Fowler v Minister for Fishing and Boating - [2020] VSC 760

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

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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

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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.

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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

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] VSC 760
Decision Date: 17 November 2020

CaseChat Overview and Summary

Fowler sought judicial review of decisions made by the Minister for Fishing and Boating regarding the amendment of a management plan for the Pipi Fishery. The dispute centred around a quota order imposed under the Fisheries Act 1995 and Fowler's application for an exemption to alter his quota, which was denied by the Victorian Fisheries Authority. Fowler requested a stay, later amended to interlocutory relief, of the decisions of the defendants until the judicial review was concluded, asserting that if a sale or transfer of a quota unit were permitted, he could not be returned to his original position or granted the allocation he might be entitled to if a new quota order was made following the review. The defendants argued that a stay was excessive to preserve the status quo and that the relief sought would change the purposes of the decision.

The court found that Fowler had not justified the grounds for a stay, as he was not the only party impacted by the Minister’s decision. The court noted that there had been no exercise of the power to approve a transfer. Instead, the application for relief was hypothetical. The court concluded that there was no need for interim relief as the matters did not justify altering or suspending the scheme. The court further found that Fowler's previous rights to fish no longer existed and the status quo could not be maintained. Notably, the court found that the 2020 initial quota allocation could not be removed from Fowler, nor was there a decision to be stayed to protect this allocation. Additionally, it was unclear whether the quota allocation could even be considered property.

The court dismissed Fowler’s application, noting that the parties were to inform the court within 7 days of the publication of these reasons regarding the appropriate orders as to costs. If no consent was reached, the respondent was to file submissions as to the appropriate costs order, and the applicant was to file submissions in response within 7 days. The court would then determine the costs on the papers.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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