DULZURAH PTY LTD and FISHERIES DEPARTMENT OF WA - [2005] WASAT 144

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT :FISH RESOURCES MANAGEMENT ACT 1994

CITATION: DULZURAH PTY LTD and FISHERIES DEPARTMENT OF WA [2005] WASAT 144

MEMBER: DEPUTY PRESIDENT CHANEY

HEARD: 1 JUNE 2005

DELIVERED : 24 JUNE 2005

FILE NO/S: RD 6 of 2000

BETWEEN: DULZURAH PTY LTD
Applicant
AND
FISHERIES DEPARTMENT OF WA
Respondent

Catchwords:

Fisheries - Renewal of licence - Management plan - Licence expired - Whether any subject matter for application - Turns on own facts

Legislation:

Fish Resources Management Act 1994 (WA), s 139, s 149, s 150

State Administrative Tribunal Act 2004 (WA), s 29, s 47(1), s 47(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: MR JB Jess (director of the applicant)
Respondent: Mr S Murphy

Solicitors:

Applicant: Self-represented
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Nil

Case(s) also cited:

Adams v Executive Director; Fisheries WA [2000] WASC 34
Geraldton Fisheries Co-op v Minister for Fisheries, unreported; SCt of WA, (Anderson J), Library No 9158; 22 November 1991
Martin v Australian Unity [2004] VCAT 2025
Minister for Immigration & Multicultural Affairs v Sharma (1999) 161 ALD 570
Re Ciffolilli; Ex Parte Rodgers [1999] WASCA 205
Re McIntyre and Comcare Australia (1997) 48 ALD 570
Re Rundle and Civil Aviation Service Authority (2002) 68 ALD 234

JUDGE CHANEY:
REASONS FOR DECISION

Summary

The Joint Authority Southern (Demersal) Gillnet and (Demersal) Longline Managed Fishery is a joint authority managed fishery constituted under Part 3 of s 54 of the Fish Resources Management Act 1994 (WA)("the Act"). Fishing by gillnet or longline within that fishery is governed by the Joint Authority Southern (Demersal) Gillnet and (Demersal) Longline Management Plan 1992. ("the Management Plan"). The effect of the Management Plan is to limit the gillnet and longline fishing within the fishery to those holding a licence issued under the Management Plan. By virtue of Clause 6 of the Management Plan, licences expire on 31 May each year, thus requiring annual renewal of a licence.
In December 1999, a clause was inserted in the Management Plan setting out grounds upon which the respondent might suspend, cancel or not renew a licence. On 8 May 2000, the respondent gave notice to the applicant and he proposed to "cancel or not renew" the applicant's licence. The applicant lodged an objection under s 149(1) of the Act to the proposed decision. In a letter of 22 June 2000, the respondent indicated that he did not propose to reverse his proposed decision. Five years later, jurisdiction to deal with Fisheries' objections having been conferred on this tribunal in place of the former Fisheries Objection Tribunal on 1 January 2005, the objection has finally come on for hearing.
The merits of the application have ceased to be the subject of any debate. The respondent contends that there is now no point in the proceedings. That is because no application for renewal of the licence was made in 2000, and thus the licence expired independently of the notice of 8 May 2000 or any other action by the Executive Director. Thus, he argues, setting aside or varying the notice of 8 May 2000 would have no practical effect because there is no licence existing which could be cancelled or not renewed, and this tribunal has no power to grant such a licence. It is those issues upon which the tribunal is now called to decide.
As the following pages reveal, this matter has an unhappy history, and the applicant is entitled to feel a sense of grievance as to the manner in which it has been treated. Regrettably, the operation of the Act and the Management Plan is such that this tribunal has no alternative but to accept the respondent's contention that these proceedings are incapable of restoring the applicant's expired licence.

