Fowler v Minister for Fishing and Boating
[2020] VSC 760
•17 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 01584
| STEPHEN FOWLER | Plaintiff |
| v | |
| THE RIGHT HONOURABLE JAALA PULFORD, AS MINISTER FOR FISHING AND BOATING | First Defendant |
| -and- | |
| THE VICTORIAN FISHERIES AUTHORITY | Second Defendant |
---
JUDICIAL OFFICER: | Judicial Registrar Keith |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 September 2020 |
DATE OF JUDGMENT: | 17 November 2020 |
CASE MAY BE CITED AS: | Fowler v Minister for Fishing and Boating |
MEDIUM NEUTRAL CITATION: | [2020] VSC 760 |
---
JUDICIAL REVIEW – Decisions relating to amendment of management plan over Pipi Fishery – Quota order imposed under s 64 Fisheries Act 1995 - Plaintiff sought exceptional circumstances exemption to alter quota – Victorian Fisheries Authority refused application - Plaintiff seeks stay (later amended to interlocutory relief) of decisions of Defendants until judicial review matter concluded - Plaintiff asserts if sale or transfer of a quota unit were permitted they could not be returned to their original position, or allowed the allocation they might be entitled to if a new quota order was made following judicial review - Defendants assert a stay excessive to preserve the status quo – Defendants assert relief sought would change the purposes of the decision - Plaintiff fails to justify grounds for stay – Plaintiff not the only party impacted by the minister’s decision - Relevantly, there has been no exercise of the power to transfer approval. Instead, application for relief is hypothetical – No need for interim relief – Matters do not justify the Court altering or suspending scheme – Plaintiff’s previous rights to fish no longer exist – Status quo cannot be maintained – The 2020 initial quota allocation cannot be removed from the plaintiff, nor is there a decision to be stayed to protect this allocation - Unclear whether quota allocation could even be considered property – Plaintiff’s application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Wheelahan | Mr M Morehead |
| For the Defendants | Mr E Nekvapil with Ms M Narayan | Ms B O’Shannessy |
JUDICIAL REGISTRAR:
Introduction
The plaintiff is a commercial fisherman engaged in the Discovery Bay Victorian Pipi Fishery. The plaintiff has been licenced as required by applicable legislation since 1998.
The proceedings seek judicial review of decisions made in relation to the fishery. The fishery is regulated in accordance with the Fisheries Act 1995 (Vic) (‘Fisheries Act’). The proceeding has been listed for hearing in this Court on 13 April 2021.[1]
[1]Order of Judicial Registrar Keith in Fowler v Minister for Fishing and Boating (S ECI 2020 01584, 13 May 2020)
The first defendant is the Minister for Fishing and Boating. The second defendant is the Victorian Fisheries Authority.[2] The decisions the subject of this proceeding arise in the context of changes to the managements of the Pipi Fishery as a result of inquiries conducted from around November 2013 until the decisions in early 2020.[3] A Management Plan was declared for the fishery in 2018.[4]
[2]The Authority is established under the Victorian Fisheries Authority Act 2016 and is defined as such in section 4 of the Fisheries Act 1995.
[3]Stephen Fowler, ‘Affidavit’, submission in Fowler v Minister for Fishing and Boating, S ECI 2020 01584, 31 March 2020.
[4]Ibid, [4] referring to Exhibit SF-3.
In February 2020, the first defendant signed a notice of decision[5] and made an Initial Quota Order under s 64 of the Fisheries Act.[6] Subsequent correspondence is relevant to the decisions, but not of present significance.[7] The order was published in the Government Gazette on 17 February 2020.[8] The scheme of legislation and the management plan made provision for an application for exceptional circumstances. Such an application could allow for variation of quota allocations and conditions. The second defendant by decision provided on 5 March 2020 refused the plaintiff’s application for exceptional circumstances.[9]
[5]Ibid, [12] referring to Exhibit SF-11.
