K.F.V. Fisheries (Qld) Pty Ltd v The Honourable John Kerin, the Minister for Primary Industries

[1984] FCA 331

Re: K.F.V. FISHERIES (QLD) PTY LIMITED
And: THE HONOURABLE JOHN KERIN, THE MINISTER FOR PRIMARY INDUSTRIES
No. W A. G63 of 1984
56 ALR 573
Judicial review

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.

CATCHWORDS

Judicial review - trade and commerce - export of frozen prawns - whether prawns lawfully rejected for export on around that they were not at temperature of -18 degrees C. when inspected - consideration of complex legal framework.

Export Control Act 1982, ss. 3,6,7 and 25

Export Control (Miscellaneous Amendments) Act 1982. ss. 11 to 23

Export Control (General) Regulations 1982, regs. 2, 4 and 5

Export Control (General) Regulations (Amendments) 1983, regs. 1 and 6

Exports (Fish) Regulations 1949, regs. 3, 3A, 6, 12, 14, 15, 16, 18, 19, 20, 23, 24 and 25

Customs Act 1901, ss. 112 and 270

Acts Interpretation Act 1901, ss. 4, 7 and 46

HEARING

SYDNEY

#DATE 19:10:1984

ORDER

The decisions made by or on behalf of the respondent Minister on 5 and 6 October 1983 to reject for export 414 cartons of frozen head-on tiger prawns then in store at the applicant's premises at 304 Boundary Road, Townsville, Queensland, be set aside.

The respondent pay the applicant's costs of the application.

There be liberty to either party to apply in relation to the form of the orders provided that notice of intention so to apply is given to the District Registrar at Perth and to the other party within 14 days from today.

JUDGE1

This is an application for judicial review of decisions said to have been made by a delegate of the respondent on or about 5 and 6 October 1983 that certain cartons of frozen prawns owned by the applicant and processed at its premises at 304 Boundary Road, Townsville, Queensland, be rejected for export because of their failure to comply with certain conditions and restrictions imposed by the regulations made pursuant to the Export Control Act 1982.

It is necessary, first of all, to refer at some length to the legislation which is in question. I say at once that the legislative framework which I am about to describe has features about it which I find both puzzling and unsatisfactory. That was acknowledged to be the case by counsel for the Minister. However, I should add that since I reserved my decision I have been informed by the Australian Government Solicitor on behalf of the Minister that the legislation is in the course of amendment designed to overcome the problems which there appear to be. Be that as it may, I must have regard to the legislation in force at the time the relevant events occurred.

The regulations which are in question are regulations made under the Export Control Act 1982. But before I refer to any detail of the Act itself or regulations made under it I should refer to regulations which are known as the Exports (Fish) Regulations. These Regulations were first made in 1949 (S.R. No. 54 of 1949). They continued in force until they were repealed by the Export Control (General) Regulations made on 9 December 1982 (S.R. No. 354 of 1982). Between 1949 and 1982 the Exports (Fish) Regulations were amended many times. They were last amended on 2 December 1982 (S.R. No. 342 of 1982). The legislation which authorised the making of the regulations was the Customs Act 1901 and the Commerce (Trade Descriptions) Act 1905.

The Export Control (General) Regulations, by reg. 2 of which the Exports (Fish) Regulations were repealed, were made pursuant to the Export Control Act. That Act came into force on 1 January 1983 after the regulations, including those which repealed the Exports (Fish) Regulations had been made. Such a course is probably authorised by s. 4 of the Acts Interpretation Act 1901. I say probably, because I have some reservation as to whether s. 4 authorises the repeal of earlier regulations.

The Export Control Act provides in s. 6 that a person who intends to export prescribed goods shall, if required to do so by the regulations, give notice to the Secretary of the Department of Primary Industry or an authorised officer of his intention to export the goods and of the place where the goods may be inspected. Section 7 of the Export Control Act provides that the regulations may prohibit the export of prescribed goods from Australia. Section 3 defines "prescribed goods" to mean goods that are declared by the regulations to be prescribed goods for the purposes of the Act. Regulations made for the purposes of sub-sec. 7(1) may, inter alia, prohibit the export of prescribed goods unless specified restrictions or conditions are complied with; see para. 7(2)(c). Sub-secs. 7(3) and (4) empower the making of regulations dealing with a number of other matters associated with the export of prescribed goods form Australia. Section 25 of the Act empowers the Governor-General to make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Export Control (Miscellaneous Amendments) Act 1982. which also came into force on 1 January 1983, made amendments, inter alia, to the Customs Act and the Commerce (Trade Descriptions) Act; see ss. 11 to 23. Section 23 of the Act repealed para. 270(1)(c) and sub-sec. 270(3) of the Customs Act. The former provision empowered the making of regulations prescribing the conditions of preparation or manufacture for exporting of any article which is used for food or drink by man or used in the manufacture of articles used for food or drink by man. The latter provision is not relevant for present purposes.