The chronology of events

In August 1999, the applicant purchased the relevant licence from a former licensee. On 22 September 1999, the applicant applied to the respondent to transfer the licence to its vessel, the Dulzurah. An exchange of correspondence between a departmental officer, the applicant, and the Department of Transport then followed through to October 1999. The subject matter of the correspondence was whether the boat should hold a survey for use greater than 20 nautical miles offshore. It culminated with a decision to permit the boat to operate with a 5 nautical mile survey, and the licence was accordingly transferred. The effect of that delay was that the applicant was unable to undertake fishing throughout October 1999.
In accordance with the licence, the applicant fished in the fishery under the licence during November and December 1999. According to the applicant's statement of relevant facts, on 5 December 1999, the necessary returns of fishing activity were completed and given to the applicant's processor and buyer to be posted to the department. That course of action was followed because there were no postal facilities in Mundrabilla, where the applicant was apparently situated. It appears there was some delay in the postage, and the return was not received until 31 January 2000 whereupon the catch history for November was accepted and included in the department's statistical catch history.
In the meantime, the Government Gazette of 24 December 1999 published an amendment to the Management Plan which inserted a new clause 6(A). That clause read –
"Grounds for cancelling, suspending and refusing to renew a licence 6A. The Executive Director may suspend cancel or not renew a licence on the ground that those returns regarding the activity of fishing in the Fishery under the authority of the licence which have been received by the Fisheries Department during the period commencing on 16 December 1996 and ending on 15 December 1999 specify that no fish have been taken in the Fishery during the periods to which the returns relate."
It was not made clear in the facts as put forward by either party whether the previous owner of the licence had utilised it for fishing in that three-year period. My assumption is that the licence had not been utilised, so that the only gillnet or longline fishing to have taken place in the period 16 December 1996 to 15 December 1999 was the fishing undertaken by the applicant in November and December 1999, at least some of which was the subject of the return received by the respondent on 31 January 2000. It follows that the discretion under clause 6A of the Management Plan arose in relation to the applicant's licence because the returns actually received by the Fisheries Department prior to 15 December 1999 specified that no fish had been taken. Accordingly, the Executive Director wrote to the applicant on 8 May 2000. The letter refers to the amendment which introduced clause 6A. The letter stated:
"Analysis of the statutory returns submitted for the period 15 December 1996 to 16 December 1999 show (sic) that you have not reported a catch of fish under your authorisation for the Joint Authority Southern (Demersal) Gillnet and (Demersal) Longline Managed Fishery. I therefore propose to cancel or not renew your authority to fish in the Joint Authority Southern (Demersal) Gillnet and (Demersal) Longline Managed Fishery.
Under s 149(1) of the Fish Resources Management Act 1994 you have 21 days within which to object to my proposed decision. Should you wish to object, this objection must be lodged on the approved form (enclosed) and be accompanied by $300 fee".
By notice of objection dated 29 May 2000, the applicant objected to the proposed cancellation or non-renewal of the licence on the grounds that:
"(i) Returns submitted do show a reported catch for the period required i.e. November 1999 – December 1999.
(ii) Purchased Licence in 1999 and used access to the Fishery as soon as transfer of authorisation was approved."
The objection was received by the Department on 1 June 2000. Two days after the objection was dated, and the day before it was received, the licence expired by reason of the provisions of the Management Plan. The applicant made no application for renewal. It was common ground between the parties at the hearing that the normal procedure of the Department is to forward renewal applications to licensees prior to expiration of the licence. That sensible course has the obvious benefit of bringing an imminent expiry of a licence to the attention of the licensee and facilitating application for renewal. In this case, for reasons not explained, no renewal form was sent to the licensee. The likelihood is, of course, that renewal forms were not sent because the Executive Director had resolved not to grant a renewal if applied for. That position was reaffirmed in a letter from the respondent to the applicant dated 22 June 2000 which pointed out that clause 6A of the Management Plan states that only returns received during the period 16 July 1996 and 15 December 1999 are relevant to the Executive Director's consideration. Having pointed that out, the Executive Director said, "this being the case I do not intend to reverse my proposed decision of 8 May 2000." He then went on to point out that the respondent was entitled to have his objection to the proposed decision heard and determined by a Fisheries Objection Tribunal that "has the power to uphold my proposed decision or to overturn my proposed decision and substitute it for its own decision". The letter made no mention of the fact that the license had expired some 3 weeks earlier, and no mention of the need, if the licence were to be retained, for such an application for renewal to be made.
Section 150 of the Act provides for the continuation of an authorisation pending a decision on renewal. Section 150 reads:
"If –
a)a person has applied for the renewal of any authorisation;
b)the Executive Director has decided not to renew the authorisation; and
c)the person has applied under s 149 for a review of the decision.
The authorisation is taken to continue in force until the application is determined."
Section 139 of the Act deals with renewals after expiry. It provides that "if a person applies to the Executive Director for the renewal of an authorisation within 60 days after the day on which it has expired, the authorisation may be renewed despite the fact that it has expired."
The effect of s 150 and s 139 is that, had the applicant applied to renew his authorisation at any time up until 60 days after 31 May 2000, notwithstanding the advice that the Director proposed to refuse the renewal, his license would have been taken to continue in force until his objection was determined. Quite understandably however, not having received any renewal forms, and having been twice told that its licence was to be cancelled or not renewed, Dulzurah Pty Ltd did not make an application for renewal. Accordingly, its licence lapsed on 31 May 2000.
The respondent's letter of 22 June 2000 advised that in the normal course, the applicant's objection would be referred to the minister within the next two weeks for the establishment of a tribunal to determine the objection. On 4 December 2000, the applicant's accountant wrote to the Executive Director pointing out that, notwithstanding the advice in the letter of 22 June 2000, the applicant had still not been notified as to whether a tribunal had been established. The Executive Director replied on 7 December 2000 advising, "this matter has not proceeded in the normal course for technical reasons relating to the concession's unique nature and the consequences of amendments to the Fisheries Management Plans. The process appears to be further complicated by the expiry of the fishing concession. Notwithstanding the proposal to not renew, an application should have been made to renew the license before expiry – if only to keep the issue alive until final determination – in the event – by a tribunal." By this time it was too late to make an application for renewal. The letter suggested that the applicant may wish to apply for an exemption which would permit fishing in the Fishery until the matter before the Tribunal had been determined.