[6]Ibid, [13] referring to Exhibit SF-12.
[7]Ibid [14] – [16] referring to Exhibits SF-13, SF-14 and SF-15.
[8]The Victorian Fisheries Authority, ‘Affidavit of Dallas Wayne D’Silva’, submission in Fowler v Minister for Fishing and Boating, S ECI 2020 01584, 12 June 2020, [11] and exhibit DWD-1. See also the amendments DWD-2 and notice DWD-3
[9]Stephen Fowler (n 3), [17] referring to Exhibit SF-16.
On 31 March 2020, the plaintiff was notified the commencement date for the new regulatory scheme for the Pipi Fishery was 1 April 2020.[10] The Originating Motion was filed on 31 March 2020.
[10]Stephen Fowler, ‘Affidavit of Stephen Fowler’, submission in Fowler v Minister for Fishing and Boating, S ECI 2020 01584, 29 May 2020, [20] referring to Exhibit SF-20.
The interlocutory application
The plaintiff seeks orders pending the hearing of the substantive judicial review proceedings. The orders sought are intended by the plaintiff to protect against an outcome that the judicial review is successful but no benefit can be obtained due to the passage of time. The form of orders sought was initially a stay of the decision of the first defendant made on 2 February 2020 and a stay of the decision of the second defendant made on 5 March 2020. The application was made by Summons filed on 6 April 2020.
The originating documentation contained an error in the description of the decision of the second defendant in that the date mentioned was a date in 2003. The correct date is 2020. Amended documents have been filed to correct this error.
The form of interim relief sought by the plaintiff on the summons has varied since the commencement of this proceeding. The history of the changes is relevant to some issues for determination. The nature of the relief sought was questioned by the defendants in an affidavit in response to the application.[11] The position of the plaintiff changed to take into account some of the objections raised by the defendants.
[11]The Victorian Fisheries Authority (n 8) [8].
The affidavits in support of the plaintiff’s application have dealt with the stay application as set out in the original summons. The affidavits are nevertheless relied on by the plaintiff in support of the amended summons.
The first affidavit dated 31 March 2020 at paragraph 21 said:
I further seek of this Honourable Court an Order to prevent irreparable damage being done to my fishing licence and my pipi fishing business, suspending or to stay the operation of, or postponing the coming into effect of the decisions until such time as the Court shall deem fit.
The second affidavit dated 29 May 2020 at paragraph 24 said “I humbly request that this Honourable Court stay the operation of the allocation decisions until completion of judicial review.”
An amended Summons was filed on 7 August 2020 with a variation to the form in which relief was sought to stay or otherwise prevent the decisions having effect, pending the hearing of the judicial review proceedings. The amended Summons sought relief at clauses 5 and 6 in the following terms:
[5]A stay, at common law or alternatively under section 9 of the Administrative Law Act 1978 (Vic) suspending and restraining the Minister’s declaration that individual pip quota units may be transferred permanently to a holder of a Pipi Fishery Access Licence made pursuant to s64(d) of the Fisheries Act, published in the Government Gazette dated 17 February 2020 pending final hearing of the plaintiff’s judicial review.
[6]A declaration staying the Minister’s declaration published in the Government Gazette dated 17 February 2020 that individual pip quota units may be transferred permanently to a holder of a Pipi Fishery Access Licence as void, invalid and of no effect, pending final hearing of the plaintiff’s judicial review
The application for a stay has been referred to me for hearing and determination[12]. I heard submissions on 2 September 2020 and received written submissions from the parties.
[12]Order of Associate Justice Daly in Fowler v Minister for Fishing and Boating (S ECI 2020 01584, 30 April 2020).
