Fearnley and Australian Fisheries Management Authority
[2005] AATA 147
•17 February 2005
CATCHWORDS – PRACTICE AND PROCEDURE – standing – criteria determining a person’s entitlement to make an application to the Tribunal – whether person’s interests affected by the decision – review of quota allocation on fishing permit – whether interest continued to be affected when permit sold – frivolous and vexatious where no practical outcome of the review - dismissed
Fisheries Management Act 1991 ss. 3, 4, 17, 21, 32, 38, 39, 49, 86, 95 and 165
Administrative Appeals Tribunal Act 1975 ss. 3, 25, 27, 31 and 42B
Therapeutic Goods Act 1989
Corporations Law s. 344
Development Allowance Authority Act 1992 ss. 119(1) and 120(1)
Income Tax Assessment Act 1936
Airports Act 1996 s. 3
Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247
Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552
Re Fischer and Australian Fisheries Management Authority (2002) 71 ALD 665
Edwards v Australian Securities Commission and Others (1997) 72 FCR 350
Allan v Transurban City Link Ltd (2001) 208 CLR 167
Brisbane Airport Corporation Ltd v Wright and Others (2004) 77 ALD 411
Re Williams and Australian Electoral Commission and The Greens (party joined) (1995) 38 ALD 366
Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 46 FCR 38; 118 ALR 527
Director General Security v Sultan and Another (1998) 90 FCR 334
DECISION AND REASONS FOR DECISION [2005] AATA 147
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2001/1038
GENERAL ADMINISTRATIVE DIVISION )
Re PAUL FEARNLEY
Applicant
AndAUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 17 February 2005
Place: Melbourne
Decision:The Tribunal dismisses the applicant’s application pursuant to s. 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.
S A FORGIE
Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2001/1038
GENERAL ADMINISTRATIVE DIVISION )
Re:PAUL FEARNLEY
Applicant
And:AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 14 November 2005
CORRIGENDUM TO DECISION [2005] AATA 147
The Tribunal amends its decision and reasons for decision published on 17 February 2005 as follows:
Decision and reasons for decision
Paragraph 30, line 4
delete the section “s. 165(2)”
and replace with “s. 165(12)”
Paragraph 30, line 5
delete the word “by”
and replace with “notice of”
S A FORGIE
Deputy President
REASONS FOR DECISION
The applicant, Mr Paul Fearnley, has long been a fisherman in the Southern Shark Fishery (“SSF”). The respondent, the Australian Fisheries Management Authority (“AFMA”), manages the SSF under the Fisheries Management Act 1991 (“Act”). It does so in part by issuing fishing permits prescribing the maximum amounts, or quota, of School Shark and Gummy Shark that may be caught in the SSF. Mr Fearnley was not satisfied with the quota he was allocated in relation to the 2001 fishing season and sought review of AFMA’s decision. After he had lodge an application in the Tribunal for review of its reviewable decision and in the final weeks of the 2001 fishing season, Mr Fearnley sold the quota. To effect the sale, he had to transfer to the purchasers his fishing permits to which the quota was attached. AFMA has argued that he is not entitled to seek review, or continue to seek review, of its reviewable decision now that he has sold his fishing permits. I agree. In view of that decision, there is no need to consider the further issue that the Tribunal should review the determination of the Total Allowable Catch in relation to the SSF.
THE ISSUES
The main issue in this case comprises the following subsidiary issues:
What are the criteria determining a person’s entitlement to make an application to the Tribunal?
I have decided that the criterion is whether the person’s interests are affected by the decision.
When is that question decided under the Act?
I have decided that the question is determined at the time the application is lodged.
What is the position if a person, who had interests affected by the decision at the time of lodgement in the Tribunal, subsequently loses those interests?
I have decided that the application may be dismissed pursuant to s. 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”).
BACKGROUND
The SSF is managed by AFMA through the grant of fishing permits granted under s. 32 of the Act and through conditions attached to those fishing permits. In 1993, he applied for a permit but AFMA did not issue it until 1997. By that time, AFMA had implemented quota management of the SSF. As part of its implementation, it had invited fishermen to have their catch history verified for the best three years of the period 1994 to 1997. As Mr Fearnley could not have a catch history in those years without a permit, AFMA verified a catch history for him for the years 1992, 1999 and 2000. On 18 December 2000, it allocated him a quota for the 2001 fishing season of 119kg of School Shark (trunked weight) and 15,667kg of Gummy Shark (trunked weight). AFMA understood this to be an increase of 15,786kg over his previous allocation. It subsequently affirmed that decision on 15 May 2001.
The fishing permit granted to Mr Fearnley on 18 December 2000 for the period 1 January to 31 December 2001 (“2001 fishing season”) reflected the quota that he was issued. It permitted commercial fishing in the SSF with 1,000 hooks and demersal long-line using the boat, Jean Bryant. It was issued subject to the conditions specified in Schedule 4 to the permit. Condition 25 stated that:
“This Fishing Permit is not transferable except by application on the approved forms to AFMA. Subject to AFMA approval, only whole permit and quota packages may be transferred in 2001.” (T documents at 340)
On 13 August 2001, Mr Fearnley applied to the Tribunal for review of the decision to allocate quota. He also sought compensation from AFMA for the period when he did not hold a licence.
At some time before 17 December 2001, Mr Fearnley (described as the “Vendor”) decided to sell his quota to Theodore Van Boom, Miranda Van Boom and Lucas Hill (“Purchasers”) for $229,950.50 plus Goods and Services Tax (“GST”). On 17 December 2001, they signed a “… Contract to evidence the terms and conditions of the sale.” (“contract”). Each party agreed to make due and diligent application to transfer the quota and to sign all forms as and when required. Clause 2.4 of the contract provided that the beneficial ownership of the quota was to transfer from Mr Fearnley to the purchasers when the full amount of the purchase price and GST had been paid to him. The purchase price was to be paid when a valid tax invoice was produced.
