Leeworthy v Registrar of the Licensing Appeals Tribunal
[2014] VSC 383
•15 August 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 01497
| Grant Leeworthy | Plaintiff |
| v | |
| Registrar of the Licensing Appeals Tribunal | First defendant |
| - and - | |
| Department of Environment and Primary Industries | Second defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 August 2014 |
DATE OF JUDGMENT: | 15 August 2014 |
CASE MAY BE CITED AS: | Leeworthy v Registrar of the Licensing Appeals Tribunal |
MEDIUM NEUTRAL CITATION: | [2014] VSC 383 |
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Administrative Law — Judicial review— Jurisdictional error — Fisheries Act 1995 — Fisheries Regulations 2009 — Fisheries and Fisheries (Fees, Royalties and Levies) Further Amendment Regulations 2013
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Morehead (solicitor) | Moreheads Lawyers |
| For the First defendant | No appearance | |
| For the Second defendant | Mr C Horan | Minter Ellison |
HER HONOUR:
The plaintiff, Mr Grant Leeworthy, wishes to commercially harvest scallops in Port Phillip Bay. In correspondence with Fisheries Victoria and the Department of Primary Industries between at least 2009 and 2014, he sought permission to establish a fishery for that purpose. In correspondence with the Licensing Appeals Tribunal in early 2014, he sought a review of a purported decision by the Secretary of the Department of Environment and Primary Industry to refuse him that permission.
By originating motion filed in this Court on 1 April 2014, he now seeks judicial review of the decision of the registrar of Licensing Appeals Board to reject his application. The application was rejected on the basis that the Licensing Appeals Tribunal did not have jurisdiction to review the matter.
By letter sent to the Prothonotary dated 9 April 2014, and placed on the court file, the first defendant informed the Court that he does not intend to take an active role in this proceeding, except as regards any question as to costs, and will abide by the decision of the Court, in accordance with the principles pronounced by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman.[1]
[1](1980) 144 CLR 13, 35.
The second defendant appeared at the hearing and opposed the relief sought by the plaintiff. The plaintiff relied on two affidavits sworn by him on 1 April 2014 and 12 April 2014. The second defendant relied on an affidavit of Mr Ross Gregor McGowan, the Executive Director of Fisheries Victoria, sworn 10 April 2014.
Before setting out the correspondence exhibited in this proceeding, it is instructive to set out the legislative scheme in some detail.
The legislative scheme
The Licensing Appeals Tribunal (‘the Tribunal’) was established by s 2 of the Fisheries Act 1975, which inserted s 6D(1) into the Fisheries Act 1968, and was continued in existence by s 135(1) of the Fisheries Act 1995 (‘the Act’).[2] A person who is aggrieved by a reviewable decision may appeal to the Tribunal against that decision: s 136(4). A reviewable decision includes a decision to refuse to issue a licence under s 51: s 137(a). An appeal to the Tribunal is in the nature of a rehearing.[3] A person who is aggrieved must appeal within one month after receiving notice of the decision: s 136(4), and must lodge that appeal with the registrar of the Tribunal: s 136(5)(c).
[2]All references to section numbers in this judgment are references to sections of the Act, except where otherwise indicated.
[3]Department of Primary Industries v Costa [2007] VSC 88 (2 April 2007) [10] (Smith J).
The Secretary of the Department of Environment and Primary Industry (‘the Secretary’ and ‘the Department’ respectively) may issue a fishery licence on the application of a person who satisfies the eligibility criteria, and pays any fees, royalties and levies payable in respect of the issue: s 51(1). Any such application must be made in the form required by the Secretary: s 51(2). The legal nature of the rights granted by an access licence was considered by the Full Court of the Federal Court in Alcock v Commonwealth of Australia,[4] and the discretion of the Secretary or nominee considered by Smith J in Department of Primary Industries v Costa.[5] An appeal must be lodged in writing with the registrar of the Tribunal (‘the Registrar’): s 136(5).
[4][2013] FCAFC 36 (8 April 2013).
[5][2007] VSC 88 (2 April 2007).
A fishery licence is relevantly defined to include an access licence, which means a licence issued under s 38: s 4. Access licences may be created by the regulations: s 38(1), and may specify, amongst other things, that the holder of a licence may:
(a)take specified fish for sale;
…
(c)use specified commercial fishing or commercial abalone equipment or to use commercial fishing or commercial abalone equipment generally;
(d)possess specified commercial fishing or commercial abalone equipment or to possess commercial fishing or commercial abalone equipment generally;
(e)do anything else relating to the taking of fish or fishing bait specified by the regulations;
(f)use a boat to do anything authorised under paragraph (a), (b), (c), (d) or (e);
(g)engage one or more people to do one or more of the things listed in this subsection.