Submissions from the parties
The submissions for the plaintiff filed on 26 June 2020 were filed prior to the amended summons. The plaintiff relies on the submissions to set out the basis for the judicial review and to establish there is a serious issue to be determined by the proceedings. One limb of the submission is to argue the Minister’s decision is “unreasonable” in the sense recognised as a ground for relief in judicial review proceedings.[13] Another limb of the review concerns the decision maker having considered irrelevant considerations and failing to consider relevant considerations.[14]
[13]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[14]Stephen Fowler, ‘Plaintiff’s Stay Submissions’, submission in Fowler v Minister for Fishing and Boating, S ECI 2020 01584, 26 June 2020, [22] and [26].
The Originating Motion[15] sets out ten grounds of review. The first ground is directed to a finding of the Advisory Panel, on which the decision of the Minister is said to have been based, in part. The second ground is directed to the reliance placed by the Minister on the finding of the Advisory panel. Grounds three and four are directed to the Minister’s initial quota order, in particular aspects of the assessment of ‘days fished’ for making that order.
[15]Originally filed on 31 March 2020 and altered by the Amended Originating Motion filed on 31 July 2020 but the amendment did not alter the grounds of review.
Grounds five and six are directed to the conduct of the VFA in relation to information provided and used in the determination. Ground five asserts the plaintiff was denied an opportunity to comment on the allocation of quota by the conduct of the VFA. Ground six asserts the VFA exercised powers and functions without regard to mandatory considerations, in the manner of which information was or was not supplied to the Minister.
Grounds seven and ten assert failures by the Minister to afford the plaintiff procedural fairness in relation to the effect to be given (or not given) to a 2013 investment warning.
Grounds eight and nine relate to the VFA’s refusal to allow the plaintiff’s claim to exceptional circumstances and assert: a lack of evident and intelligible justification for the decision; a failure to afford procedural fairness; and regard being given to an irrelevant consideration in making the decision.
The submissions in support of the plaintiff’s summons include the ground that a successful review would be rendered nugatory in the absence of a stay, or orders sought by the plaintiff. The submission was if a sale or transfer of a quota unit were permitted the plaintiff could not be returned substantially to his original position, or allowed the allocation he might be entitled to if a new quota order was made following judicial review.
The form of relief addressed by the submissions filed on 26 June 2020 was directed to prohibiting the VFA from consenting to a transfer of individual quota. The submissions address this aspect under the heading “Limited Nature of the Stay Sought”.[16]
[16]Stephen Fowler (n 14) [30] – [35].
The defendants filed submissions in opposition to the Summons on 10 July 2020. The submissions addressed both forms of the interlocutory relief sought by the plaintiff. The original form of the stay order was effectively withdrawn, or abandoned, by the plaintiff in the submissions of counsel.[17] The form of relief sought by the plaintiff in the revised version was described by the defendants as “in substance an interlocutory injunction restraining the VFA from exercising its power under s 65A of the Fisheries Act.”[18] The defendants submitted the relief sought should be refused.
[17]Ibid [32] and The Victorian Fisheries Authority, ‘Submissions of the Defendants on the Plaintiff’s Stay Application’, submission in Fowler v Minister for Fishing and Boating, S ECI 2020 01584, 10 July 2020, [5] and [6].
[18]The Victorian Fisheries Authority (n 17) [8].
Subsequent to the exchange of written submissions, the plaintiff filed an amended summons, dated 7 August 2020. The defendant then filed supplementary submissions on 31 August 2020 to address “the shifting nature of the interlocutory relief sought[19]”.
[19]The Victorian Fisheries Authority, ‘Originating Motion for Judicial Review Amended Pursuant to Order 1 of the Orders of Judicial Registrar Keith Made 22 July 2020’, submission in Fowler v Minister for Fishing and Boating, S ECI 2020 01584, 31 August 2020, [1].
The plaintiff conceded, by the submissions of counsel on the hearing before me, the relief claimed in clause 6 of the amended Summons could not be obtained. The clause is expressed in terms of an “interlocutory declaration”. The defendants submitted the relief is “a form of order not known to the law”.[20]
[20]Ibid [17] – with reference to Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 590-591 and other authorities, footnote 24 of the submissions.
