McEachern v Broad
[2001] VSC 526
•8 November 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 8162 of 2001
| EOIN MALCOLM McEACHERN & ORS | Plaintiffs |
| v | |
| THE HONOURABLE CANDY BROAD | Defendants |
---
JUDGE: | HABERSBERGER J | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 8 NOVEMBER 2001 | ||
DATE OF JUDGMENT: | 8 NOVEMBER 2001 | ||
CASE MAY BE CITED AS: | McEACHERN & ORS v BROAD & ANOR | ||
MEDIUM NEUTRAL CITATION: | [2001] VSC 526 | ||
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms D.S. Mortimer | |
| For the Defendant | Mr W.F. Lally, QC with Mr A.J. McClelland |
HIS HONOUR:
This proceeding is a group proceeding commenced under Part 4A of the Supreme Court Act 1958. The group members are said to be those persons who hold rock lobster fishery access licences issued pursuant to the provisions of the Fisheries Act 1995 for either western or eastern zones of the Victorian rock lobster fishery. The nature of the claims made on the part of the group members is that the initial quota orders and further quota orders for the eastern and western zones of the Victorian rock lobster fishery published in the Victorian Government Gazette on 10 May 2001 and all quota allocations made pursuant to s.64 of the Fisheries Act subsequently to 10 May are invalid and of no effect.
The proceeding was commenced on 31 October 2001. On the same day a summons was issued returnable today seeking an interlocutory injunction restraining the defendants from giving effect to the May 2001 quota orders and from issuing the second initial quota orders and further quota orders referred to in the Minister's letter to Seafood Industries Victoria dated 12 September 2001. The Victoria Solicitor's Office accepted service of the writ, the summons and the affidavits in support at 2.00 p.m. on Thursday 1 November. Because of the large amount of material and the breadth of the issues involved, the defendant sought an adjournment of the hearing until on or after 12 November by a letter sent to the plaintiffs' solicitors at about 4.26 p.m. on 5 November. The plaintiffs refused to agree to an adjournment. Also on 5 November the plaintiffs' solicitor sent a letter to the defendant's solicitor seeking an undertaking in similar terms to the interlocutory relief sought in the summons so as to remove the need for any interlocutory application.
When the matter came on for hearing before me today, Mr Lally, one of Her Majesty's Counsel, who appeared with Mr McClelland for the defendants, sought an adjournment to a convenient date next week to enable his clients to be prepared to oppose the application. An affidavit in support of that application had been sworn by Richard John McLoughlin the Executive Director of Fisheries Victoria. He deposed at paragraph 19 of his affidavit that:
"The defendants need time in which to prepare material about matters such as
(a)the consultative process that occurred prior to the making of the quota orders;
(b)the damage that the rock lobster fishery will suffer if interlocutory relief is granted;
(c)steps that government and third parties have already taken to give effect to the quota orders with the full knowledge of the plaintiffs."
I consider that it would be appropriate to grant the defendants a short adjournment to enable them to prepare their opposition to the interlocutory application.
During the course of argument I was informed that the May 2001 quota orders had been revoked and that new quota orders had been made by the Minister on 1 November 2001. The revocation and new orders were published in the Government Gazette on 5 November 2001.
I was also told that letters had been sent to every licence holder (it was said they were in the mail) informing them of their quota. Mr Lally also told me that Mr McLoughlin had this morning approved the transfer of three licences and I assume that these were rock lobster licences that were being referred to.
Ms Mortimer of Counsel appeared for the plaintiffs. Although she formally opposed the adjournment, Ms Mortimer based most of her opposition on the need for some protective relief pending the next hearing. She argued that already the defendants were saying that the balance of convenience, particularly as it affected third parties, was against any interlocutory relief and yet events were developing rapidly, changing day by day to the prejudice of the plaintiffs' position on the balance of convenience. Ms Mortimer submitted that it was surprising that a government department was taking these steps knowing that this proceeding was on foot and that no undertaking to refrain from taking such further steps until the next court hearing was forthcoming.
Accordingly, Ms Mortimer sought a direction from me pending the hearing next week that the Secretary not approve any transfer of rock lobster individual quota units under s.65A of the Fisheries Act or approve the transfer of any rock lobster licences under s.56 of that Act.
Mr Lally opposed such an order. He argued that the urgency had been created by the delay by the plaintiffs in commencing this proceeding. He went through the history of the dispute back to November 2000. Ms Mortimer argued that it was not until May 2001 that the quota orders were made and then the plaintiffs and other licence holders were advised by letter dated 12 September that those quota orders would be revoked. As I have said, the replacement quota orders were not made until 1 November.
The Court is placed in an invidious situation by the competing arguments and the problems of the lack of a judge to hear this matter fully. Initially, I was reluctant to grant any relief when the adjournment was only for a few days and the lobster fishing season was not to commence until 16 November. In fact, on 15 November the fishers are able to place their pots in the water. However, it is clear to me that the defendants will be opposing the interlocutory injunction on the basis of the balance of convenience, amongst other arguments, and I do not consider it appropriate to let further changes in the factual basis occur in the intervening period.
On the short opportunity that I have had to consider the material, I am satisfied, even though I really have not even heard Mr Lally on this, that there is a sufficiently serious issue to be tried to justify some interim relief. I see no reason why there would be any prejudice to any person if the Secretary were to be restrained in the terms sought by Ms Mortimer until next Tuesday.
The second limb of interim relief sought by Ms Mortimer was that I direct the defendants to give notice to all of the members of the class of the hearing next Tuesday. This is a class action and s.33X(5) of the Supreme Court Act 1958 permits the Court in such a proceeding to give an order at any stage that notice of any matter be given to a group member or group members. Mr Lally argued that every affected person would be well aware of the proceeding. This may or may not be correct but, given the importance of next Tuesday's application and the ramifications that that application may have, I consider it appropriate that all members of the group be notified of the application for interlocutory injunction.
If rights are to be affected, then at least the persons involved will have had notice of the hearing and an opportunity to come to court to be heard. I am told that there are about 170 rock lobster fishers in the group. The defendants would have the names and addresses of each of them, having just sent a letter to them, so I consider it appropriate to order the defendant to send a letter notifying the licence holders of the application next Tuesday. The letters need only contain a simple statement of the proceeding and what it involves. I would suggest that the parties should try and settle the form of the letter between them, but if they cannot reach agreement, I propose that they could mention the matter before me at 9.30 tomorrow in Court 2 in the Old High Court building.
The exact form of the order would be - first of all, Ms Mortimer, you give the usual undertaking as to damages, do you?
MS MORTIMER: Without having heard what damages are sought or might flow from it, I have those instructions, Your Honour.
HIS HONOUR: On that undertaking, I direct the Secretary, within the meaning of the Fisheries Act 1995,
(1)not to approve any transfer of rock lobster individual quota units under s.65A of the Fisheries Act 1995 or to approve the transfer of any rock lobster licences under s.56 of the Fisheries Act 1995 until 4.00 p.m. on 13 November 2001;
(2)I direct the defendants to send to each rock lobster licence holder a letter in the form to be settled by the parties and attached to this Order and, failing agreement, I will settle the form of the letter;
(3)adjourn the hearing until 10.30 a.m. on 13 November;
(4)reserve costs.
---
0
0
0