Leeworthy v Registrar of the Licensing Appeals Tribunal
[2017] VSCA 353
•30 November 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0078
| GRANT REGINALD LEEWORTHY | Applicant |
| v | |
| REGISTRAR OF THE LICENSING APPEALS TRIBUNAL and DEPARTMENT OF ECONOMIC DEVELOPMENT, JOBS, TRANSPORT AND RESOURCES | First Respondent Second Respondent |
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| JUDGES: | TATE and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 November 2017 |
| DATE OF JUDGMENT: | 30 November 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 353 |
| JUDGMENT APPEALED FROM: | Leeworthy v Registrar of the Licensing Appeals Tribunal (Unreported, Victorian Court of Appeal, Judicial Registrar Irving, 31 August 2017) |
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PRACTICE AND PROCEDURE – Leave to appeal – Application for extension of time – Judicial registrar refused extension of time – Basis for review of decision of judicial registrar – Whether leave required for review of decision – Whether adequate reasons for delay – Whether proposed appeal devoid of merit – Whether potential prejudice to third party – Application for extension of time refused – Supreme Court (General Civil Procedure) Rules 2015 rr 64.08, 64.42, 84.05; Bisognin v Hera Project Pty Ltd [2016] VSCA 322 considered.
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| APPEARANCES: | Counsel | Solicitors |
| Applicant | In person | |
| First Respondent | No appearance | |
| Second Respondent | Ms Lisa De Ferrari | Minter Ellison Lawyers |
TATE JA
McLEISH JA:
The applicant is a fisheries scientist, fisherman and diver who has sought for some years to gain approval to commercially harvest scallops in Port Phillip Bay. He has sought permission in that regard on a number of occasions over the years. In particular, he alleges that in 2011 he made an application for the necessary licence. He further contends that the Licensing Appeals Tribunal, existing pursuant to s 135 of the Fisheries Act 1995, wrongly refused to accept an application for review of what he says was the refusal of the Secretary of the second respondent (‘the Department’) to grant that 2011 application.
By originating motion filed on 1 April 2014, the applicant sought judicial review of the decision of the Registrar of the Tribunal to refuse his application, as well as other relief including injunctive relief staying the operation of the single licence to fish for scallops, which was ultimately granted to a third party in November 2014 following a public auction.
On 15 August 2014, the judge in the Trial Division refused the relief sought. The applicant now wishes to make an application for leave to appeal against the judge’s orders. To that end, he has made an application under the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) for an extension of time. That application was made on 26 June 2017.
On 31 August 2017, the judicial registrar refused the application for an extension of time on the papers and the applicant now seeks to have that decision reviewed and set aside. Before turning to the merits of that application, it is necessary to say something about the nature of the present application.
Basis of present application
The applicant made his application for an extension of time on Form 64B, which refers to rr 64.03, 64.08, 64.10, 64.13 and 64.38 of the Rules. Rule 64.08(1) permits the Court of Appeal or the Registrar to extend the time to file or serve an application, including for leave to appeal.
Counsel for the second respondent made very helpful submissions in which it was contended that the power of the Court to review the decision of the judicial registrar was conferred by r 84.05. That rule applies to ‘any determination given or made by the Court constituted by a judicial registrar’, subject to certain exceptions. Relevantly for present purposes, one of those exceptions is where the judicial registrar is ‘acting as the Registrar of the Court of Appeal’ pursuant to div 2B of pt 7 of the Supreme Court Act 1986. If r 84.05 applies, an appeal by way of hearing de novo lies against the decision of the judicial registrar and is required by r 84.05(5) to be brought by filing a notice of appeal in accordance with O 84. Although no such notice has been filed, the second respondent did not object to the competency of the application before us on that ground. However, the second respondent submitted that it followed from r 84.05(3) that the applicant required the leave of the Court in order to appeal against the determination of the judicial registrar. Rule 84.05(3) provides:
(3)Subject to sections 14A and 17A of the Act and without limiting section 11(5) of the Act, an appeal from any determination to which this Rule applies lies to the Trial Division constituted by a Judge of the Court, except in the case of a determination of the Court of Appeal constituted by a judicial registrar in which case an appeal lies to the Court of Appeal constituted by a Judge of Appeal.
It was submitted that, by virtue of s 14A of the Supreme Court Act, the matter could not proceed unless the Court first granted leave. Section 14C of the Supreme Court Act then provides that this Court may only grant leave to appeal if it is satisfied that the appeal has a real prospect of success.
