National Australia Bank Limited v The Minister for the Time Being Administering the Sea Fisheries Act 1963 (Tasmania)

[1991] HCATrans 335

...

• "I

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No HS of 1991

B e t w e e n -

NATIONAL AUSTRALIA BANK

LIMITED

Applicant

and

THE MINISTER FOR THE TIME
BEING ADMINISTERING THE SEA

FISHERIES ACT 1963 (TASMANIA)

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J

Fisheries 1 15/11/91

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 NOVEMBER 1991, AT 10.52 AM

Copyright in the High Court of Australia

MR K.A.M. PITT, QC:  May it please the Court, I appear with

my learned friend, MR R.E. SUGDEN, on behalf of the

applicant. (instructed by Finlay Watchorn)

MR w.c.R. BALE, QC, Solicitor-General for the State of

Tasmania:  May it please the Court, I appear with

my learned friend, MR L.E. NORRIS, for the

respondent.	(instructed by the Director of Public
Prosecutions.

MASON CJ: Yes, Mr Pitt.

MR PITT: If the Court pleases. Your Honours, this is an

application which we submit in its essence raises a

most important matter of principle which applies to

all administrative decisions in respect of which

there is a statutory obligation upon the decision

maker to state the reasons for his decision. The kernel of the issue is, Your Honours, whether, if

the decision maker fails to state or to make any

reference in those reasons to a most substantial

matter that was raised before him, whether he is
then to be taken by reference to other material to
have nevertheless taken account of that matter in

the proper way.

It also raises what I will be submitting is a

clear conflict between a line of authority to the

effect that one looks at the reasons given for

administrative decisions in order to determine

whether or not the decision maker has in fact paid

account to all of the relevant matters, on the one

hand, and a line of authority the effect of which

is that a failure to properly obey a statutory

direction to give reasons is in itself an error of

law. It will be submitted that this is a proper

case for the determination of that particular

issue.

Your Honours, the essential facts in the

matters - - -

MASON CJ: We are familiar with the facts. There is no need

to outline those. We have read the judgments.

MR PITT: Thank you, Your Honour. It is submitted that the

law which has been contravened by the decision of

the Full Court is that a decision maker is required

by statute or are being required by statute to give

reasons for his decision, then he must be taken, in

those reasons, to have adverted to all of the

relevant and substantial matters that were raised

before him; nor the peripheral or the minor

matters, but all substantial matters.

Fisheries	2	15/11/91
MASON CJ:	Mr Pitt, can I ask you this question:	was this

submission dealt with by the Chief Justice in his

judgment in the instant case?

MR PITT: This submission was in part, Your Honour. It was

dealt with by the Chief Justice in his reference to

re Poyser and that was in the application book at -

by Mr Justice Cox, I am sorry, Your Honour, at

page 63.

MASON CJ: That was the question I wanted to raise with you.

It was dealt with by Mr Justice Cox and rejected by

him. But as I read the judgment of the Chief

Justice, it was not specifically dealt with by the

Chief Justice.

MR PITT:  He did not specifically deal with that matter,

Your Honour, in explicit terms. My submission is

that it is an inescapable corollary of the decision
to which the Chief Justice came, and the other

learned judge who agreed with him, that they must have regarded the effect of re Poyser in the same

way as did His Honour Mr Justice Cox.

MASON CJ:  As Justice Brennan points out, the only reference

to Poyser in the Chief Justice's judgment is in a

citation from a judgment of Mr Justice Megaw - I am

sorry, that was in Justice Cox's judgment.

BRENNAN J:  The judgments in the Full Court are innocent of

any consideration of the point that you now seek to

raise.

MR PITT: In my submission, Your Honours, they do not

consider it at any great length. It was a matter

that, clearly from the way in which it was brought

up in the judgments, arose at a very late stage in

the case.

MASON CJ: With all respect to Justice Brennan, I do not

think that that is entirely correct because if you

look at Mr Justice Cox's judgment at page 64

line 11, Mr Justice Cox says:

those reasons, though somewhat truncated, were

nevertheless sufficient for the purposes of

the regulation. The existence of a policy

consistently acted upon was a valid reason for

refusing a licence -

and he goes on. And then he ends up:

The delegate was not obliged to advance

reasons why he was not satisfied such

exceptional circumstances existed.

Fisheries 15/11/91

MR PITT: Yes, if Your Honour pleases. In my respectful

submission, that points up the principal error that

was inherent in the decisions, not only of

His Honour Mr Justice Cox but also of the Chief

Justice because it, contrary to the fact and

contrary to the evidence before the court, treats

the matter as though there were no statutory

obligation to advance reasons. That cannot have

been, with respect to the Full Court, the basis

on which they did in fact approach it because there

was clear material before them as to the existence

of such an obligation and the learned judges, in

fact, recite that in the course of their decisions.

MASON CJ:  I think you have got to take it that

Mr Justice Cox recognized that there was a

statutory obligation to give reasons but took the

view that in the circumstances of this case it was not required that the decision maker should do any

more than he did; in other words, indicate that

because he thought it was contrary to public

policy, he was not prepared to depart from the
policy that he had previously enunciated and

applied.

MR PITT: Yes, I accept that, with respect, Your Honour, but

in my submission the whole burden of the

submissions which had been made to the trial judge

and then to the Full Court, and the submissions

which had originally been made to the Minister's

delegate, was to the effect that there were

exceptional or particular reasons why the policy

should be departed from in this particular case.

