Edenmead Pty Ltd v The Commonwealth

TAKEN DIRECTLY FROM TRANSCRIPT.

NO FURTHER CIRCULATION NECESSARY.

(JUDGMENT CIRCULATED TO PARTIES

AND FRANK1 J. ONLY) /

DATE OF HEAFING :

2 2 - 2 3

NOVEMBER

1984

DATE JUKMENT	DELiVERE3:	7-3 MO'IEMEER i594
COUNSEL :

.	f o r t h e appl~csnts

. fqt- tke respondents

2 3 NOVEYBEF l984

I N THE

F DERAL

COITPT OF AUSTRALIA

9IUEENSLXiD DISTRICT REGISTRY	)	OLD G134 of 1984
GENERAL I?IVISION	)

BETWEEM :

Applicants

AXiJ :

Fe5p:naents

JT!DGE MAKING ORDER:

SPEMLEF' J .

OF ORDER:

73 NOVEMaW 1984

WHERE	MADE:	BRLZEANE
COURT OPDERS THAT:

Ari~ourn

t r i a l of

relief solAqht I n claim-

and 2

of App i l ca t lon

fo r

hen r lnq

t o

2 .15~11 on 3 Deceltber 1984.

2 .

Gran t

In t e r locu to ry

i n lunc t ion

I n

term5

scaurjht

lunt l l

deterrninat lcn

of trlal

i n

thlz VIitter o r

f l l r t he r

earllet- order.

P.r 'fldavlts

~r.d

o the r

ma te r l a1 tcn

whlch

t o re17 be

€ ~ 1 d

a.:<

3 p ~ l l c s r . c ~

prcpose

served on or befor- 18 November 19e.l.

4 .

A f f l d a v l t s

and

o the r

ma te r l a1

whlch

respondents propose t o r e l y be flled and served on or before 1 2 noon on 3 December

1984.

5 . Costs reserved .

IN T H E FEDERAL COURT OF AUSTRALIA

)

QrJEENSLAND

D I S T R I C T

R E G I S T R Y

)

?LE G134 of 1984

G E N E R A L

D I V I S I O N

hespcndents

23 NQVEMEER l .

This 1s

an apgllcatlon for an lnterlocucory

~n~unctlor

seeklnq, untll the determination

of thls applicatlon, to restraln

the defendants

and each of them frch seizin3, remnvln? qr sellin7

sng scallops taken k y the applicants or any of thorn In an 3rea which. essentlally, 1 s cff the Capricorn ccast of Queensland; and flJrther restralnln.3 the defendants and rach clf chem frcm brlnglnq '3r r e q u l r l y t h e master cf the appllcants' vessels or elthor o f them to brlng s x n vess5ls or either nf them to a place In Austr3lla I f found In srlch ares wlth scallcps nn bcard gr causln7

the Same

t o be done.

The application seeks to revlew, pursuant

the

pr~~isions of the Admlnlstrstivc Decisions !Judicial Pcview) Act 1977, what 1 s sald to be the declsion Qf each of the respondents

to zeize, remove and se11 any scallops taken by the app1lcanr.s

'3r

any of	them ln an area of proclaimed waters under the Flsherles
Act

1 4 5 2 ("the Act"),

described In Ga-_er,te No. S 772 (dated 4

MC)vl?mber 1553,

and

to brlng

Y O ~ I I ~ T P the

mdsters

of f n e

appllrants' vesse l?

nr elther ?f

them ? c brlng

sech vessels ':r

Slthi)r ,2f them to d pl3.r? l n Al.~str?l,-a If

f n l l r d I n s1.18:h

area wlth

+call,2?s on board cIr to caus? the same to be d9r.e.

Tne orounds of the appllcatlon are: the declslons are

not authcr1.d

by the enactment I n pursuance ,>f which they ?re

FLlrported tc

be made, namely the Flsherles

Act:

and, secondly,

the declslnns lnvclved an err@r of law, namely, that the t a k l n g of such scsllops I n such area was prohiblted by a notlce for the tlme belpq In icrce under 5.8 and, accoralngly, contraver.ed

~ ~ b - ~ . ? 3 ! 1 ! ! 1 )

of the Act.