A different view was taken of the nature of the Court’s power to review a decision of the judicial registrar in respect of an extension of time application in Bisognin v Hera Project Pty Ltd.[1] The Court there stated that the application for review of the judicial registrar’s decision proceeded under r 64.42(8). That rule empowers the Court of Appeal to ‘set aside or vary any direction given or order made’ by the Registrar. Such an exercise of jurisdiction by the Court is not characterised as an appeal and is not described as attracting the provisions of s 14A of the Supreme Court Act. The proceeding closely resembles a hearing de novo, in that an application for an order under r 64.42(8) is required to be dealt with on the basis of the application, written cases (if applicable), and documents filed by the parties prior to the decision of the Registrar, subject to further material being permitted by leave of the Court.[2]
[1][2016] VSCA 322 [105].
[2]Rule 64.42(9)–(10).
The ‘Registrar’ referred to in r 64.08 and r 64.42 is defined in r 1.13 as the Registrar of the Court of Appeal. The Chief Justice is empowered by s 113N of the Supreme Court Act to assign the duties of that office to a judicial registrar, who thereupon may, by virtue of s 113O but subject to s 11(4A), exercise the powers conferred on him or her by the Rules. Sections 113N and 113O are found in div 2B of pt 7 of the Supreme Court Act, to which reference is made in the exception under r 84.05(2) already mentioned. Section 11(4A) enables the Rules to provide for the jurisdiction and powers of the Court of Appeal to be exercised by a judicial registrar constituting the Court of Appeal.
It was the second respondent’s argument that the judicial registrar when deciding an application for an extension of time is exercising the powers of the Court of Appeal as envisaged by s 11(4A). That is because r 64.44(1) provides that, for the purpose of exercising any power conferred on the Registrar by O 64 (including the power to extend time under r 64.08), the Registrar ‘may constitute the Court of Appeal’ and exercise its jurisdiction and powers. As a result of constituting the Court of Appeal, the argument runs, the provisions of s 14A are attracted as r 84.05 acknowledges.
The submissions made by the second respondent indicate that there is scope for debate as to the nature of the jurisdiction the Court is exercising upon an application for review of a decision of the Registrar in respect of an extension of time application. Because the applicant appeared in person, the Court understandably did not have the benefit of submissions contradicting those advanced by the second respondent. In the circumstances, we do not think it is appropriate for us to seek finally to resolve the question in this proceeding.
However, we were not attracted to the second respondent’s argument. Our present view is that the judicial registrar when deciding an extension of time application is acting as ‘the Registrar’ under r 64.08, and thus ‘the Registrar of the Court of Appeal’ within the exceptions identified in r 84.05, and does not ‘constitute the Court of Appeal’.[3] In other words, while there is power under r 64.44 for the Registrar to constitute the Court of Appeal, pursuant to s 11(4A), that power need not be exercised in order to decide every extension of time application. In deciding such applications, it normally suffices to act under s 113O simply as the Registrar. If so, review is by way of r 64.42 and the requirements of s 14A are not attracted.
[3]Emphasis added.
For the avoidance of doubt, we propose to proceed on the basis that, if leave to appeal from the decision of the judicial registrar is required, it should be granted. As appears below, the basis for the argument of the second respondent to the effect that leave, if required, should be refused depended primarily on a submission that the proposed substantive appeal was completely devoid of merit. As explained below, we are not prepared to make such an assessment on the material before us. Further, we had the benefit of extensive submissions from the applicant as to the reasons for his failure to make an application for leave to appeal within time, which submissions were not made to the judicial registrar. In the circumstances, we are therefore prepared to conclude, for the purposes of the extension of time application before us, that an appeal from the decision of the judicial registrar has a real prospect of success within the meaning of s 14C of the Supreme Court Act.
Statutory and factual background
It is then necessary to set out something of the facts and statutory background to the application. The objectives of the Fisheries Act are set out in s 3 of that Act. They include ‘to promote sustainable commercial fishing and viable aquaculture industries’ and ‘to facilitate access to fisheries resources for commercial, recreational, traditional and non-consumptive uses’. The legislation provides for a number of different kinds of authorities to conduct fishing activities. Relevantly, s 38 provides for the creation of classes of ‘access licences’ which may specify that the holder may conduct various commercial fishing activities, including taking specified fish for sale.
Section 49 permits the Secretary to the Department to issue a ‘general permit’ which may authorise the holder to take fish for various purposes but not, generally speaking, for commercial purposes.[4]
[4]In 2017, the Fisheries Act was amended so as to replace the references to ‘the Secretary’, in ss 49–51A, among others, with references to ‘the Victorian Fisheries Authority’. Those amendments are irrelevant for present purposes.
Section 51 provides for the issue of ‘fishery licences’. This includes an access licence, but not a general permit under s 49. It is convenient to set out the relevant parts of s 51, as well as s 51A which makes provision for the Minister to determine that licences be publicly sold:
51 Issue of fishery licences
(1)Subject to this Act, the Secretary may issue a fishery licence on—
(a)the application of a person who satisfies the eligibility criteria, if any, for the issue of the licence; and
(b)the payment of any fees, royalties and levies payable in respect of the issue of the licence.
