing the letters referred to in pars 52 and 60 of the statement of claim and pars 43(a) and 47(a) of the defence,
was the third defendant engaged in conduct in trade and commerce within the meaning of s 10 of the Fair Trading Act 1987 (WA)?
3 The parties have also very helpfully agreed the facts that are to be found for the purposes of the resolution of those preliminary questions. Their agreement as to those facts has become exhibit 1. I make findings in terms of the facts agreed by the parties and I incorporate those facts as a schedule to these reasons.
4 In addition, the defendants tendered as exhibit 2 another amendment to the relevant fish resources management plan (the West Coast Rock Lobster Management Plan) in February 2009, although the terms of that amendment are not material to the issues that I have been called upon to decide.
5 I have come to the conclusion that the preliminary questions should be resolved in the manner for which the State contends, essentially for the reasons given by the State. These reasons to a significant extent paraphrase the written submissions that had been provided by the State.
Amending entitlements
6 Dealing firstly with the questions that relate to the capacity of the State, through either the Minister or the Chief Executive Officer, to amend entitlements held by those who hold authorisations under the Fish Resources Management Act 1994 (WA) (the Act) granted in respect of the relevant management plan (questions 1 - 3), the facts that are particularly germane to those questions are essentially as follows.
7 At all material times the plaintiffs have held a West Coast Rock Lobster Managed Fishery licence issued pursuant to the Act authorising them to conduct fishing activities within Zone A of the West Coast Rock Lobster Limited Entry Fishery (the Fishery). The Fishery was declared under cl 3 of the West Coast Rock Lobster Limited Entry Management Plan 1993 (the Plan). The Plan was originally published under an act which preceded the Act but has been renewed and maintained and
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- amended under the provisions of the Act. No point is taken from the fact that the Plan originally derived from previous legislation.
8 The plaintiffs have held an authorisation which corresponds to them holding a usual entitlement of 90 units of entitlement. That entitlement has varied from time to time, as I will describe, as a result of the transfer of other entitlements to the plaintiffs and the transfer of their usual entitlements to other holders of authorisations within the Fishery.
9 The Plan creates a 'Fishery' as defined by s 4 of the Act which is one or more stocks or part of stocks of fish that can be treated as a unit for conservation or management and a class of fishing activities in respect of those stocks or parts of stocks of fish. The Plan creates the Fishery by reference to a geographical area which is in turn divided into zones and which covers the taking of West Coast Rock Lobster within the entire Fishery thus created. As contemplated by the Act, the Plan operates on the basis that fishing in the Fishery is prohibited otherwise than in accordance with the Plan and under the authority of a licence (cl 4 of the Plan), and taking of rock lobster from the Fishery otherwise than by means of pots is prohibited (cl 5 of the Plan).
10 Essentially the Plan operates so as to specify the capacity of the Fishery (by cl 14) by reference to zones and to periods of time within which fishing may be conducted lawfully within the Fishery. It is unnecessary to condescend to the details of those zones and periods. Clause 14D, as contemplated by s 60 of the Act, operates by reference to units of entitlement for the class within the relevant zones of the licence. Clause 14E provides that during the periods for which capacity specified by cl 14 applies, the unit value of the relevant units of entitlement is equal to the capacity divided by the total number of units of entitlement conferred by the relevant licences rounded to the second decimal place.
11 Clause 14I of the Plan then provides that the maximum number of pots that may be operated under the authority of a licence is the product of the current entitlement of the licence and the relevant unit value. The consequence of that scheme is essentially to provide an arrangement by which the capacity of the Fishery at any given time is divided between those who hold licences to fish within the Fishery in proportion to the units of entitlement which they hold pursuant to their licences.
12 There are other provisions of the Plan which relate to adjustment of the total units of entitlement within the Fishery, for example, as a
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- consequence of forfeiture or cancellation of a licence, but they are not relevant to the issues that I have been called upon to determine.
13 On 1 September 2008, the Minister (who is the first defendant) amended the Plan by reducing the capacity of the Fishery to a combined capacity of 22,046 pots in zones A and B from 1 November 2008 to 14 March 2009 in that season, and from 12,208 pots in zone A from 15 March 2009 to 30 September 2009 in that season.