At first sight the repeal of para. 270(1)(c) of the Customs Act might be thought to have had an effect on the power to repeal the Exports (Fish) Regulations. But if provisions of the Customs Act were relied upon for this purpose s. 112 and para. 270(1)(d) would probably have been sufficient. Furthermore, the repeal of para. 270(1)(c) was not effective until 1 January 1983 when the amending Act came into force. Thus the repealed paragraph was still in force when the regulations were made in 1982.

None of what I have said appears, however, to have any relevance because, in the result, no provision of the Customs Act was relied upon to support the repeal of the Exports (Fish) Regulations. The Export Control Regulations which effected the repeal were purported to be made pursuant to the Export Control Act alone. All in all I think there may be a question as to whether the repeal of the Exports (Fish) Regulations was effective, but no submission was made on this question and I express no view about it. In the absence of argument, I propose to proceed upon the basis that the regulations were repealed.

I should mention, however, that the Export Control Regulations were amended on 11 August 1983 (S.R. No. 136 of 1983). Regulations 1 and 6 of the amending regulations repealed reg. 2 of the Export Control Regulations and the Schedule to those regulations. It will be remembered that reg. 2 was the regulation which itself repealed the Exports (Fish) Regulations. It did so by reference to the Schedule to the regulations, providing that the Statutory Rules specified in the Schedule were repealed. The Schedule contained ten parts. Part IV of the Schedule specified each of the Statutory Rules which made up the Exports (Fish) Regulations down to the date of the Export Control Regulations which were made, as I have mentioned, in 1982.

What effect the amendment made in 1983 to the Export Control Regulations was intended to have is something about which one can only speculate. Again, no submission was made about it. But the draftsman could not have intended to revive the regulations which were purportedly repealed by the earlier regulations; see ss. 7 and 46 of the Acts Interpretation Act. He could not effect the revival of the repealed regulations without some appropriate words indicating that this is what he wished to achieve. There is also a question as to the power to make the amending regulations about which, also, one can only speculate. It is not profitable to discuss the matter further, but I would hope that this problem will be one of those cleared up by the amending legislation which is soon to come into force.

I propose, therefore, to proceed upon the basis that the Exports (Fish) Regulations were validly repealed on 1 January 1983 when the Export Control Act and the regulations made thereunder came into force. The essential provisions of those regulations are contained in regs. 4 and 5. By reg. 4 fish are declared to be prescribed goods. Regulations 5 contains 11 lettered paragraphs. Regulation 5(d) provides:-

"The export of prescribed goods is prohibited unless the following conditions and restrictions are complied with: . . . . . . . . . . . . . . . . . . . . . < . . . .

(d) in the case of fish - the conditions and restrictions specified in the Export (Fish) Regulations: . . . . . . . . . . . . . . . . . . . . . .< . . . .

I emphasise that the regulations referred to are those which had earlier been repealed by reg. 2. One immediately asks what was the intention of the draftsman. Both counsel are agreed in the answer which should be made. His intention was to import into the Export Control Regulations those provisions of the repealed Exports (Fish) Regulations which constituted "conditions and restrictions". In my opinion counsel are correct in their approach; I propose to proceed on that basis. The next step is, therefore, to consider the Exports (Fish) Regulations (hereinafter referred to as "the regulations"). The relevant provisions are to be found in regs. 3, which contains a number of definitions, 3A, 6, 12, 14, 15, 16, 18, 19, 20, 23, 24 and 25.

Throughout the regulations there are references to an "appointed place" and to an export "establishment". These were defined in reg. 3 but in reg. 9 of the Export Control Regulations it is provided that for the purposes of para. 5(d) of the Export Control Regulations, " the Exports (Fish) Regulations shall be read subject to these Regulations" and as if a reference to an "export establishment" or to an "appointed place" were a reference to "registered premises". "Registered premises" are defined in the Export Control Act to mean premises that are registered, or are part of an establishment that is registered under the Export Control Regulations. Regulations 17 to 20 provide for the registration of premises.

The only other definitions in reg. 3 of the regulations to which it is necessary to refer are those of "fish" and "shrimp". Without going to the detail of these definitions it is enough to say that tiger prawns are "fish" within the meaning of the regulations.

Regulation 6 of the regulations is as follows:-

"6. The exportation of fish is prohibited unless -

(a) the fish is fit for human consumption:

(b) the fish has been processed in an export establishment or stored in an export establishment or in an appointed place:

(c) the conditions and restrictions specified in the second column of the Schedule in relation to the name or description of the fish in the first column of that Schedule have been complied with:

(d) the fish has been transported in accordance with the requirements of these Regulations:

(e) the provisions of these Regulations have otherwise been complied with in relation to the fish."

The Schedule has three columns headed respectively, "Name or description of fish". "Conditions and Restrictions to be complied with" and "Provisions relating to trade descriptions". Para. 3D of the Schedule under the first column specifies "Shrimp - Frozen". Under the second column there are a number of conditions and restrictions which are to be complied with. These relate to colour, appearance, packing, protection from dehydration and a number of other matters to which it is unnecessary to refer. It should be mentioned, however, that no condition or restriction specified in the second column of the Schedule refers to the temperature at which the shrimp is to be. In the third column of the Schedule there are a number of specifications concerning the way in which the shrimp are to be labelled. None of these is relevant for present purposes.