(2)An application for a fishery licence must be made in the form required by the Secretary.
…
(4)The Secretary must refuse to issue a fishery licence if the Secretary considers that—
(a)the applicant does not satisfy the relevant eligibility criteria, if any; or
(b)the issue of the fishery licence would be inconsistent with any regulations, Order in Council, fisheries notice, management plan or Ministerial direction; or
(c)the applicant has not satisfied the Secretary that he or she is a fit and proper person to hold the fishery licence; or
(d)the issue of the fishery licence would be inconsistent with an intergovernmental agreement or arrangement; or
(e)any other ground prescribed for the purposes of this subsection applies.
(4A)In the case of a licence that the Minister has determined under section 51A is to be publicly sold—
(a)the Secretary may only issue the licence to the person who was the successful party under the sale process; and
(b)the Secretary may only issue the licence to that person if there are no grounds under subsection (4) to refuse to issue the licence.
(4B)For the purposes of subsection (4A), the successful party under the sale process is the first person who pays for the licence under the terms of the sale who is also eligible to be issued the licence under subsection (4A)(b).
…
51A Minister may determine that licences be publicly sold
(1)This section applies if the Secretary proposes—
(a)to issue a new licence (other than a recreational fishery licence); or
(b)to re-issue a licence that has been surrendered or cancelled, or that has otherwise become available.
(2)The Minister may determine that the licence is to be publicly sold.
(3)In making a determination, the Minister must specify the method by which the sale is to take place.
(4)Without limiting subsection (3), a sale may occur by auction, tender or ballot.
The Act provides for the continued existence of the Tribunal (established under a previous Act) and permits a person who is aggrieved by a reviewable decision to appeal to the Tribunal within one month after receiving notice of the decision: s 136(4). The definition of ‘reviewable decision’ in s 137 includes a decision to refuse to issue a licence under s 51: see s 137(a).
There is some dispute on the facts as to the nature of the various approaches made by the applicant for authority to conduct a commercial scallop operation. In particular, there was disagreement when the matter was argued before us as to the background facts giving rise to the application for judicial review. In one sense, that disagreement is at the heart of the dispute between the parties. The applicant contended that he made an application for a scallop dive licence in 2011. He contended that that application was made orally in the absence of any form having been required or provided. He contends that he should have received notice of the refusal to grant him the licence, which would have founded an application to the Tribunal for review. The applicant stated that his application had not necessarily been for an access licence.
In contrast, the second respondent submitted, as the trial judge found, that any application made by the applicant in 2011 had been for a general permit or for a licence other than an access licence. In particular, the judge found that the scallop licence which was ultimately issued to a third party did not exist prior to 18 December 2013 and that there could be no application for that licence, or for any licence to commercially harvest scallops in Port Phillip Bay, before that date. After the Minister determined that the licence would be issued by public auction pursuant to s 51A(2), only the successful bidder in the public auction could apply for that licence and the Secretary could issue the licence only to that successful bidder.[5]
[5]Below n 7.
Application for extension of time
In deciding the applicant’s application for an extension of time within which to seek leave to appeal, it is necessary to take account of several factors, including:
(a) the length of the delay;
(b) the reasons for that delay; and
(c) the extent of any prejudice suffered by the respondent or any third party if the extension were to be granted.
It is well established that an extension of time will not be granted if the proposed appeal is ‘so devoid of merit that it would be futile to do so’.[6]
[6]See Kambouris v Kiatos [2016] VSCA 266 [23], citing Jackamarra v Krakouer (1998) 195 CLR 516, 519–24 (Brennan CJ and McHugh J); Muto v Secretary, Department of Planning and Community Development (2013) 38 VR 293, 296 [13] (Nettle AP and Neave JA).
The delay in this case is significant. The applicant did not suggest otherwise. The time for filing a notice of appeal under the former rules, as they applied at the time of the decision of the trial judge,[7] expired on 29 August 2014. The extension of time application was filed on 26 June 2017, about two years and 10 months later.
[7]Supreme Court (General Civil Procedure) Rules 2005, r 64.03.
The applicant explained the delay in an affidavit dated 31 May 2017, which he supplemented with oral submissions. While the second respondent objected to evidence being given from the Bar table, the submissions made by the applicant were substantially by way of elaboration of what was in his affidavit. We had the benefit of hearing the applicant make submissions and we proceed on the basis that what he told us in the course of those submissions as to his personal circumstances should be accepted as true for the purposes of this application.
