Paxton v Jon Ford, Minister for Fisheries

[2006] WASC 194

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PAXTON -v- JON FORD, MINISTER FOR FISHERIES & ANOR [2006] WASC 194

CORAM:   MASTER NEWNES

HEARD:   11 AUGUST 2006

DELIVERED          :   5 SEPTEMBER 2006

FILE NO/S:   CIV 1395 of 2006

MATTER                :Application for a writ of certiorari against Jon Ford, Minister for Fisheries and Peter Rogers, Executive Director of the Department of Fisheries, Ex parte Mark Ashley Paxton, Applicant

BETWEEN:   MARK ASHLEY PAXTON

Applicant

AND

JON FORD, MINISTER FOR FISHERIES
First Respondent

PETER ROGERS, EXECUTIVE DIRECTOR OF THE DEPARTMENT OF FISHERIES
Second Respondent

Catchwords:

Administrative law - Order nisi for writ of certiorari - Allegation by applicant that second respondent wrongly permitted transfer of applicant's fishing licence to third parties - Demand for compensation - Internal departmental inquiry into allegation - Whether applicant had right to be heard - Whether applicant's rights affected - Turns on own facts

Legislation:

Fish Resources Management Act 1994 (WA), s 71(2), s 249

Fisheries Act 1905 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr D C Leask

First Respondent           :     Mr G J Dale

Second Respondent       :     Mr G J Dale

Solicitors:

Applicant:     Leask & Co

First Respondent           :     State Solicitor's Office

Second Respondent       :     State Solicitor's Office

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

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Talbot v Lane (1994) 14 WAR 120

Case(s) also cited:

Craig v State of South Australia (1995) 184 CLR 163

Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648

Kioa v West (1985) 159 CLR 550

Re Ip; Ex parte Ip [2005] WASC 219

Re Kennedy; Ex parte Crozier & Ors [2002] WASC 190

Re MacTiernan; Ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264

Re Matthews; Ex parte Harrison [2001] WASC 61

Re Western Australian Planning Commission; Ex parte South Fremantle / Hamilton Hill Residents' Association Inc [2005] WASC 50

South Australia v O'Shea (1987) 163 CLR 378

Varney v Parole Board of Western Australia (2000) 23 WAR 187

1. MASTER NEWNES:  This is an application for an order nisi for a writ of certiorari directed to each of the respondents.  The applicant seeks to have quashed what is said to be a decision of the first respondent of 21 October 2005, that the applicant's claim to a "lost right to fish" was concluded and the Ministerial exemption granted to him would not be further extended or renewed, and, further or alternatively, a decision of the second respondent of 25 October 2005, refusing to recognise the applicant's claimed right to one managed fishery licence.

2. The facts surrounding the present dispute are far from clear from the applicant's affidavit in support of the application.  To a substantial extent they have to be pieced together from various pieces of correspondence and other documents attached to the affidavit.  So far as I can ascertain, the relevant facts are as follows.

3. On or about 20 November 1986, the applicant obtained a fishing boat licence, described as a "wet line" licence, under the then Fisheries Act 1905 (WA) and an authorisation (the "Managed Fishery Licence") to enable him to fish in the Abrolhos Islands Limited Entry Otter Trawl Fishery. That Fishery was administered at the time under the then Abrolhos Islands Limited Entry Otter Trawl Fishery Notice 1986.  It was the predecessor to the Abrolhos Islands and Mid‑West Trawl Limited Entry Fishery (the "Fishery"), which is now administered under the Abrolhos Islands and Mid‑West Trawl Limited Entry Fishery Notice 1993.

4. Under the former Notice, an authorisation to fish in the Fishery (a "managed fishery licence") could only be obtained for a boat for which a fishing boat licence was held.  With the written approval of the Director of the Department of Fisheries, a holder of a managed fishery licence could transfer that licence to another person holding a fishing boat licence.  Where a managed fishery licence was transferred to a person who already held a managed fishery licence, only one managed fishery licence was issued.  The transferred managed fishery licence was cancelled and the transferee's managed fishery licence was endorsed with the transfer.

5. In 1988 the applicant sold the wet line licence.  It is not stated to whom.  On 28 August 1988, the applicant transferred the Managed Fishery Licence to Mandare Holdings Pty Ltd ("Mandare Holdings"), which held a wet line licence.  In 1990 the applicant arranged for the transfer of the Managed Fishery Licence from the wet line licence of Mandare Holdings, on which it was then endorsed, to Fay & Blenkinsop Nominees Pty Ltd ("Fay & Blenkinsop"), which held a wet line licence for a vessel named the "Panama".  The intention was apparently that the applicant would fish using the Managed Fishery Licence on the wet line licence held by Fay & Blenkinsop.