14 Under the scheme to which I have referred, the effect of that reduction in the capacity was to reduce the unit value of each unit of entitlement in zone A to 0.66 pots per unit. That is because there were within zone A a total of 18,492 units of entitlement at the relevant time and within zone B there were a total of 14,906 units of entitlement, so that according to the scheme to which I have referred, each unit of entitlement gave rise to a capacity to operate pots up to the number which is ascertained by multiplying 0.66 by the unit entitlement.
15 Clause 21A of the Plan provides that contravention of certain clauses of the Plan is itself an offence, and that corresponds to s 74 of the Act which in turn provides that contravention of a provision of a management plan which is specified to be an offence by the relevant management plan is a contravention for which penalties are provided under the Act. Clause 14I is one of the clauses specified as a clause which if breached gives rise to an offence. As I have said, that clause specifies that the maximum number of pots to be used by each licencee is to be determined by multiplying the unit entitlement by the unit value as specified by the Plan.
16 On 1 September 2008 the Department of Fisheries (the Department) sent licence renewal forms to the holders of licences within the Fishery under cover of a letter. That letter included an assertion by the officer responsible for its preparation and transmission that the unit values, calculated as a consequence of the Minister's determination on 1 September, would remain the same for the whole season. That representation has given rise to the fourth preliminary issue that I have been called upon the determine, namely the question of whether that representation can be said to have been made in trade or commerce so as to enliven the relevant provisions of the Fair Trading Act 1987 (WA) relating to misleading and deceptive conduct.
17 Following the invitation to renew licences, the plaintiffs took up the invitation and paid the prescribed fee for and were granted renewal of their licences. As I have mentioned, that licence related to their usual
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- units of entitlement, being 90 units. Applying those units by the ratio of unit value of 0.66 produced the extent of their entitlement as 59 pots, and a licence in these terms was issued by the Chief Executive Officer of the Department (the CEO, who is the second defendant), pursuant to the provisions of the Act.
18 During October 2008 officers of the Department reported to the Minister that the sampling of settlement stage lobsters (known as puerulus) on in-shore reefs showed very low numbers counted. Previous sampling had shown a relationship between the counts of puerulus and the lobster available to be fished in subsequent years and so the very low counts gave rise to concern as to the possible effects on the Fishery if fishing continued at the levels that had been authorised pursuant to the licences that had been issued.
19 The Minister received a report from the chairman of the Rock Lobster Industry Advisory Committee and following receipt of that report, made an amendment to the Plan. That amendment was to take effect from 30 November 2008, so that up until 30 November the capacities remained essentially the same, but thereafter the combined capacity in zones A and B was reduced to 18,035 pots from 30 November 2008 to 14 March 2009, and thereafter in zone A the capacity was reduced to 9,986 pots from 15 March 2009 to 30 June 2009. The effect of that reduction in the capacity of the Fishery, pursuant to cl 14A of the Plan, was to reduce the unit value of each unit of entitlement in zone A from 0.66 to 0.54 from 30 November 2008 until 30 June 2009.
20 At around the same time, the CEO approved an application by a third party licence holder for the temporary transfer of 53 units of entitlement to the plaintiffs so that their current entitlement went from 90 units to 143 units. It followed that when the CEO issued a letter attaching a revised licence instrument to the plaintiffs, that revised instrument referred to their current entitlement as 143 units, which when applied to the unit value after 30 November 2008 of 0.54 pots per unit, produced a total entitlement of 77 pots instead of the 94 that would have been their entitlement at the previous unit value of 0.66. On 14 November 2008 a delegate of the CEO granted a further application for temporary transfer of units of entitlement - this time a further 43 units, bringing the total entitlement to 186 units. When applied to the unit value after 30 November 2008 of 0.54 pots per unit, this produced a total entitlement of 100 pots instead of the 123 pots that would have been the entitlement at the previous value of 0.66 pots per unit.
