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Edwards v Olsen

Edwards v Olsen

Case [1996] SASC 5703 25 September 1996

Administrative Policy

Jurisdiction

Regulatory Validity

Regulatory Compliance

Proportionality

Constitutional Validity

Statutory Construction

Administrative Law

Statutory Interpretation

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COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON(1), PERRY(2) AND DUGGAN(3) JJ: CASE STATED

CWDS
Statutes - acts of parliament - interpretation - Case stated to Full Court - action in which damages are claimed for alleged misfeasance, negligence and negligent misrepresentation - whether "owner-operator" policy adopted by Department was a valid administrative policy within the meaning of Fisheries Act 1971 (FA) or pursuant to a prerogative power - various internal documents existed outlining this intention - on 3 March 1975 the Minister rescinded all policies approved pursuant to s.34(2)(6)FA 1971 - no evidence that the policy ever approved or promulgated after that date - Director arrogated to himself the prerogative of establishing a practice in the absence of any statutory warrant - where legislation exists dealing with same subject matter as a prerogative, the legislation excludes the prerogative - no "owner-operator" policy existed in relation to abalone permits - no general regulation power to permit abrogation of statutory rights - Preservation of Abalone Resource Regulations (PARR) 1968 and 1971 invalid - no valid administrative policy in existence. Whether policy controlling number of fishing units was a valid policy pursuant to s.34(2)FA or a prerogative power - no valid policy ever promulgated under statute and there was no scope for a relevant prerogative power to operate. Whether it was valid to direct the plaintiffs not to employ a person to take abalone for sale - none of the regulations modified the effect of s.32 FA 1971 - therefore such a direction was invalid. Whether licences, registrations, authorities or permits were transferable - at all material times such interests were not transferable despite the previous practice of transfering upon obtaining approval from the Director - whether these interests were capable of being held in trust - beneficial interest in licences, registrations authorities and permits is capable of being owned by parties other than the actual legal holder of such interests - no statutory provision or regulation exists to the contrary - whether a corporation or partnership is capable of holding such interests - the regulations and statutory provisions provide that authorities and permits must be held by natural persons, however licences and registrations are capable of being held by a corporation pursuant to FA 1917 and 1971. Whether it was lawful to cancel or refuse to renew a licence, permit or certificate issued under the FA on the ground that a similar licence was held in WA - no specific statutory provision or regulation existed - prior to 1971 renewal was based upon discretion, however discretion only applied to considerations relevant to statute and regulations - post 1971, Director had a duty to renew if an application complied with Reg 11 - Reg 11 did not give rise to consideration of whether other interstate licences or permits were held - it was not lawful to cancel or refuse to renew on such a ground. Whether regulations 5, 17 and 21A of the MFR 1971 were valid…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Edwards v Olsen

Details

AGLC: Edwards v Olsen [1996] SASC 5703
Case: [1996] SASC 5703
Decision Date: 25 September 1996

CaseChat Overview and Summary

This is a case stated to the Full Court pursuant to SCR 72, arising in the context of an action prosecuted by the plaintiffs against the defendants in which damages are claimed for alleged misfeasance in public office, negligence and negligent misrepresentation. The Full Court was asked to answer questions of law relating to the validity of certain administrative policies and regulations concerning the regulation of fishing activities in South Australian waters. The plaintiffs, Edwards and Deep Sea Ark, claimed that the defendants' actions and policies were unlawful or wrongful, and/or that they negligently misrepresented the true legal position to the plaintiffs. The Court was required to determine the validity of various administrative policies and regulations, as well as the legality of certain actions taken by the defendants. The Court concluded that several of the policies and regulations were invalid, and that certain actions taken by the defendants were unlawful. For instance, the Court found that the "owner-operator" policy was not a valid administrative policy or a lawful policy pursuant to prerogative powers. The Court also held that the policy controlling the number of fishing units was not a valid policy. Furthermore, the Court determined that it was not lawful to direct the plaintiffs not to employ a person to take abalone for sale, or to refuse to register more than one boat for each plaintiff to take fish for sale. The Court further held that it was not lawful to cancel or refuse to renew a licence, permit or certificate on the ground that a similar licence was held in another state. The Court also found that certain regulations were invalid, such as Regulation 17 and Regulation 21A of the Managed Fisheries Regulations 1971. Additionally, the Court held that it was not lawful to consider the amount of proposed consideration when considering applications to transfer, or to refuse to issue boat authorisation certificates to a corporation. However, the Court found that it was lawful to refuse to register a corporation as the owner of a boat to be used for taking abalone. The Court returned the case to the trial court with the answers to the questions of law posed.

Orders