Other paragraphs of the Schedule deal with other species of fish. For instance, para. 3C deals with frozen tropical spiny lobster tails. Amongst the conditions and restrictions which are to be complied with is a condition that immediately after being reduced in temperature in accordance with previous provisions of the second column of the Schedule the tails are to be transferred to a refrigeration chamber, the temperature of which is maintained at not more than -18 degrees Celsius. There are temperature specifications in respect of other species. I instance paragraph 1 dealing with frozen rock lobster tails, paragraph 3 dealing with frozen cooked rock lobsters and paragraph 3E dealing with frozen abalone.

Regulation 12 of the regulations deals with applications by persons who wish to have their premises registered. Previously the regulation applied to enable persons to have their premises registered as an export establishment or an appointed place or both. The regulations must now be read as if the references to export establishments and appointed places were references to registered premises; regs. 9 and 17 of the Export Control Regulations. Regulation 14 provides for the equipment which "registered premises" are to have. This equipment includes not less than one chamber that is capable of reducing the temperature of fish to -12 degrees C. within ten hours after the fish have been placed in the chamber and not less than one chamber for the storage of fish that is capable of maintaining fish at a reasonably constant temperature not exceeding -18 degrees C. Regulation 15 applied previously to appointed places. Its provisions now do not add anything to those of reg. 14. Regulation 16 provides that subject to the regulations all fish shall be sent to registered premises in sufficient time before shipment to enable an officer to examine it.

Regulation 18(1) is as follows:-

"18.(1) Where fish is moved to or from an export establishment, or from an appointed place to a vessel or aircraft for shipment overseas, the transportation facilities shall be hygienic and shall be such that -

(a) the condition of the fish does not change: and

(b) in the case of frozen fish the temperature of the fish does not rise above minus 18 degrees Celsius."

Regulation 18(2) provides for the manner in which fish is to be exported and the temperature at which containers in which it is exported are to be capable of maintaining it.

Regulation 20 is in the following terms:-

"20.(1) A person who intends to export fish shall, at least 3 working days before the date on which he proposes to export the fish, furnish to an officer, in accordance with an approved form, the prescribed information.

(2) The prescribed information shall be accompanied by a declaration by the person furnishing the information that -

(a) the information is true and correct in every particular:

(b) the conditions and restrictions applicable in respect of the fish have been complied with: and

(c) the fish is marked in accordance with these Regulations with the trade description applicable to the fish."

The "prescribed information" is provided for in reg. 3A. Sub-reg. 3A(1) has 13 lettered paragraphs. It is unnecessary to set these out in their entirety. For present purposes it is enough to refer to paras. (d), part of (e), (f) and (1). Those paragraphs are as follows:-

"3A.(1) For the purposes of regulations 19, 20 and 26 the following information is prescribed:

. . . . . . . . . . . . . . . . . . . . . .< . .

(d) the date on which, and place at which, the fish may be examined for the purposes of these Regulations;

(e) the manner in which the fish is to be transported and -

(i) in the case of fish that is to be transported by sea - the name of the vessel and the port at which the fish is to be loaded;

. . . . . . . . . . . . . . . . . . . . .

(f) the date on which the fish is to be transported;

. . . . . . . . . . . . . . . . . . . . . .< . .

(1) a description of the fish, of the method of preservation (if any) and of the manner (if any) in which the fish has been processed; . . . . . . . . . . . . . . . . . . . . . . < ."

Regulation 23 and sub-reg. 24(1) are as follows:-

"23. Where an officer is satisfied that fish has been processed and stored in accordance with these Regulations, he shall apply the approved for export stamp to the fish or to the container in which the fish is packed.

24.(1) Where fish has been examined by an officer and found to comply with the requirements of these Regulations, an officer may issue to the exporter of the fish a permit in an approved form permitting the export of the fish."

Regulation 25 enables an officer who has reasonable cause to think that, since the examination of any fish, the condition of the fish has changed, may re-examine the fish and if, having regard to the condition of the fish as disclosed by the re-examination, he is satisfied that the containers are not marked in accordance with the regulations or any condition or restriction applicable under the regulations has not been complied with, may cancel the export permit issued in respect of the fish. Regulation 26 provides that where fish has been shipped in accordance with the regulations an officer shall, if requested to do so by the exporter of the fish, issue to the exporter a certificate in approved form containing the prescribed information, that is, the information referred to in reg. 3A, and stating that the fish has been processed and stored in an export establishment in accordance with the requirements of the regulations and is fit for human consumption.

I next refer to the evidence. The principal witness on behalf of the applicant was Mr. Perkins who is the applicant's production manager. The applicant carries on business in Queensland as a processor and exporter of frozen prawns. It is the owner of premises at 305 Boundary Street, Townsville. Those premises are registered premises under the Export Control Act and Regulations.