The applicant, Edecmpad Fcy Ltd 1 s the owner of

26.82

!?etre steel prawn trawler named "Barameda". That vessel h35 a flshinq boat llcence, so the affidr*vlt mater131 shows, lssued In plrstlance of sub-3. 9 ( 2 ) of the A c t suth,>rislng the use g€ the

boat In proclaimed waters

under the Act, and the llcence extends

to authorise the u s e of the	boat in the	area of	waters of the
Northerr. Prawn Flshery.

3 .

The vessel has been used for prawning in the Gulf of

Carpentarm and

for scallop fishing off the Capricorn coast of

Queensland.

The sklpper of

that vessel

1 s the male personal

applicant, Mark Alan Anderson, and

he, In partnershlp with

his

wife, the other personal

applicant, own a prawn trawler named the

"Paclfic Venture",

which apparently has simllar llcences to the

vessel "Barameda"

Because of the

closure to fishing of the Northern Prawn

Fishery at

least to the mlddle of February 1985 s o

as to allow

stocks of prawns to build LIP,

the two vessels were brought

to the

Capricorn coast to fish for scallops.

The appllcants assert that

the Minlster f n r Prlmary

Industrles has not validly prohlbited the takln?

of scallops off

the Capricorn coast

of Queensland.

On Sunday,

11 November 1984, the two vessels commenced

fishing

for

scallops

off

Yeppoon.

Monday afternoon, 12

November this year, a Queensland water police vessel came

to the

vessel,

the

"Barameda", and the respondent, Mr Broadsmith, accompanled by other offlcers of the Fisnerles Department and two

police offlcers came on board that vessel.

On that afternoon Mr

Broadsmith first slTned

declaratlon which

1 s

befcre me

9 s

Exhiblt C to the affidavlt

of Mr

Shapowloff whlch was headed

"Declaration by officer exercising powers under section

lO(l)(c)

of Fisherles Act 1952" and reclted that

Mr Broadsmlth was an

officer withln the meaning of 5.4 of the Act, being an offlcer/employee of the State of Queensland who wa3 authorised in

4 .

writing by the Secretary to the Commonwealth Department of Primary Irldustry to perform dutles under the ?.c: l n pursuance of sn arrangement between the CJmmonwealt3 m d the State of Queensland. The Declatatlon contlnGed that M r 6roarfsm;tn >-ad reason to belleve the 5CallSFS boarc the vessel "Yaramerla" had been taken In contravention of the Act, m d sccordlnqly, In performance of his dut-es as an afflrer >mder +?-at Act he detained the scallops nn boar6 xhat vessel uncll further Rgtlce.

He 3159 issrued a secmd declar3tic-n Indicltin? that he detained tne vessel, the "aarameda", and ordered the lmmedlate re turn of that vessel to Rosslyn Bay on the basis that he had resson to belleve that some trawl nets nn bcard the v ~ s s o l had. Seen uses In contraventlon of the Act.

Cln che 5ame day

he dlrected Mark Ander3on. the Taster c-f

the vessel "Barameda",

which

vessel h? had resson tg belleve had

been ~ l s e d In contrsveqtlon gf the Act, tq remaln In contrnl gf the vessel at the port of 'Jeppoon untll ar? officer "permlts the master to depart".

Finally. on 14 November 1984. Mr Broadsmith Issued a declaration under which he seized the srallops m boarcl the vessel "Barameda".

Broadsmlth, 3 s Exhlblt

2 tendered

before

Indicates, is a person permanently employed

I n che Psblic Servlce

of Queensland and was authorlsed by the Secretary -of the Deparrment of Primary Industry by authorisation dated 13 April 1981 in pursuance of an arrsngement between Australia and %he

State of 12ueensland

to perform duties under, amonq-st qther acts,

the Act.

He therefore comes

mthln one cJf the cateyorles of

"offlcer" in the definitlon sectlon,

9.4, ~f the Act.

Fnr reazcn? I csnvassed m more detall with counsel this

xorn-ny, it seems CC be 1napFroFrlate to determlne the merits 2f

chat matter once I s m satlsfled that there 1 s a serious q~estlon

to ~e

trled snd that the proper approach for me

to adopt 1s as

ind;csted by the

Full Court of the Federal Court m Ypltons P t v

Ltd v. Australaslsn Meat Industry Zmployces'

Unlsn

(Eo.