The relief claimed in clause 5 of the amended Summons is expressed as a stay “suspending and restraining the Minister’s declaration that Individual Pipi Quota Units may be transferred permanently” to a holder of an appropriate licence.
Counsel for the plaintiff addressed the approach to the application for a stay by reference to a passage from Lush J in 1979[21] which in turn refers to a passage from Cottenham LC in 1848.[22] The reference is to the effect “the court will in many cases interfere and preserve property in status quo during the pendency of a suit in which the rights to it are to be decided”. On the basis of such authorities the plaintiff seeks to preserve property said to arise from the rights to fish. The submissions for the plaintiff addressed the minimum relief that could avoid the proceedings becoming nugatory. In oral submissions the case was put as “seeking to preserve the 8 pieces of the pie” as the fishery quota distribution is now in place. The plaintiff seeks to prevent any dealing with the quota prior to the determination of the appeal. The relief sought on the summons is directed to allowing the existing quota holders share to be re-adjusted if the judicial review proceeding were to be successful.
[21]Slater Walker Superannuation v Great Boulder Gold Mines [1979] VR 107 at 110.
[22]Great Western Railway Co v Birmingham and Oxford Junction Railway Co (1848) 41 ER 1074, 1076.
The defendants submit the relief should be refused as (amongst other reasons):
(a) The grounds for the substantive relief sought in the amended originating motion are not directed to the relevant aspect of the decision of the Minister. A stay directed to transferability of quota units would, it is said, exceed what is necessary to preserve the status quo pending determination of the substantive proceedings.[23]
[23]The Victorian Fisheries Authority (n 19) [10].
(b) The prospects of success for the plaintiff are not strong given the legislative character of the Minister’s decision[24] and the principles for review of such a decision, as stated in the decision of McEachern.[25]
(c) The relief sought would change the substantial purpose and effect of the decision, or would leave in place a decision having a substantially different effect.[26] Moreover, the Court has no power to make such an order, or should not make such an order as it would be contrary to the function of the Court in a supervisory jurisdiction.
[24]Ibid [11] – [15].
[25]McEachern v Minister for Energy, Resources and Ports [2001] VSC 506, [13] – [14].
[26]The Victorian Fisheries Authority (n 19) [16].
Consideration
I was referred to a decision of this Court in Celestina[27] as a recent decision in which some of the relevant principles have been stated. They include the expanded notion of a “stay” as including a ‘suspension’ of a decision. Ginnane J said:
As part of the exercise of the Court’s judicial review powers, it may, in an appropriate case, suspend or stay the decision under review to ensure that the judicial review process can be completed effectively.”[28]
[27]Celestina v Secretary of the Department of Environment, Land, Water and Planning [2019] VSC 717 (Ginnane J).
[28]Ibid [6].
Also, as to the broad discretion and relevance of the merits of the proceeding the Court said: “The Court has a broad discretion. A person seeking a stay of the decision must present a case of sufficient substance, otherwise there would be no point in granting a stay.” And later “The determination of a stay application is not the time to decide whether the argument will succeed.”[29]
[29]Ibid [29].
In Celestina the Court considered the submission on the merits to be arguable, but refused to grant a stay or suspension in the exercise of the Court’s discretion on factors referred to as the “balance of convenience”.[30]
[30]Ibid [31].
I was also referred to a decision concerning the fishing for scallops in Port Phillip Bay.[31] In that case the grounds of review and relief sought were related to decisions for quota allocations in the fishery. The plaintiff failed to establish the grounds of review in that case.
[31]Port Phillip Scallops Pty Ltd v Minister for Agriculture [2018] VSC 589 (Cavanough J).
The substantive merits of the proceeding for judicial review do not need to be considered at any length. The merits require consideration of the nature of the decision or determination, to rule on whether the determination is to be characterised as legislative in nature.[32] The grounds of review available could depend on that question. The defendants submit the merits are (at best) “not strong”.[33] In my view, there is some force in the submission for the defendants, but I do not express a concluded view as to the merits. I am not prepared to dismiss the application on the basis the merits are not arguable. The application fails for other reasons.