The effect of being issued an access licence is that the holder will not have committed an offence under Part 4 of the Act if they engage in a proscribed activity, but are entitled to under the terms of their licence. For example, a person must not take fish for sale, take fishing bait for sale, or use commercial fishing equipment: s 36(1), unless they are authorised by holding an access licence to do that thing, or acting on behalf of the holder of an access licence: s 36(3). For completeness, I note that ‘fish’ is defined to include oysters and other aquatic molluscs: s 5(1)(c).
The classes of access licence are defined in r 12 of the Fisheries Regulations 2009 (‘the regulations’).[6] The regulations are made by the Governor in Council: s 153(1). The Scallop Dive (Port Phillip Bay) Fishery Access Licence (‘the Scallop Licence’) was inserted as new r 12(sa) by r 6 of the Fisheries and Fisheries (Fees, Royalties and Levies) Further Amendment Regulations 2013 (‘the amending regulations’), and is governed by part 11, divisions 3A and 3B of the regulations. This access licence was introduced effective 18 December 2013: the amending regulations, s 3(1). The maximum number of Scallop Licences that may be issued is one: r 21(1), sch 5 item 18. The Scallop Licence only authorises the holder to take scallop by hand in Port Phillip Bay: r 413A.
[6]All references to regulation numbers in this judgment are references to the regulations, except where otherwise indicated.
Since 1999, when scallop dredge fishing in Port Phillip Bay was closed, the only other class of access licence enabling the taking for sale of scallop from Victorian waters is the Scallop (Ocean) Fishery Access Licence: r 406, of which there are 91: r 21(1), sch 5 item 17. Those licences do not allow the taking of scallop in Port Phillip Bay, Western Port, Gippsland Lakes or any inlet of the sea: r 406. Unlike the Scallop Licence, those licences entitle the holder to possess and use a scallop dredge: r 406.
In respect of the issue of a new licence, the Minister may determine that a new licence is to be publicly sold: s 51A(2), and must specify the method by which the sale is to take place: s 51A(2). Once the Minister has made such a determination, the Secretary may only issue the licence to the person who was the successful party under the specified sale process: s 51(4A), provided there is no valid ground for the Secretary to refuse to issue the licence to that person: s 51(4A)(b), s 51(4).
An access licence is the only category of fishery licence under which a person may be authorised to take fish for sale, the other licences issuable under the Act being an aquaculture licence: s 43, a recreational fishery licence: ss 45, 46, and a fish receiver licence: s 41. However, the Secretary may also issue a general permit: s 49(1), under which a person may be authorised to:
(a)to take or possess fish for research, education, fish management, aquaculture, compliance or scientific purposes; or
(b)to take or possess fish from a developing fishery; or
(c)to carry out any research, exploitation, work or operation for the purpose of developing any fishery or aquaculture; or
…
(e)to sell or dispose of any fish obtained by the person under the permit; or
(f)to use or possess specified commercial abalone equipment, commercial fishing equipment, commercial aquaculture equipment or recreational fishing equipment; or
(g)for commercial purposes;
(i)to use, form or create a habitat (whether natural, artificial or partly natural or artificial) for hatching, rearing, breeding, displaying or growing fish or fishing bait;
(ii)to hatch, rear, breed, display, grow or sell fish or fishing bait; or
…
(n)to carry out an activity in a fishery if the activity is not inconsistent with any regulations, management plan or Ministerial direction.
The Secretary must not issue a general permit to a person unless the Secretary is satisfied that the person is a fit and proper person to hold the permit: s 49(5), and a decision to refuse to issue a general permit on the basis that a person is not a fit and proper person is a reviewable decision to which an appeal may be brought before the Tribunal: s 137(e).
The correspondence
The 2009 application
The plaintiff established the Port Phillip Bay Scallop Dive Fishery Association, with Dr Matthew Koopman, ‘for the purpose of solving the impediments to the development of the scallop dive industry and conducting stock assessment research’. On 30 March 2009, Dr Koopman, on behalf of Fishy Business Consulting (Geelong), wrote to Mr John Vaytauer, the manager of licensing and quota services at Fisheries Victoria, asking that he accept an application for ‘a general permit to commercially harvest scallops from Port Phillip Bay by hand’ and ‘the declaration of this fishery as a Developing Fishery’.
