Paspaley Pearling Company Pty Ltd and Delegate of the Chief Executive Officer of the Department of Primary Industries and Regional Development [No 2] - [2024] WASAT 108

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PEARLING ACT 1990 (WA)
CITATION:   PASPALEY PEARLING COMPANY PTY LTD and DELEGATE OF THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT [No 2] [2024] WASAT 108
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
DR S WILLEY, SENIOR MEMBER

HEARD:   11 - 15 MARCH 2024
DELIVERED          :   19 SEPTEMBER 2024
FILE NO/S:   DR 58 of 2022
BETWEEN:   PASPALEY PEARLING COMPANY PTY LTD
First Applicant
BLUE SEAS PEARLING PTY LTD
Second Applicant
AND
DELEGATE OF THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT
First Respondent
CYGNET BAY CONSOLIDATED PTY LTD
Second Respondent

Catchwords:

Resource management - Pearling - Issue of pearl oyster farm leases - Jurisdiction to issue - Interaction of State and Federal legislation - Extraterritoriality - Application made in 'wrong' name - Power to correct error - Application of non-statutory policy - Whether issue of lease by Tribunal on review would amount to issue of 'new' lease whether policy is against issue of new leases - Whether Tribunal on review must proceed on basis that decision under review was never made - 'Better interests' of the pearling industry - Biosecurity - Application of precautionary principle - Application or otherwise of Ministerial Policy - Orderly development of industry

Legislation:

Coastal Waters (State Powers) Act 1980 (Cth), s 5(c)
Fish Resources Management Act 1994 (WA), s 4
Fisheries Act 1905 (WA), s 8H
Fisheries Act 1952 (Cth), s 12H(4)
Fisheries Management Act 1991 (Cth), s 4, s 10(2)(a), s 10(3)(c), s 72, s 77
Pearling Act 1990 (WA), s 3(2)(c), s 16, s 22, s 22(1), s 23(1)(a), s 23(2), s 23(6), s 24(1), s 43(1), s 43(2)
State Administrative Tribunal Act 2004 (WA), s 24, s 25, s 25(1), s 26, s 27, s 27(3), s 29, s 29(1), s 29(3), s 29(5), s 32(2)

Result:

Applicants' application for review is dismissed
The decision of the first respondent is set aside and substituted with a new decision in which leases are issued in the name of the second respondent

Category: B

Representation:

Counsel:

First Applicant	:	R Young SC & C Taylor-Burch
Second Applicant	:	R Young SC & C Taylor-Burch
First Respondent	:	CS Bydder SC & CG Mayne
Second Respondent	:	KR Lendich SC & LD Coci

Solicitors:

First Applicant	:	Corrs Chambers Westgarth
Second Applicant	:	Corrs Chambers Westgarth
First Respondent	:	State Solicitor's Office
Second Respondent	:	Cocks Macnish

Case(s) referred to in decision(s):

Andrews v Diprose (1937) 58 CLR 299
BHP Petroleum (Timor Sea) Pty Ltd v Minister for Resources [1994] FCA 168; (1994) 49 FCR 155
Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management (1997) 18 WAR 102
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407
Commissioner for Consumer Protection v Murphy [2013] WASCA 89
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420
Forrest v Forrest Pty Ltd v Minister for Aboriginal Affairs [2024] WASCA 96
GB & G Consolidated v Melbourne and Metropolitan Board of Works (1972) 27 LGRA 327
Guy v Hampson [2019] WADC 19
Hogben v Darcy [2009] WADC 63
Jacob and Local Government Standards Panel [2022] WASAT 66
Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270
LS v Mental Health Review Board [2013] WASCA 128
Macedon Ranges Shire Council v Romsey Hotel [2008] VSCA 45, (2008) 19 VR 422
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Paspaley Pearling Company Pty Ltd and delegate of the Chief Executive Officer of the Department of Primary Industries and Regional Development [2023] WASAT 116
Port MacDonnell Fisherman's Association v South Australia [1989] HCA 49; (1989) 168 CLR 340
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Re Brian Lawler Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167
Re CJR [2023] WADC 111
Re Control Investments Pty Ltd and Others and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 2 ALD 634
Reid v Brisbane City Council [2013] QPEC 24
Robinson v Western Australian Museum (1977) 138 CLR 283
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Stream Focus Pty Ltd v City of Armadale [2018] WASC 13
Stream Focus Pty Ltd v City of Armadale [2018] WASCA 196
Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [No 2] [2016] WASC 279
Wingadee Shire Council v Willis (1910) 11 CLR 123
Wright v ANZ Banking Group Ltd [2001] FCA 386
Yates v Integrity Industrial Pty Ltd [2020] WADC 127

