Lawrie v Min for Primary Industries

[1995] HCATrans 338

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A36 of 1995

B e t w e e n -

BRYAN RICHARD LAWRIE

Applicant

and

THE MINISTER FOR PRIMARY INDUSTRIES, THE STATE OF SOUTH AUSTRALIA, JOHN JEFFERSON and TERRY JAMES MORAN

Respondents

Application for special leave to appeal

BRENNAN CJ
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 23 NOVEMBER 1995, AT 10.21 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR N.W. MORCOMBE, QC, for the applicant.  (instructed by Floreani Coates & Co)

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia:  If the Court pleases, I appear with my learned friend, MR M.D. WALTER, for the first and third respondents.  (instructed by the Acting Crown Solicitor for South Australia)

MR D.M.J. BENNETT, QC:   If the Court pleases, I appear with my learned friend, MR C.J. KOURAKIS, for the fourth respondent.  (instructed by Nicholls Gervasi & Co)

BRENNAN CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, as is apparent from the summary of argument, this application concerns the validity of regulation 14a of the relevant regulations made pursuant to the Fisheries Act, 1982.  May I go immediately to the first of the issues referred to in part 1 of our summary of argument, that is, the relevance of section 20 of the Fisheries Act.

Your Honours, could I go first to the three parts of the Act which are relevant in this regard, the first of which is section 20 itself.  Your Honours will see that section 20 describes the principle objectives to be applied in the administration of the Act and what your Honours will see is that, amongst other things, it refers specifically in paragraph (b) to the equitable distribution of the resources to which it refers.  That is the first provision.

The second group of provisions is contained in sections 35 to 37 and your Honours will see that those provisions, speaking broadly,deal with the grant of licences and the terms of licences.

BRENNAN CJ:   It seems at the moment, Mr Jackson, we do not have sections 35 to 37.  We have only one copy, unfortunately, containing the relevant sections.

MR JACKSON:   Your Honour, I am sorry.  My learned friend is able to give the Court one further copy - - -

BRENNAN CJ:   That would be of assistance.

MR JACKSON:    ‑ ‑ ‑ and a third copy, your Honours.  The provisions to which I was referring, your Honours, were sections 35 to 37 and could I just say these things about them.  Your Honours will see that those provisions are the provisions which deal with the grant of licences, to put it shortly, and the provisions, conditions and so on that may be attached to licences, but the particular provision to which I wish to draw attention was section 36(1)(a) which your Honours will see provides that:

an application-

(a) for a licence shall be determined by the Director subject to and in accordance with the provisions of the scheme of management prescribed for the -

relevant -

fishery.

Now, your Honours, in the exercise of the powers under those provisions, the Director, of course, is obliged to have regard to the matters referred to in section 20 because, if I could take your Honours back to that for just one moment, what your Honours will see is that section 20 requires that “In the administration of this Act”, amongst other persons, the Director is required to, et cetera.

The third group of provisions, your Honours, is contained in section 46, the regulation-making power, and your Honours will see that section 46 empowers the making of regulations including regulations dealing with the terms of licences. 

GUMMOW J:   Section 20 does not seem to bind the Governor under 46.

MR JACKSON:   Your Honour, that is the point I am just about to come to now.  Your Honours, the point which we would seek to make is that to which we refer to paragraph 3 of our summary on page 5 and as your Honours will see in paragraph 2, we accept the proposition that your Honour Justice Gummow was putting to me, in effect, that in terms section 20 is directed to the exercise by the persons there mentioned of their powers and functions under the Act and does not itself speak of the ambit of the regulation-making power.

The point we would seek to make, your Honours, is the one in the next paragraph and that is that the provision, in our submission, contemplates, to put it shortly, the making of regulations which will allow the exercise of powers conformably with section 20.  Your Honours, the Act contemplates specifically that the Director will be the person to grant the licence and, your Honours, it requires in section 36 that that power be exercised consistently with the objectives in section 20.

Your Honours, in our submission, if the terms of regulations prevent or inhibit that occurring the regulations fall outside the regulation-making power, putting it in short, to say that section 46 has to be read with section 36 and section 20 and that the judges in the courts below took too narrow a view in that regard.  Your Honours will see that both the primary judge and the Full Court - I can take your Honours to the references in just a moment - took no account of section 20.  Your Honours, could I in that regard take your Honours to page 10, line 1, through to about page 11, line 6, where your Honours will see that the primary judge concluded by saying that he did not “have regard to s20” and,Your Honours, the Full Court at page 60, line 4 through to line 26. 

If I could simply endeavour to put it shortly, the point that we would seek to make is that although it is true to say that section 20 is directed to particular persons, what the Act as a whole, we would submit, contemplates is that the exercise of the regulation-making power will be in such a way as to permit there to be discretions and powers that can be exercised conformably with section 20 and that one cannot just put section 20 to the side as if it were entirely irrelevant when dealing with the ambit of the power under section 46.