[32]The Victorian Fisheries Authority (n 19) [11] and [12] with reference to McEachern v Minister for Energy [2001] VSC 506 and Austral Fisheries Pty Ltd v Minister for primary Industries and Energy (1992) 37 FCR 463.
[33]The Victorian Fisheries Authority (n 17) [30].
It is well established in Victoria the party applying for a stay, or an order in the nature of a stay, bears the onus of demonstrating a stay is justified. The power to order a stay will generally not be exercised unless the applicant demonstrates there are special or exceptional circumstances.[34] An aspect of the decisions concerning such circumstances is whether a successful plaintiff would be deprived of the fruits of the proceeding if the stay were not granted.[35] The plaintiff has failed to establish the relief sought is justified.
[34]Amcor Ltd v Barnes [2020] VSCA 57 at [10]; Loftus v ANZ Bank [2016] VSCA 114 at [7]; Maher v Commonwealth Bank of Australia [2008] VSCA 122, [19] – [27].
[35]Loftus v ANZ Bank [2016] VSCA 114, [7] – [8] and Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653.
Counsel for the parties addressed a question of whether the terms and effect of the order in the nature of a stay must be supported by the particular grounds for review in the substantive proceedings. The defendant submitted such a requirement should be recognised and that the plaintiff sought relief beyond the scope of the review[36]. The plaintiff submitted some authority supports a basis for a stay even if the basis for the relief is independent of the substantive relief sought. The issue was said to arise as to whether the relief sought is necessarily required to protect the plaintiff or to preserve the status quo to ensure the review, if successful, would not be an empty victory for the plaintiff.[37]
[36]The Victorian Fisheries Authority (n 17) [15] - [19].
[37]The Victorian Fisheries Authority (n 19) [10].
In the context of submissions on that topic, counsel referred to decisions concerned with questions of the need for a cause of action to support a right to obtain interlocutory relief.[38] Contrasting approaches were said to arise in administrative law cases.[39]
[38]Owners of the Cargo on board the Siskina v Distos Compania Naviera SA [1979] AC 210, 256 (Diplock LJ) and IMAC Security Services Pty Ltd v Tyco Australia Pty Ltd [2002] VSC 592, [22].
[39]Snow v Deputy Commissioner of Taxation (WA) (1986) 14 FCR 119, 129 and Mohamed [trading as Billan Family Day Care] v Secretary, Department of Education, Skills and Employment [2020] FCA 900, [19]. Cases cited in Mohamed were mentioned to develop submissions extended to an exploration of a so called “wider power” for injunction type relief including the orders formerly known as Mareva orders – Cardile v LED Builders (1999) 198 CLR 380, [94]-[95] (footnote 140) - and World Series Cricket v Parish (1977) 16 ALR 181, 199.
I do not consider it necessary to resolve the issue addressed by counsel. For reasons that follow, even if the plaintiff’s submissions are accepted on the question, the relief should be refused on other grounds.
The plaintiff in the written submissions of counsel accepted the relief originally sought was not appropriate. A suspension of the decisions would have the consequence that no fishing could occur at all.[40] Not only the plaintiff, but each of the other quota holders, would be prejudiced. The acceptance by the Plaintiff of this reality appears in the written submission “the past is a different country – they do things differently there”[41].
[40]The Victorian Fisheries Authority (n 8) [16].
[41]Stephen Fowler (n 14) [32], quoting L P Hartley, The Go-Betweens (Hamish Hamilton, 1953), 1.
The submissions for the defendants indicated were such a suspension to be ordered by the Court, no fishing activity could be undertaken. That consequence was belatedly accepted by the plaintiff. The affidavit evidence is that the prior system of management has ended and the Ocean Fishery Access Licences no longer authorise the holders to take pipi for sale from marine waters.[42]
[42]The Victorian Fisheries Authority (n 8) [15].