Clause 3 of the contract stated:
“3.1 That whilst the said AFMA permits 1606 and 1606C and the Tasmanian Fishing Licences described in Certificate No. TO42742 are required to transfer to the Purchaser in connection with the sale of Quota it is expressly agreed between the parties as follows:-
(a)the Vendor shall have the unlimited use, free of charge or costs, permits and licences to attach and use as the Vendor shall deem fit, save only, for use being consistent with the conditions associated with such Licence and Quota for so long as the Vendor shall desire save only that the Vendor shall pay the annual renewal fees that attach to such licences and permits.
(b)that should the Licences and Permits become transferable separately from the Quota herein sold then the Vendor shall forthwith transfer the said Licence and Permits back to the Vendor’s absolute ownership on notice without payment of any type or kind save that statutory transfer fees, if any, shall be paid by the Vendor;
(c)the Purchaser acknowledges that their proprietorship of the said Permits and Licence are subject at all times to their obligation to the Vendor as hereinbefore defined and should, for any reason, the Purchaser propose a sale or disposal of the Quota that requires a transfer of the Licence and Permits to their new Purchaser, then subject to the Vendors consent, such sale or transfer shall be subject to the obligations herein and the Purchaser shall procure from the new Purchaser, a like covenant in favour of the Vendor before the due transfer of the Licence and the Permits; and
(d)that the entitlement to use the utilised Quota for the current year shall remain with the Vendor for the Vendor to complete the Quota with the benefit of the next year’s Quota being available to the Purchaser.”
Earlier, on 8 December 2001, the Purchasers had applied to AFMA for the transfer of Mr Fearnley’s permits. This was some days before the contract was signed. In about the middle of December 2001, AFMA approved the transfer of the permit from Mr Fearnley to the Purchasers. It had the power to approve the transfer under s. 49 of the Act. Despite that transfer, Mr Fearnley has continued to pay all annual fees for the permits and AFMA levy fees.
Mr Fearnley’s amended application to the Tribunal lodged on 10 February 2004 reads as follows:
“1. The decision-makers’ decision to deny the applicant catch history for the period 1994 to November 1997 be declared null and void.
2.That the decision-maker should have allocated quota to the applicant in the amount of 33 tonnes.
3.That the decision-maker failed to take into consideration the relevant factor namely that the applicant fished in an area where there were no other fishermen or there were only few fishermen.
4.That the consequences of the decision-makers’ wrong decision created economic hardship for the applicant such that he had no option but to transfer his licence and quota.
5.That the said transfer which contained the clause obliging the transferee to transfer back to the applicant his licence/permit once the respondent permitted the splitting of his licence/permit quota – a copy of the fishing quota sale contract is Annexure marked ‘A’ be validated by the respondent.
6.That the respondent acknowledges that the applicant has continued to pay annual fees for the relevant/licence permit and AFMA levy fees.
7.That the respondent grant a licence/permit to the applicant with the appropriate endorsement which entitled the applicant to fish in the SFF fishery.”
MR FEARNLEY’S SUBMISSIONS
In this section of my reasons, I will give only the briefest summary of the submissions made on behalf of each party. On behalf of Mr Fearnley, Dr O’Connor submitted that he was seeking a rectification of a decision that has adversely affected his economic asset i.e. his permit endorsed with quota allocation which is the sine qua non of his right to fish and earn a living. He relied on a number of cases including Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 and Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552 at 558 to support his submission which, in essence, was:
(a)a person’s standing is based either on there being:
(i)interference with a public right leading to contemporaneous interference with a private right; or
(ii)interference with a public right whereby that person suffers some special damage distinguishable from that suffered by the general public or has a special interest in the subject matter of the litigation;
(b)the nature and subject matter of the litigation will dictate what amounts to a special interest;
(c)a statute may establish a regulatory scheme that circumscribes the extent to which a person may seek judicial review; and
(d)Mr Fearnley has an asset that gives him the right to fish and to earn a living and that has been affected by the decision.
Dr O’Connor submitted that the fact that Mr Fearnley subsequently sold his asset does not extinguish his right to make an application for review. The sale was merely his attempt to minimise his losses arising out of AFMA’s action that damaged his asset. The quota allocated to him rendered his fishing venture economically unviable. To say that Mr Fearnley had no standing in that situation was wrong in law and practice. As is clear from the finding in Re Fischer and Australian Fisheries Management Authority (2002) 71 ALD 665, AFMA knowingly acquiesced in the type of contract entered by Mr Fearnley and the three purchasers.
Reference to the outcome of proceedings, Dr O’Connor submitted, is not a general test of standing. AFMA cannot assert that Mr Fearnley does not have standing because he has no interest in the outcome of the present proceedings. It could not do so because Mr Fearnley had never raised that issue in support of his submission that he does have standing.
This case is concerned with privately held assets that have been adversely affected by AFMA’s decision. AFMA’s decision has reduced most, if not all, of Mr Fearnley’s right to fish and to earn a living. The fact that Mr Fearnley sold his “now useless right cannot and does not extinguish his right to bring a claim for redress. In fact, the sale is merely the Applicant’s attempt to minimise his losses arising out of the Respondent’s damaging action” (Submissions at [9]). His paying $200,000 for the quota in December 2001 simply establishes that the private asset in contention is very much a private and valuable asset. Dr O’Connor submitted that it is inappropriate to assert that, simply because Mr Fearnley has transferred quota that has been rendered useless to him by reason of its inadequacy which rendered his fishing venture economically unviable, he has no standing.
