McAdam v Victorian Fisheries Authority

Case [2025] VSCA 186


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2025 0003
PHILLIP MCADAM Applicant
v
VICTORIAN FISHERIES AUTHORITY (AND OTHERS ACCORDING TO THE SCHEDULE) Respondents

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JUDGES: McLEISH, LYONS and KENNY JJA
WHERE HELD: Melbourne
DATE OF HEARING: 30 April 2025 
DATE OF JUDGMENT: 19 August 2025
MEDIUM NEUTRAL CITATION: [2025] VSCA 186
JUDGMENT APPEALED FROM: McAdam v Victorian Fisheries Authority [2024] VSC 702 (K Judd J)

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ADMINISTRATIVE LAW – Judicial review – Validity of fisheries notice issued under Fisheries Act 1995 – Whether power to issue notice exercised for improper purpose – Whether exercise of power reasonably proportionate to relevant statutory objective – Whether compliance with statutory consultation principles a condition of validity – Whether notice an impermissible exercise of State’s power – Notice lawfully issued to address concerns regarding management and use of fisheries – Lawful exercise of State legislative power with extra-territorial effect – Compliance with consultation principles not a condition of validity – Notice not reasonably proportionate to relevant statutory objective – Application for leave to appeal allowed – Appeal allowed.

Fisheries Act 1995, ss 3, 3A, 11(4), 36, 38, 52, 54,  68A, 114, 152; Fisheries Regulations 2019, regs 144, 234–240; Coastal Waters (State Powers) Act 1980 (Cth) ss 5, 7; Seas and Submerged Lands Act 1973 (Cth) ss 6, 11.

R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170; [1981] HCA 74; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565; [1993] FCA 522; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; RandwickCity Council v Minister for the Environment (1998) 54 ALD 682; Babington v Commonwealth (2016) 240 FCR 495; [2016] FCAFC 45; Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development (2018) 336 FLR 37; [2018] NSWCA 174; Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340; [1989] HCA 49.

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Counsel

Applicant: Mr PE King
Respondents: Ms S Gory

Solicitors

Applicant: Colin Biggers & Paisley
Respondents: Victorian Government Solicitor

TABLE OF CONTENTS

The parties

Background

The 2023 Notice

The statutory context

The judicial review proceeding

The judge’s decision

Application for leave to appeal

Consideration — the legislative character of a fisheries notice

Proposed ground 1 — whether the 2023 Notice was made for an improper purpose

Applicant’s submissions

Respondents’ submissions

Consideration — ground 1 (improper purpose)

Ground 2 — whether the judge erred by failing to consider properly whether the 2023 Notice was capable of being considered reasonably proportionate to the objectives in s 3 of the Fisheries Act

Applicant’s submissions

Respondents’ submissions

Consideration — ground 2 (not reasonably proportionate to statutory objective)

Ground 3 — whether the judge erred in holding that a breach of the consultation principles in s 3A of the Fisheries Act is unenforceable and in not holding that it was a failure of consultation such that the decision was invalid

Applicant’s…

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AGLC
McAdam v Victorian Fisheries Authority [2025] VSCA 186
Case
[2025] VSCA 186
Decision Date

CaseChat Overview and Summary

The case of McAdam v Victorian Fisheries Authority involved a challenge to the validity of a fisheries notice issued by the Victorian Fisheries Authority under the Fisheries Act 1995. The applicant, McAdam, sought judicial review of the notice, arguing it was issued for an improper purpose, was not reasonably proportionate to the statutory objectives, and that compliance with statutory consultation principles was a condition of its validity. The case was heard by the Supreme Court of Victoria, which had to determine the validity of the notice and the extent to which the statutory consultation principles applied.

The court had to decide whether the Fisheries Authority's power to issue the notice was exercised for an improper purpose, whether the exercise of that power was reasonably proportionate to the relevant statutory objectives, and whether compliance with statutory consultation principles was a condition of the notice's validity. Additionally, the court examined whether the notice represented an impermissible exercise of the State's power, given its extra-territorial effect. The court's analysis involved interpreting the Fisheries Act 1995, examining the legislative intent, and assessing the proportionality and reasonableness of the notice in light of the statutory objectives.

The Supreme Court held that the notice was a lawful exercise of the State's legislative power, despite its extra-territorial effect. The court found that compliance with statutory consultation principles was not a condition of the notice's validity and that the notice was issued to address concerns regarding the management and use of fisheries. However, the court determined that the notice was not reasonably proportionate to the relevant statutory objective. Consequently, the court allowed the application for leave to appeal and granted the appeal, setting aside the notice issued by the Victorian Fisheries Authority.

The final orders of the court included setting aside the fisheries notice issued by the Victorian Fisheries Authority, allowing the application for leave to appeal, and granting the appeal on the grounds that the notice was not reasonably proportionate to the relevant statutory objective. The court's decision highlighted the importance of proportionality in administrative actions and the need for careful consideration of legislative intent and statutory objectives in the issuance of regulatory notices.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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