In accordance with the suggestion made by the Executive Director, the applicant applied for an exemption to enable it to fish in the Fishery. The following day, over five months after the objection was lodged, the respondent referred the objection to the minister. The minister promptly constituted a tribunal under s 152 of the Act on 21 December 2000, but on 19 January 2001, the sole member of the Tribunal advised that he could not accept the appointment. Mr Jess, a director of the applicant, was advised of that by letter from the respondent's legal advisor dated 7 February 2001. According to Mr Jess's statement of relevant facts, he made a number of contacts with the officers of the Department of Fisheries between March 2001 and February 2002. He was apparently told that the matter was "progressing" throughout that period. Nothing in the materials supplied pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA) suggests that anything was happening in that period.
On 20 March 2002, the Legal Officer of the department wrote to Peter Jess and Associates, accountants acting on behalf of the applicant. The letter expressed regret for the delays that had occurred in dealing with the company's application. It advised that the company's request for an exemption was being progressed urgently and papers were being prepared for submission to the minister in relation to the exemption. The letter repeated the contention that, the licence having not been renewed, it was unlikely that the continuation of the objection would provide a successful outcome for the applicant. The letter expressed the opinion that, contrary to advice contained in a previous letter from the Executive Director dated 7 December 2000, the department's present view was that the current plan did not provide for any new entrant and therefore the Executive Director has no power to grant a new license. The letter recommended that the applicant seek legal advice.
The applicant's accountants responded to the letter of 20 March 2002 on 3 April 2002, expressing the wish that the objection continue, and that the question of an exemption and amendment to permit a new licence to be granted be referred to the minister. The letter complained that the expiration of the licence was "due directly to the Department's inefficiency."
On 22 April 2002, the legal advisor to the Department responded denying any "legal responsibility to notify licensees about licence renewal" and refuting the suggestion that the expiration of the license was due to inefficiency on the part of the Department. On 24 April 2002, the Minister granted an exemption to enable fishing in the fishery until such time as the Management Plan was amended in a way which would allow the applicant to apply for entry to the fishery. At about the same time, a new tribunal was constituted under s 152 of the Act. In June 2002 the respondent made submissions that the new tribunal had no power to make any orders, basically for the same reasons now urged on this tribunal. The Fisheries Objection Tribunal did not make any ruling in relation to that submission, but adjourned its proceedings to enable the proposed amendment to the Management Plan to be effected.
The exemption granted to the applicant was valid until 31 May 2005, the day before this matter was heard. No application for a further exemption was made by the applicant. I was told at the hearing that the applicant had not utilised the exemption because it attached to a boat which was not suitable or available for shark fishing, and was non-transferrable.
It is clear that the delay in dealing with this matter from mid-2002 has been brought about because of the expectation that an amendment to the Management Plan would take place which would facilitate an application by the applicant to again obtain access to the fishery. The applicant was apparently content not to pursue the objection in the light of that expectation. The papers reveal that correspondence during 2003 confirmed that an amendment to the Management Plan was progressing. An internal email in June 2003 from the Commercial Fisheries Management Officer of the Department to the Department's Legal Officer stated that "Martyn is in the final steps of drafting the entry criteria for Dulzurah Pty Ltd. Once this happens I will get an application for entry form done up and it shouldn't be too long from there…I expect the amendment will be Gazetted in four to six weeks all going well." For unexplained reasons, the matter did not progress, and I was informed at the hearing that the current state of the amendment was effectively unchanged from the position in mid-2003. The respondent was unable to indicate when an amendment might occur, and pointed out that in any event any proposed amendment could be disallowed by Parliament.
The person appointed as the Fisheries Objection Tribunal to deal with the matter brought it on for a telephone conference on 9 December 2004. The tribunal member was told by the respondent's representative that the amendment "may be happening sometime in March or April 2005".
A number of propositions can be extracted from the foregoing chronology.
The first and most obvious is that there has been inordinate delay in finalising this objection. I accept that, at least since mid 2002, the applicant has effectively consented to the delay. It is done so, however, on the expectation, which was reasonable given the many assurances given since that time, that an amendment to the Management Plan was in the course of preparation and would be likely to facilitate its re-entry to the fishery. There is no explanation proffered as to why that amendment has not been achieved in three years.
The second observation that can be made is that the grant of an exemption, albeit for a boat which the applicant has not been able to utilise for shark fishing within the fishery, together with the proposal to amend the Management Plan to enable the applicant to regain a permit, suggest that there is no policy or management reason for the exclusion of the applicant from the fishery. The exercise of the discretion by the Executive Director to propose cancellation or non-renewal of the license appears to be based purely on the fact that no returns in the relevant period recorded any fishing pursuant to the license. The decision does not appear to be based upon any scientific or other assessment as to whether the maintenance of the license was a good or a bad thing for the fishery. At the time he made his decision, the Executive Director knew that fish had been taken in the fishery prior to 15 December 1999. All that had happened is that, apparently for reasons largely outside the control of the applicant, the return for the November 1999 catch had not been received by 15 December 1999. The exercise of the discretion appears to be based entirely on matters of form rather than substance. The absence of any return lodged prior to 15 December 1999 showing fishing pursuant to the licence has been treated as though it required a decision to cancel or not to renew the licence, rather than giving rise to a discretion to consider whether or not that course was appropriate.
It is difficult to understand why, if the appropriate discretionary decision was to cancel or not renew the licence, the Executive Director would then grant an exemption and support an amendment to the Management Plan to enable the licence to be regained.
The third proposition that emerges is that the applicant's failure to apply for renewal of the license in May 2000 is undoubtedly a result of the correspondence from the Department in May and June 2000 which gives a clear impression that an application for renewal would be futile. Of course, had the applicant known of the provisions of s 150 of the Act, it would doubtless have made the necessary application. That section was not drawn to its attention, and by the time the significance of its failure to apply for renewal was drawn to the applicant's attention by the Department, it was too late to remedy the problem. The Department's correspondence in May and June 2000 gave a clear impression that resolution of the objection could potentially restore the applicant's licence. By June 2000, the respondent must have been aware that no application for renewal had been made, and it is clear that somebody made a decision not to follow the normal course of forwarding a renewal application form to the applicant.