LEGISLATIVE BACKGROUND
The object of the Act
In performing its functions, AFMA must pursue:
“… the following objectives …:
(a)implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and
(b)ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment; and
(c)maximising economic efficiency in the exploitation of fisheries resources; and
(d)ensuring accountability to the fishing industry and to the Australian community in AFMA’s management of fisheries resources; and
(e)achieving government targets in relation to the recovery of the costs of AFMA.” (s. 3(1))
Management of fisheries
Under s. 17 of the Act, AFMA must either determine a plan of management for a fishery to which the Act applies or determine that a plan of management is not warranted. A “fishery” is defined to mean:
“… a class of activities by way of fishing, including activities identified by reference to all or any of the following:
(a) a species or type of fish;
(b) a description of fish by reference to sex or any other characteristic;
(c) an area of waters or of seabed;
(d) a method of fishing;
(e) a class of boats;
(f) a class of persons;
(g)a purpose of activities.” (s. 4(1))
A “fish” is defined to include “… all species of bony fish, sharks, rays, crustaceans, molluscs and other marine organisms, but does not include marine mammals or marine reptiles.” (s. 4(1))
Where AFMA determines that a plan of management is warranted, it must determine the plan of management in writing only after following the procedural steps set out in that section. Once a plan of management relates to a fishery, it is known as a “managed fishery” (s. 4(1)).
A plan of management for a fishery may provide for its management by means of statutory fishing rights and other fishing concessions (s. 17(6)(b)). A “fishing right” means a “statutory fishing right” (s. 4(1)) and that in turn means one or other of the nine rights specified in s. 21 (s. 4(1)). Among those rights is a right to take a particular quantity of fish from a managed fishery. A “fishing concession” means a statutory fishing right, a fishing permit or a foreign fishing licence (s. 4(1)). A “fishing permit” is a reference to a permit granted under s. 32 of the Act.
Fishing permits
In general terms sufficient for this case, a person may not engage in commercial fishing in the Australian fishing zone (“AFZ”) unless the holder of a fishing permit or acting on behalf of a holder of fishing permit. Section 32(1) provides that, upon an application’s being made to it in an approved form, AFMA may grant a person a fishing permit. Subject to certain provisos dependant upon whether a boat is specified in the fishing permit or not (ss. 32(1A) and (1B)), that permit authorises the person to whom it is granted (or a person acting on his or her behalf) to use an Australian boat for fishing in a specified area of the AFZ or in a specified fishery (s. 32(1)). The boat must comply with any conditions to which the fishing permit is subject (s. 32(1C)). The fishing permit may authorise the use of a boat for various activities specified in s. 32(4) including commercial fishing generally (s. 32(4)(a)).
Section 32(5) provides that a fishing permit is granted subject to a number of conditions that are specified in that provision. AFMA may not vary those conditions (s. 32(8)). In addition to those conditions, a fishing permit is subject to any other conditions that are specified in the permit itself or prescribed in relation to permits granted under s. 32 (s. 32(6)(a)). The conditions that may be specified in a fishing permit include, but are not limited to:
“(a) the fish that may be taken; or
(b)the quantity of fish that may be taken; or
(c)the rate at which fish may be taken; or
(d)the methods or equipment that may be used to take fish; or
(e)the methods or equipment that may be used to process or carry fish.” (s. 32(7))
If the holder of a permit surrenders the permit by giving AFMA written notice, that permit ceases to be in force (s. 32(9)). With one exception, AFMA may transfer a permit to a person other than its holder if the holder and that other person ask it to do so (s. 32(10)).
Once a fishing permit has been issued, AFMA may vary or revoke a condition to which it is subject by virtue of s. 32(5). It may also specify a condition or a further condition (s. 32(8)). If AFMA wishes to take either of these courses, it must give written notice to the holder of the fishing permit and it may do so at the request of holder of the fishing permit or at its own instigation (s. 32(8)).
Section 95(1)(d) provides that the holder of a fishing permit must not contravene a condition to which that permit is subject and s. 95(1)(e) provides that he or she must not cause or permit a person acting on his or her behalf to contravene such a condition. Similarly, a person acting on behalf of the holder of a fishing permit must not contravene such a condition (s. 95(1)(f)). Contravention is an offence (ss. 95(2) – (7)). If AFMA has reasonable grounds to believe that there has been a contravention of a condition on a fishing permit, it may suspend the operation of that fishing permit in accordance with s. 38 (s. 38(1)). If the holder of a fishing permit is convicted of an offence against the Act, Regulations or any other law of the Commonwealth, Papua New Guinea or an Australian State or Territory relating to fishing, AFMA may cancel the fishing permit (s. 39(a)). It may also cancel it if to do so would be in accordance with a condition of the fishing permit relating to its cancellation (s. 39(b)).
A decision under s. 32 is a “relevant decision” for the purposes of s. 165(1) of the Act. By complying with the requirements of ss. 165(2) and (4), “A person affected by a relevant decision …” may ask AFMA to reconsider the decision.
The Tribunal’s jurisdiction
The Tribunal may only review a decision made by AFMA if it is specifically given the power to do so by either the AAT Act or another piece of legislation. This is the effect of s. 25 of the AAT Act. Section 25(1) provides that:
“An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”
The enactment must specify the person or persons to whose decisions the provision applies and may be expressed to apply to all decisions of a person or to a class of such decisions and may also specify the conditions which must be met before applications for review may be made (s. 25(3)).