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction and overview

On 24 February 2022 the first respondent (Delegate) determined to issue two pearl oyster farm leases (POFLs) pursuant to s 23(1)(a) of the Pearling Act 1990 (WA) (PA). In each case the POFL is located off Cape Villaret, southwest of Broome, in the Australian Fishing Zone (AFZ), which is in Commonwealth waters.
The applicants, the first of which (Paspaley) has a majority interest in the second (Blue Seas), are commercial competitors of the second respondent and have sought review of that decision.[1]
[1] For convenience, and given Paspaley's controlling interest of Blue Seas, unless it is necessary to distinguish between them, we will refer to the applicants, jointly, as Paspaley, and use the singular rather than the plural.
There are several grounds on which Paspaley challenges the decision of the Delegate. One is that the name in which the applications for the POFLs were made is not that of the second respondent (Cygnet) and, indeed, is not the name of a legal entity (the Misnomer Issue). While Paspaley acknowledges that the errors in question occurred by way of oversight, they submit that the Delegate was, and this Tribunal on review is, unable to correct that error and that there is therefore no power to issue the POFLs at all.
Secondly, Paspaley also submits that the refusal of the leases to Cygnet would be in the 'better interests' of the pearling industry for two related reasons: it says the POFLs will introduce an unacceptable biosecurity risk (the Biosecurity Risk Issue) and will be contrary to the 'orderly development' of the WA pearling industry (the Orderly Development Issue). Amongst other things in that regard, Paspaley is critical of a statutory policy (Ministerial Policy Guidance No. 17 - MPG17) which concerns separation distances between POFLs and which it says is inadequate for various reasons.
Finally, Paspaley also relies upon a non‑statutory policy issued on 2 August 2023 (2/8 Policy), which is to the effect that no 'new' POFLs located in Commonwealth waters will be approved until certainty is obtained as to the interaction of the PA and relevant Commonwealth legislation and the resulting power to issue the POFLs. Paspaley submits that, first, the POFLs the subject of this application are 'new' leases notwithstanding that they were issued before the 2/8 Policy was declared and, second, that there is no cogent reason to depart from the 2/8 Policy.
For the reasons that follow, we are of the view that the correct and preferable decision is to set aside the Delegate's decision and substitute it with one by which the POFLs are issued to Cygnet, rather than to the non-entity.
In so finding, we have determined that:
(a)for the purposes of determining our own jurisdiction, we have the power to issue the POFLs;
(b)that the error in the name of the applicant for the POFLs is one which the Delegate could have, and we can, correct;
(c)it would not be in the better interests of the pearling industry to refuse to issue the POFLs in that any biosecurity risk introduced by issuing the POFLs to Cygnet will be no more than is anticipated and managed by existing policies (primarily MPG17) and that there is nothing inconsistent with the orderly development of the industry by the issue of the two POFLs to Cygnet; and
(d)the 2/8 Policy has no application in these circumstances because the POFLs in question are not 'new' in the sense understood by the policy.
In short, the application for review should be dismissed and the relevant POFLs should be issued to Cygnet.

Procedural history

The applications for the two POFLs under consideration in these proceedings were made under cover of a letter dated 27 August 2021.[2] That application consisted of:
(1)a cover letter;
(2)a document headed 'Potential Environmental Issues Associated with Proposed Pearl Lease Site';
(3)a completed version of a form approved for the purpose under s 22 of the PA;
(4)a copy of a Guidance Statement titled Evaluating and Determining Categories of Marking and Lighting for Aquaculture and Pearling Leases and Licences, consisting of various sections including section 6 which is a 'Marking and Lighting Form' which has been completed;
(5)a document consisting of images of the relevant seafloor; and
(6)a 'Site Plan' which, amongst other things, shows the area of the proposed POFL site surrounded by both a two nautical mile buffer zone and a five nautical mile buffer zone as well as existing POFL sites.
[2] A complete copy of the application is contained in Volume 4 of the First Respondent's Section 24 Bundle.
Those documents as just described were provided, with the exception of the cover letter, by way of application for each of the two POFLs. That is, a version of each of those documents was provided for each of the relevant POFL applied for, submitted under the common cover letter.
A summary of the applications was published on the website of the Department of Primary Industries and Regional Development (Department) on 29 October 2021 for a 28-day comment period. Details of the applications were also forwarded to relevant decision‑making authorities, other involved agencies and interest groups.[3]
[3] Exhibit 2, pages 5 and 6.
During that consultation period an objection was made to the applications by what is described as the 'Paspaley Pearling Group of Companies' (summarised in the letter as 'PPCo'). The relevant 'Statement of Reasons produced by the Department' describes that objection as having four grounds:
(1)That the application sites are not located an appropriate distance from existing POFLs issued to PPCo entities;

(2)That the application sites are within an area PPCo considers to be a 'pearl farm area' creating a disruption to PPCo's existing operations;
(3)That the application sites limit the capacity of PPCo entities to expand into the 'pearl farm area'; and
(4)That the application sites pose a potential biosecurity risk noting the 'applicant's health and productivity issues'.[4]
[4] Exhibit 2, page 6.