On 29 April 2009, Mr Anthony Hurst, the Executive Director of Fisheries Victoria,[7] wrote to Dr Koopman rejecting the application, and noting that the Port Phillip Bay commercial dredge fishery for scallops had been closed in 1998, and since that time there had been no quantitative assessment of scallop stocks. The letter from Mr Hurst noted that if this position were to change and the decision were made to develop a scallop fishery in Port Phillip Bay, ‘previous applicants would be welcome to re-apply’.
[7]A division of the Department.
The interim policy
The Minister for Agriculture and Food Security wrote to the plaintiff in relation to the proposed establishment of a scallop dive fishery in Port Phillip Bay on 3 June 2011. In that letter, the Minister noted that establishing such a fishery would require ‘consideration of a number of complex fisheries management issues’. The Minister indicated that as a result, the Department intended to prepare a policy statement to the effect that no authorisations will be issued until those issues were resolved. The Minister stated that ‘no permits will be issued’ until ‘consideration is given to the allocation mechanism and related issues’.
Shortly after, on 11 July 2011, the Minister endorsed an interim policy published by the Department which established a general moratorium on the grant of new access to fisheries in Victorian waters. The policy was expressed to apply to applications for any new permits or licences under ss 49, 51 and 54 of the Act.
The 2011 application
The plaintiff e-mailed the Department on 8 July 2011 requesting a letter of support to amend an inshore trawl licence. That request was rejected by Mr Hurst by letter dated 14 July 2011, in which he noted that:
We are in the preliminary stage of preparing a new policy on developing fisheries that is consistent with the objectives and provisions of the Fisheries Act 1995. The preparation of this policy will require thorough consideration of several threshold issues that are generic to all developing fisheries and specific for any particular fishery.
In the interim, I do not intend to approve any new authorisations for commercial access to wild catch fisheries for which these threshold issues apply.
On 20 July 2011, the plaintiff made a further application for a general permit ‘to develop a sustainable scallop dive fishery in Port Phillip Bay’ on behalf of the Port Phillip Bay Scallop Dive Fishery Association. On 22 July 2011, Mr Mark Edwards, the director of policy and licensing at Fisheries Victoria, acknowledged that application and noted that ‘a formal response to this application will be provided to you in due course’. Mr Edwards letter also noted that the formal response would be ‘consistent with the position outlined to you in recent correspondence’.
The 2013 proposal
In November 2013, the Department announced management arrangements for a commercial dive fishery for scallops in Port Phillip Bay, after public consultation on a proposal released in April 2013. The Department invited expressions of interest to manage such a fishery to be submitted by 18 December 2013. The amending regulations took effect on 18 December 2013,[8] providing for the creation of the Scallop Licence, being a commercial dive fishery access licence in Port Phillip Bay.
[8]Pursuant to r 3(1) of the amending regulations.
The plaintiff submitted an expression on interest on 18 December 2013. His expression of interest amended the standard form and included the following insertions:
We maintain that our work completed to develop this fishery should be considered on a merit basis and that we have been denied natural justice.
and
We maintain that due process has not been followed and sign this under protest.
On 19 December 2013, the Minister made a determination under s 51A(2) of the Act that the Scallop Licence was to be publicly sold, and that the sale was to take place by public auction. As noted above, the effect of this determination was that the Secretary could only issue a Scallop Licence to the winner of the public auction.
On 24 December 2013, the Department acknowledged the plaintiff’s expression of interest:
on the express understanding that consideration and assessment of your EOI application to determine your eligibility to participate in the proposed auction will not have regard to your invoice or handwritten statements on your EOI application … around allegations of a failure of due process or denial of natural justice by the Department.
The specified public auction for the Scallop Licence took place on 20 February 2014. The plaintiff was not the successful bidder,[9] and accordingly was not issued a Scallop Licence.
[9]The successful bidder was Bruce Collis of B & S Collis Pty Ltd.
In oral submissions, counsel for the second defendant submitted that the auction process should be understood as a preliminary step to any application, and that there was an application form for a Scallop Licence in an approved form that was available only to the successful bidder under the auction process. No such approved form was produced in evidence. The plaintiff did not indicate whether such an approved form was available, and did not submit that he had attempted to submit such a form. In this proceeding, he did not seek that such a form be produced or made available.