Mr. Perkins said that on or about Monday, 3 October 1983, it was the applicant's intention to move certain frozen shrimp, being head-on tiger prawns, from its premises to a vessel for the purposes of export to Japan. This was to take place on 5 October 1983. Pursuant to reg. 20 of the regulations earlier referred to Mr. Perkins gave notice of intention to export the prawns. Prior to any formal notice, a telex was sent on 3 October 1983, the relevant part of which said that a Department of Primary Industry inspector was required at 8 a.m. Wednesday, 5 October, to load one container of head-on tiger prawns. The formal notification was dated 4 October 1983.

According to Mr. Perkins, it is the usual procedure to partially complete a form provided by the Department and entitled "Export Permit for Fish". He said that he did partially complete such a form and placed it in the office in the applicant's premises used by fisheries export inspectors. The form is in evidence. At the top is noted, "Regulations 20 and 24". The exporter of the prawns was said to be GTK Trading Pty Limited of Osborne Park, Western Australia and the recipient and buyer a Japanese company, Hanwa Co Limited of Osaka, Japan. It was requested that an inspection certificate be issued in Perth but the inspection was required at the applicant's premises in Townsville. There was a reference to the shipping marks. The consignment was said to consist of 600 cartons of frozen raw whole tiger shrimp. The net weight was 9,000 kg. and the form indicated that each carton held ten 1.5 kg. blocks of frozen prawns.

Mr. Perkins made a declaration dated 4 October 1983 that the information supplied on the form was truce and correct, the conditions and restrictions applicable in respect of the fish had been complied with and that the fish was marked in accordance with the regulations with the trade description applicable to it. There were some blanks in the form, these being the name of the vessel, the port of loading and the date of departure. I was informed by counsel that it was not unusual for these matters to be left blank because the information might not be known to the person making the declaration at the time he sought the inspection.

Mr. Perkins said that it was the applicant's intention to move the prawns from its premises at or about 8 a.m. on Wednesday, 5 October 1983. On the afternoon of the previous day, 4 October 1983, at about 2 p.m., two fisheries inspectors, Messrs. Sargent and Roberts, arrived to inspect the prawns. Mr. Perkins said that the two inspectors selected six blocks of shrimp for the purpose of making an inspection to test for quality and weight. At about 3 p.m. on 4 October, Mr. Perkins noticed Mr. Sargent in the cold room of the premises apparently taking the temperature of frozen prawns therein. Mr. Sargent said to him, "We may have a problem here", and showed him a carton of frozen shrimp that was said to have a temperature reading of between -16.5 degrees C. and -17 degrees C. The reason for this, according to Mr. Perkins, was that the carton in question had only been processed on that day with the result that the temperature was not then down to the desired level of -18 degrees C.

The inspectors left the premises at approximately 4.30 p.m. They did not inform Mr. Perkins that any frozen prawns had been "rejected for export" as is set out in reasons for decision given by the respondent to which I shall later refer. After the inspectors had left, Mr. Perkins gave instructions to have all the frozen prawns processed on 4 October removed from the floor of the cold room where it had originally been placed and restacked on racks. He said that this was his usual procedure.

He arrived at the premises at approximately 6 a.m. on 5 October and proceeded to take recordings of the temperature of the previous day's production, being the prawns earlier mentioned. He said that three random sample readings showed a temperature of -19 degrees C. Mr. Sargent arrived at 6.45 a.m. and Mr. Perkins accompanied him into the cold room. Mr. Sargent asked Mr. Perkins where the previous day's production of "head-on tiger prawns" was and Mr. Perkins informed him that it had been restacked in the racks in the cold room in accordance with usual practice. Mr. Sargent then proceeded to take the temperature of some prawns which were standing on the floor of the cold room in the inspection area of the premises. According to Mr. Perkins these were headless prawns and were not, and never had been, the subject of any notification to the Department. A temperature of -17 degrees C. was recorded by Mr. Sargent using a thermometer which, according to Mr. Perkins, has an order of accuracy of only plus or minus 1.5 degrees C.

Mr. Perkins said that it had been the applicant's intention to export 600 cartons of frozen prawns, being "head-on tiger prawns" on the occasion in question. There were, within the cold room at this time, in excess of 2,000 cartons of frozen prawns many of which had been processed as early as 1 August 1983. At about 8 a.m. on 5 October Mr. Perkins submitted a further form entitled, "Export Permit For Fish", to Mr. Sargent covering frozen prawns which had been processed during the period commencing 10 August 1983 and terminating on 3 October 1983. In other words he left out of the form any prawns which had been processed on 4 October 1983. At the time he handed over the form he told Mr. Sargent that it was no longer the intention of the applicant to include, within the product being moved for export on 5 October, prawns which had been processed by the applicant on 4 October. He asked Mr. Sargent to return to him the earlier notification but Mr. Sargent refused to give it back to him. The packing or "stuffing" of the container with the frozen prawns then commenced and proceeded uneventfully.

At about 11 a.m. on 5 October Mr. Sargent asked Mr. Perkins to attend him in the office which he occupied in the applicant's premises. Mr. Perkins said that he handed him a scrap of paper on which words to the following effect were written.

"Following is rejected for export 414 H/on Tiger 22 headless A.S.P. and South Pacific"

The abbreviation "A.S.P." is not explained in the evidence. The inference is open that the 22 containers referred to were the containers from which Mr. Sargent had tested prawns on the morning of 5 October 1984.