On 10 December 2021 the Delegate provided to Cygnet (by email) a 'Summary of Stakeholder Submissions' received during the submission period.[5]
[5] Exhibit 2, page 2.
On 2 February 2022 Cygnet responded to that consultation summary.[6]
[6] Exhibit 2, page 28.
On 10 February 2022 the Delegate wrote to Cygnet and advised that he (the Delegate) was 'now in the position to advise you that I will grant the [relevant] pearl oyster farm leases in accordance with the Statement of Reason document enclosed'. The letter went on to invite Cygnet to provide its 'written acceptance of the proposed … conditions' upon which the Delegate indicated he would issue the relevant leases with a term of 21 years.[7]
[7] Exhibit 2, page 2.
On 24 February 2022 the Delegate issued the relevant POFLs.[8] On the same day the Delegate issued a Statement of Decision.[9]
[8] Exhibit 2, pages 38 - 40, 42 and 44 - 46 and 48.
[9] Exhibit 2, page 52.
On 4 March 2022 the decision to issue the two POFLs was published in the WA Government Gazette.[10]
[10] Government Gazette, No. 24, 4 March 2022, pages 464 - 465.
In the above description we have referred to Cygnet as the recipient of the correspondence from the Delegate as well as the applicant for the POFLs and the provider of information. As was foreshadowed in the Introduction and Overview (above), there are some documents in which the name of the relevant entity does not align with that of Cygnet. That is a matter addressed in more detail below under the heading 'The Misnomer Issue'.
As noted above, the two applicants filed their application for review on 31 March 2022. It is not necessary for present purposes to set out in any great detail the progress of this matter through the Tribunal, save to say that it was mediated, and case managed, together with an application for review by the first applicant of a decision to issue a single POFL to Maxima Pearling Company Pty Ltd approximately 5 nautical miles from the 'Cygnet' POFL at Cape Villaret A (DR59/2022). The outcome of that proceeding was an agreement between the parties whereby, amongst other things, the POFL issued to Maxima was transferred to the first applicant.
By orders made 12 May 2023, the current matter was listed for a final hearing to commence on 30 October 2023 for the duration of five days.
On 2 August 2023 all members of the industry were sent a letter from the Delegate to which we have referred as the 2/8 Policy, which advised of a degree of 'uncertainty' as to the legal status of POFLs issued under the PA in Commonwealth waters and declared that no 'new' POFLs would be issued in Commonwealth waters until the uncertainty had been resolved.
The parties then engaged in a somewhat lengthy period of consultation and conferral as to what impact, if any, the 2/8 Policy might have on the matter.
The issue of the 2/8 Policy came to a head in mid-October 2023 and the Tribunal listed the matter for a directions hearing at the end of which the listed hearing dates in October were vacated and the matter listed for a preliminary determination, the result of which was our decision Paspaley Pearling Company Pty Ltd and delegate of the Chief Executive Officer of the Department of Primary Industries and Regional Development [2023] WASAT 116.
Prior to the delivery of those reasons, on 3 November 2023 the Tribunal relisted the matter for hearing commencing on 11 March 2024.