On the materials before me, there would appear to be the merit in the applicant's objection. The question for determination is, however, whether there is any point in granting the objection, given that there is now no licence upon which any order of this Tribunal could operate.

The consequence of the expiry of the licence

Section 147 of the Act requires that, before giving effect to a decision to cancel or refuse to renew an authorisation, the Executive Director must give each affected person notice in writing of the decision, and allow sufficient time for that person to make an application for review of the decision and for that application to be determined. Section 149 enables an affected person to apply to the State Administrative Tribunal for a review of a decision referred to in s 147.
By virtue of s 29 of the State Administrative Tribunal Act 2004, in the exercise of its review jurisdiction, the Tribunal may affirm, vary or set aside the decision that is being reviewed and either substitute its own decision or send the matter back to the decision maker for reconsideration, and may make any other orders the tribunal considers appropriate. Section 29 also confers on the Tribunal when dealing with the matter in the exercise of its review jurisdiction, the functions and discretions corresponding to those exercisable by the decision maker in making the reviewable decision. Neither s 29, nor any other provision of the State Administrative Tribunal Act, places the tribunal in the shoes of the decision maker for any purpose other than dealing with the decision under review. The decision under review was not to renew, or to cancel, the applicant's license under the Management Plan. That licence expired on 31 May 2000. The applicant did nothing to renew it. It was clearly open to him to renew it, notwithstanding the Executive Director's intention not to grant that renewal, because s 150 of the Act would have had the effect of continuing the license in force until the application was determined. It is regrettable that renewal forms were not sent out as they normally would have been and that s 150 was not drawn to the applicant's attention by the Department. The licence ceased to exist not because of the Executive Director's decision, but because of the effluxion of time. This tribunal has no jurisdiction to grant a new licence. As a result, any order that this tribunal might make setting aside the Executive Director's decision to cancel or not renew the license would have no practical effect.
As a consequence, I am of the view that this appeal is lacking substance in the sense of that expression as found in s 47(1) of the State Administrative Tribunal Act 2004. Accordingly, I have reached the view that the application should be dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004.
The applicant has been led to believe that amendments will be made to the Management Plan which will enable his re-entry into the fishery. He did not press his objection in reliance on that assurance. Notwithstanding that assurance, some years have passed with no action being taken. There does not seem to be any reason associated with the good management of the fishery for the applicant's exclusion from it. It is to be hoped the appropriate steps to obtain the necessary amendment can be taken without further undue delay.

I certify that this and the preceding eleven pages comprise the reasons for decision of the Tribunal.

_____________________________
DEPUTY PRESIDENT CHANEY