Mr. Perkins said that this was the first occasion on which notification had been given him that frozen prawns processed by the applicant on 4 October had been rejected for export. The piece of paper is no longer in his possession because, so Mr. Perkins said, it was subsequently returned to Mr. Sargent. Mr. Perkins informed Mr. Stratton, who is the general manager of the applicant, of what had taken place. The effect of the decision, according to Mr. Perkins, was that the total day's production for 4 October 1983 had been rejected for export.

Shortly afterwards a meeting was held between Mr. Stratton, Mr. Perkins and Mr. Sargent. Mr. Sargent, according to Mr. Perkins and Mr. Stratton, said that the prawns had been rejected for export because, when temperatures were recorded on the afternoon of 4 October, some of the frozen prawns had been of a temperature which was not -18 degrees C. or lower. Mr. Stratton informed Mr. Sargent that to record temperatures of the frozen prawns at that stage was premature because the freezing process was incomplete. All the frozen prawns at the time the temperatures were recorded had, at the most, been undergoing the freezing process for less than eight hours. Reference was made to a manual which was carried by Mr. Sargent. It is known as the, "Export Inspection Manual-Fish & Fishery Products". Mr. Sargent told Mr. Stratton that because the frozen prawns had been removed from the primary freezing chamber, the prawns could not thereafter qualify for export. Mr. Perkins and Mr. Stratton understood Mr. Sargent's reference to, "primary freezing chamber", was a reference to plate freezers on the applicant's premises which are used initially for the purposes of drastically reducing the temperature of prawns from an unfrozen to a frozen state as part of the overall freezing process. The prawns thus frozen are then packed in appropriate containers and removed to the cold room in the applicant's premises where the freezing process is completed. When prawns are taken out of the plate freezers, they are never at a temperature greater than -15 to -16 degrees C. after approximately one hour and forty-five minutes in the plate freezers but may well be of temperatures as low as -25 degrees C. Mr. Perkins, whose evidence on this point is corroborated by that of Mr. Stratton, emphasised that Mr. Sargent had made it abundantly clear that the entire production of frozen prawns of 4 October would not and could not again qualify for export. He added, "The Respondent through his Department has maintained and maintains to this day that decision".

Mr. Perkins said that Mr. Sargent was requested to provide a formal notification of his decision. At first, so Mr. Perkins said, Mr. Sargent declined to give such notification. However, on 7 October 1983, Mr. Sargent produced to him a document entitled, "Advice of Inspection". This document was tendered. It is dated 6 October 1983. It purports to be signed by Mr. Sargent. It refers to a quantity of 414 cartons of frozen raw whole prawns. It indicates that each carton contained 10 1.5 kg. blocks of frozen prawns and that the prawns were of Australian origin and intended to be consigned to Osaka in Japan. A note at the bottom of the document indicates that the "fish" specified above is rejected for export because it did not comply with conditions and restrictions. The form bears the seal of the Department of Primary Industry above Mr. Sargent's signature.

Mr. Sargent gave evidence which confirms substantially what Mr. Perkins said took place on the afternoon of 4 October 1983. He described how he took the samples for temperature testing. He said that in carrying out an assessment samples are selected based upon a pre-determined sampling plan. He added, "In this instance, as there were 600 cartons each containing 10 blocks of shrimp weighing 1.5 kgs. per block to be exported, 6 blocks were selected from 6 of the cartons for sampling." He continued, "One of the criteria in respect of temperature is that the product be -18 degrees Celsius. There is no tolerance provided in the regulations for any defect in the temperature requirement. If the fish have not reached the required temperature for export, -18 degrees Celsius, the entire shipment should not be given an Export Permit, not simply the affected carton or day's production. Temperatures are usually taken in the cold room or the factory assessment area. The assessment against the aforesaid criteria is completed as one operation."

Mr. Sargent produced a schedule of temperature readings taken for fish on 4 October 1983. He confirmed Mr. Perkins account of his conversation in which he said that there was a temperature problem. Mr. Sargent said that he told Mr. Perkins on that occasion that the prawns would be rejected for export if their temperature was above -18 degrees C. Mr. Sargent confirmed that Mr. Perkins had told him that it was that day's product and it had just come out of the freezer but would be all right on the following morning. Mr. Sargent said that he could not reject the fish for export at that stage because he had not completed his assessment of samples.

He said that he and Mr. Roberts then continued with their assessments of samples. The results of these were that the weight and quality of the prawns was acceptable but the temperature of the two selected samples of product of 4 October was above the required temperature, being -16 degrees C. and -15 degrees C. instead of -18 degrees C. as required.

According to Mr. Sargent he informed Mr. Perkins of his decision made that afternoon which was that cartons processed on 4 October 1983 did not fulfil the temperature requirement and were to be rejected for export. Mr. Sargent said that Mr. Roberts said to Mr. Perkins, "Do you have enough product to complete the shipment for the container," Mr. Perkins replied that he did. The two inspectors left the premises at 4.30 p.m. on the afternoon of 4 October and returned at 6.45 a.m. the following day. On their arrival Mr. Perkins presented a new partially completed "Export Permit for Fish" produced from 1 August 1983 to 3 October 1983. Mr. Sargent did some checking and the loading of the container continued uneventfully.