Power to decide

As has been previously noted, the 2/8 Policy notes a 'level of uncertainty with regards to the legal framework for managing tenure [under the PA] in Commonwealth waters'.
That uncertainty arises due to particular provisions of the Fisheries Management Act1991 (Cth) (FMA) and its interaction with the PA.
Although no party submitted that we lacked the power to issue the POFLs, we have a duty to ensure that we remain, at all times, within jurisdiction.[11]
[11] Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216 (Citta Hobart) [22].
What follows is largely taken from and largely adopts the submissions made on behalf of the Delegate. Cygnet adopted those submissions, initially in its Outline of Written Submissions[12] and later in its written closing.[13] In addition, it cautioned us against finding that the Delegate (and the Tribunal on review) lacks power to issue the POFLs where:
(a)the industry has operated for ~30 years on the understanding that there is such a power;
(b)no party submitted that we lack power; and
(c)the Commonwealth has an interest in the issue but is not a party to these proceedings and has therefore not been heard.
[12] Second Respondent's Outline of Written Submissions, 16 February 2024, para 93.
[13] Closing Submissions of the Second Respondent, 15 March 2024, para 155. Also, ts 417, 15 March 2024.
Paspaley's written Outline of Submissions in Reply were to the effect that the question did not need to be determined because, it said, we should refuse to issue the POFLs. Paspaley further submitted that, if we did not accept its initial position, it adopted the Delegate's written submissions.[14]
[14] Applicants' Outline of Reply Submissions, 1 March 2024, paras 22 - 23.
The issue arises in the context of s 10(2)(a) of the FMA, which provides that that Act is intended to operate in the AFZ to the exclusion of any law of a State. An exception is provided by s 10(3)(c) which provides that the FMA 'does not apply' to 'activities in the AFZ to which, because of s 77, [the FMA] does not apply'.
Section 77 of the FMA provides that the FMA does not apply if 'an arrangement' under Div 3 of Pt 5 of the FMA provides that 'a particular fishery is to be managed in accordance with a law of a State'.
For the following reasons, we are satisfied that the relevant arrangement between the Commonwealth and State governments provides that the pearl oyster fishery located off Broome in Commonwealth waters is to be managed in accordance with the law of Western Australia.
The first point to note is that the PA purports to have extra‑territorial effect. Section 3(2)(c) of the PA declares that a reference to 'Western Australian waters or to waters generally' includes:
for purposes in relation to a pearl oyster fishery, as defined in section 43, that is to be managed in accordance with the law of the State pursuant to an arrangement under Part IIA of the Fisheries Act 1905, is a reference to any waters in which the legislative powers of the State extend, with respect to that fishery, whether pursuant to section 5 of the Coastal Waters (State Powers) Act 1980 of the Commonwealth or otherwise.
Section 5(c) of the Coastal Waters (State Powers) Act 1980 (Cth) provides that the States have the power to make laws:
… with respect to fisheries in Australian waters beyond the outer limits of the coastal waters of the State, being laws applying to or in relation to those fisheries only to the extent to which those fisheries are under an arrangement to which the Commonwealth and the State are parties to be managed in accordance with the laws of the State.
As Mr Bydder SC, who appeared for the Delegate, submitted, and as the definition in s 3(2)(c) of the PA appears to acknowledge, the Coastal Waters (State Powers) Act 1980 (Cth) is not the only source of power for a State to legislate with extraterritorial effect.
In Port MacDonnell Fisherman's Association v South Australia [1989] HCA 49; (1989) 168 CLR 340, 373, the High Court held that a rock lobster fishery managed under an arrangement between the State and Federal government was sufficiently connected ('a real and substantial connexion') with South Australia's legislative power to enact laws for the 'peace, order and good government' of that State. That was because the fishery constituted a 'finite resource' exploited by State residents and because it was 'a significant source of … trade and employment'.[15] We accept Mr Bydder's submission that those matters are equally applicable here and provide a further basis for the extra-territorial application of the PA in relation to pearl oyster fisheries.
[15] See also Robinson v Western Australian Museum (1977) 138 CLR 283, 331 per Mason J.
Section 43(2) of the PA defines the phrase 'pearl oyster fishery' to mean 'a fishery, or a Joint Authority fishery, that is identified in an arrangement by reference to pearl oysters or pearling'.
The term 'arrangement' in that definition is a term previously defined in s 8H of the Fisheries Act 1905 (WA). By s 43(1) of the PA, such definitions have the same meaning in Pt 7 of the PA.
The Fisheries Act 1905 was repealed by the Fish Resources Management Act 1994 (WA). Both Acts used the same definition of 'arrangement' being 'an arrangement, made by the State with the Commonwealth under [the relevant] part [of the Act]'.
Mr Bydder SC took us to two such arrangements. The earlier was made in 1991, the later in 1995.