Your Honours, the second matter concerned with that is that the basis on which we would contend that the distribution, in fact, effected by the regulation in question was not equitable in the relevant sense, is that it simply took away the expectation that past performance would be taken into account, and could I refer your Honours to paragraph 4 of our written submissions in that regard at page 5, perhaps more particularly paragraph 4(b).

GAUDRON J:   If paragraph (c) is right, it conserves officially ‑ ‑ ‑

MR JACKSON:   Well, it depends, your Honour, because what was ‑ ‑ ‑

GAUDRON J:    ‑ ‑ ‑ which is the first objective.

MR JACKSON:   Could I just say one thing in response to that, your Honour, and it is this that the fishery was conserved by the fact that there was a total allowable catch.  The total allowable catch was the thing that prevented there being any fishing beyond that total limit.  The purpose of the regulation was a distribution of the total allowable catch amongst the persons who were fishing for it.

BRENNAN CJ:   How do you put it exactly in relation to the requirement of equitable?

MR JACKSON:   Your Honour, what we say is this, that what is required by section 20, assuming its application, is that there be taken into account the equitable distribution of the resources of the fishery.  In doing that, your Honour, what we would submit is that there has to be given consideration to and taken into account in the result the matters which are germane to that equity.  Now when I say that, your Honour, we include such matters as those to which we have referred in, for example, paragraph 4(a) on the preceding page, that is, past performance, capital investment and matters of that kind, and not simply saying that those matters are irrelevant.

BRENNAN CJ:   But what is there to show that they were not taken into account?

MR JACKSON:   Your Honour, it seemed to be really not in dispute that the effect of the regulations was to take from the people involved in the fishery who had been successful fishers in it and give to those who had been less successful a better share of the catch, less successful in the sense of being less active and not getting what they had been entitled to get or able to get in the past, simply a redistribution and, as your Honours will see, that was put fairly vividly by the primary judge in the extracts that we have set out in paragraph 6 on page 6.

BRENNAN CJ:   Yes, I am not sure that vividness is necessarily to be equated with validity.

MR JACKSON:   No, your Honour, but he was speaking in that regard about the factual aspect of it, leaving aside for the moment whether that is a correct view of the law applicable to it.

BRENNAN CJ:   But how does one take the leap from saying this was the effect of the regulations, namely, to redistribute the benefit of the limitation of the fishery, to saying that the previous manner in which the licences were distributed was not taken into account?

MR JACKSON:   Your Honour, there is not really, with respect, a leap involved because what one did have was the former situation and I would ask your Honour in that regard to assume the former situation was one in which there was an ability to fish, there was a limitation placed on the total allowable catch.  Your Honour, there would have been the slight difference in the immediately preceding year but we do not suggest that is necessarily the way in which it should have been done.  But assuming that there was an ability to fish then what occurred was that the operation of the scheme was one whereby the persons who had been able to fish and get a substantially larger part of it and had been producing that were then put in the position where, in effect, their portion of their catch was given to those who had been getting less than the million, as it were, and for no very good reason, no identifiable reason apart from some desire to equalise and nothing more than that.

BRENNAN CJ:   Why does that indicate a failure to take into account the objectives in section 20?

MR JACKSON:   Your Honour, because it really gives no weight to past performance.

BRENNAN CJ:   It may give it some weight but it might equally give weight, countervailing weight, to the desire to give any person who sought to participate in the industry an equal opportunity to do so.

MR JACKSON:   Your Honour, that might have been done in a number of ways and it may be that there are forms of regulation of the fishery that could achieve that, but what was simply done was to say in respect of the persons who are fishers everyone has the same entitlement and to put it shortly, your Honour, one is working in a situation of making regulations in a background where there is an established fishery, persons are established in it and one is simply saying take, in effect, from those who have been doing well in it and give to those who have been doing poorly.

BRENNAN CJ:   Is your argument this, Mr Jackson, that given the factual nature of the business of the fishery and given the necessity to enact regulations which achieve an equitable distribution, no reasonable mind could have produced the regulation in question?

MR JACKSON:   Your Honour, that is, in effect, the second position we would take and that is the second point that we seek to make, perhaps put slightly differently but in that area and, your Honour, that is the matter to which we have referred in paragraphs 5 and 6 on page 6 of our summary of argument.  Now, your Honours, the first point, of course, goes to the way in which the case was dealt with by the courts below because the courts below did not deal at all with the question of the application of section 20.  Your Honours, those are our submissions.

BRENNAN CJ:   We need not trouble you, Mr Solicitor, nor you, Mr Bennett.

The applicant’s prospects of success on this application, if special leave were granted, are not sufficient to warrant a grant of special leave.  For that reason special leave will be refused.

MR BENNETT:   I ask for costs, if your Honours please.