Mr. Sargent said that he made further checks of the rejected samples during the morning and afternoon of 5 October and found the temperature still to be above -18 degrees C. He explained why this was so. He said that it was apparent that prawns were being frozen in plate freezers to a temperature of approximately -16 degrees C. and then being transferred to the cold room to complete the freezing process. He confirmed that the product of 4 October was not eligible for export and that he gave Mr. Perkins a note to this effect. He also confirmed the handing over of the advice of inspection of 6 October 1983. Mr. Sargent said that he was later asked by Mr. Stratton how to remedy the temperature problem. He made certain suggestions which he understands have been implemented successfully. He denied referring Mr. Stratton to any particular paragraph of the Export Inspection Manual because he said he did not have a copy of the manual with him at the time.

Mr. Roberts confirmed Mr. Sargent's evidence as to what had transpired on the afternoon of 4 October and, to a degree, of events on 5 October and succeeding days. It is not necessary to refer to the detail of his evidence. But I should mention that he does confirm that the entirety of product processed on 4 October 1983 was rejected for export.

It is to be observed that there is very little conflict in the evidence. There is a conflict as to when the applicant was notified that the prawns processed on 4 October 1983 were rejected for export, Mr. Perkins denying that any notification to this effect was given him on 4 October 1983 as both Mr. Sargent and Mr. Roberts say was the case. There is also a conflict of evidence as to whether any temperatures of the prawns processed on 4 October 1983 were taken on 5 October 1983. Mr. Perkins says no such temperatures were taken; both Mr. Sargent and Mr. Roberts say that they were. The evidence was given by affidavit. There was no cross-examination of any deponent and no oral evidence.

On 3 February 1984, Mr. P.H. Langhorne, the Acting Director Export Inspection Service of the Department of Primary Industry, gave the applicant reasons for the decision which had been made. Mr. Langhorne's letter referred to the facts as deposed to by Mr. Sargent and Mr. Roberts. His letter continued:-

"The Advice (that is, the 'Advice of Inspection' dated 6 October 1983 referred to in the evidence of both Mr. Perkins and Mr. Sargent) states that the reason for the decision to reject for export is that the product did not comply with conditions and restrictions. I understand that in the course of subsequent discussions between Mr. D. Cox of this Department and Messrs. J. Stratton and D. Townsend of KFV (the applicant) it was explained that the relevant conditions and restrictions which had not been complied with in this case were those described in paragraph 256.8 of the Manual. This matter was canvassed also in the meeting I had with Mr. M. France of KFV on 18 October 1983. That is, the 414 cartons of frozen whole shrimp (serial Numbers 7571 to 7985 inclusive) when presented for export under application No. 15379 had not been reduced to a temperature of -18 C.

As I have indicated previously, the Manual merely amplifies, for operational purposes, legislative requirements which, in this case, are to be found in the Export (Fish) Regulations. Regulation 24(1) provides to the effect that an officer may issue to the exporter of fish a permit to export the fish where the fish has been examined and found to comply with the Regulations. In reaching a decision under Regulation 24 the officer has regard, amongst other things, to those requirements of the Regulations which are described in paragraph 256.8 of the Manual. This Department takes the view that this paragraph encapsulates the basic requirements of Regulations 14, 15 and 18: that is, to ensure that fish which is to be frozen is reduced to a temperature of -12 C. within a period of 10 hours, and thereafter is stored, examined and subsequently transported at a temperature of -18 C.

This Department understands an application by an exporter of fish to mean that the requirements of the Regulations have in fact been complied with and that the fish is in a condition to be exported. One important requirement, of course, is that the temperature of the frozen fish is not above -18 C. when it is transported (Regulation 18(1) (b)). The Department has adopted the practice of ensuring the temperature of the frozen fish to be exported is not above -18 C. at the time the export permit is sought, rather than at the time the frozen fish is in fact moved. This practice is regarded as an administrative convenience for industry as well as the Department."

The decisions, review of which the applicant seeks, are the decisions of the respondent made by one or more of his officers on 5 October 1983 and 6 October 1983 that the prawns processed on 4 October 1983 be rejected for export. There is insufficient material before me to enable me to determine whether it was the Minister, who is the only respondent to the application, who, by a delegate, made these decisions or whether they were decisions made by the officers themselves. However, nothing turns on this matter. No point was taken in relation to it and no argument was addressed in respect of it. No doubt the parties took the sensible course of treating the Minister as an appropriate respondent for the purposes of the application. That course saved the necessity of joining particular named officers of the Department who had made decisions.

The submissions made on behalf of the applicant were as follows:-

1. In the circumstances that existed on 4 and 5 October 1983 the temperature of the prawns in question was not a relevant factor. No provision of the regulations imposed any condition, restriction or requirement that the prawns be at any particular temperature, whether -18 degrees C. or otherwise.

