Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell

Fauna Holdings Pty Ltd and others (the applicants) sought judicial review of a decision by the respondent, the Director of the National Parks and Wildlife Service, to refuse their application for a licence to conduct commercial whale watching tours in the waters off the coast of Western Australia. The applicants argued that the Director's decision was unreasonable and that they had a legitimate expectation of being granted a licence.

The primary legal issue before the Full Court of the Supreme Court of Western Australia was whether the Director's refusal to grant the licences was vitiated by unreasonableness, and whether the applicants had established a legitimate expectation that a licence would be granted. The applicants also contended that the Director had failed to take into account relevant considerations and had taken into account irrelevant considerations in reaching his decision.

The Court considered the principles of administrative law, including the grounds for judicial review and the concept of legitimate expectation. It was held that the Director's decision was not so unreasonable that no reasonable decision-maker could have arrived at it. The Court found that the Director had properly considered the relevant factors, including the potential impact on whale populations and the need for conservation, and had not taken irrelevant considerations into account. The claim of legitimate expectation was also dismissed, as the applicants had not demonstrated any conduct by the Director that would give rise to such an expectation.

The applications for judicial review were dismissed.