Fitti v The Minister for Primary Industries and Energy & Anor; Davey & Anor v The Minister for Primary Industries and Energy

These proceedings concerned applications for special leave to appeal to the High Court of Australia. The applicants, Mr Fitti and Mr Davey, sought to challenge a decision of the Full Court of the Federal Court of Australia. The dispute arose from the extinguishment of proprietary rights held by the applicants in respect of the Northern Prawn Fishery. The applicants contended that these rights, which they described as profits a prendre or analogous to them, were acquired by the Commonwealth.

The central legal issues before the High Court were whether the proprietary rights held by the applicants had been extinguished or acquired by the Commonwealth, and whether the Commonwealth had exercised a right of defeasance over those rights. The applicants argued that the extinguishment of their rights by governmental action constituted an acquisition by the Commonwealth, even if there was not a precise identity between what was lost and what was acquired. They submitted that the grant of proprietary rights to them had created an encumbrance on the Commonwealth's rights or sovereignty in respect of the resource.

The applicants' argument was that the Commonwealth's action in cancelling their rights effectively removed an encumbrance upon the Commonwealth's sovereignty, thereby constituting an acquisition. They contended that these rights, once granted and purchased, were valuable property rights that fettered the Commonwealth's free use of the resource, akin to a mining right or lease. The applicants sought to establish that this extinguishment amounted to an acquisition by the Commonwealth, asserting that the Commonwealth's full, unfettered sovereignty and potentially proprietary rights in the resource were restored.