The applicant pointed to the stress which he said he had suffered as a result of frustration over many years in his attempts to establish a commercial scallop operation in Port Phillip Bay. That stress was exacerbated by the fact that the applicant suffers from a condition which a consultant psychiatrist described as lifelong attention deficit hyperactivity disorder. That condition, which was diagnosed in 2016, affects the applicant in many ways, especially in relation to the management of time and organisational matters. In the context of the complex procedural details and requirements imposed by the Fisheries Act and the Rules, the applicant submitted that his condition explained his difficulty in meeting the requirements for filing an application for leave to appeal within time. The applicant also invited us to view the delay in the context of the time that it has taken for the matter to reach this point as a result of what he said had been delays within the Department. He submitted that he had first applied for a scallop dive licence in 2003 or 2004. The applicant also asserted that he had lacked the financial resources to seek leave to appeal. He explained that he had pursued a ‘political solution’ instead.
We accept that the condition which affects the applicant has contributed in some degree to the delay which has taken place in this case. However, as the second respondent submitted, the evidence put before the Court falls well short of explaining how the condition, even allowing for the stress inherent in the processes to which the applicant referred, might have contributed to the very significant level of delay apparent in this case. There was no detail provided in relation to the applicant’s financial position. The Court expects substantial supporting evidence to explain a given delay, including one based on medical grounds, and this has not been provided. This weighs heavily against the grant of an extension of time.
The fact that the applicant has, until now, pursued a ‘political solution’ might in a literal sense explain why he has not previously sought leave to appeal, but it does not justify that decision. To the contrary, it tends to suggest that the decision not to seek leave to appeal was freely made and that the applicant has subsequently changed his mind. At all events, it does not assist in affording an acceptable explanation for the delay.
We do not place any weight upon the asserted delays on the part of the Department in the administration of the Fisheries Act. There is no material before us which would enable us to decide whether such delays as may have occurred were reasonable. In any event, this Court is concerned with delay in invoking the procedures for commencing an appeal. Unless delay in another context has contributed to the delay on the part of an applicant seeking leave to appeal, it is difficult to see how it has any bearing on the question.
The second respondent submitted that the decision of the trial judge was plainly correct and that it would be futile to grant leave to appeal. Alternatively, if leave was not required, the application for an extension of time should be refused because the extension of time would be futile. It was submitted that there is, by virtue of the relevant regulations, a single scallop dive access licence for Port Phillip Bay, being the access licence which was sold by public auction.[8] As such, the only question relevant to the determination of an application for that licence was success or failure at the public auction. It was not in dispute that the applicant was not the successful bidder at the public auction.
[8]The ‘scallop dive (Port Phillip Bay) fishery access licence’ was created as a class of access licence under s 38(1) of the Fisheries Act by reg 6 of the Fisheries and Fisheries (Fees, Royalties and Levies) Further Amendment Regulations 2013. By reg 18 of the same regulations, it was stipulated that there be only one such licence. These regulations came into effect on 18 December 2013: reg 3. The Minister made a determination on 19 December 2013 under s 51A(2) of the Fisheries Act that the licence was to be sold by public auction.
There is plainly force in these submissions. However, the material before the Court does not enable us to evaluate the merits of the proposed appeal in any substantial way. While the relevant regulations provide that only one access licence is able to be granted, the parties disagree as to the steps which the applicant took to apply for such a licence. In the circumstances, we are not prepared to uphold the submission that the proposed appeal from the decision of the trial judge is entirely devoid of merit. However, the above matters strongly suggest that any application for leave to appeal would face considerable difficulty.
The second respondent also relied on the prospect of prejudice if the extension of time were to be granted. It was submitted that the rights of the successful bidder at the public auction were relevant to the exercise of the discretion to extend time. In particular, the successful bidder was issued an access licence on 14 November 2014, which has been renewed every year since. It was submitted that the successful bidder would need to be a party to any appeal because it would be at risk of having its rights under the licence adversely affected. The applicant submitted that this was not the case and that the Department had the power to grant more than one licence. He submitted that the scallop fishery in Port Phillip Bay would amply sustain a second licence.
We consider that the risk of prejudice to the successful licence holder is of critical importance in this matter. Whether or not the applicant is correct in his assertion that the fishery would sustain a second licence, the Minister has decided that there is to be a single licence. That is a political decision which is now reflected in the regulations. The desirability or otherwise of this outcome is not a matter with which the Court can be concerned. In circumstances where there is but a single licence, a successful challenge by another party seeking to be issued that same licence is inevitably apt to be prejudicial to the holder of the single licence.
In all the circumstances, the explanation for the delay is insufficiently compelling and the prospects of success are insufficiently strong, to outweigh the prospect of very real prejudice to the third party licence holder if the extension of time were to be granted. Accordingly, we dismiss the application.
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