The 2014 appeal
The plaintiff wrote to Mr Jim Nelms, the Registrar, on 2 February 2014 ‘to appeal the decision by the Department of Environment and Primary Industries to not grant the Port Philip Bay Scallop Dive Fishery Association a licence to dive for scallops in Port Phillip Bay’. Mr Nelms replied on 14 February 2014, rejecting the application on the basis that:
In the absence of any notice of decision by the Secretary of the DEPI, I am not satisfied that Port Phillip Bay Scallop Dive Fishery Association Inc is entitled to make the application.
On 17 March 2014, the plaintiff again wrote to Mr Nelms, asking for the decision to be reconsidered. In the letter, he noted that although the Department ‘has not given us a clear and concise letter stating this refusal’, he was nonetheless entitled to have the decision appealed ‘as the refusal is self-evident’. Attached to the letter was a document titled ‘Application for Development of a Sustainable Dive Harvest Fishery for Scallops in Port Phillip Bay’, which was undated.
Mr Nelms again replied to the plaintiff by letter dated 18 March 2014, refusing the application on the basis that he was still not satisfied that the plaintiff was entitled to make the application. In particular, Mr Nelms indicated that:
My assessment of all the material provided thus far is that there is no evidence of a formal application being made to the Department of Environment and Primary Industries (DEPI) in the prescribed form and that the Secretary of DEPI has not issued a Notice of Decision under the Act to invoke the Tribunal’s jurisdiction.
The plaintiff’s submissions
The plaintiff submitted that the Registrar erred in determining that it did not have jurisdiction because the plaintiff did not make an application in the approved form, and erred in determining that it did not have jurisdiction because no notice of decision had been received.
The plaintiff’s submission was that the Court should look to substance over form — that in substance, the plaintiff had plainly applied for an access licence, and that in substance, the decision to grant a licence by way of auction was a refusal of the plaintiff’s application. That substantive refusal was said to be a jurisdictional fact enlivening the Tribunal’s jurisdiction, about which the Registrar was not entitled to err.
Specifically, the plaintiff submitted that s 137 requires only the existence of a refusal to issue a licence under s 51, an objectively framed jurisdictional fact, and that once that fact exists, then so long as the person applying to the Tribunal is a person aggrieved, s 136(4) gives that person one month to lodge an appeal.
The plaintiff submitted that the substantive application was made in the written applications referred to in the material, irrespective of the form of those applications. The requirement by the Registrar of a formal application was an error, because in substance it was clear that an application had in fact been made.
The plaintiff submitted that the substantive refusal occurred when the auction concluded, at which point the Secretary was required to only issue a licence to the successful bidder. The requirement by the Registrar that formal notice of the refusal be provided was an error, because a substantive refusal had in fact occurred.
The second defendant’s submissions
The second defendant submitted that the Registrar was correct to decide that the Tribunal did not have jurisdiction to consider the plaintiff’s appeal, because the plaintiff did not make any application for an access licence, and there has been no reviewable decision by the Department to refuse to issue such a licence to the plaintiff. In the alternative, the second defendant submitted that if the existence of a reviewable decision was a jurisdictional fact that this Court is required to determine, then there was no such reviewable decision. In oral submissions, counsel for the second defendant noted that although it was expressed as ‘alternative’ ground, the submission was in fact one and the same — that, both on the material before the Registrar, and on the material before this Court, there was no reviewable decision.
The second defendant submitted that the plaintiff did not apply of a licence, because:
(a)The class of access licence sought did not exist prior to 18 December 2013;
(b)There is no record of an application by the plaintiff for an access licence;
(c)The applications put forward by the plaintiff were applications for general permits; and
(d)The undated attachment to the second appeal notice was a submission previously put to the Department in favour of the creation of a fishery, and not an application for an access licence.
The second defendant also submitted that the issue of a licence by public auction process should not in any case be characterised as a refusal of an application by the plaintiff because:
(e)The applications made by the plaintiff were not for the access licence that was ultimately auctioned, but for general permits;
(f)The outcome of the auction merely identifies the person who may become the successful party under the application process, subject to satisfying further eligibility criteria; and
(g)There could be no utility in the Tribunal hearing an appeal from a decision to issue a licence under the public auction process, because unless the regulations are amended by the Governor in Council, the Secretary (and the Tribunal) could not lawfully grant a further Scallop Licence.
Finally, the second defendant noted that the plaintiff was not denied the opportunity to participate in the public auction process.
Conclusions
The plaintiff’s submissions in respect of jurisdictional fact were, in my view, apt to mislead. Ordinarily, the question of jurisdictional fact arises where a decision-maker has determined that a jurisdictional fact does exist, and then gone on to exercise a statutory power. In those cases, when a Court of competent jurisdiction then determines that the jurisdictional fact in question does not exist, the purported exercise of power falls plainly beyond jurisdiction.