2. The regulations gave no authority to the inspectors to reject any prawns processed on 4 October 1983 other than those the temperature of which they actually tested. In other words they were entitled to reject no more than the six blocks of frozen prawns, the temperatures of which they took.

3. There was no warrant for rejecting prawns processed on 4 October 1983 for export because they were not at the required temperature on that day. That circumstance did not disqualilfy them for export on later days.

Each of these submissions is put in the alternative. That principally relied upon by counsel for the applicant was the first. It involves some analysis of the provisions of the regulations. One has to bear in mind when this analysis is taking place that it is only conditions or restrictions imposed by those regulations which the Export Control Regulations have continued in force. That is subject to there also being continued in force certain requirements of the regulations in relation to the registration and the condition of premises but that is not a matter which arises for consideration in this case.

Clearly enough the requirements specified in the relevant part of the Schedule to the regulations are conditions and restrictions for the purposes of reg. 5 of the Export Control Regulations. The requirements in the second column of the Schedule are referred to as conditions and restrictions in both the heading of that column and in para. 6(c) of the regulations which obliges compliance with the provisions of the Schedule. It is the submission of counsel for the applicant that there are no other conditions or restrictions. If this be so, his primary submission must be upheld because none of the relevant requirements is that the prawns be at any particular temperature. No doubt they would need to be frozen but no specific temperature at which they are required to be kept is specified. In this regard the provisions of para. 3D of the Schedule differ from some other paragraphs where specific temperatures are prescribed.

Counsel for the Minister submitted that the conditions and restrictions specified in the Schedule were only some of those which an exporter was bound to observe. Others were to be discerned from a reading of a number of the regulations. Those having particular relevance to the present case were regs. 14, 15, 18 and 20. Counsel's submission was in line with the formal reasons for decision which had been given the applicant to the detail of which I have referred. These regulations were said to require a maximum temperature of -18 degrees C. at the time of inspection.

Regulation 14 provides for the equipment which an export establishment (now registered premises) is to have. It includes a requirement that it contain not less than one chamber for the storage of fish which is capable of maintaining fish at a reasonably constant temperature not exceeding -18 degrees C. Regulation 15 contains a similar provision in relation to appointed places.

I have earlier set out the essential provisions of reg. 18, but I set them out again, this time, however, substituting for the expressions "export establishment" and "appointed place" the expression "registered premises" as required by reg. 9 of the Export Control Regulations. So amended the material part of the regulation is as follows:-

"18.(1) Where fish is moved to or from registered premises, or from registered premises to a vessel or aircraft for shipment overseas, the transportation facilities shall be hygienic and shall be such that -

(a) the condition of the fish does not change; and

(b) in the case of frozen fish - the temperature of the fish does not rise above minus 18 Celsius."

Regulation 20 obliges a person who intends to export fish, at least three working days before the date on which he proposes to export the fish, to furnish to an officer, in accordance with an approved form, the prescribed information. The prescribed information is provided for in reg. 3A part of which I have earlier quoted. It is unnecessary to refer to it again. The prescribed information is to be accompanied by a declaration that the information is true and that the conditions and restrictions applicable in respect of the fish have been complied with.

I pause to say two things. The approved form referred to in reg. 20 is presumably the "Export Permit for Fish" to which I have referred and which was left for the inspectors by Mr. Perkins, on either 3 or 4 October 1983. The form was not filled in at least three working days before the proposed date of export which appears to me to have been 5 October. I asked counsel what significance the failure to give the appropriate notice had. Both were content to say that the requirements of the regulations had been waived with the result that the matter had no significance. I propose to proceed on this basis.

The second matter which I mention is that it seems to me that the reference to conditions and restrictions in the regulation must be a reference to those conditions and restrictions which the exporter is bound by reg. 6 and the Schedule to comply with. It is not possible, in my opinion, to give the words any wider meaning.

In the submission of counsel for the Minister, reg. 18 contains an implied condition that before fish is moved from registered premises it will be at a temperature of no more than -18 degrees C. He derived this submission from the terms of para. 18(1) (b) which provides that where fish is moved from registered premises to a vessel for shipment overseas the transportation facilities shall be such that, inter alia, the temperature of the fish does not rise above -18 degrees C. In his submission the temperature would have to be at that level before the fish left the premises; otherwise it could not be at that level whilst it was being moved.

An initial question to which the submission gives rise is whether reg. 18 was intended to apply at all after the regulations were repealed. This brings me directly to the question of whether only those conditions and restrictions specified or described as such in the regulations were picked up by the Export Control Regulations or whether the expression "conditions and restrictions" in reg. 5 thereof was intended to pick up every provision of the regulations which, upon a reasonable construction thereof, could be said to amount to a condition or restriction.

I confess that I have not found this question not without difficulty. There is much in my view which suggests that the narrower construction contended for by counsel for the applicant is correct. The legislation is in specific terms. Regulation 5(:) of the Export Control Regulations uses the expression, "the conditions and restrictions specified" in the regulations. This expression comes in turn from s. 7 of the Export Control Act which empowers the making of regulations prohibiting the export of goods unless specified conditions or restrictions are complied with. The use of the word "specified" suggests particularity. The regulations themselves provide for requirements which are specifically referred to as conditions and restrictions and this particularity is maintained not only in reg. 6 and the Schedule but also in reg. 18 as I have mentioned.