The AAT Act defines a “decision” broadly for it includes:
“(a) making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.” (s. 3(3))
It is not enough that an enactment provide for review of specified decisions for the Tribunal must also be given power to review specified decisions. That power is given by s. 25(4) which is the necessary corollary to s. 25(1). It provides:
“The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
That brings me to the provisions of the Act. “A person affected by a relevant decision who is dissatisfied with the decision …” made by AFMA under the Act may apply to AFMA for its reconsideration (s. 165(2)). A “relevant decision” includes a decision it has made under s. 32. If AFMA makes a decision on review either in substitution for or revoking the relevant decision (i.e. its “reviewable decision”, ss. 165(1) and (5)), it must inform the person who made the request under s. 165(2) of the result of its reconsideration (s. 165(6)). Section 165(7) then provides that:
“An application may be made to the Administrative Appeals Tribunal for a review of a reviewable decision.” (s. 165(7))
Section 165(11) and (12) are concerned with giving notice to “… a person whose interests are affected by …”, in the former, the relevant decision and, in the latter, the reviewable decision. In the case of s. 165(11), that notice must include a statement:
“… to the effect that a person affected by the decision:
(a)may, if the person is dissatisfied with the decision, seek a reconsideration of the decision by AFMA under subsection (2); and
(b)may, subject to the Administrative Appeals Tribunal Act 1975, if the person is dissatisfied with a decision of AFMA upon that reconsideration, make application to the Administrative Appeals Tribunal for review of that decision.”
Section 165(12) reads in part:
“Where AFMA makes a reviewable decision and gives to a person whose interests are affected by the decision written notice of the making of the decision, that notice must include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates by or on behalf of a person whose interests are affected by the decision.”
THE EVIDENCE
Each of the purchasers signed a statutory declaration to the effect that each had understood that they all intended:
“2. … that:
i)The transfer related to quota allocation for 2002 and future years. I signed the application for the transfer of the permit on 8 December 2001 to that effect.
ii)The purchasers were prevented from selling the licence/and or permit with the quota (‘the package’) without the vendor’s consent.
iii)Whilst the vendor was transferred both permit and quota, once licences and/or permits became transferable separately from the Quota, then the licences and/or permits would be transferred back to the absolute ownership of the vendor.
3. To the best of my recollection, at the time the transaction was completed and approved, none of the quota was used by us in 2001.”
CONSIDERATION
Section 165(7) provides only that an application may be made to the Tribunal for review of a reviewable decision. It does not specify that the application may only be made by a person whose interests are affected by the reviewable decision. Despite that, s. 165(2) directs AFMA to include particular matters when it gives a person “whose interests are affected” by a reviewable decision. Does this mean that those who may apply for review of a reviewable decision are limited to those “whose interests are affected” by a reviewable decision or are there some other limitations? Before considering this question, I will turn to the general principles that can be drawn from the cases regarding standing or locus standi of a person to make an application or to bring an action and to the meaning that has been attributed to the phrase “whose interests are affected”.
General principles regarding standing in the courts
The following general principles may be gleaned from the cases relating to standing in civil proceedings in the courts:
(a)“The question of standing is … related to issues of procedural fairness.” (Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Others (1994) 49 FCR 250 at 260 per Davies J);
(b)As a general rule “A person has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action.” (Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 35-36 per Gibbs CJ);
(i)the general rule may be altered by statute (Australian Conservation Foundation v The Commonwealth (1978-80) 146 CLR 493 at 526 per Gibbs J); and
(ii)the general rule is the same whether a declaration or injunction is sought (ibid);
(c)“The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest.” (Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552 at 558 per Brennan, Dawson, Toohey, Gaudron and McHugh JJ);
(i)“… an interest for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. …” (Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 530 per Gibbs J);
(ii)“If a person has interests which ought to be taken into account in the making of a decision, then ordinarily that person should be entitled to be heard.” (Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Others (1994) 49 FCR 250 at 260 per Davies J);
(iii)“Many … decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way.” (at 260) A decision to impose a rate or a decision to impose a general charge for services. Even though it is also a decision that affects each ratepayer individually, it is a decision of a “policy” or “political” nature and so is not subject to judicial review (ibid at 260 citing Kioa v West (1985) 159 CLR 550 at 584 per Mason CJ);
(iv)Whether or not a person has a right to be heard during the decision-making process, is a matter to be taken into account in deciding whether or not that person has a right to seek judicial review of the decision (ibid at 260); and
(v)“… that the rule is flexible … emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. … It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law. … to deny standing may be to ‘deny to an important category of modern public statutory duties an effective procedure for curial enforcement’.” (Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd at 265-6))
(d)“… it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition … In each case, the content of the terms ‘affect’ and ‘interest’ are to be seen in the light of the scope and purpose of the particular statute in issue.” (Alphapharm at 272 per Gummow J)
Authorities considering statutory formulations of whether a person has interests affected by a decision
In Alphapharm, the Full Court of the Federal Court considered a generic product manufactured by Alphapharm. It had been registered under the Therapeutic Goods Act 1989 but the manufacturer of the original product, Smithkline Beecham, sought review of that decision. The Minister declined to review his decision on the basis that Smithkline Beecham’s interests were not affected by the decision. The Full Court decided that Smithkline Beecham’s interests were not affected by the Minister’s decision. In setting out the general principles to be applied, Davies J observed that the Therapeutic Goods Act is dominated by public interest concerns. It does not provide for the joinder of persons, including competitors, in the decision-making process.