2).

( i 9 8 4 i

54 A.L.R. 730 at p.734.

There the Full Court conslstlnq of

Sheppard,

Morllng and

Beaumont JJ., in

thelr

Jolrt ~udgment

said:

"In sn

appilcatlon

for

an interlocutory

In]unctlon, the court

must

lnyuire

first

whether there

1 s

a serious

questlon to be

krle6 ( s e e

F.~.~stral~an

Coarse Grain Pool

F t y

v . Barley Marketlrq Board

of Queensland

( 1 9 8 2 )

46 ALR

398; 57

ALJk

425; Tableland

Fesn1ut-j P t y L t a

v. Peancrt:

Marketlnq

Board

(19941 5 2

ALP 651;

5 8 A X R

2 8 3 , per Brennan

.J. at 3 8 4 ) . In the Barley case, Gibbs ,:,I. sald ( 5 7 ALJR 31: 435, that he lncllned to the

vlew taken by the HCJUSP of Lords I n Amerlcaz

a a n s r r l d v .

Ethicon Ltd

( 1 9 7 5 ) AC

396

rather

than to some of those expressed oblter In B3echam Group Ltd v . Brlstoi Laboratorles P+y L A (1968) 118 CLR 6.18; ( 1 9 b 8 i ALR 46.9. It

would seem that the

Chef Justice had In mlnd

the followin9 statement

of princlple In the

oplnlon of Lord

Dlpluch, concurred I n by the

other

members

the

House,

Amerlran

Cyanamid

(at ~ 4 0 7 )

'The

use of such

And further at p.735, llne 45, thrlt i fmour i s3l.l:-

"Acceptlng, a4 we do, the .derlslon and the r easmlnq in 133oper 8rc~iCe3, we are not persuaded that the construction contended f o r

the

appellant

1 s

caprlclou3

anc!

Irration31, quite apart frf?m the Impact

~.45D(6).

At: sll events, it 1 s bcth

unnecessary and inapproprlate that we express any cnncluded view on this question m an lntericcutory appesl. ilnce lt is cmceded

1 .

that It was, at the very least, arguable that

literal

constructlon

should

prevall

inevltably fOllOW5 that there

a serlolls

questlon to be

trled

thls

Issue.

-0

borrow

the

language

Lord. Ijlplnck I?

Dlmblebv,

supra,

lt 1s 'no part

the

court's functlon nn ar! appllcatlm f33r an lnterlocutory inluncrlon CO decide mdlf'flcult

q~uestlons of law whl,:h call fcr

detailed

arcrlJment and	mature	conslderatlon'	(at
p436 3 . "

Notwlthstandln,: t:?r v l ? w whlc:? I Indicated to the partles, that I have formed on a tentative basls. as to whether there existed a valld proh1blt:on concerning scallops, it seems to me that that

1 s pot the

qllestlon whlcn ouqht to determlne

whether a?.

lnterlccurory mjunctlon shmld lssue.

I accept that whether there 1 s a 5er101-1~ quezt:,?n tc be

trled may be 3 questlon which involves estenslve arqume?t and,

while It is In a completely different context, It 15 appropriate

eo refer

t~ the observatlons of

S l r

Garfleld E a r w ~ r k m

1 3 e n ~ r a l

Steel

Industrles Inc. v.

Commissloner

for

Rallwavs

{N.S.W.)

(1964 ,

112

C.L.F. .

125

p . 1 3 0

where,

respect

qf the

appllcatlon m t h whlch he was then dealinq, wmch was an applicstion to termlnate an action summarily for want of 3 cauce

of actlon In the pleadinqs. he

said:-

" .

. .

oplqlcn great care must

exercised to e n s ' x e that under the quise of achieving eXFedltlcllj ilnallty a plalntlff 1 s

not lmFr5perly deFrlVed

9f hlS OppcrtUnlt~

f o r the trlal

hls :age by the

appointed

trlbunal. On the other

hand, i do not thlnk

that the exercise

of the ~urlsdlctron should

be reserved for those cases where argument

1 5

unnecessary

evoke

the

futlllty

the

plalntlff's clarm. Argument, perhaps even

an extensive kind.

may

be necessary

demonstrate that the case of the plalntlff

1 s

m clearly untevable that it cannot posslbly

succeed.