The 1995 arrangement was published in Government Gazette, No. GN 4 (1 February 1995).[16] The lengthy Preamble includes, at item (e), reference to other, previous, arrangements, entered into under s 12H(4) of the Fisheries Act 1952 (Cth) including the 'Pearl Oyster Fishery', published in the Government Gazette No. GN 11 on 20 March 1991. That is a reference to the earlier arrangement,[17] which by cl 1 of the 1995 arrangement is 'terminated'.[18]
[16] A copy is at pp 419 - 432 of Exhibit 2, the Delegate's s 24 Bundle.
[17] A copy is at pp 416 - 417 of Exhibit 2, the Delegate's s 24 Bundle.
[18] In both the Fish Resources Management Act 1994 (WA) and the latter FMA, an 'arrangement' made under the previous legislation continued in force as if made under the latter Act in each case. That is, the 1991 arrangement continued in operation until terminated by the 1995 arrangement, notwithstanding the earlier repeal of both the State and Commonwealth legislation under which it was executed.
Clause 2 of the 1995 arrangement then states that the Commonwealth and the State 'hereby arrange that the fishery to which this Arrangement applies is to be managed in accordance with the law of Western Australia'.
The power of the Commonwealth to enter into the arrangement is set out in s 72 of the FMA (contained within Div 3 of Pt 5 of that Act), which provides that the Commonwealth may enter into an arrangement with a State:
with respect to a particular fishery in waters relevant to the State … that the fishery (being a fishery wholly or partly in waters on the seaward side of the coastal waters of the State) is to be managed in accordance with the law of the State.
The 1995 arrangement defines the 'fishery' in question in three ways.
First, it is a fishery 'for any purpose other than recreation'. Plainly the commercial purpose of the activities in question in this case satisfy this aspect of the arrangement's definition of the fishery.
Secondly, the fishery is described geographically, by reference to certain coordinates. We were advised by Mr Bydder SC that that area 'includes the area we're dealing with'. No one suggested otherwise and, in the absence of anything to the contrary, we assume that is so, without positively finding it to be so.[19]
[19] ts 386, 15 March 2024.
Thirdly, the fishery is defined by reference to certain listed marine species, which list includes 'all species of aquatic invertebrates', which plainly includes the pearl oyster.
However, while the arrangement defines the 'fishery' in question by those three criteria, the uncertainty referred to in the 2/8 Policy is whether the pearl oyster fishery is a 'fishery' as that term is defined by s 4 of the FMA.
If not, it is not covered by the 1995 arrangement. That would mean that s 77 of the FMA does not apply and, therefore, the purported extra-territorial operation of the PA is ineffective due to s 10(2)(a) of the FMA.
Section 4 of the FMA defines 'fishery' as follows:
fishery means a class of activities by way of fishing, including activities identified by reference to all or any of the following:
(a)a species or type of fish;
(b)a description of fish by reference to sex or any other characteristic;
(c)an area of waters or of seabed;
(d)a method of fishing;
(e)a class of boats;
(f)a class of persons;
(g)a purpose of activities.
Accordingly, critical to the definition of 'fishery' is the definition of 'fishing'. That term is, in turn, defined as follows:
(a)searching for, or taking, fish; or
(b)attempting to search for, or take, fish; or
(c)engaging in any other activities that can reasonably be expected to result in the locating, or taking, of fish; or
(d)placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons; or
(e)any operations at sea directly in support of, or in preparation for, any activity described in this definition; or
(f)aircraft use relating to any activity described in this definition except flights in emergencies involving the health or safety of crew members or the safety of a boat; or
(g)the processing, carrying or transhipping of fish that have been taken.
The evidence, which we accept, is to the effect that the cultivated pearl industry operates through the following activities:
(a)wild oysters are taken, mainly but not only, from 80Mile Beach under pearling licences issued under s 23(1)(b) of the PA;
(b)oyster spat is collected from broodstock produced in a hatchery or collected from the wild and then grown out on land pursuant to hatchery licences issued under s 23(1)(c) of the PA;
(c)both the wild oysters and spat produced are brought onto a POFL. In that regard, s 16 of the PA mandates that all wild oysters taken and all pearl oyster spat produced in the preceding year must be moved to a POFL by 31 December each year and that they are not to be removed thereafter;
(d)at the POFL, a 'seed' is placed into the oyster flesh and the pearl is then 'grown out';
(e)the growing out occurs in rope cages which are suspended in the water column from longlines held at or below the water surface;
(f)during the growth phase, the oysters are, periodically, removed from the water column and cleaned to remove marine growth/organisms;
(g)the grown pearl is removed from the oyster, which may be reused to grow another pearl; and
(h)in some, but not all cases, after the pearl is removed either or both of the meat (pearl-meat) and shell (for mother-of-pearl) are harvested rather than use the oyster for the growing of more pearls.