Gummow J emphasised that “… it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to … [a particular] dispute. In each case, the content of the terms ‘affect’ and ‘interest’ are to be seen in the light of the scope and purpose of the particular statute in issue” (at 272). Furthermore, there is “… no ‘general principle’ that a decision under an enactment which favours one corporation cannot relevantly affect the interests of a competitor …” (at 272). In view of the range of decisions that are made under the Therapeutic Goods Act and that are reviewable under it:
“… The denotation of the phrase ‘whose interests are affected’ … should not be assumed to be the same across this spectrum of decision making. It has a series of distinct operations and, in this sense, is of an ambulatory nature. …” (at 272)
Given that spectrum of decision-making, which includes decisions made on the initiative of the Secretary and not on the basis of any application, his Honour went to observe of the case he was considering that:
“… it cannot be correct that … the class of persons whose interests are affected by an initial decision is limited to disaffected applicants. Persons whose existing situation under the legislation is changed by operation of the initial decision, which was not sought but was imposed upon them, must be persons whose interests are affected by the initial decision.” (at 273)
In relation to the particular case he had to consider, Gummow J noted that there is no requirement that third parties be heard on an application for registration under the legislation. An interpretation that treated a third party as interested in a grant of registration of a product would not sit well with the object of the Therapeutic Goods Act, which is concerned with the timely availability of therapeutic goods after evaluation by an expert body and in accordance with a complex and delicate administrative scheme. Permitting review of a decision to register a product could lead to the substitution of a decision that had the effect of rendering unlawful activities that were lawful under the decision as it originally stood. There are provisions for cancellation of a product’s registration but they operate prospectively and not retrospectively. In conclusion, Gummow J decided that Smithkline Beecham did not have interests that were affected by the decision.
The Full Court of the Federal Court applied similar principles in Edwards v Australian Securities Commission and Others (1997) 72 FCR 350 (Lee, Carr and RD Nicholson JJ). Mr Edwards and another had applied to the Tribunal for review of a decision of the Australian Securities Commission to register Bell Group NV (“Bell Group”) as a foreign company under s. 344 of the Corporations Law. They were engaged in litigation with the Bell Group and opposed an application by its Netherlands Antilles liquidator for the appointment of a liquidator in Western Australia. RD Nicholson J, with whom Lee and Carr JJ concurred, drew comparisons between that case and Alphapharm: the regime resulted in criminal penalties’ being imposed if a foreign company were to carry on business without being registered, third parties did not have to be heard on the application for registration and there was no requirement that reasons had to be given or that any that were given had to be published. The only person having an interest that could be affected by a decision to register a foreign company is the company itself. No other person can have such an interest.
Both the Full Court of the Federal court and the High Court have considered the meaning of the expression “whose interests are affected by the decision” in the context of ss. 119(1) and 120(1) of the Development Allowance Authority Act 1992 (“DAA Act”) as well as s. 27(1) of the AAT Act. They did so in considering Mr Allan’s application to the Tribunal to review a decision by the Development Allowance Authority to issue a certificate in relation to certain infrastructure borrowings in relation to the construction of a certain toll road in Melbourne. Holding such a certificate entitled the person to concessional taxation treatment under the Income Tax Assessment Act 1936. A certificate had been issued in relation to borrowings for the development of a toll road in Melbourne. Mr Allan had owned a house close by the road and he was a member of the Australian Conservation Foundation. Mr Allan claimed that he was concerned about the environmental damage that would be caused by the toll road.
The Full Court summarised its position on when a person’s interests are affected by a decision:
“… the question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review. It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it. An interest in the outcome of the review may give standing. But there will be no standing where the actual outcome of the review will not affect the applicant. There will be a question of degree involved in many cases.” (at 565)
The High Court heard an appeal from the Full Court’s judgment (Allan v Transurban City Link Ltd (2001) 208 CLR 167 (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) (“Allan”)). Section 119(1) of the DAA Act provides that a person who is “affected by a reviewable decision” may apply for review of that decision.
The majority of the High Court said:
“ The expression ‘affected by’ and cognate terms appear in a range of laws of the Commonwealth. … It is necessary to answer the questions posed … in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as ‘standing’. …
… A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. … The starting point, as indicated by several authorities in the Full Court of the Federal Court …, is the construction of the Authority Act with regard to its subject, scope and purpose.” (at 174, [17])
They went on to observe that “… What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself. …” (at 174, [17]).
The DAA Act required the Development Allowance Authority to issue a certificate to a person in relation to a proposed infrastructure borrowing. The majority observed that the Act required notice to be given of a refusal to give a grant of a certificate but not of a grant. They continued that “This suggests that where … the decision is one to grant, the legislation treats that as the end of the matter, save for the potential operation of the variation and cancellation provisions …” (at 178, [31]). There were further aspects of the DAA Act to which they had regard. There is no provision in the DAA Act for public inquiries or for public participation in the process of considering an application for a certificate. That legislation is not concerned with “… broader public interests such as those relating to environmental, engineering, social or other aspects of the proposed infrastructure project.” (at 179, [34]) Instead, it is intended to encourage financing of certain facilities. If a member of the public were entitled to seek review of a decision to issue a certificate within 21 days of becoming aware of that decision, it is possible that the reconsideration would be delayed. In some cases, reconsideration might occur after the completion of the infrastructure project. It would be an odd result, the majority considered, if a person in Mr Allan’s position were able to apply for reconsideration of the decision to issue the certificate but the lender of the money had not been a party to the original application for a certificate. He was not, in the majority’s opinion, a person whose interests were affected by the decision to issue a certificate.
The majority’s reasoning was applied by Dowsett J in Brisbane Airport Corporation Ltd v Wright and Others (2004) 77 ALD 411 in relation to the Airports Act 1996 (“Airports Act”). His Honour was concerned with a decision approving a master plan for an airport. Mr Rudd claimed that he was a person whose interests were affected by that decision. He relied on his position as a member of Parliament, as a representative of a community group known as BARB and as one of the joint owners of a house about 9 or 10 kilometres from the nearer end of the existing runway at the Brisbane Airport. The Tribunal had rejected the first two grounds but accepted the third. Dowsett J focused on the third ground.
