Le v Minister for Primary Industries NSW

[2005] NSWLEC 415

Land and Environment Court

of New South Wales

CITATION:	Le v Minister for Primary Industries NSW [2005] NSWLEC 415
PARTIES:	APPLICANT: Mr Hoang Von Le RESPONDENT: Minister for Primary Industries NSW
FILE NUMBER(S):	31229 of 2004
CORAM:	Pain J
KEY ISSUES:	Question of Law :- whether compensation is limited to fishing entitlements acquired under the Fisheries Management Act 1994
LEGISLATION CITED:	Fisheries Management Act 1994 Pt 2 Div 4B, s 34O
CASES CITED:	Latoudis v Casey (1990) 170 CLR 534
DATES OF HEARING:	24/06/2005
EX TEMPORE JUDGMENT DATE:	06/24/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr A Hoang (solicitor) SOLICITORS: Than & Co RESPONDENT: Mr B Saunders (barrister) SOLICITORS: Department of Primary Industries NSW

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

24 June 2005

31129 of 2004 Le v Minister for Primary Industries NSW

EX TEMPORE JUDGMENT

1 Her Honour: These are Class 3 proceedings brought by Mr Hoang Von Le in relation to the compulsory acquisition by the Minister for Primary Industries NSW (“the Minister”) of fishing entitlements held by the Applicant at Botany Bay. The Applicant’s fishing entitlements were acquired on 23 August 2002 pursuant to Pt 2 Div 4B of the Fisheries Management Act 1994 (“the Fisheries Management Act”) and by virtue of the Minister’s order dated 23 August 2002. The Applicant has exercised his appeal rights pursuant to s 34O of the Fisheries Management Act which provides that a person may appeal to this Court if the person is dissatisfied with the amount of compensation offered for the acquisition of fishing entitlements by the Minister.

2 Before me today is a Notice of Motion dated 15 June 2005 filed by the Minister. The Minister seeks the following orders:

1. The question to be determined at the hearing be limited to the compensation payable by the Respondent to the Applicant for the fishing entitlements acquired pursuant to Part 2 Division 4B of the

Fisheries Management Act 1994.

2. The Applicant to pay the costs of this motion.

3 The Applicant’s Class 3 application seeks the following orders:

Respondent is to pay the applicant the amount of $126,000.00 comprising:
(a) $76,000.00 being the compensation amount of one commercial fishing license/entitlements.

(b) $30,000.00 being value of fishing boat and fishing equipment.
(c) $10,000.00 being for retraining.
(d) $10,000.00 being for relocation.

4 The Court was provided with the affidavit of Mr Le sworn 24 November 2004 and the affidavit of Mr Graeme White, Fisheries Liaison Officer of the Department of Primary Industries (“the DPI”), sworn 13 January 2005. Attached to Mr Le’s affidavit is a brochure titled “Recreational Fishing Havens in NSW”, published by the DPI (“the brochure”). The brochure provides some information in relation to a buy back program for commercial fishing entitlements by the DPI. The brochure states that:

Q. What is happening to the commercial fishers in those areas?
A. Commercial fishers’ licenses are being bought out for a fair price. More than 200 commercial fishers have chosen to sell their fishing entitlements back to the Government. On average each fisher has received $76,000, with up to $20,000 to help for retraining, relocation and depreciation costs.

5 The relevant background to the program identified in the brochure is outlined in Mr White’s affidavit. During 2001 the DPI undertook a voluntary buy back program whereby compensation was offered by the Minister on a voluntary basis to certain fishing business owners who wished to surrender their commercial fishing entitlements. Similar voluntary buy back programs were undertaken by the DPI in May 2002 and August 2002. Mr White stated that the brochure was published during the voluntary buy back process.

6 On 23 August 2002, the Minister made an order compulsorily acquiring the fishing entitlements held by the Applicant and offered the Applicant compensation to the value of $7,000 based on the estimated market value of the fishing entitlements.

Finding

7 Part 2, Div 4B of the Fisheries Management Act outlines the procedure for the acquisition of commercial fishing entitlements by the Minister. Section 34O of the Fisheries Management Act provides:

…

(4) A person who is dissatisfied with the amount of compensation offered to the person under this Division or with any delay in the payment of compensation may appeal to the Land and Environment Court.

8 From the evidence before the Court it appears that the offer contained in the brochure was made in the context of the voluntary buy back program that the DPI undertook prior to the compulsory acquisition that has resulted in this appeal. I therefore do not consider that the brochure has any legal validity in the context of this appeal. Section 34O of the Fisheries Management Act provides a very limited basis on which compensation can be determined. Compensation is limited to fishing entitlements that have been acquired by the DPI. Accordingly, I consider that pursuant to s 34O the Applicant is able to seek order (a) but he is not able to seek orders (b), (c) and (d). I agree with the Minister’s submission that the Court has no jurisdiction to deal with orders (b), (c) and (d) on the basis that it lacks jurisdiction to do so under s 34O of the Fisheries Management Act.

9 It follows from what I have held that the answer to the preliminary question stated in par 2 above must be “yes”. In relation to the orders sought, the question to be determined at the hearing is limited to the compensation payable by the Minister to the Applicant for the fishing entitlements acquired pursuant to Pt 2 Div 4B of the Fisheries Management Act as specified in order (a) of the orders sought by the Applicant.

10 The commonly applied authority of Latoudis v Casey (1990) 170 CLR 534 states that costs are compensatory not punitive, and that is the basis upon which I am awarding them in the Minister’s favour. As the Minister has been entirely successful in this matter I award the Minister the costs for today’s hearing.

Orders

11 The Court orders that:

1. The question to be determined at the hearing be limited to the compensation payable by the Respondent to the Applicant for the fishing entitlements acquired pursuant to Part 2 Division 4B of the Fisheries Management Act 1994.

2. The Applicant pay the Respondent’s costs of the hearing dated 24 June 2005.