DAWSON J:  The complaint really was that the delegate had

not turned his mind to these. He had just blindly applied the policy. It was not really a complaint

that he had not given reasons. Indeed, I suppose

you relied on the reasons that he gave to

demonstrate that he had not applied his mind to

this.

MR PITT: Yes, not a complaint that he had not given

reasons, Your Honour, and not a complaint that it
was not clear from the reasons what he had adverted
to, but rather a clear inference from the reasons

which he expressed, and the combination of those

reasons was the duty which we say exists by reason

of re Poyser and the cases which follows it to

express all relevant matters.

DAWSON J: And that is still your complaint now, is it?

MR PITT: That is still my complaint now, Your Honour.

DAWSON J:  Not that reasons were not given?

Fisheries 4 15/11/91

MR PITT:  Not that no reasons were given but that - - -

DAWSON J: But the reasons that were given and the other

circumstances demonstrate that the delegate

approached it with, as it were, a closed mind, just

blindly applying policy, without reference to the

individual circumstances of the case?

MR PITT:  And in particular failing to advert to those

matters which had formed the principal burden of

the submissions which were made to him, that is

that there were exceptional circumstances in this

case as to why this applicant should be treated as

the proper person entitled to the licence.

MASON CJ:  I am not sure that your response to

Justice Dawson has brought out what you are seeking

to say. As I understand it, and certainly correct

me if I am wrong, your principal complaint now is

that the decision maker did not give an adequate

statement of reasons in response to the statutory

obligation to give reasons.

MR PITT: That is one aspect. With respect, Your Honour,

the first aspect is that it is clear, looking at
the reasons which were given, that a most material

matter was totally omitted from the reasons, and

the inference to be drawn from that, which we say

ought to have been drawn by the Full Court, was

that he did not advert to it.

MASON CJ:	I follow.
MR PITT:	The second is that as a matter of law, there is a

line of authority which says if one omits from the

reasons a most material matter, that is a failure

to comply with the legal obligation to give reasons

of such a serious nature that it vitiates the

decision in itself, even though it is not on the

face of the record, Your Honour.

BRENNAN J: That is the proposition that I have not seen any

indication of in the court below.

MR PITT: There was not, Your Honour.

BRENNAN J: The proposition that where there is a statutory

obligation to give reasons, the giving of

insufficient reasons does not discharge the

obligation can be accepted, I would have thought,

without query. That is not what gets you home

here. You need to attack the actual decision

itself, not the fulfillment of the statutory

obligation to give reasons, and you seek to

discharge that onus, as I see it, by saying,

looking at all the facts, including the terms in

which the reasons were stated, the inference is to

Fisheries 5 15/11/91

be drawn that he did not consider the solicitor's

letter.

MR PITT:  I seek to put that, Your Honour, with respect, and

my submission is that the Full Court fell so far

short of the proper approach in the matter that it
is setting a different standard, at least in the

State of Tasmania.

DAWSON J:  You really put your case in the alternative. You

say, either he did not consider the matters which

he ought to have considered or, if he did, he

failed to advert to them in his reasons and

therefore his reasons were deficient. That is the

way you put it, is it not?

MR PITT: That is so, Your Honour.

BRENNAN J: But if you take the second of those, what relief

are you entitled to, mandamus?

MR PITT:  I would submit also certiorari, Your Honour, that

is that he had failed - - -

BRENNAN J:  Why not just mandamus to state the reasons?

Because otherwise you run into Osmond's case, do you not?

MR PITT: That is true, with respect, Your Honour. The

obligation to give reasons, it is submitted, goes

further than simply an obligation for the academic

interest of the person who is entitled to receive

the reasons in this particular case. It is

submitted that the obligation to give reasons being

imposed by the statute must have been done, and can
only really be conceived to have been imposed for

the purpose of giving a right or an ability to see whether the decision has been correctly come to as

a matter of law, and it therefore has much greater

significance than simply the failure to observe one

of the requisite conditions of the decision making

power. But it is a most significant matter.

BRENNAN J:  Is there any authority which suggests that a

decision which is the subject of an obligation to

state reasons is voidable if the reasons are not

fully stated?

MR PITT: There are two to which I refer in particular.

They are both decisions of the Federal Court and

the Full Court of the Federal Court and they are

Dornan v Riordan and Sullivan v Director of

Transport, Your Honour. I have references to

those. If it is convenient, I will take

Your Honours to them now. Sullivan v Department of Transport, 20 ALR 323, Your Honours, related to the

consequences of a failure to consider a relevant

Fisheries 6 15/11/91

question under the - an appeal under the

Administrative Appeals Tribunal Act, and at

page 352 it is dealt by His Honour

Mr Justice Fisher in this particular instance and

he says at lines 20 onwards, having referred to the

question of whether they could be satisfied that
the tribunal had failed to take account of certain

matters:

The question is whether we can be satisfied

that the Tribunal failed to pay regard to

these factors, either on the ground that it
did not consider them material, or by

oversight.

But for certain statutory provisions to

which I refer later it might well have been

difficult to be so satisfied. The Tribunal

has referred only shortly to the irrelevance

of one factor which was pressed upon it,

namely hardship ..... In these circumstances it

might be considered that "the precise reasons

on which the Board acted are not stated and

are not known" -

Reference is made to Denver's case and then to the

proposition that the case was -

material factors had been considered by the capable of explanation on the basis that all of opinion that the interests of air safety -

compelled the decision. Then His Honour goes on:

However, in my opinion, this difficulty

does not arise because of the presence of

s43(2) in the Administrative Appeals Tribunal

Act 1975. This sub-section provides as

follows: -

"(2) Subject to Sections 35 and 36 the

Tribunal shall give reasons in writing for its decision and those reasons shall include its findings on material facts -

Then His Honour continues, on page 353 at the top:

The Tribunal is thus obliged to give the

precise reasons upon which it has acted and in particular its findings on material facts. It

must be assumed to have complied with the

requirements of s 43(2). In so far as it has

not made any findings on those facts which in

my opinion are material to the exercise of its

discretion, it follows that it must have

considered that such facts were not material.