The evidence provided by affidavits in relation to the application shows no other person licensed to take pipi in the Pipi Fishery seeks to be heard in this proceeding in order to amend or adjust the distribution or quota. It is relevant to the exercise of my discretion and to the consideration of the balance of convenience that the plaintiff is not the only person the subject of the decisions under review. The defendants have advanced evidence[43] that information concerning pipi fishers is confidential and that the defendants have not provided to the plaintiff the catch records for other fishers.
[43]Ibid [10].
Unlike a stay application, where the judgment or order concerns the rights and obligations of the parties, the decisions in this case are of general application and regulate the operations of several citizens, not only the plaintiff. The evidence indicates a suspension of the decisions would mean “no pipi could be taken under any of the Pipi Fishery Access Licences until the Minister made a further initial quota decision.”[44]
[44]Ibid [16] and [17].
The more limited relief sought by the plaintiff in the amended summons and on the oral submissions is directed to the power under s 65A to approve the transfer of quota entitlements. The defendants submit[45] there is no decision under s 65A that might be “stayed”. The defendant’s further submit “there is no evidence of any relevant exercise of the power in the circumstances of this case nor of any proposed exercise of that power, or occasion to exercise that power.”
[45]The Victorian Fisheries Authority (n 17) [13].
The defendants characterise the application as seeking an injunction to restrain the exercise of a power. The submissions point to the absence of evidence of an application for transfer approval, or any threatened exercise of the power. On that basis the defendants submit the Court cannot be satisfied the plaintiff would suffer harm if the relief sought were not granted.[46] The absence of any exercise of power, or threatened exercise of power, shows the application for interim relief is based on a hypothetical question. The plaintiff’s perceived need for relief is not sufficient to justify the intervention of the Court.
[46]Ibid [18].
The matters raised by these submissions on behalf of the defendants are fatal to the application by the plaintiff. The circumstances are not in my view such as to show any need for interim relief. The matters relied on by the plaintiff do not justify the intervention of the Court in suspending or otherwise altering the operation of the fishery in accordance with the scheme. The impact on other persons who are not party to this proceeding shows it would be inappropriate for the Court to make even the minimum order sought. The restraint of the approval of a transfer is not only hypothetical, but could have consequences for another person or persons who are not before the Court. The circumstances in which the power may need to be exercised cannot be anticipated. It cannot be assumed there would be no adverse consequence to an innocent party.
The submission for the plaintiff in terms of preserving property sought to draw from the well-known statement quoted earlier that “the court will in many cases interfere and preserve property in status quo during the pendency of a suit in which the rights to it are to be decided”.
The rights to fish held by the plaintiff prior to the decisions under review are no longer held and cannot be “preserved in status quo”. Time has moved on by force of the decisions under review. The plaintiff’s submissions accepted this conclusion.
The further difficulty is whether the plaintiff can attract the second part of the quote, that rights to (the property) are to be decided in this proceeding. It appears “the property” must be understood to mean the 2020 “initial quota allocation” to the plaintiff. Accordingly, it is difficult to see how the proceeding is to determine rights to that property. There is no application in the proceeding to remove the property from the plaintiff. There is no decision to be ‘suspended’ or stayed in order to preserve the property.
It may be the “property” to be preserved is the undefined portion of the quota allocation to which the plaintiff claims in the event the proceeding is successful and a different initial allocation decision is made in the future. But again there is presently no decision this court can ‘suspend’ or stay in order to ‘preserve’ any such right, interest or claim (even if it can be considered to be ‘property’ let alone property of the plaintiff).
The application is dismissed.
ORDERS:
1. Within 7 days of publication of these reasons the parties are to inform the Court of the appropriate orders as to costs, if by consent. If no consent is reached, then within 14 days the respondent is to file submissions as to the appropriate costs order and within a further 7 days the applicant is to file submissions in response. The Court will then determine costs on the papers.
---
0
15
1