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21 Sampling of the puerulus counts on the inshore reefs continued and in January 2009 there was a further report to the Minister. The numbers counted continued to be low. As a result of that report, on 20 February 2009 the Minister amended the Plan again in terms which effectively reduced the capacity within zones A and B from 18,035 pots down to 14,027 pots from 1 March 2009 to 14 March 2009, and which reduced the capacity in zone A after 14 March 2009 from 9,986 pots to 7,767 pots.
22 The effect of that reduction in capacity, pursuant to cl 14A, was to reduce the unit value for each unit of entitlement to 0.42 from 1 March 2009, and on about 25 February 2009 the CEO issued a letter to the plaintiffs attaching another revised instrument of licence showing their recalculated entitlements from 1 March 2009 going forward. As I have mentioned, their current entitlement was by then made up of 90 units of usual entitlement plus a further 96 units of entitlement temporarily transferred to the plaintiffs which took their total entitlement to 186 units. Applying the unit value to the 186 units produced an entitlement to 78 pots from 1 March 2009.
23 On no occasion did the CEO provide the plaintiffs with the opportunity to be heard before amending the licensed instruments which he issued to them.
24 There were further amendments to the Plan in March and April 2009 but they do not bear materially upon these proceedings. There were also amendments to the Plan made in November 2009 which again reduced capacity and therefore reduced unit values from 0.42 to 0.4 (4 November 2009 - 14 March 2010) and then to 0.36 (15 March 2010 - 30 November 2010).
25 In November 2009 the CEO approved the temporary transfer of 89 of the plaintiffs' 90 units to the licence of a third party. The temporary transfers of the 53 and 43 units to the plaintiffs previously referred to expired on 30 September 2009. It follows that the plaintiffs are not actively engaged in fishing during the current season.
26 The plaintiffs challenge the amendments made to the Plan and the consequential amendments of the licensing instruments made during the 2008 - 2009 season, and seek damages for misleading and deceptive conduct as a consequence of the representation to which I have referred.
27 The first two questions posed essentially bear upon the capacity of the Minister to amend the Plan during the course of a season with the
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- consequence that the extent of the entitlement of licensed holders is affected during the course of that season.
Question 1
28 There are express provisions in the Act which authorise the Minister to amend the Plan, including s 54(2) which expressly authorises the Minister to amend such plans. The Minister is required to follow procedures when embarking upon the amendment of a plan, and those are the procedures set out in s 64 and s 65 of the Act, but the preliminary questions do not raise for consideration the issue of whether or not those procedures were complied with.
29 Another provision of the Act that seems to me to be relevant, and indeed particularly relevant to the issues which I have been called upon to determine, is s 60(2) of the Act which expressly provides:
(2) The management plan may -
…
(c) provide for entitlements to be expressed in terms of units (however described) and from time to time specify the extent of the entitlement arising from such units …
31 That conclusion is further reinforced by the general objects of the Act which include (by s 3) the conservation of fish and the protection of their environment; ensuring that the exploitation of fish resources is carried out in a sustainable manner and various other objects that would be impeded if the Act were to be construed as imposing a constraint upon the capacity of the Minister to respond to circumstances as they exist from time to time. There is nothing in the language of s 54, s 60 or any other provision of the Act which, in my view, would support the contention that the capacity of the Minister to alter a management plan is inhibited merely because licences have been issued for a particular season. If that were the intention of the legislature, one would expect the legislature to have
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- expressed it in clear and unequivocal terms. It has not done so. To the contrary, in s 60(2) language has been used which is plainly apt to connote the alteration of unit values and therefore the extent of entitlement flowing from the holding of units of entitlement during the course of a season.
32 The effect of the scheme to which I have referred is that the extent of the entitlement to use pots to catch crayfish is derived by multiplying each unit of entitlement by the unit value, which is the mathematical outcome of dividing the capacity declared from time to time (in terms of pots) by the number of units of entitlement that have been issued. So the true effect or consequence of the alteration of capacity in the Fishery as a whole necessarily flows through to the holder of each authorisation by altering the unit value which multiplied by unit entitlement produces the number of pots that can be utilised.
33 The Plan that has been promulgated by the Minister in this case appears to me to accord with the scheme for which express provision is made in the Act by referring to the authorisations by reference to units of entitlement which can manifest themselves in entitlements calculated by reference to the quantity of pots that might be used from time to time.