Fisheries 15/11/91

As I have found these facts to be material,

the Tribunal has failed to take account of

material facts. In so doing it has erred in

law and thus an appeal lies, it being on a

question of law in accordance with the

requirements of s 44(1) of the Act.

DAWSON J: That does not help you here because clearly

enough was found to justify the decision, was it

not?

MR PITT: In that particular case, Your Honour?

DAWSON J: No, in this case. There you could assume that

the facts which ought to have been found were not

found and therefore there was no basis for the

decision and it was wrong in law.	But you cannot
do that here.

MR PITT: It does not, with respect, help in relation to the

facts, Your Honour, but it does, in my submission,

help in relation to the reasons because here the

reasons omitted - and this was the matter to which Mr Justice Zeeman, the trial judge, adverted - all

reference to the single substantial matter which

has been urged on behalf of the applicant in its

representations.

DAWSON J: That being?

MR PITT: Being, Your Honours, that there were particular

reasons why the policy should not apply to this

particular designee of the applicant. There were

security documents held by the applicant over the fisheries' licences and entitlements which formed

the subject of the litigation and there had been

dealings with those entitlements which the

applicant says were quite inconsistent with the

rights which it had under the security documents.

It was in those circumstances that the applicant said to the Minister, and the Minister's delegate,

person whom you are going to treat as the proper	"This is a case where you ought not to treat the
nominee of the person who presently holds the entitlement to the fisheries' licences. You should
instead treat our nominee as that person."
That was, Your Honours, the real substance of the submissions that were made to the Minister and
his delegate. So that it was the most important
matter which was put to the Minister.

DAWSON J: And what was said in reply by the delegate or

what was said in his reasons was, "Well, we do not,

in those circumstances, issue licences. We only

issue licences where it amounts to the renewal of

an existing licence or to the nominated transferee

Fisheries 15/11/91

of the holder of an existing licence. Those are

the only circumstances and we are not going to

depart from that policy here."	Now, if that is the
fact, what more can he say?

MR PITT:	Your Honour, in my submission he could say that,
"The particular circumstances or the exceptional

circumstances which have been urged upon me are
circumstances which I do not regard as being

adequate to enable the exercise of discretion as

you put, and I will in those circumstances apply

the policy. "

DAWSON J: That is exactly what he does say, perhaps not in

terms. If you take paragraph 4 of the letter of

18 May what the delegate says is:

Mr. Pettit is neither an existing licence

holder renewing a licence nor the nominated

transferee of an existing licence holder. It

would accordingly be inconsistent with the

policy to which I have referred and inimical

to its objectives to grant the application.

MR PITT: Yes. If Your Honour pleases, that was the same

matter in respect of which he had invited

submissions, though previously, and in my

submission it simply does not advert to the burden,

and the whole burden, of the submissions which had

been made.

DAWSON J:  You say it would have been sufficient if a

sentence had been added, "The particular

circumstances which are pressed on me do not, in my
opinion, justify departure from that policy."?

MR PITT: Because that, in my submission, would perhaps in

almost an inadequate form have been sufficient to

indicate that he had in fact adverted to that

matter. But in the form in which they were, the

reasons simply appeared to be a recital of the

policy and its importance to the State, without

actually considering the question of whether or not

the particular circumstances applied. In my

submission it becomes then really a question of

whether the burden of stating reasons, which lies

upon the decision maker, is to be taken as set out

in re Poyser and the cases which followed it or

whether on the other hand it is simply something to
be paid relative lip service to, even to the extent that the Full Court found was unexceptionable here, where they allowed no reference at all to the

principal matter that was put to the Minister to be

made.

DAWSON J: And you would seek to apply what was said by

Mr Justice Fisher by saying, "Well, here he did not

Fisheries 9 15/11/91

say that he adverted to the particular

circumstances; therefore he must be taken, since he

is required to give reasons, not to have done so."

MR PITT: Not to have done so, Your Honour, yes. There are

other passages in Dornan v Riordan, 95 ALR 451. The

Federal Court Full Court was dealing with again the
Administrative Decisions (Judicial Review) Act and
the provisions of the National Health Act 1953
required that the reasons for making a

determination be set out. At page 460 it was said

by the Full Court, at lines 10 onwards:

Notwithstanding an observation to the

contrary by Brennan Jin his dissenting

opinion in Repatriation Commission v O'Brien,

(1985) 58 ALR 119 at 136-7, the law appears to

us to be that a substantial failure to state

reasons for a decision, in the circumstance

that a statement of reasons is a requirement

of the exercise under the statute of the

decision-making power, constitutes an error of

law -

and goes on to recite the particular statement from

re Poyser and Mills which has been set out in the

application book, and to then refer to His Honour

Mr Justice Fisher in Collins v Repatriation

Commission and to a number of other authorities.