Dowsett J noted that the objects of the Airports Act focus on airport services. The reference in s. 3(b) refers to “collective, rather than individual interests”. The Airports Act assumes that the airport-lessee company will continue the commercial operation of the airport. Inevitably, people will be affected by that continuing operation but it is in the nature of a major airport operation that they will be affected in varying degrees. A master plan, Dowsett J continued, is part of a business plan for an existing airport; it is not a town planning document. The Airports Act does not require the airport-lessee company to consult with the occupiers of properties which, it forecasts will be subject to aircraft noise above specified levels. In requiring that the airport-lessee company consult with relevant local authorities, it is presumed that those local authorities will protect the interests of those occupying properties that may be affected in that way.
The Minister must take account of the effect that carrying out the plan would have on the use of land, both within the airport site and in the areas surrounding it. Dowsett J noted that “Significantly, the focus is on the use of land, not amenity or value” (at 166, [32]). There was no suggestion that the use of Mr Rudd’s land would be affected even if its amenity were reduced. Although passages in Allan, Alphapharm and Edwards, might be thought to suggest that the absence of any opportunity for the public to comment was at the heart of their drawing the class of persons interested in the decision narrowly, the fact that there was such an opportunity did not lead to the conclusion that the class should be drawn more widely. Public comment had been invited and the airport-lessee company was obliged to summarise it in submitting the draft master plan. The Minister, however, was not obliged to have due regard to it. Dowsett J thought it most unlikely that the Airports Act intended that any member of the public might seek review of a decision to approve the master plan.
The airport-lessee company, Dowsett J said, is a person whose interests are affected by the decision to approve or to refuse to approve the master plan. The Minister would clearly have to give it a notice of the right to apply for review. He was not required by the Act to give a similar notice to anybody else. That suggested that the matter was at an end when the decision was to approve as it had been found to be in Allan at 178, [31]. Dowsett J also pointed to the provisions of s. 86 of the Act. The effect of that section is that the plan may have been approved and action taken under it for three months before any member of the public is made aware that it has been approved. A member of the public may not become immediately aware of the approval even when notice has not been given but at some later stage. It cannot have been intended, Dowsett J said, “… that a person becoming aware of the content of a plan at any time during its five year term should be able to seek review of the decision to approve it” (at 166, [35]).
What is the position when, after the lodgement of an application, there is a change in a person’s standing or in the interests affected by the decision?
The Full Court of the Federal Court considered this question but the High Court did not for it had no need to do so. The High Court looked at the case from a sightly different perspective than did the Federal Court. After Mr Allan had lodged his application in the Tribunal, he sold his property situated close to the toll road and bought another completely unaffected by the issue of the certificates. The Full Court considered whether his interests, and so his entitlement to apply for review of the decision, were determined at the time that he lodged his application or could be determined, or re-determined, at some later time. It found little assistance from s. 31 of the AAT Act. That section provides that “Where it is necessary … to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive.” Of it, the Full Court said:
“… It might, perhaps, be possible to argue that the word ‘are’, also in the present tense, shows that standing must subsist from the time the decision is challenged to the time the Tribunal makes its decision. However, it is more likely that the tense does no more than reflect the issue whether the person applying is a person affected.” (Transurban City LinkLtd v Allan (1999) 95 FCR 553)
Their Honours went on to consider the decision of the Tribunal constituted by Mathews J (President) and Beaumont and Hill JJ (presidential members) in Re Williams and Australian Electoral Commission and The Greens (party joined) (1995) 38 ALD 366. While satisfied that Mr Williams had an interest that was affected by the Australian Electoral Commission’s decision at the time that he lodged his application, they did not decide whether he had to sustain that interest throughout the life of the proceedings. The concluded that Mr Williams’ application should be dismissed pursuant s. 42B of the AAT Act as frivolous or vexatious. That conclusion was based on the application’s futility of proceeding for, as a matter of law, nothing would turn on the outcome whichever way it were decided.
In Transurban City LinkLtd v Allan, the Full Court regarded the Tribunal’s approach as possible support for the view that standing may only be determined at the time the application is lodged and may not be reviewed. It referred to comments by Spender J in Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 46 FCR 38 at 46; 118 ALR 527 at 535 to the effect that the standing of a party can be reviewed during the course of the proceedings. The Full Court did not determine the issue. It decided instead that the result would be the same “… whether standing is conclusively determined at the time of the review but the application becomes vexatious if circumstances change, or whether standing may be reconsidered if circumstances change …” (at 569).
Who is entitled to make an application under the Act?
As I have said, s. 165(7) provides only that an application may be made to the Tribunal for review of a reviewable decision. It does not specify that the person who may apply must be a person who is affected, or whose interests are affected, by the reviewable decision or specify that the person must meet some other criterion. In providing for review rights of a relevant decision made by AFMA in the first instance, the Act speaks of “a person affected by a relevant decision” (s. 165(2)) but in providing for notification of the right to seek review of a reviewable decision, speaks only of “a person whose interests are affected by a reviewable decision” (s. 165(12)). In providing for notification of a person’s right to ask AFMA to review a relevant decision, s. 165(11) speaks both of giving the person “whose interests are affected by a decision” a notice of the rights of a “person affected by the decision”.
The differences in the language used to describe the person who may make an application may suggest differences that are more illusory than real. When regard is had to the formulation of the criteria by which standing is determined in the common law context and the formulation by which standing is determined by reference to a statutory requirement in the context of merits review that, for example, an applicant have “interests affected by a decision”, there is very little, if any, practical difference. In each case, the criteria are formulated by reference to the scope and purpose of, in the first instance, of the litigation and, in the second, of the legislation. In either case, the person seeking to make an application must have some special interest over and above the satisfaction of righting a wrong or succeeding in the application. In the case of merits review, the criteria to determine that special interest are determined by reference to the legislation itself.