34 The view that it is the Plan that is the critical source of precise rights in a Fishery rather than the individual authorisation issued to the licence holder is consistent with the views expressed by Barker J sitting in the State Administrative Tribunal in the case of Oceaneer Fisheries Pty Ltd v Minister of Fisheries [2007] WASAT 184. Of course, without an authorisation nobody has an entitlement to participate in the Fishery. The point that emerges from the Oceaneer case, and from the legislative scheme to which I have referred, is that the extent of the entitlement, that is to say the lawful authority to bait and drop pots, is calculated at any given time by multiplying the unit entitlements held pursuant to the authorisation by the unit value, which in turn is determined by the capacity of the Fishery as declared by the Minister from time to time during the life of a management plan.
35 If and when the unit value is altered by the Minister declaring an alteration in the capacity of the Fishery, it follows that the extent of the entitlement conferred under each authorisation alters. It is therefore necessary and appropriate for an amended instrument of licence to be issued consistently with cl 13B of the Plan. The fact that the licence specifies, as is required by that clause, the number of pots that are the product of multiplying the current entitlement by the unit value under the
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- Plan does not lead to the conclusion that it is the instrument that is the source of the right to drop those pots, but rather recognises the fact that the instrument of licence should accurately convey to the licence holder precisely what rights arise from the authorisation that has been issued to that particular licence holder. Those rights are the rights that are conferred by cl 14I of the Plan and they are simply enunciated in the instrument of licence; they flow by operation of that clause from the holding of units of entitlement.
36 The plaintiffs also rely upon provisions of the Fisheries Adjustment Schemes Act 1987 (WA). There are two problems with that submission. The first is that by s 3A of the Fisheries Adjustment Schemes Act, it is expressly provided that nothing in that Act gives rise to an entitlement to compensation as a result of the utilisation of powers under the Act (the Fish Resources Management Act).
37 The second is that it seems to me that as far as that submission goes is to sustain the proposition that the rights conferred by the grant of a licence under the Act are proprietary in nature. That much can be accepted but it does not seem to me to answer the questions that are posed in this case. The battle line between the parties in this case concerns the nature of the proprietary interest conveyed by the licence, to the extent that one can talk about a licence as conveying a proprietary interest. The plaintiffs' position is that the interest conferred by the licence is in an entitlement to use a specified number of pots from time to time, whereas the State contends that the interest conferred by the licence is effectively a share in the managed Fishery; a share which is to be allocated pro rata with all the other licence holders who also enjoy a share in that Fishery.
38 For the reasons that I have given, I prefer the view of the rights conferred by the grant of a licence contended for by the State. However, it does not seem to me that the characterisation of the rights as proprietary assists in distinguishing between the respective positions of the parties in relation to the issues that have been raised for my determination.
39 These reasons lead inexorably to the conclusion that the first question that I have been asked to determine must be answered affirmatively.
Question 2
40 The second question concerns the alteration of the licence. The powers that were being exercised by the CEO at the time he amended the instrument of licence that was issued to the plaintiffs were the powers
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- conferred by s 142(1)(c) of the Act. That section empowers the CEO to vary an authorisation if it is necessary to give effect to the provisions of the Act.
41 The plaintiffs submit that in that section 'the Act' should not be read so as to include the Plan, notwithstanding the provisions of s 46 of the Interpretation Act 1984 (WA) which require a reference in a written law to a written law be construed so as to include a reference to any subsidiary legislation made under that written law. Section 46(1a) of the Interpretation Act expressly provides, by way of example, a reference in an Act to 'this Act' is to be read so as to include a reference to any subsidiary legislation made under the relevant Act. The plaintiffs submit that s 3 of the Interpretation Act should be applied so as to conclude that in this Act there is something inconsistent with the conclusion that one would otherwise reach by reference to s 46.
42 That proposition is doomed to failure when one has regard to s 55 of the Act which expressly provides that an instrument that determines, amends or revokes a management plan is subsidiary legislation for the purpose of the Interpretation Act. From that section it is clear that the legislature has turned its mind to the role and position which a management plan is to play in the legislative structure created by the Act and has determined that it is to be regarded as subsidiary legislation for the purpose of the Interpretation Act.