Your Honours, in Repatriation Commission v Perrott,

53 ALR 690, the Commonwealth was again dealing

with the Repatriation Act 1920 and His Honour

Mr Justice Kirby at page 709 at line 5 said:

The duty of the Tribunal is to expose "a

satisfactory process of reasoning which led"

to its conclusion (cf Keely and Fitzgerald JJ

in O'Brien's case at 491). In the same

decision it is suggested that "at least when a

claim to a pension is rejected", failure to

comply adequately with the obligation to give

reasons may itself constitute an error of law.	I would not myself draw a distinction between
cases where the claim to a pension is rejected
or accepted. The Court, like the statute,
must be even-handed in this regard.

That, in my submission, is at least a reference to

the duty to state reasons giving rise to certain

consequences in law if it is not obeyed.

Your Honours, in Collins v Repatriation

Commission, 32 ALR 581, the court was dealing with

the Repatriation Act 1920 and section 107VK of that

enactment required that:

Fisheries 10 15/11/91

in a proceeding before the Tribunal, ..... the

Tribunal shall cause to be prepared a written

record of the decision, ..... including any

findings of fact -

and also included a requirement that any reasons

may be stated orally. The court said at page 588

at approximately two-thirds of the way down the

page, about line 30, Your Honours, that:

The applicant's counsel contended that an

error of law was apparent because, in the

light of the obligation on the Tribunal under

s 107VK(l), infra, to give reasons in writing

for its decision, including any findings of

fact, its failure to refer to the applicant's

claim to an intermediate rate of pension and

the supporting evidence, indicated that it had

overlooked a relevant consideration, and in so

doing had erred in law.

He cited His Honour Justice Deane in Sullivan's

case at page 349.

" ..... The consequence of that failure is,

however, that the proceedings before the Tribunal miscarried in that the Tribunal

failed to deal, by reference to the relevant

considerations, with a matter which arose for

its determination and which it purported to

determine. "

At page 595, Your Honours, line 18 onwards,

His Honour Mr Justice Fisher says, in one of the

strongest statements of the doctrine:

In my opinion, if the Tribunal found

certain facts which denied the appellant's
entitlement to a pension at the intermediate

rate, it was obliged to state these facts.

Likewise it was obliged to give its reasons

As it has failed to state any such facts or	for denying the appellant this entitlement.
give any reasons, this court is entitled to
assume, as is the appellant, that it failed to
give consideration to a material matter which arose for determination.

Your Honours, in O'Brien v Repatriation Commission,

53 ALR 477, at page 491 Their Honours

Mr Justice Keely and Mr Justice Fitzgerald, at lines 30 to 40 referred to the particular Act and

then set out the proposition that the:

decision fails to expose a satisfactory

process of reasoning which led to the

rejection of the appellant's claim and

Fisheries 11 15/11/91

contains a reason for concluding that there

was error.

Your Honours, in my submission, those are very

strong statements of the way in which the doctrine

in re Poyser should be applied. In our submission,

they have the result that at least in the Federal

Court, and presumably in Britain still, the failure

to state reasons for a decision and to state any

particular significant aspect of the reasons for a
decision gives rise almost inescapably to the
inference that that particular aspect was not

considered.

The decision of the Full Court in the Supreme

Court of Tasmania, in my submission, leaves the law

in Tasmania in the state that that duty is

virtually non-existent in Tasmania because it has

been deprived of any real legal consequences, that

is that the failure by a decision maker to state

adequately the reasons for his decision leaves the

persons who are affected in a situation where they

simply cannot rely upon the reasons as being a

comprehensive statement and are left in the

position that they were in this particular case of

having to look outside the reasons to other

material. In my respectful submission, where there

is a statutory duty to state the reasons for a

decision, then that has the objective of allowing

people to rely upon it, and to rely upon it as a

comprehensive statement of the reasons, and it

would be most unfortunate if the situation, at

least in Tasmania, were left in the state in which

it apparently is by the decision of the Full Court.

Your Honours, the other matter which, as was

observed, was not actually raised in the hearing

but, in my submission, is fairly raised by this

particular case is the question of the legal

consequences of the failure to observe the duty to

state all of the material facts. I refer to those

decisions that I have already recited in that

particular respect because, in my submission, they make it clear that, at least in the Federal Court,

such a failure has been regarded as having the

consequence that the decision itself is vitiated

because the essential conditions of the exercise of
the decision-making power have not been complied

with. Whether that is right or whether it is not

right, in my submission, is a matter to be

determined and, in particular, in my submission,

that has significance because there is a conflict

between that position on the one hand and the

position where one looks to the administrator's

thought processes to determine whether he has in

fact taken account of the matter, on the other, the

evidentiary approach; and in my submission this is

Fisheries 12 15/11/91

an appropriate vehicle for that matter as well to

be determined.

BRENNAN J: How far does it go, though? If one looks at the

sentence which appears at the bottom of page 54,

top of page 55, in the Director's letter, where it

says that he has reached his decision -

in relation to which I note that I have taken

into consideration representations made by you

and put on your behalf.

Now, your argument is that is not sufficient.

MR PITT: In my submission, Your Honour, that is clearly an

insufficient mode of discharging the duties. There are particular authorities to that effect. I refer

Your Honour to Kentucky Fried Chicken Pty Ltd v

Gantidis and Another, (1979) 24 ALR 161, at page 169.

BRENNAN J: This is a case of fulfillment of a statutory

obligation to state a reason, is it?

MR PITT: It related to other points, Your Honour, but inter

alia it required a determination of the question of what the effect of a failure to state major reasons

was.

MASON CJ: There was a statutory requirement to furnish

reasons upon request.