Even though s. 165(7) does not specify any criteria that must be met by an applicant for review, the scope and purpose of the section in which it appears is to enable anyone who is in some way affected by a relevant decision or a reviewable decision to seek further review of it. The interchanging of the expressions “affected by a … decision” and “interests affected by a … decision” indicate that they are meant to refer to the same thing. The notice of review rights that must be given to a person whose interests are affected by a reviewable decision must state that an application may be made by a person “… whose interests are affected by the decision” (s. 165(12)). This strongly indicates that those who may apply are limited to such people.
The scope and purpose of the Act supports that view and also supports the view that they must be persons with interests affected on a day to day basis. That is, they cannot be persons who have concerns about, for example, the appropriateness of the regulation of commercial fishing at all however worthy those concerns may be. The Act regulates fishing in the AFZ in a variety of ways. Apart from the general restriction on commercial fishing in the AFZ, it does so by restricting the activities of individuals and the equipment they use so that those activities and equipment comply with those restrictions. It assumes that regulation is appropriate and is concerned with the manner in which it occurs. Regulation at this level also points to my concluding that the right to seek review of AFMA’s reviewable decisions is limited to those who are affected by those decisions and not to any broader group.
At the time he lodged his application, was Mr Fearnley a person whose interests were affected by AFMA’s decision?
Mr Fearnley was a person whose interests were affected by AFMA’s decision at the time he lodged his application on 13 August 2001. He held a permit that had been granted to him under s. 32 of the Act subject to certain conditions. Those conditions limited the amount of School Shark and Gummy Shark that he could catch in the SSF in the 2001 fishing season. His interests were clearly affected by AFMA’s decision at the time the decision was made. They continued to be affected throughout the 2001 fishing season. If everything else remained the same, they would continue to be affected even when the 2001 season was completed for the quota that was allocated would be carried forward or be relevant if, for example, the plan of management were changed (Division 4A).
When he transferred his permits, was Mr Fearnley a person whose interests were affected by AFMA’s decision?
Everything else, though, did not remain the same. Before the end of the 2001 fishing season, Mr Fearnley had entered a contract to sell his quota and the Purchasers had applied for the transfer of his permits to them. The sale was to take effect from the commencement of the 2002 fishing season and did not affect Mr Fearnley’s ability to fish for the remainder of the 2001 season. Therefore, right to the end of the 2001 season, Mr Fearnley had an interest that was affected by AFMA’s decision regarding the amount of School Shark and Gummy Shark he could catch in that season. His interest in relation to the 2001 fishing season could continue to be affected beyond 2001 if, for example, he overfished his quota in that year and he could be the subject of a prosecution under the Act as a result. There is no evidence that this is the case. If he had 2001 quota that he did not fish, there is no evidence that this would have altered his position in relation to the 2001 fishing season. There is no evidence that his interests are affected in any other way by AFMA’s decision in relation to the 2001 fishing season.
What of the fishing seasons beyond the 2001 fishing season? Once his permits were transferred to the Purchasers, did Mr Fearnley continue to have an interest affected by AFMA’s decision in relation to the 2001 year? I accept that, at the time that Mr Fearnley sold his permits, they had a commercial value. They were an asset. I do not accept Dr O’Connor’s further submission that the transfer should not affect Mr Fearnley’s standing to seek review of AFMA’s decision. It may well be that Mr Fearnley’s permits were, as Dr O’Connor submits, no longer adequate to maintain an economically viable fishing venture and that he chose to minimise the losses he incurred as a result of AFMA’s decision. They were an asset, inadequate as they had become, that Mr Fearnley chose to sell. With the sale, he transferred his right to fish commercially in the SSF. While the permits continued to be transferred to the Purchasers, it could not matter to him whether the amounts of quota attached to those permits were altered in any way even if they were altered as a result of a variation of his quota in the 2001 fishing season. He could not fish in the SSF and he did not receive or lose any remuneration based on the quota the Purchasers could fish by using the permits. The price had already been negotiated and agreed upon. Even if AFMA’s decision relating to the 2001 fishing season had some effect on the next or subsequent fishing seasons, it could not affect Mr Fearnley’s interests while the permits were transferred to the Purchasers.
That leaves the possibility that the permits are transferred back to Mr Fearnley as provided for in the contract. The transfer will only occur if quota should be separated from permits. Although Mr Fearnley and the Purchasers wanted only to buy and sell the quota, they arranged for the transfer of his permits. There would have been two reasons for their doing so. One was a practical reason that, without AFMA’s approval, it was a condition of the permits that the quota could not be transferred without them. AFMA had not given that approval. The second was a legal reason. Such a transfer is not permitted under the Act. Other than non-transferable fishing permits, s. 32(10) of the Act allows AFMA to transfer a fishing permit and s. 49(2) only permits AFMA to refuse to approve the transfer if the transfer would be contrary to the relevant plan of management or a condition of, in this case, the fishing permit. Quota is simply a condition of the fishing permit that is transferred. It has no separate identity apart from the permit and so no identifiable separate value.
Whether or not the Act will be amended to allow the separation of permits and quota is a matter for speculation; nothing more. If it were to be amended, it is equally open to speculate what entitlement a fishing permit would have. The quota would be separate and, in its current form as a condition of the fishing permit, it is the quota that determines the amount of shark that may be caught while the fishing permit determines that they may be caught at all. If the fishing permit and quota were simply separated in their current form, one wonders what value the fishing permit would have without its quota allocation. While the future remains speculative, I do not consider that Mr Fearnley’s agreement with the Purchasers regarding the permits can given him any interests that can be said to be currently affected by AFMA’s decision. I must decide the issue of his interest at the present time and not on the basis of what may occur in the future.