In this case, that analysis simply clouds the issue. An appeal may be lodged with the Registrar. The Registrar refused to accept the appeal lodged by the plaintiff. That refusal was on the ground that there could be no appeal, because there had been no refusal. The question before the Registrar is the same as the question before this Court — was there notice of a decision of the Secretary to refuse to issue a licence under s 51 of the Act? As the Secretary may only issue a licence on the application of a person, an anterior question to be determined is whether there was an application for the Secretary to refuse.
I consider that the prior applications referred to in the material are irrelevant to the question to be determined in this proceeding. The 2009 and 2011 applications were for the issue of general permits, on which an appeal may only be made to the Tribunal where the Secretary has determined that the applicant is not a fit and proper person. Both applications were refused,[10] and no appeal was made within the allocated time. The earlier applications referred to by the plaintiff have not been produced. Although I have little doubt in the veracity of the plaintiff’s claim to have made some form of application, I would not accept that they constituted applications for an access licence.
[10]Although I note that the letter from Mr Edwards dated 22 July 2011 refers to a formal response which was not produced to this Court.
The licence that the plaintiff claims to have applied for, the Scallop Licence, did not exist prior to 18 December 2013. It was created not by the Minister, the Secretary, or the Department, but by the Governor in Council, pursuant to s 153(1) of the Act. There could be no application for the Scallop Licence until it was created. On the day it was created, the plaintiff submitted an expression of interest to apply. The day after it was created, the Minister determined that it would be issued by public auction, pursuant to s 51A(2) of the Act. At that point, the Secretary could only issue the Scallop Licence to the successful bidder in the public auction.
It may be that the plaintiff is correct, in one sense, to say that applications should be looked at in substance rather than form, although I do not express any concluded view on that issue. Certainly, the power of the Secretary to determine the form of the application for an access licence could only be exercised bona fide and for the purposes of the Act, and there may be a duty to determine at least a form of application. But in this case, there was no application by the plaintiff for the Scallop Licence that has been produced to this Court. It follows that, as no application was made for the Scallop Licence by the plaintiff, the Secretary had no power to consider, no power to issue, and no power to refuse to issue the plaintiff a Scallop Licence, and the Registrar was correct to determine that there could be no appeal lodged.
Even if there had been an application, and it had been refused, a person who is aggrieved by the decision may only apply to appeal the decision within one month after receiving notice of the decision. Notably, the plaintiff’s first appeal was lodged on 2 February 2014, more than a month after the Minister’s determination that the Scallop Licence was to be sold by public auction, but prior to the public auction having taken place. Even on the construction urged by the plaintiff, I cannot see how this appeal could have been an appeal made in the specified time. Again, the necessity for the Secretary to provide notice of the decision to refuse is not a power that could be improperly exercised — for example, by refusing the application but deliberately withholding notice of that refusal in order to prevent an appeal being lodged. No such improper withholding of notice is alleged in this case.
Instead, the plaintiff seeks simply to ignore the reference in the Act to notice, instead pressing an interpretation of the Act that would enliven the Tribunal’s jurisdiction immediately on refusal. If that were the case, the Tribunal would then be forced to make a factual investigation into the existence of the refusal. It would open difficult questions about when time starts to run for the purposes of the one month time limit on appealing the decision. It is also not an interpretation that is open on the words of the Act. It follows that the Registrar was correct to determine that, until notice of a decision to refuse the licence application is given, the Tribunal can have no jurisdiction to hear an appeal.
Remaining relief sought
The plaintiff’s originating motion, aside from seeking an order that the Tribunal has jurisdiction to hear the appeal, also seeks injunctive relief staying the operation of the single licence, an order that the Tribunal remit the question of the number of licences to the Department to seek an additional licence, or an order that the Department give notice of the refusal to the plaintiff, enabling the plaintiff to lodge an appeal to the Tribunal.
These grounds were not pressed at trial, and no submissions were made in respect of these grounds. Accordingly, and subject to anything the parties might wish to say, the application for an injunction ought to be dismissed because it is not supported by the material; the declaration of a power to remit ought to be dismissed because there is no basis for declaring such a power on the terms of the Act; and an order that the Department give notice of a refusal ought to be dismissed because no application has been made.
Orders
Accordingly, I dismiss the proceeding. I will hear the parties as to the appropriate form of order and as to costs.
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