MR PITT: There was, Your Honour, yes. At page 169

His Honour Mr Justice Stephen said, from line 30

onwards:

In these circumstances I discern nothing

in the Tribunal's written determination to

suggest that it failed to pay regard to the
matters which were the subject to debate

before it. There is, on the other hand, much

which would support the contrary view. First,

the Tribunal expressly says so when it

observes that it "considered the submissions

made by all parties". It is not as if it is a

failure to have regard to some only of a

number of relevant considerations which is

complained of: the complaint is, in essence,

that the Tribunal paid no regard to the only considerations which were debated before it. This being so there is no way in which the

Tribunal's statement can be reconciled with

the state of affairs for which the respondents

contend, on their view its statement must

simply be wrong.

Fisheries 13 15/11/91

And then he comes to this particular point,

Your Honours, at line 41:

I am not, of course, to be taken as regarding that statement by the Tribunal -

that is that they had considered all the

submissions -

as in any way capable of discharging

satisfactorily an obligation to state reasons

for its determination: it is enough in this

regard to refer to what was said by Monohan J

in De Iacovo v Lacanale -

and, Your Honours, in that case His Honour

Mr Justice Monohan had set out at some length a

criticism of the kind of sanitizing statement, as

it is referred to in the text, which that

constitutes; a simple statement that "I have taken into account all of the submissions that have been

made to me and all relevant matters." In my

submission, this was a statement of that ilk and,

in my respectful submission, it falls so far short

of the kind of burden which is imposed by the

obligation to state reasons and of the ability to

give to the parties who are affected the full

knowledge of the reasons and the facts which

motivated the decision maker that it simply is

inadequate.

If one compares it with the very strong, in my

submission, statements in Collins and in Sullivan

and in Dornan, it becomes manifest that such a

bland statement simply cannot suffice.

BRENNAN J: Were these cases cited in the court below?

MR PITT:  They were not, Your Honour. The matter only arose

at a very late stage in the Full Court's

determinations. It was an alternative submission

by my learned friend, Mr Morris, I believe, and it

was dealt with almost in passing by the Full Court

in relation to re Poyser, in relation to the

failure to state reasons and the like. If one

looks at the application book, one sees that

His Honour the Chief Justice devotes up to the

tenth page of his decision in reciting - well,

certainly the facts for the first four, five or so pages; he then devotes the bulk of his decision to the question of whether or not there was a proper

exercise of the discretion of the trial judge in

failing to grant the relief which was sought.	It
is only on pages 10 and 11 that this alternative
submission, which was apparently raised at a

relatively late stage in the proceedings, was then

adverted to. But however unsatisfactory it may be

Fisheries 14 15/11/91

that it was not dealt with full argument or

otherwise, it still remains, in my respectful

submission, until and unless it is reversed the law

in Tasmania that the full obligations in Poyser and
in the Federal Court cases which follow and explain

it that one must state full reasons, that that is

not of any force or effect. So that it is, in my

submission, a matter of real significance and a

matter of real importance.

Those are the submissions that I wish to make,

Your Honours.

MASON CJ: Thank you, Mr Pitt. Mr Solicitor.

MR BALE:  May it please the Court. If I might hand up

copies of the authorities to which I will refer.	I
think Your Honours already have most of them, but it is appropriate that in compliance with the
direction that I should do that.

MASON CJ: Thank you. It is a special leave application,

Mr Solicitor.

MR BALE:  Yes, Your Honour, and in the latest circular of

the High Court Practice I believe there is a

requirement that the authorities be handed up to

the Court - - -

MASON CJ: Yes, I was not thinking of that, I was rather

thinking of their bulk.

MR BALE:  Your Honours, I indicated they have been

substantially addressed already and I simply hand

them to Your Honours as a matter of completeness

and attached to them also is a brief outline of the

submissions - more than a brief outline, although

it is only three pages, it is almost the entirety

of the submissions that I would wish to make, Your

Honour.

It is the contention of the respondent, if the

Court pleases, that this application simply does

not meet the criteria which this Court has

established as necessary to support a grant of

special leave. I advance five short propositions

in support of that submission.

Firstly, it is our contention that the legal principles which the applicant seeks to agitate are

well established, addressed by the Full Court and

not attended by sufficient doubt to warrant the

granting of special leave to elucidate them. It is

without question, in our submission, that whereas
here there is a statutory requirement to give
reasons, the reasons which are given must be

sufficient to let the applicant know why the

Fisheries 15 15/11/91

decision was made. That, in my submission, is the

proposition that was enunciated in Poyser in just

those terms and it was expressed -

MASON CJ: That was not done here, was it?

MR BALE:  I would submit yes, it was, Your Honour. The

reason that the decision was made -

MASON CJ: Would you not expect the decision maker to let

the applicant know how he dealt with the particular

submissions that the applicant made?

MR BALE:  Your Honour, I would have submitted if the

decision maker has determined that there is a

policy which ought to be followed, it is adequate

for the decision maker to say to the applicant, "I

have listened to the submissions which you have

made; nevertheless having regard to the established
policy of government, in these circumstances the

policy should be applied." And that is what

happened.

DAWSON J:  Surely that is not enough. Then the applicant

would not know whether the decision maker would

never recognize a charge over the licence, or would not recognize it in the particular circumstances or deny the existence of the charge in these

particular circumstances; you would not know what

the situation was.

MR BALE:  I will get to the charge in a little while,

Your Honours, but of course the - - -

DAWSON J: But the point is that he knows nothing, except

that the man says that there is a policy and that

is it.

