Miller and Australian Fisheries Management Authority
[2005] AATA 36
•17 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 36
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2004/48
GENERAL ADMINISTRATIVE DIVISION ) Re HAYDN JOHN MILLER Applicant
And
AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
DECISION
Tribunal Miss Mary Imlach (Senior Member) Date17 January 2005
PlaceHobart
Decision The Tribunal allows the application under S42B and dismisses the application for review.
..........................................
Miss Mary Imlach - Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. T2004/48
GENERAL ADMINISTRATIVE DIVISION )Re : HAYDN JOHN MILLER
Applicant
And:AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
CORRIGENDUM [2005] AATA 36
Tribunal : Miss Mary Imlach (Senior Member)
Date : 24 January 2005
Place : Hobart
Corrigendum : In the reasons for decision in this application which was published on 17 January 2005, the following corrections should be made:
Paragraph 18 (first sentence)
“…. in that all SFRs granted for the year 2004 expired on 31 December 2004”.
Should read
“…. in that all fishing permits granted ….”
Paragraph 18 (last sentence)
“…. his name not being on the Register at 8 March 2004”
Should read
“….at 1 March 2001”
……………………..
Senior Member
CATCHWORDS
Frivolous or vexatious application
Fisheries Management Act 1991 (FM Act)
REASONS FOR DECISION
17 January 2005 Miss Mary Imlach (Senior Member) INTRODUCTION
1. On 4 May 2004 the applicant HAYDN MILLER lodged an application under S29(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for review of a decision made by the Respondent on 5 April 2004 (“the decision”).
2. The decision in turn affirmed a decision of the Respondent’s delegate made on 20 January 2004 not to grant the applicant a Bass Strait Central Zone Scallop Fishery (BSCZSF) permit as requested in his application dated 21 November 2003.
3. The matter has a lengthy history going back to February 1984 when the applicant was denied access to the (then) Bass Strait Scallop Fishery.
4. The Respondent has urged that the matter should be dismissed on the ground that the application is frivolous or vexatious within the meaning of S42B of the AAT Act. Accordingly a preliminary hearing was convened in order to determine this matter.
5. The hearing was conducted at Hobart on 9 November 2004. The Applicant was represented by Mr Ayliffe and the Respondent by Ms Mortimer.
6. The hearing was concerned only with one matter, namely, the question of whether the application should be dismissed as being frivolous or vexatious and, accordingly, it suffices for present purposes to describe the background of the matter briefly and to confine ourselves to those facts which are relevant to this issue.
HISTORY
7.(a) The Applicant was denied access to the (then) Bass Strait Scallop Fishery on 1 May 1984 as he did not meet the relevant entry criteria. This decision was reviewed by the Bass Strait Scallop Review Panel in mid 1984 and affirmed. The Applicant then had a right of review of this decision to either the Minister for Primary Industry or the Secretary to the Department of Primary Industry and subsequently to the Administrative Appeals Tribunal. The Applicant did not exercise this right.
(b) The BSCZSF is managed under a “limited entry” policy whereby no further permits are granted in the Fishery unless cogent reasons are demonstrated by an applicant which justify a departure from this policy.
(c) The Respondent contended that the “limited entry” policy is consistent with the Respondent’s legislative objectives found in s3 of the FM Act, in particular the ecologically sustainable development objective and the precautionary principle.
(d) The Respondent’s delegate found there were no circumstances particular to the Applicant’s case which would justify a departure from the policy.
(e) The Bass Strait Scallop Fishery is currently managed under the Bass Strait Central Zone Scallop Fishery Management Plan 2002. The Plan was determined in accordance with Division 2 of the FM Act and commenced on 7 November 2002.
(f) Under s11 of the Plan access to the BSCZSF is limited to the holders of Statutory Fishing Rights (SFR). To be registered as an eligible person for the grant of an SFR, a person must have held a fishing permit for the Fishery on 1 March 2001 (S15(2)). Pursuant to s16 of the Plan, on 8 March 2004, AFMA made a provisional grant of SFRs to those persons on the Register.
(g) AFMA has granted permits for the period 1 January to 31 December 2004 as an interim measure only as on their expiry, access to the Fishery will be by SFRs only.