In summary, I am satisfied that Mr Fearnley had interests that were affected by AFMA’s decision when he lodged his application for review in August 2001. When he transferred his permits in or about the middle of December 2001, he no longer had an interest.
Should Mr Fearnley’s application be dismissed as frivolous or vexatious?
Had Mr Fearnley lodged his application after he had transferred his permits to the Purchasers, I would have decided that he is not a person whose interests are affected by AFMA’s decision. His application would have been dismissed. Should he now be found not to meet the criteria permitting him to make an application so that he may not continue to pursue it in the Tribunal or should his application be dismissed pursuant to s. 42B(1)(a) of the AAT Act as frivolous or vexatious? This was the question faced by the Full Court in Transurban City LinkLtd v Allan and earlier by the Tribunal in Re Williams and Australian Electoral Commission. Neither found it necessary to decide it. Instead, they chose to consider both and to answer both the same way.
Section 42B(1)(a) of the AAT Act provides:
“Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a)dismiss the application; …”
The Tribunal in Re Williams and Australian Electoral Commission set out the following general principles governing the exercise of the power:
“(30) The power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly: per Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1965] ALR 636; (1964) 112 CLR 125. The mere fact that a proceeding is shown to have no foundation in fact is insufficient to justify a finding that it was commenced vexatiously or without reasonable cause: Per von Doussa J in Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324.
(31) The manifest untenability of a proceeding provides one ground for finding that the proceeding is a vexatious one. …” (page 372)
The Tribunal went on to consider the relevance of futility in the context of s. 42B. In that case, it had decided that, whatever the outcome of any review, that review could not have any effect upon the matter of concern to Mr Williams. The decision under review was a decision that a certain name be entered in the register kept under the Commonwealth Electoral Act 1918 as the registered officer of the Greens. At the time of the hearing, that person was no longer the registered officer of the Greens. Had Mr Williams been successful in having that name removed from the register, the effect would have been that the position of registered officer of the Greens was vacant for a period of time. As no election had been called during that period and the registered officer had not been called upon to perform his sole function under the Commonwealth Electoral Act, the vacancy was of no consequence at all. The Tribunal concluded that Mr Williams’ application would be futile.
Despite its conclusion on that point, the Tribunal also accepted that Mr Williams genuinely believed that the contrary was the case and his application for review was not futile. The Tribunal then went on to distinguish between a genuine but mistakenly held mistake of fact and one of law:
“(37) The genuineness of the applicant’s belief might well have been a relevant factor in his favour – and possibly a decisive one – had the subject of his mistake been a factual one rather than a matter of law. As von Doussa J commented in Hatchett, an applicant who genuinely holds a mistaken belief as to a state of facts which, if correct, would support the claim which is made in the proceedings, is ordinarily entitled to ‘a day in court’. In that event, it could operate very unfairly to an applicant to prejudge the issues without affording him/her an opportunity to support his/her case with appropriate evidence. But where, as here, the significant factual matters are agreed between the parties, and the only issues in dispute relate to the legal consequences which follow, the genuineness of the applicant’s legitimacy of his claim must bow before a finding that, as a matter of law, no legitimate purpose can be achieved by continuing with the proceeding. …” (page 374)
In adopting this approach, the Tribunal took the same path as that later taken by Sundberg J in Director General Security v Sultan and Another (1998) 90 FCR 334. In the Sultan case, review by the Tribunal would not lead to Mr Sultan’s being able to obtain the visa he sought even if he were successful in every respect on that matter that was within the Tribunal’s jurisdiction to review. Both Sundberg J and the Tribunal looked to the practical outcome of the review.
This too is a case that, on the law as it exists today, will lead to no practical outcome for Mr Fearnley. If the law were to change, it is feasible that Mr Fearnley’s interests could be affected by AFMA’s decision affecting the 2001 fishing season. That, however, is in the realm of speculation and a decision whether to exercise the power under s. 42B(1)(a) must be decided on the basis of the facts as they are and not on what they may be. It is futile and so must be regarded as frivolous and vexatious to continue it. Therefore, I have decided to dismiss Mr Fearnley’s application under s. 42B(1)(a) of the AAT Act.
Total Allowable Catch
In view of my decision regarding Mr Fearnley’s application, I do not need to consider whether or not the Tribunal has jurisdiction to review the TAC. Quite apart from any other issues, I can only review a decision if it is the subject of an application. As I have dismissed the application, I have no proper foundation on which I may consider the matter at all.
The grant of a fishing permit to Mr Fearnley
On behalf of Mr Fearnley, Dr O’Connor submitted that AFMA should grant him a fishing permit with the appropriate endorsement entitling him to fish in the SSF. The Tribunal does not have the power to do so. Mr Fearnley had a fishing permit in the SSF that he sold. That is his decision and not a decision that can be affected by any decision of the Tribunal. If Mr Fearnley wants another fishing permit, he must apply to AFMA for it. Should his application be refused, he may apply to the Tribunal to review AFMA’s reviewable decision. If successful, the Tribunal could substitute a decision that he be granted a fishing permit. Until Mr Fearnley follows these steps, the Tribunal is powerless.
For the reasons I have given, I dismiss the applicant’s application pursuant to s. 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.
I certify that the sixty-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Nathaniel Wills Associate
Date of Jurisdiction Hearing 1 March 2004
Date of Decision 17 February 2005
Counsel for the Applicant Dr C. O’Connor
Solicitor for the Applicant Thomson Rich O’Connor
Counsel for the Respondent Ms D. Mortimer
Solicitor for the Respondent Dibbs Barker Gosling
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