MR BALE:  The Minister says that there is a policy which, in

the circumstances, should prevail over whatever

else.

DAWSON J: Why, he would ask? And he does not get an answer

to that question.

MR BALE:  He does not say why, Your Honour, no, he simply -

well except -

DAWSON J:	The reasons are meant to tell you why.
MR BALE:	The reasons, I submit, are sufficient if they say

why he has reached the result that he has, and the

result, that is the dismissal or the rejection of

the application, the reason for that was, in my

submission, that he adopted and followed policy;

not slavishly, because he had already indicated by

his invitation to the applicant by the letter in

Fisheries 16 15/11/91

February that he would entertain submissions as to

why he should not adopt that policy, and the letter of 8 May indicates that he received and entertained those reasons and, indeed, Your Honours have had

put before you in the affidavit of Mr Sugden a copy

of the detailed submissions that were made in

response to the invitation that was given on

16 February. What the decision maker in reaching

his decision has done is indicate that he has taken

into consideration all of that, but nevertheless

has determined that government policy ought to be

applied.

BRENNAN J: It has the ring of a proforma about it,

Mr Solicitor, does it not?

MR BALE:  I would respectfully submit not, Your Honour. It

would have had a ring of proforma about it had the

letter of 8 May stood alone, but it does not stand

alone. It has got to be viewed in light of the

invitation given in February to make submissions as

to why the policy should not be applied. The

response to those submissions, the acknowledgement

in the letter of 8 May that those submissions had

been considered and the follow-up letter of 18 May

where those reasons were expanded, where he sets

out why government policy was applied on the facts

of this case - - -

DAWSON J:  But he does not set that out at all. He does not

say why, in this particular circumstance, the

policy was to be applied. That is the very thing

he does not say; says that there is a policy.

MR BALE:  Say that there is a policy, that he has

previously, as I say, Your Honour, invited reasons

why it should not be applied -

DAWSON J:  He has invited reasons as to why that policy

should be departed from and he does not give any

reasons as to why it should be applied in those

circumstances.

MR BALE:  The only reason he gives is that it should be

preferred. And I submit that that is a sufficient

reason. All the requirement established by Poyser

and by the various cases to which my learned friend

has referred is that the reasons must be sufficient

to let the applicant know why the decision was

made. The reason why the decision was made was

that the established policy was preferred to the

reasons advanced or the arguments advanced by the

applicant. That was why the decision was made to

reject.

DAWSON J: That was the result, but the reason why he

arrived at that result does not appear.

Fisheries 17 15/11/91

MR BALE: Well, I can take the point no further,

Your Honour, I think, than to say that in my

submission the result was the rejection. That was

arrived at for the reason that the policy was

preferred to the arguments that were advanced.	I
can take it no further.

The essential principle that was established in Poyser, Your Honours, is expressed in different

but useful terms, in my submission, in Alexander

Machinery (Dudley) Limited v Crabtree,

(1974) ICR 120, at page 122. There, just before

line G on page 122, Sir John Donaldson, in

delivering the decision of that court, said:

The overriding test must always be: is the

tribunal providing both parties with the
materials which will enable them to know that

the tribunal has made no error of law in

reaching its findings of fact?

I simply say, in our submission - - -

MASON CJ:  How can you say that these reasons answered that criteria?

MR BALE: Because, Your Honour - I can add nothing to what I

have just expounded to His Honour Justice Dawson.

I can simply say that the court has indicated that the Minister has considered the reasons that have

been reached and has elected, on the facts of the

case, to adopt the policy. I cannot say that,

essentially, the reasons were more expansive than

that because clearly they were not.

MASON CJ: But that is the real problem, is it not? In

these important cases that concern a submission

that the decision maker should depart from the
accepted policy in the particular instance of the

case, if it be permissible to give a blanket

uninformative answer of the kind that is given in

this case, it is not possible for an applicant or a

tribunal or a court to determine whether there has

been an error of law on the part of the decision

maker.

MR BALE:  Your Honour, can I put the submission in this way

in response to what Your Honour has put to me; that

it would have been unimpeachable had.the Minister

or his delegate addressed specifically each of the

questions which were put to him - or the arguments

that were put to him in the response to his

invitation; that if he were to have said, "I have

considered that argument and that argument and I

understand what you say in relation to that

argument and that argument and that argument.

There is an established government policy. In

Fisheries 18 15/11/91

putting everything in the balance it is my decision that the government policy, in the interests of the industry, ought to be maintained."

DAWSON J:  That still would not tell you anything. I mean,

obviously the issue here is the lien over the

crayfish pot licence. Now, we do not know whether

the Minister considered you cannot have a lien over

a crayfish pot licence, you can have a lien, or if

there was a lien in this case, whether it could be

disregarded if there was; we do not know any of

those things, and he may have fallen into error, if

he did consider those, in a number of ways which we

just do not know about.

MR BALE:  I will come to that in a moment, Your Honour, if I

may, but there is a problem with a lien in that

there is a dispute, an unresolved dispute, about

that.

DAWSON J: All right. He may have said, "I am not going to

determine that at the moment."

MR BALE: With respect, he is hardly in a position to

determine it.

DAWSON J: But he has to take these matters into account.

They were put to him. We do not know what his

attitude was about them. Did he recognize the

lien?

MR BALE:  It did not appear from anything he said,

Your Honour, but there is a dispute -

DAWSON J:  I know there is a dispute, but what would he have

to make the decision? Did he recognize it?

MR BALE:  The fact that a lien existed? He recognized that

there was a dispute as to the existence of the

lien, Your Honour.	A dispute between the bank and
their customer.