(h) The Applicant applied to be registered as eligible for the grant of an SFR in the Fishery on 19 December 2002. AFMA refused this application on 19 December 2002. The Applicant sought review of this decision pursuant to s165 of the FM Act. A delegate of the Respondent reconsidered the 19 December 2002 decision and on 18 February 2003 affirmed the Respondent’s refusal to enter the Applicant on the Register. This decision was a reviewable decision for the purpose of s25 of the Administrative Appeals Tribunal Act 1975. The Applicant did not seek review of this decision.
(i) The Applicant applied for the grant of a BSCZSF permit on 21 November 2003.
(j) The Respondent advised the Applicant in writing on 20 January 2004 of its decision to refuse him a permit in the BSCZSF.
(k) The Applicant requested the Respondent to review its decision to refuse him a permit on 9 February 2004.
(l) The Respondent advised the Applicant on 5 April 2004 that it affirmed its decision to deny him a fishing licence in BSCZSF in 2004. It is this decision which the Applicant now seeks to have reviewed.
CONTENTIONS OF THE RESPONDENT
8. The Respondent contended that the application by the Applicant should be dismissed under S42B because:
(a) Even if the Applicant succeeds, any relief the Tribunal grants will be futile.
(b) The reasons put forward by the Applicant why he should be granted a permit are based on events more than 20 years ago and the Respondent is prejudiced in answering such a case.
(c) By seeking to revisit events more than 20 years ago, the Applicant is undermining the subsequent management arrangements and decisions in the fishery.
(d) The Applicant is misusing the jurisdiction of this Tribunal to bring challenges to decisions taken in 1984 in circumstances where the Applicant failed to avail himself of the appropriate review processes at the appropriate time.
9. The Respondent referred the Tribunal to the decision in Re Williams and Australian Electoral Commission (1995) 21 AAR 467 at 473-474 whereby the Tribunal warned that the power in s42B is to be exercised carefully and cautiously.
10. The Respondent contended that Williams case established
(a) The manifest untenability of a proceeding provides one ground for finding that the proceeding is a vexatious one.
(b) The section encompasses the concept of “abuse of process” although the words are not used and in turn encompasses concepts such as futility and collateral purpose.
(c) The test to be applied in determining whether proceedings are vexatious can be expressed either subjectively or objectively depending upon which head of “vexatiousness” one is considering.
(d) The question is not whether the proceedings have been instituted vexatiously but whether they are in fact vexatious.
(e) An applicant who genuinely holds a mistaken belief as to a state of facts which, if correct, would support the claim which is made in the proceedings, is ordinarily entitled to “a day in court”.
(f) The situations in which proceedings will be found to be vexatious should not be stultified by requiring that they fall within pre-ordained categories. At the same time, it is important to re-affirm that the power to dismiss under this head must be exercised cautiously and sparingly.
11. An application to the Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant : McWilliam and Civil Aviation Safety Authority [2004] AATA 908 at 13.
12. The Respondent contended that the Applicant’s case is based on events which took place more than 20 years ago and that the Respondent is irreparably prejudiced in answering such a case. The Respondent argued that the material and information available to the Minister for Primary Energy (who formulated the relevant policy in 1984) and the persons with direct knowledge of how the policy came to be formulated as it was, are not available. The Respondent stated that some of that material is recounted in the AAT’s decision in Re Evans v Secretary Department of Primary Industry (1985) 8 ALD 627, but that the Applicant asks the Tribunal to disregard the decision in that case and start again.
CONTENTIONS OF THE APPLICANT
13. The Applicant contended that the exclusion from the fishery in 1984 was bad and invalid as a matter of law.
14. He contended that he had maintained his connection with the fishery by a long course of application for permits and representation as to his circumstance. He had not accepted his exclusion from the fishery in any way and the Respondent has at all times been conscious of his continued assertion.
15. The Applicant claimed that the circumstances of the exclusion of the Applicant in 1984 are relevant and central to his application to this Tribunal. He contended that his arbitrary exclusion from the fishery infringed the objectives that govern AFMA and the Act. He stated that it infringed further the principle which requires an efficient management of the fishery.
CONSIDERATIONS
16. Section 42B of the AAT Act provides as follows:
“Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceedings, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application; and
(b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(2) A direction given by the Tribunal under paragraph (1) (b) has effect despite any other provision of this Act or a provision of any other Act.
