Paspaley Pearling Company Pty Ltd & Anor and Delegate of the Chief Executive Officer of the Department of Primary Industries and Regional Development & Anor

Paspaley Pearling Company Pty Ltd and an associated entity challenged the decision of the Chief Executive Officer of the Department of Primary Industries and Regional Development to grant a pearl oyster farm lease to another party. The dispute was heard by the Supreme Court of Western Australia. The primary legal issue before the court was whether the decision to grant the pearl farm lease constituted an exercise of judicial power, which would mean the court lacked jurisdiction. The court examined whether the decision involved the determination of existing rights or the creation of new rights, as this distinction is crucial in determining whether the power exercised is administrative or judicial.

The court concluded that the decision to grant the pearl farm lease was not an exercise of judicial power. It involved the creation of new rights rather than the determination of existing rights. The court found that the decision was concerned with policy considerations and the discretion to grant new rights, rather than ascertaining and enforcing existing rights. The court referenced previous cases, including Precision Data Holdings Ltd v Wills, which held that if the ultimate decision may be determined by considerations of policy, it does not proceed from an exercise of judicial power. The court also noted that the second respondent had no pre-existing right to the lease, which further indicated that the decision was administrative in nature.

In light of the above, the court held that it had jurisdiction to review the decision. The court emphasised that the review would involve a de novo hearing, where it would exercise the same discretionary power as the original decision-maker. The court also noted that the decision was not concerned with the determination and ascertainment of existing rights, but rather with whether new rights should be granted. The court found that the proceeding was not within the core conception of judicial power, as it did not involve the quelling of controversies about legal rights and legal obligations through the ascertainment of facts and application of law.

The court's decision affirmed that it had jurisdiction to review the decision to grant the pearl farm lease. The court held that the decision was not an exercise of judicial power, but rather an administrative decision involving policy considerations and the discretion to grant new rights. The court's decision allows for a de novo review of the original decision, where it may consider relevant policy and exercise its discretion in determining whether the lease should be granted.