DAWSON J: Did he take the lien into account in reaching his

decision?

MR BALE:  I am not able to say, Your Honour. It does not

appear.

DAWSON J: No, you see, you do not know. And that is

central to the decision of the whole matter.

MR BALE: At the end of the day, Your Honour, even if he

says, "I recognize all of those things but policy

must prevail", at the end of the day it would be

our submission that the decision as to policy can

be made, and properly override everything else, and

everything else therefore is set at naught.

Fisheries 19 15/11/91

Everything else that he says is set at naught.	But
I believe on that point I have got to the stage
that I am repeating myself.	I think I can advance
it no further.

But the nub of the reason for rejecting the

application was that the policy, in the

circumstances, was appropriate to be followed.

That is all that essentially appears from his

reasons.

Your Honours, just for completeness I perhaps might indicate that Poyser and the principle in

Alexander et cetera were all considered and

approved by the House of Lords in Westminster

Council v Great Portland Estates -

MASON CJ:  We do not need to go to that, do we?

MR BALE:  I am not going to take Your Honours to it. It is

referred to and of course it is a principle that is

generally applied in similar terms by courts and I

have referred to a number of cases to that effect.

BRENNAN J: There are two questions, are there not,

Mr Solicitor: one is whether, having regard to the

exchange of correspondence in this case, the

statutory obligation has been fulfilled by the

terms of the letter of 8 May.

MR BALE:	Yes.
BRENNAN J:	The second is whether, if that letter does not

satisfy the statutory obligation, there is as a

matter of law an avoidance or avoidability of the

underlying decision.

MR BALE:  And I suppose a third point, Your Honour, is in

any event, let us assume that both of those issues

were resolved in the favour of the applicant,
whether this case so much turns upon its own facts

as to warrant the granting of special leave. In

other words, accepting - - -

MASON CJ:  I was going to say, accepting that proposition on

the first point, none the less it does seem to me

that it raises the question whether you can comply

with a statutory obligation or this kind in

relation to a question whether the decision maker

should depart from established policy merely by

giving an answer of this kind. Now, true it is

that the case turns on its own facts, but none the

less, those facts exemplify a situation which is

going to arise from time to time and which is a

situation of very considerable importance in the

field of administrative law.

Fisheries 20 15/11/91

MR BALE:  Has arisen, of course, Your Honour, and is likely

to arise, yes, I would not question that.

MASON CJ:  Exactly. So it is not much good saying that that

question turns on its own facts.

MR BALE: That question does not, but in the circumstances

here that the issue essentially is whether what has

been done is sufficient, because in my submission

it is quite clear that there is not the slavish

following of a government policy. Had there been a

slavish following of government policy, the point

which Your Honour raises would fall very squarely

for determination. But here it is abundantly clear

from the totality of the correspondence to which I

have referred that the Minister or his delegate

recognised that whilst there is a policy, it was

one that would not necessarily or need not

necessarily be followed. He, as I have said,

invited submissions as to why he should not follow

it and then has chosen to apply it.

Once he has chosen to apply it, having

considered everything that has been put to him, as he has indicated in that letter of 8 May he did, I

submit it is difficult to know what he can

meaningfully say, rather than, "In all the
circumstances, I have chosen to apply the policy.",
because that is his reason for finding that the

application should not be granted. Not that he has

rejected all the other - he might not have rejected

the other matters that are put to him, he is simply

saying, on the facts, I prefer the application of

government policy.

BRENNAN J: But even if he had done that, for example, would

he not have had to say, "You are wrong in thinking

that there is currently a crayfish pot licence that

would be suitable for the "Ocean Mist" that is not

being used."

MR BALE: With respect, not, Your Honour.
BRENNAN J:	Why?
MR BALE:	Because the practice that has developed, as is

evidenced from the reasons particularly of

Justice Zeeman at first instance, was that there

are on occasions licences which are not used. They

are held in abeyance as part of a licence package.

It may be while someone is building a new boat upon

which to use it and so on. There are a certain

number of licences which are on issue or available

and the practice is that in a limited fishing

industry no more than that number of licences are

granted. There is an expectation that once a

certain set of circumstances arise, a particular

Fisheries 21 15/11/91

person will have the use of one of the licence
packages which is available. That is dealt with at

some length by Justice Zeeman in his - - -

BRENNAN J:  It seems to me to be the very sort of thing that

might elicit some overt response. "You are wrong

in thinking that there is a licence available. In

fact it is being held for Mrs Fabish."

MR BALE: With respect, that was well known to the

applicants.

DAWSON J: Yes, but you see you erect a whole system on the

basis of these regulations which say nothing about
a trade in licences, which is in fact what the

Minister is protecting.

MR BALE:  Yes, Your Honour, the Minister, in the detailed

reasons which he gave in that letter of 18 May, he

set out, I would submit, in fair detail the basis

upon which and the reasons why the policy existed

and that indicated that the licences were a

valuable commodity. Obviously, it could only be

valuable because they have a trading value.

Your Honours, I have canvassed in the notes

that I have handed in our essential submissions on

that point. We say that what is sufficient to

inform the applicant of the reasoning which leads

to a particular decision might vary from case to

case: but provided that some reasons are given, and

we contend some reasons were given here, they must,

in order to form the basis of an appeal be

substantially wrong or substantially inadequate.

That is the principle that Poyser enunciated.