BRENNAN CJ:   Yes.  I think there is another application coming, Mr Jackson.

MR JACKSON:   I am sorry, your Honour, I think there is too.

MR SELWAY:   Thank you, your Honour.  We would also ask for costs.

BRENNAN CJ:   Mr Jackson.

MR JACKSON:   Your Honour, so far as my learned friend, Mr Bennett, is concerned there is a difference of view on the question of whether there is or is not an agreement between the parties as to costs.  In the Full Court the issue was raised and, if I could just put it shortly, what the issue is, it is this, that there was an agreement, in effect, that each party bear their own costs as between these two sides.  The question is whether it applies beyond the first hearing.  In the Full Court, after some short argument, the view was taken that it applied only in the first hearing, therefore, the Full Court apparently made an order as to costs.

What we would seek to do, your Honours, is to put some submissions to the Court in writing on the question of why an order should not be made and we wondered if we might have perhaps seven days in which to do so, accepting that the Court would otherwise make an order against us.

BRENNAN CJ:   Mr Jackson, if that were to be done, apart altogether from any question of convenience, it would involve the Court in making a finding, would it not, on the question of fact, namely, whether or not there is an agreement?

MR JACKSON:   Your Honour, it would but could I just say one thing, that one way of dealing with that aspect of the matter would be for the Court to make an order which was, in a sense, provisional and that is subject to the resolution of the issue in any further proceedings that might be brought with there being some limitation to resolve that issue - I do not mean this Court, of course - with there being a brief limitation on the time within which those proceedings might be instituted.

BRENNAN CJ:   An order in that form can be formulated now, can it not?

MR JACKSON:   Yes, your Honour.  An order might be that we pay the costs subject to that order being suspended pending the resolution of any proceedings that might be taken to determine whether there is an agreement which is binding beyond the original hearing of the matter before the primary judge in the Supreme Court of South Australia and with our undertaking to institute those proceedings within, say, seven days and undertaking to proceed with them expeditiously.

GAUDRON J:   Is there no finding against you with respect to that agreement in the Full Court?

MR JACKSON:   Your Honour, all that happened in the Full Court was that the issue there was fundamentally as I have said and no doubt involved in that is the question of the effect of the agreement, but, your Honours, the issue does arise somewhat differently in this Court.

BRENNAN CJ:   As to the application by the Solicitor‑General?

MR JACKSON:   There is nothing I can say about that, your Honour.

BRENNAN CJ:   We will hear what Mr Bennett has to say on the question of costs.

MR BENNETT:   Your Honour, we would oppose any special order and may I just put these matters to the Court:  first, if there is an agreement of the type which has the effect my learned friend refers to, which we dispute ‑ ‑ ‑

GUMMOW J:   It can be pleaded I suppose in bar to any action that is brought to recover the costs.

MR BENNETT:   Your Honour, my asking for costs is a breach by my client of that agreement and my friend could sue for damages and the damages would be the amount.  That is his remedy.  But it would not affect this Court making the order for costs which in the litigation I am entitled to.  But may I just add one other thing:  there was an issue estoppel against my friend because the Full Court has by making an order for costs held that the agreement governed the trial only on its true construction, which is what we maintain, and that issue estoppel would apply equally to my friend’s application in this Court and for both those reasons - it is obviously undesirable that this Court become involved in any factual dispute or disputes concerning construction of correspondence.

There is no reason, we would submit, to suspend the order.  If in the proceedings my friend commences he wants to seek a stay or an interlocutory injunction against the taxation of costs, I suppose he could do so but it is hard to see what prejudice he would suffer because if he ultimately succeeds any order for costs would ultimately result in being repaid with the costs of taxation.  So we would submit the appropriate course is for this Court simply to make an order for costs in the usual way.  May it please the Court.

BRENNAN CJ:   What do you say, Mr Jackson?

MR JACKSON:   Your Honour, just one thing:  any issue estoppel is a matter that would be really the subject of being pleaded by my learned friend’s side in any proceedings we might start in relation to the agreement.

BRENNAN CJ:   What do you say about the submission that if an order for costs is made by this Court then if there should be any proceeding it may be by way of breach of contract between you?

MR JACKSON:   Your Honour, that is really a very unsure basis, may I say so with respect, on which to base it unless the Court were to give some indication that the Court had in mind the possibility that its order might not be in the end effective.

BRENNAN CJ:   In relation to the application for costs by the Solicitor‑General, there will be an order for costs against the applicant.  In relation to the application for costs on behalf of the fourth respondent, the Court makes an order for costs in favour of the fourth respondent but reserves to the applicant liberty to apply to stay any execution that might follow upon the taxation of costs if proceedings to challenge the liability to pay those costs are instituted in a court of competent jurisdiction within seven days.

AT 10.44 AM THE MATTER WAS CONCLUDED