43 It follows that for the purposes of s 142 of the Act, the Act is to be read so as to include the Plan. It also follows that when the Plan is lawfully amended so as to change the capacity of the Fishery, with the consequence that the unit value alters, then in order to comply with cl 13B of the Plan it is necessary for the CEO to issue a revised instrument of licence specifying the new unit value and the maximum number of pots that may be operated under the licence pursuant to that clause. It follows that the second question must be answered in the affirmative.
Question 3
44 That then takes me to the third question which is the question of procedural fairness. That question is answered by the answers that I have given to the first two questions. Once it is appreciated that the power of the CEO which was exercised in this case was simply the performance of the obligation imposed by cl 13B of the Plan to bring the instrument of licence into line with the rights conferred by the Plan once it had been amended so as to alter capacity and therefore unit value, there is no operative role for procedural fairness in an exercise of that kind. Whether
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- one characterises that conclusion as a circumstance in which procedural fairness does not apply or a circumstance in which the variable content of the rules of procedural fairness is such that they are effectively reduced to nil, it does not alter the practical result in this case. The practical result is that all the CEO was doing was giving effect to the legal consequences of the decision of the Minister when he amended the licence instrument. Therefore, conferring a right to be heard and providing an opportunity to be heard could have had no impact upon the outcome of that process and there is no basis upon which it could be concluded that procedural fairness had to be afforded. For that reason I would answer the third preliminary question in the negative.
Question 4 - Trade and Commerce
45 That takes me to the fourth preliminary question which concerns the question of whether the conduct to which I have referred, and in particular the representation to which I have referred and the subsequent actions of the Minister and the CEO in departing from that representation, were within trade or commerce so that it might be asserted in these proceedings that the plaintiffs are entitled to a remedy as a consequence of misleading and deceptive conduct.
46 The principles in this area are well established and I take those principles from the defendants' written submissions. They include the fact that trade and commerce includes any business or professional activity (s 5 of the Fair Trading Act 1987 (WA)) or any 'conduct [of an entity] towards persons with whom it … may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character' (that being the criterion specified by the plurality in the High Court decision of Concrete Constructions (NSW) v Nelson[1990] HCA 17; (1991) 169 CLR 594, 604).
47 Trade and commerce extends to the supply of goods and services (Finesky Holdings Pty Ltd v Minister for Transport (WA) [2001] WASC 87 at [176]) and conduct towards tenderers in the course of a tender (Dockpride Pty Ltd v Subiaco Redevelopment Authority [2005] WASC 211, [208] - [209]). Government agencies can of course be found to engage in trade or commerce if the activities in which they are engaged have the character of a trading or commercial activity. The fact that the activity has been carried on by a government agency or the fact that it has not been carried on for profit does not necessarily prevent the activity being characterised as a business activity (see for example, Dockside (above) and Glorie v WA Chip & Pulp Co Pty Ltd (1981) 55 FLR 310,
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- 320). However, in order to be characterised as either trade or commerce the activity under consideration must have that quality or character which would result in it being characterised as trade or commerce.
48 The words 'trade and commerce' are of course not words of science; they have an ordinary meaning which can be applied to these facts. The facts are that the letter in which the relevant representation was made was a letter inviting licence holders to renew their licence for a fee, and in the case of holders of substantial entitlements the fee was substantial. However, as the agreed facts reveal, it was a fee that was calculated by government to recoup the cost of regulatory activity undertaken by the Department responsible for that regulation and to include a component for contribution to the Development and Better Interest Fund which is a fund available for the enhancement of the industry generally through the conduct of research and such like.
49 There is no component of the fee that comprises profit. There is nothing in the activity of issuing authorisations that has the characteristic of trade or commerce. On the contrary, it appears to me to be conduct which has all the characteristics of the regulation of a regulated industry by a governmental regulator in the interests of the industry as a whole. On that basis, there is nothing in the conduct of any of the defendants that could fall within the scope of trade or commerce for the purposes of the Fair Trading Act. For that reason the fourth question should be answered in the negative.
Conclusion
50 For those various reasons, the first two questions should be answered in the affirmative and the second two in the negative.
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