There were various criteria that were mentioned

there, one of them being - and properly, in my

submission - that adequacy will be viewed less
stringently where, as is the case here, there is no

right of appeal as such from the Minister's

decision. And that proposition was advanced by

His Honour was a Justice of the Court of Appeal in Justice McHugh in Soulemezis v Dunkley when	New South Wales, and the reference to that is also
given.

MASON CJ: For my part, I would not readily accept that

proposition. I would have thought that there was a

question mark about the correctness of that

proposition.

MR BALE:  I would have submitted, Your Honours, that there

are good reasons for supporting it. It may be that

the differential is not huge, but I would submit

that it is appropriate that there be a

differential.

Fisheries 22 15/11/91

MASON CJ: It may be so, but I do not really think in the

space of time available to you on a special leave

application you are going to be able to demonstrate

that it is clearly correct.

MR BALE:  I do not need to pursue it, Your Honour. If it

comes to be argued, it is more properly a point

that would be argued on appeal, rather than on an

application for special leave.

The other four points which I would make very

briefly, Your Honours, are these: firstly, I

submit that the reasons are, in fact, sufficient to

satisfy the principles which apply. They identify

why the decision was made and they indicate, in my

submission, that not only Mr Justice Cox but also

His Honour the Chief Justice adverted to the Poyser

principle, because if one has regard to the passage

commencing at the bottom of page 61 of the

application book, going over on to page 62, whilst

the Chief Justice does not there specifically refer
to Poyser, it is clear, in my submission, that he

has in mind the Poyser principle in stating - - -

MASON CJ:  It is far from clear to me that he was dealing

with the Poyser point at all in that part of his

judgment.

MR BALE:  Your Honour, he says:

In his letter of 16 February 1990 the

Minister's delegate restated the Government's

policy and, observing that the application of

that policy would result in the refusal of the

application, specifically gave Mr. Pettit an

opportunity to make submissions as to why the

policy should not be applied in his case.

Mr. Pettit made such submissions and by letter

dated 8 May 1990 the Minister's delegate said

that he had "taken into consideration

representations made by you and put on your

behalf".

draw the ... inference ... " from that exchange The learned judge felt "unable to

of correspondence "that in fact the delegate

had directed his mind to the proper issues".

MASON CJ: And then the Chief Justice went on to join issue

with that proposition. It was that proposition he

was directing his attention to, not the Poyser

principle.

MR BALE:  Your Honour, I would submit that they are fairly

closely intertwined. What the Poyser - - -

MASON CJ: They may be closely intertwined but the

Chief Justice was not directing his attention to

the Poyser proposition.

Fisheries 23 15/11/91

MR BALE:  Certainly he does not say that he was,

Your Honour. It would be my submission that you

could infer from what His Honour says in the
paragraph at which Your Honour is looking that the

Poyser principle was intended to be canvassed, or

at least was at the back of his mind.

Alternatively, Your Honours, I would have

submitted that even if Your Honours were to find

that the reasons given were substantially

inadequate, the issue here is essentially one of

natural justice and there is no reason, in my

submission, to conclude from the totality of the

material which was exchanged between the Minister
or his delegate and the applicant that the

applicant was denied natural justice.

The third point is that - and I think I have

already discussed this with Your Honour the

Chief Justice - that whether the reasons in this

case were sufficient is a question which turns on the particular facts of this case, and I will not

take that further, Your Honour.	I think I have
said all that needs to be said.

MASON CJ: Yes, you have made that point.

MR BALE:  And the fourth and fifth points, I submit, are

also of significance, although in each case they

can be briefly stated. The first of those two

points is that if leave was granted the appeal
would not, and could not, finally dispose of the
central issue between the parties. At best, for
the applicant, what would happen would be that the
licence application would go back to the Minister

for a determination in accordance with law.

Whatever decision he makes and whatever decision

this Court might make, he is now and will remain

the meat in the sandwich of an unresolved dispute

between the applicant Bank, on the one hand, and

its customer and that customer's transferee on the
other.	The Minister is simply in no position to

resolve that dispute over the supposed valid

security.

The validity of that security is and has for a

very long time been the subject-matter of

litigation between the Bank on the one hand and its

customer and its transferee on the other. That litigation has not been brought on. The way of

resolving the dispute and resolving this issue
entirely, and the only way of resolving it, is for
the applicant to bring that dispute on, to get a

determination of it, and as the Minister has

consistently told the applicant, the Minister will

abide the result of that determination.

Fisheries 24 15/11/91

Now, if the applicant has got a valid claim in respect of its security, there is simply no reason

why it should not bring its litigation on and have

it disposed of. So, in my submission, whatever

happens were special leave to be granted, an appeal

could not conclude the substantive issue in

relation to the security and that, in my

submission, is a good reason for not granting

special leave.

Finally, Your Honours, for the reasons that I

have just stated and the inevitability of the

applicant having to resolve that principal issue,

one cannot, in my submission, escape the conclusion

that in reality this application for special leave

is no more than an attempt by the applicant to

salvage its costs and as such, it does not properly form the basis for an application for special leave

and I have noted there a reference to a decision of

this Court in August of this year which I adverted

to after I had handed in our list of cases last

week. It is the decision of the Court in the

Commissioner for Taxation v David Jones Finance,

the reference is there and I do not need to address

it, I think, in any detail.

May it please the Court.

MASON CJ: The Court need not trouble you, Mr Pitt. There

will be a grant of special leave to appeal in this

case.

MR PITT:  May it please the Court.

AT 11.54 AM THE MATTER WAS ADJOURNED SINE DIE

Fisheries 25 15/11/91