The legislative device which has been used is not a usual one. But on the basis that it involves picking up provisions of repealed regulations, as I think was the intention, one would not lightly take the view that the draftsman intended exporters engaged in the daily affairs of trade and commerce and inspectors who supervise their activities to have to grapple with nice questions of whether some or other provision constitutes a condition or restriction. The regulations were intended to work in an area where highly perishable foodstuffs were being exported and where decisions would need to be made quickly without resort to legal advice. For that reason also there is much to be said for the view that nothing which is not specified or described as a condition or restriction was picked up by the Export Control Regulations.

On the other hand the purpose of the regulations was to control the quality of goods exported from Australia and thus protect and maintain the standard of some of Australia's export industries. That purpose would not lead one to give the regulations a narrow construction. Furthermore, no stretching of the language used is required to lead one to conclude that as a matter of ordinary English the express requirements of reg. 18 do amount to conditions and/or restrictions which apply before goods may lawfully be moved.

As I say, the matter appears to me to be one of difficulty. Having given it due consideration, I have reached the conclusion that the submissions relied upon by the Minister are to be preferred and, notwithstanding the particularity of the language which is used in the two sets of regulations, the provisions of reg. 18 do provide for conditions or restrictions within the meaning of reg. 5 of the Export Control Regulations.

I am also of opinion that counsel for the Minister is correct in his contention that the provisions of the regulations are such as to require the fish to be at a temperature of no more than -18 degrees C. before they are moved from registered premises to a vessel. It follows that at some point of time before that movement commences the fish must have been reduced to at least that temperature.

That, however, is not the end of the matter. Regulation 18 will only apply, "Where fish is moved . . ." It is its temperature during the movement which is being regulated. Here, according to the "Export Permit for Fish" form, the fish was required to be inspected on 4 October 1983. Nothing was said in the form as to the date upon which it was to be moved. The telex previously sent made it clear, however, that loading was not to take place until the following day, 5 October 1983.

In my opinion there was no requirement of the regulations which obliged the applicant to have the prawns at a temperature of -18 degrees C. on the afternoon of 4 October 1983 when it was inspected by the inspectors from the Department. There was no question of it then being moved. There was no legal warrant, therefore, for the inspectors to reject the prawns for export on that day.

The prawns were intended to be moved on 5 October 1983. There is a conflict of evidence between Mr. Perkins and Mr. Sargent as to whether any temperatures of the prawns were taken on 5 October 1983. Mr. Perkins is adamant that no temperatures were taken. Mr. Sargent is adamant that they were and that the temperatures were still too high. No cross-examination of either witness took place with the result that I am confronted with the bare bones of conflicting affidavits. No records assist in the determination of the question. Mr. Sargent's note as recalled by Mr. Perkins would support Mr. Perkins' recollection. But the note is not in evidence; I have only Mr. Perkins' recollection of it to go on. The result is that there is no way in which I can decide whose evidence should be preferred. To the extent that the matter depends upon the onus of proof, the applicant has failed to discharge that onus. But that does not take the Minister far. Failure of the applicant to establish that the prawns were not the subject of a temperature check on 5 October 1983 does not establish that they were. The evidence is left in a state of uncertainty. I am quite unable to tell whether any temperature checks were done on 5 October 1983 or not.

If I had been satisfied that I should accept Mr. Sargent's evidence that temperature checks were taken and were found to be too high, there may have been a good deal to be said for the Minister's contention that that meant that the prawns did not comply with a condition or requirement to be implied from reg. 18, namely that they should be at a temperature of -18 degrees C. before they were moved from the applicant's premises. But even if I had been able to reach that conclusion, I do not see how such a state of affairs could have entitled the inspectors to reject the prawns for export otherwise than on 5 October 1983. No provision of the regulations which I can find prevents an exporter in the position of the applicant from complying with such a provision on a second or later occasion. Certainly I would not spell out of regs. 14 and 15 such a requirement.

In those circumstances it seems to me that both the first and third submissions relied on by counsel for the applicant must be upheld. That makes it unnecessary to consider the second submission but I indicate that I would have rejected it. Counsel submitted that there was no provision in the regulations allowing for the taking of sample temperature checks. Certainly there is no specific provision. But to construe the regulations in this way would be to defeat their purpose and object. It would involve taking the temperature not only of every block of frozen prawns but of every prawn. That, of course, would be absurd. Counsel also relied on the few temperature checks that were made but Mr. Sargent gave uncontradicted evidence that the sampling was in accordance with a pre-determined sampling procedure. I should therefore accept his evidence in that regard.

In the result the applicant is entitled to the relief it seeks which is the quashing of the decisions made on 5 and 6 October 1983 rejecting the prawns in question for export. The respondent must pay the applicant's costs. In case either party would wish to speak to the form of the orders which I have made, I reserve leave to either party to apply on 14 days notice to the District Registrar at Perth.