We accept, and we find, that the searching for (and attempting to do so) and the collection of (and attempting to collect - or take) wild oysters at, for example, 80-Mile Beach, and their transport from that area, together with other activities ancillary to that collection 'that can reasonably be expected to result in the locating, or taking' of the oysters constitute activities that fall within, at least, paras (a) to (c) of the statutory definition of 'fishing'; that is, they constitute searching for or taking (or attempting to do either or both) pearl oysters.
Of course, those activities do not occur at the POFL and for the purposes of these reasons, we assume that they occur within the geographical limits of the 'arrangement'.
As we understand the evidence, the seeding of the oyster, its 'growing out', and the removal of the pearl, as well as any removal and collection of the pearl-meat and/or the collection of the shell for mother-of-pearl does occur within the POFL.
The Delegate's written submissions included that those processes fall within paragraphs (c), (e) and (g) of the definition of 'fishing'.[20]
[20] First Respondent's Outline of Submissions, 16 February 2024, para 46.
While the definition of 'take', in relation to fish, in s 4 of the FMA means 'catch, capture, take or harvest', we do not consider that the removal/collection of the pearl, pearl-meat or shell is 'harvesting' in the sense meant by the definition of 'take'. In our view, that definition applies to the animal as a whole from the wild, not the separation of the captured animal into parts.
That is, we find that the 'harvesting' of oysters from the wild constitutes a taking, but the processing of the animal to separate and remove parts of it for different purposes does not. Rather, in our view, that latter activity constitutes 'processing' of the animal already 'taken' under para (g) of the definition.
Section 4 of the FMA defines 'processing' to include 'cutting up, dismembering, cleaning, sorting, packing or freezing'.
In our view, the separation and collection of the pearl, pearl-meat and mother-of-pearl falls within the ordinary meaning of cutting up and/or dismembering with the latter term defined as the separation of parts of a body from each other. While reasonable minds might differ as to whether the pearl is 'part' of the oyster, we are prepared to accept for present purposes that it is.
In addition, the activities undertaken within the POFL include the cleaning of the oyster shell during 'growing out' to remove marine growth and to encourage the 'growing out' process. Although not directly addressed on the issue, it seems to us most likely that the activities undertaking on the POFL will also include the sorting of oysters or parts of an oyster in a variety of ways. Finally, there will also, necessarily, be freezing of pearl-meat and the packing of various parts of the oyster for transport and sale. At least some of those activities, but certainly the cleaning, appears to occur on (or within) the POFL.
We accept Mr Bydder's submission, and we find, that there is no warrant in the legislation to impose a temporal limit on the process that commences with the taking (harvest) of wildstock and which ends with the dismembering of the animal and the freezing and packing of its parts. That is, the fact that several years may pass between the insertion of the seed into the oyster and the processing of the pearl, pearlmeat and/or shell is not a matter to which the legislation directs attention.
We also accept the submission, and we find, that the use of the disjunctive 'or' following each paragraph in the definition of 'fishery' has the result that only one of the paragraphs needs to be satisfied in order to satisfy the definition as a whole.
Finally, we accept the submission, and we find, that the process undertaken should be seen as a whole. Section 16 of the PA effectively requires us to do so, in that it requires all wild oysters 'taken' from the wild must be moved to a POFL by not later than 31 December in the year that they are taken.
As such, while the taking of wild oysters does not occur within the POFL (and we repeat that we are, for these purposes, merely assuming that such taking occurs within the geographic area covered by the 1995 arrangement), such taking occurs for the purpose of removing the taken oysters to, seeding and then growing them out and processing them within the POFL.
For those reasons, we are prepared to accept, and we find, that both the taking of wild oysters, as well as their processing, constitute activities that fall within the definition of 'fishing' and that those activities are carried out 'by reference to' the pearl oyster and, as such, the activities amount to a 'fishery'.
Plainly, the issue is not without its difficulties and the unusual (perhaps unique) nature of the activities of the pearling industry do not fit neatly within the regime created by the FMA.
Nonetheless, the industry has operated on the understanding that there is a proper legal basis for POFLs issued under the PA for a very long time. That is not irrelevant to our consideration in this regard.
Equally, we repeat that we lacked the benefit of a contradictor and that the Commonwealth clearly has an interest in the issue but is not a party and has not been heard.
For all those reasons we are satisfied that there is a sufficient basis for us to find (and we do find) that the activities undertaken fall within the relevant definitions and the pearl oyster fishery is therefore a 'fishery' to which the 1995 arrangement applies.
For the avoidance of any doubt, we emphasise that our 'finding' in this regard is not a 'conclusion having legal effect'. That is, it cannot be relied upon external to this proceeding. Rather, our finding is made solely for the purpose of ensuring that we remain within the limits of our jurisdiction and for the purpose of 'moulding [our] conduct to accord with the law'.[21]
[21] Citta Hobart [24].