(3) The Tribunal may discharge or vary such a direction”
Barwick CJ in General Steel Industries Inc. v Commissioner for Railways (NSW) (1964 112 CLR 125) warned that the power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly.
17. The operation of s42B of the AAT Act was considered by the Tribunal in Re Williams and Australian Electoral Commission and the Greens (1995) 21 AAR 467. The Respondent argued as in the present case that the proceedings were futile and an abuse of the Tribunal’s processes. The Tribunal found that the situation in Williams’ case fell within the provisions of s42B of the AAT Act for the reasons that (at p.474):
“It does so not only because of the futility of the proceedings, but also because they are being pursued by the Applicant for a collateral purpose – a purpose which is irrelevant to any issue which could legitimately be raised in these proceedings …”
18. In this case even if the Applicant were to succeed in his application any relief granted by the Tribunal would be futile in that all SFRs granted for the year 2004 expired on 31 December 2004. The legislative regime required by the management plan for this fishery means that from 1 January 2005, it will be a criminal offence for Mr Miller to fish in this fishery unless he has a quota statutory fishing right and a boat statutory fishing right. It is not possible for Mr Miller to obtain such a fishing right as he has no entitlement at 1 January 2005 to an SFR, his name not being on the Register at 8 March 2004.
19. The Applicant’s contention is that there are cogent reasons for departing from the limited entry policy of the Respondent in his case and that his exclusion from the scallop fishery in 1984 was wrong. He claims that if it was wrong in 1984 then the limited entry policy should not be applied to him in 2004 because it perpetuates the wrong.
20. It is correct that the Applicant has maintained a lengthy correspondence with AFMA since 1984 regarding his desire to hold access rights to fish for scallops in BSCZFS.
21. It is also correct that Mr Miller took advantage of the application process that was available in 1984 and when his application was refused, he sought internal review but not review to the AAT.
22. The Respondent referred the Tribunal to the case of Evans. The Respondent stressed to the Tribunal the fact that Mr Miller could have done as Evans did in 1985. He could have had his case considered by this Tribunal on its merits. He chose not to and continued to press his case for access to the scallop fishery, he continued to refuse to accept the integrity of the management regime imposed in 1984 and continued to press his claim mainly by correspondence with AFMA.
23. The Applicant failed again in 2003 to exercise his rights of review to the Tribunal in relation to AFMA’s decision of 18 February 2003 not to register him as an eligible person for the grant of an SFR in the BSCZSF.
24. The Tribunal agrees with the Respondent that the Applicants request for review of AFMA’s decision of 5 April 2004 to refuse him a permit is a vexatious attempt to overcome his failure to exercise his rights of appeal in 1984 and 2003.
25. The Respondent referred the Tribunal to A G v Wentworth (1988) 14 NSWLR 481Roden J at p.491 in support of its claim that the application is vexatious in that the applicant’s reason for filing his application is to frustrate the implementation of the Plan and to cause undue expense and annoyance to the Respondent.
26. In Wentworth’s case Roden J said at p.491
“It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless”.
27. This Tribunal agrees with the submission put by the Respondent that the matters raised by the Applicant in his submission are matters which go to the lawfulness of the management plan and the lawfulness of the criteria in 1985, they are matters within the jurisdiction of the Federal Court but Mr Miller has not sought to avail himself of that jurisdiction.
28. An entirely new regime for permission to fish in this fishery comes into effect from 1 January 2005. An instrument determined under the fisheries management legislation and the merits of the contents of that instrument are not a matter for this Tribunal nor of course for the Federal Court but the lawfulness of the instrument is.
29. For the reasons set out above, there would be no practical utility or benefit to the Applicant in reviewing the decision made by the Respondent on 5 April 2004. It would impose unnecessary expense and hardship upon the Respondent if the case were to proceed further. In the Tribunal’s opinion whilst the proceedings were not instituted vexatiously, they have become vexatious.
CONCLUSION
The Tribunal allows the application under s42B and dismisses the application for review.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of MISS MARY IMLACH (SENIOR MEMBER)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 9 November 2004
Date of Decision 17 January 2005
Counsel for the Applicant
Solicitor for the Applicant Mr W Ayliffe, Ayliffe & Ayliffe
Counsel for the Respondent Ms D Mortimer
Solicitor for the Respondent Ms A Dornau, Dibbs Barker Gosling
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