Now, I am not

';c he caken as having the v1ew that merely

becau~stt aryumert. e-J?n t2f an extenqlve kln4, is necessary that concludes the proper pas15 on which tke question of wnetker 3

serlous questlon to ne trled P X I S ~ S .

If, after argument, a ~ 1 . d j e

on an appllcatlon for

3 r ~

Interincutory m!unctlon

1 s of

the vlew

that the questlon nf

law ~ r v o l v e d

1 s so clearly untenable that

rann~t ~ o s 5 1 b l y succeed, then, sf colurse, no serious quesclon remalns tc be trled. If, after extensive argument, he 1 s of the vlew, as i sm here, that there IS a serlcus qurstlon CO be trled,

and even If

havlng heard chat srgument he himself has a vlew as

to now he

wcllLd r e s o l v e that qlxstlon, nonetheless ?he threshoid

ql~rst~on

Cot cictermlnatlc? crf whether ar! mterlocutory ~n~unctlon

should Issue, hss been made :ut.

in those clrcumstances I am satlsfled that here there

j q

J. sclr1c~1s questlon to be trled.

In the clrcumstances, however,

It is a pure question of

law, and one whlch can be resolved at a

trlal qulckly

and, rn

?he light of

the arqument that has been

addressed to 'Fe, can	be determined by me more expedltlously thdn
perhaps any other.

:rl !ha?? Bclrmvnst~nce~.

one cas to t3At-n to the questlon

cf wncre the balmre of ccnvenlcnce l ~ e s . IJne aspect cf that

declslor. whlcn 1 s relevant, is the length of time befnre which a

flnal determinatlon of the legal question can

be made.

I have

lndlcated that I propose to hear the trial

of thls applrcation in

In tha-. reqard we are

looking at t h e perlod of some t e n

,days.

Tn-3 appllcank;

are f lshermen. an5 In

paragraph

2 3 of

t h e

a f f r d a v l t

Y r

Shapcwicff

i t

1 s a s s e r t e d

t h a t

u n l e s s

t h e y

a r e

able

5 2

f1n.i

alternative

f i sh ing

grounds

t o

t h e

Gu1€

Carpenr3rla .

loan repayments

due

bcth h a t s w i l l be

u n a b l e

t o

m a e .

md f u r t h e r ,

t h a t

I m l e s s

t h e

buats

are

ah le t o f l s h f o r

Sc3llcps	t h e r e	wlll	be	d l f f l c u l t l e s	e n c o u n t e r e d	m	ret.3lrlir,?
crew.

On tne other

hand,

a number

ma t t e r s

a r e

u rged

c n

the

respondents '

behalf

and,

without

bemy

exhaus t lve ,

the

t w o

matters wnlch seem t o me

t s

be most

r e l e v a n t ,

a r e

t h e s e :

f l r s t ,

There 15

some d l f f l r u i t y ln

re l? t loP t.3 the yecold

those

conslderatlons

ss there IS tlc lAn,2ertakl!?T h7 tnne

Commonwealth to

pay

dsmaqes should it c,ome about. that

the

c r l r n l ~ a l law not be

is contended for by the Commonwealth

h e r e ,

m d . in

any event, the dlfficl-llties that

will be experienced by

the appllcants should the prohibltlon not

be a v a l l d m e , 1s ? n ~

whlch

1 s

ngt

readily

compensatable

by damages only. That

*certainly 1 s the case In relaclm to the retentlcn

of crew.

"hen ole has r e ~ ~ r d

t,:

t h e realltles that there are some

-9'1

cesse?^ s t :he

noaent whlch, In fact, . ~ t

son? t1-w

'3r

o t h e r ,

en'ra?e in :he taking

z~clsllops Iswfully, and that

there are

potentlsl?y another 700

such Vlessels whlch aqal? lawflllly cc!.lld,

If they

choose, take scallops off

the Capricorn coast, allowlnq

the applicanes

to take scallops in the

Ferlcd pendlnq the f in31

determination of

the matter dqes

not. seem t o me to be

s u ~ h

should, on a balance of convenzence test, Se prevented.

[1984] FCA 484

23 Nov 1984