The Misnomer Issue

Paspaley submits that we have no power to issue the POFLs to Cygnet because the original application was not made in Cygnet's name.[22] Rather, the application was made in the name of Cygnet Bay Pearl Consolidated Pty Ltd,[23] an entity which does not exist.
[22] Applicants' Closing Submissions, 15 March 2024, paras 8 and 146.
[23] The name of the second respondent is Cygnet Bay Consolidated Pty Ltd. The underlined word 'Pearl' does not appear in the name of the second respondent.
We note that the name of the entity to which the POFLs were issued was Cygnet Bay Pearls Consolidated Pty Ltd (note the plural) which also does not exist. Although Paspaley's case in this regard does not turn on this error, it does say that any decision by us to effect the issue of the POFLs to Cygnet will require us to set aside the original decision and substitute it with our own, which it says we cannot do because Cygnet was not the applicant, which gets back to the same point.[24]
[24] Applicants' Closing Submissions, 15 March 2024, para 148.
Paspaley relies upon ss 22 and 23 of the PA. Section 22(1) provides that an 'application for the issue … of a [POFL] shall be in a form approved by the CEO' while s 23(2) provides that the CEO 'shall not issue a [POFL] unless satisfied that the applicant holds' either a hatchery licence or a pearling licence.
Paspaley says, in effect, that the effect of those two sections is that the CEO (whose function in this case was performed by the Delegate) must be satisfied that the entity whose name appears as the applicant on the approved form, and no one else, holds a hatchery or pearling licence. It says that, as the application for POFLs was made by a non‑existent entity, the Delegate could not have been so satisfied.[25]
[25] Applicants' Closing Submissions, 15 March 2024, paras 146 - 147.
Further, Paspaley submits that there is no power for the CEO to overlook the error and grant the POFL to an entity that was not the entity named as the applicant.
It also submits that, as the Tribunal stands in the shoes of the Delegate (s 27 of the State Administrative Tribunal Act 2004 (WA) - SAT Act) and has the 'functions and discretions corresponding to those exercisable by' the Delegate (s 29(1) of the SAT Act), we too lack the power to correct or overlook the error.[26]
[26] Applicants' Closing Submissions, 15 March 2024, para 147.
In that regard, Paspaley quibbles with the description of this issue as a 'misnomer'. It says that the issue is one of power.
Paspaley submits that the principle in Fitzgerald v Masters,[27] that 'words may generally be supplied, omitted or corrected in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency'[28] assists in the construction and amendment of instruments such as contracts but that it has no application in administrative law where the issue is one of power to overlook error.[29]
[27] Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420 at 426 - 427, Dixon CJ and Fullagar J; see, also 437, per McTiernan, Webb and Taylor JJ.
[28] Ibid, pages 426 - 427 (Dixon CJ and Fullagar J; see, also 437, per McTiernan, Webb and Taylor JJ).
[29] Applicants' Outline of Reply Submissions, 1 March 2024, para 41; Applicants' Closing Submissions, paras 144 - 147.
We disagree.
The principle in Fitzgerald v Masters has been considered applicable in an administrative law context by the Full Federal Court.
In BHP Petroleum (Timor Sea) Pty Ltd v Minister for Resources [1994] FCA 168; (1994) 49 FCR 155 (BHP) the statutory regime provided the Minister with the power to grant a certificate regarding certain tax concessions. It also precluded the Minister from accepting an application for a certificate unless the request was made by all persons satisfying certain criteria.
No particular form for the application was prescribed and the application in question was made by letter which listed each of the various applicants save for one which was omitted by oversight.
The Minister did not 'take the point' as to the omission of the applicant's name but refused the certificate on other grounds. The applicants then sought review of the Minister's decision in the Administrative Appeals Tribunal (AAT) where the Minister did take the point. The AAT held that it lacked jurisdiction to grant the certificate saying, in effect, that the application was defective, the Minister's power was therefore limited to refusal of the application, and the AAT could do no more than the Minister.[30]
[30] BHP page 169.
On appeal, the Full Federal Court (Beaumont J, with whom Jenkinson J and Heerey J agreed in separate decisions) held that the application letter was to be considered in its context, which included its reference to previous letters to the Minister which included the name of all of the relevant applicants who satisfied the relevant criteria. On that basis all relevant applicants were included in the application which was therefore valid.
However, Beaumont J went on to say that an alternative approach would be to treat the application letter 'as having a formal status as a written instrument' in which case:
a patent error of the present kind would not necessarily have vitiated the instrument. In other words, it may be that the omission of the [relevant name] was such an obvious mistake that the error would be corrected by the ordinary processes of construction.
He then quoted the principle in Fitzgerald v Masters referred to above.[31]
[31] BHP page 172.
It is Paspaley's submission that the prescribed nature of the form under s 22 of the PA precludes the CEO from altering the name of the applicant.[32] But by Beaumont J's analysis (and, while obiter, it is an analysis with which the other two judges agreed, giving it, in our view, considerable weight) its status as a prescribed instrument brings it directly within the scope of the principle in Fitzgerald v Masters.
[32] Applicants' Outline of Reply Submissions, para 42(a).
Elsewhere, Paspaley's submissions were to the effect that correction of an instrument pursuant to the principle was acceptable because the correction reflects the intention of the parties such that the principle has no application in an administrative law context.[33]
[33] Applicants' Closing Submissions, 15 March 2024, para 144.
But as the written submissions made on behalf of the Delegate observed, the principle in Fitzgerald v Masters has not been limited to the correction of errors in contractual documents but has been applied to remedy other legal instruments, including forms prescribed by legislation: Wright v ANZ Banking Group Ltd [2001] FCA 386; Wingadee Shire Council v Willis (1910) 11 CLR 123.
Further, other administrative law cases have applied the principle, albeit without referring to it. In Reid v Brisbane City Council [2013] QPEC 24, Rackemann DCJ held that an error in naming the applicant for planning permission (the prescribed form gave the name of a corporate entity while accompanying documents used another corporate entity name but neither existed; rather, they were variations on a business name registered to an individual, who was the 'true' applicant) 'had no substantive effect on the application process'.
In GB & G Consolidated v Melbourne and Metropolitan Board of Works (1972) 27 LGRA 327 (GB & G Consolidated) an application for planning permission was made in the name of the vendors of the property in question when, in fact, the purchaser of the property was the applicant. Further, the section of the form which required the details of owners of the land (which in that case were the vendors, the contract of sale having not been completed) and their formal consent to the application to be provided was not completed.
On review, the tribunal held that the errors in the application form were fatal. On appeal, the 'true' applicant submitted that as the tribunal was required to 'act according to equity and good conscience and the substantial merits of the case without regard to technicalities or legal forms', it should have accepted 'the fact that the owners had concurred either mentally or verbally in the application as sufficient … to accept the owner's concurrence … as sufficient compliance' with the relevant regime.[34]
[34] GB & G Consolidated, page 329.

Anderson J upheld the appeal holding that while there may be occasions when a technical defect is such that, in the circumstances of the particular case, it justifies the rejection of the notice, each case should be considered on all of the facts, in equity and good conscience, against the substantial merits of the application.[35]
[35] Ibid, page 331.
In each of the above cases, the court appears to have accepted that the statutory regime in question may evince an intention against correction, consistent with the principle in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.
But in our view, there is nothing in the regime created by the PA that precludes the CEO from overlooking an obvious error in the name of an applicant so as to apply the substance of the issue.
As Paspaley submits, the PA establishes a statutory regime 'whereby there is a close connection between the pearling or hatchery activities and the growing of the pearls, meaning that to farm pearls the same person must also be authorised to take pearl oysters or produce oyster spat'.[36]
[36] Applicants' Outline of Written Submissions, 26 September 2023, paras 81 - 82.
That regime limits the number of people involved in the production of pearl oysters on a particular farm and, in turn, supports the value and rarity of pearls, protects their biosecurity and incentivises investment because investors have control of all stages of production.[37]
[37] Applicants' Outline of Written Submissions, 26 September 2023, paras 81 - 83.
We also agree with Paspaley that the critical issue is whether the entity to whom a POFL is issued is the licensee of a pearling licence or a hatchery licence under s 23(2) of the PA.
But that does not preclude the CEO (and the Tribunal on review) from over-looking an obvious error in the name of an applicant for a POFL.
Rather, in our view, and we find, it encourages a practical and sensible approach in considering and assessing an application for a POFL to ensure that, as a matter of substance, the applicant is the same entity as a pearling or hatchery licensee.
Section 29(1) of the SAT Act provides that on review the Tribunal has the 'functions and discretions' of the original decision-maker. In addition, s 32(2) provides that we are 'to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms'. As was the case in GB & G Consolidated, those words require us to take a practical and sensible approach, unless the legislative regime requires otherwise, to ensure that the applicant is the sole entity as that which holds a pearling licence or hatchery licence.
In this case, it was uncontroversial, and we find, that Cygnet holds both hatchery and pearling licences while the named applicant (Cygnet Bay Pearl Consolidated Pty Ltd) does not exist and, therefore, does not hold such licences.
As the passage from Beaumont J's reasons in BHP (above, at para [86]) makes clear, if the error was an obvious mistake, it may be corrected. Paspaley submits the error was not obvious.[38] We disagree. We find that Cygnet was, in substance, the true applicant for the POFLs and that evidence supports the view that no one dealing with the application was in any doubt about that. Rather, the evidence supports the view that the name of Cygnet and the 'wrong' name were used interchangeably with everyone aware that Cygnet was the 'true' applicant.
[38] Applicants' Outline of Reply Submissions, 1 March 2024, para 42(b).
The evidence in this regard falls into three categories:
(a)The application documents;
(b)The departmental documents; and
(c)Paspaley's objection.

The application documents

As noted above, the application consisted of six documents, one of which was a cover letter dated 27 August 2021.
Throughout those documents, both Cygnet's name and the 'wrong' name, as well as other names, were used interchangeably.

The cover letter:

(a)The cover letter's letterhead, and the title of the person who signed the letter, simply state 'Cygnet Bay Pearls'. The body of the letter also refers five times to 'Cygnet Bay Pearls' and once to 'Cygnet Bay'. The subject line of the letter, however, refers to 'Cygnet Bay Consolidated'; being the name of the second respondent, albeit absent the 'Pty Ltd'.[39]
[39] First Respondent's Section 24 Bundle as updated on 16 February 2024 to include Vol. 8 (FRB), page 120.
(b)Significantly, in our view, the body of the cover letter:
(i)refers to 'Cygnet Bay Pearls' as a 'cultured pearling company' and one which is 'still actively investing in pearl cultivation';
(ii)describes the investment carried out by 'Cygnet Bay Pearls' and states that the POFL sites 'will allow for industry best practice commercial sub-surface grow out techniques, brood-stock conditioning, nursery propagation of spat from our hatchery oyster program and continued research and development of our seeded wild-stock and hatchery oysters.[40]
[40] FRB, page 120.

(c)In other words, the cover letter refers to activities which can only be carried out with a pearling licence and a hatchery licence. As noted above, it is common ground that Cygnet holds (and, indeed, is the only entity within the Cygnet Bay group of companies that holds) a pearling licence and a hatchery licence.

The application form:

(a)The formal application uses the 'wrong' name for the applicant: 'Cygnet Bay Pearl Consolidated Pty Ltd';
(b)But the business address given for the applicant matches that of Cygnet on the various hatchery and pearling licences held by it;[41]
[41] FRB, page 128.
(c)The wildstock quota and hatchery quota units specified in Part C of the form match the quotas held by Cygnet;[42] and
[42] FRB, page 129.
(d)Again, the form refers to aspects of pearling and hatchery practice (ie the quotas) which can only apply to Cygnet, being the only entity within the group which holds those licences.