6. According to the applicant, when he arranged for the transfer of the Managed Fishery Licence to Fay & Blenkinsop, he spoke to an officer of the Department of Fisheries and explained to him that the reason the applicant, rather than Mandare Holdings, was requesting the transfer was that the applicant was the beneficial owner of the Managed Fishery Licence.  I should interpose that the applicant's counsel said in the course of argument that the applicant claimed the beneficial interest by virtue of some oral arrangement.

7. In or about May 1991, Fay & Blenkinsop transferred the Managed Fishery Licence to third parties.  The applicant says that that was done without his knowledge or consent.

8. The applicant contends that as the Department of Fisheries was aware that the applicant was the beneficial owner of the Managed Fishery Licence, it should have prevented Fay & Blenkinsop from transferring it until the applicant had been notified that such a transfer was proposed.  It failed to do so and as a result the Managed Fishery Licence has been lost to the applicant.

9. In fact, it seems that upon its transfer from Mandare Holdings to Fay & Blenkinsop, the licence may have already been lost to the applicant.  Fay & Blenkinsop already had a managed fishery licence, described as a "single rig" licence, in respect of its vessel, the "Panama".  As I have mentioned, under the Abrolhos Islands Limited Entry Otter Trawl Fishery Notice 1986, when a managed fishery licence was transferred to a vessel for which a managed fishery licence was already held, the licence being transferred was cancelled and the transferee's licence was endorsed with the transfer.

10. Accordingly, upon its transfer the Managed Fishery Licence was cancelled and the licence for the "Panama" was endorsed with the Managed Fishery Licence.  When, in 1990, the managed fishery licence then held by Fay & Blenkinsop in respect of the "Panama" was transferred to two other parties, it appears that the managed fishery licences of those parties were amended and the Panama's managed fishery licence was cancelled.

11. In any event, it seems that in 1993 the applicant sought to have the Minister for Fisheries reverse the transfer of the Managed Fishery Licence by Fay & Blenkinsop to the third parties and to restore it to the applicant.  The applicant was informed that that could not be done.

12. The applicant then approached the Parliamentary Commissioner for Administrative Investigations (the "Ombudsman") in late 1993 or early 1994.  That appears from a copy of a letter from the second respondent to the Ombudsman of 14 February 1994 in response to a complaint the applicant had lodged with the Ombudsman.  In that letter, the second respondent said, among other things, that any remedies that the applicant may have in respect of the transfer of the Managed Fishery Licence were civil remedies against Fay & Blenkinsop.

13. It is not apparent what then happened.  The events are only picked up again in the correspondence as from 1998.

14. It appears, however, from a letter dated 25 May 1998 to the applicant from the second respondent that, on 15 May 1998, the applicant had asked for an inquiry to be held under s 249 of the Fish Resources Management Act 1994 (WA) ("the Act") to determine the ownership of the Managed Fishery Licence. Section 249, relevantly, provides that the chief executive officer of the Department may appoint a person or persons to conduct an inquiry to determine who holds, controls or has an interest in a licence and to report to the chief executive officer the findings of the inquiry. Such an inquiry is empowered by s 249 to compel the attendance of witnesses and to require witnesses to answer questions.

15. In the letter of 25 May 1998, the second respondent said that the issue of ownership of the licence was a matter between the applicant and Fay & Blenkinsop. If the applicant were successful in civil proceedings, the second respondent said he was in a position to determine a re‑arrangement of licences and entitlements. He went on to say that if s 249 of the Act authorised an inquiry of the sort requested by the applicant (which he did not believe it did), it was not appropriate in the circumstances to hold such an inquiry.

16. In May 1998, the Ombudsman wrote to the applicant regarding his complaint.  In the letter the Ombudsman referred to an informal system in the Department of Fisheries by which an interest in a managed fishery licence could be recorded by the Department and the person holding the interest notified if the owner attempted to transfer the licence.  But the Ombudsman noted that there was no record of the applicant having sought to register such an interest.  The Ombudsman said that it would have been unreasonable in the circumstances for the applicant to rely on a departmental officer recalling the applicant's claim to a beneficial interest in the licence at the time the transfer of the licence to Fay & Blenkinsop was arranged.

17. On 22 December 2003, the Minister for Agriculture, Forestry and Fisheries wrote to the applicant to say, among other things, that he was still considering the matters raised by the applicant regarding the cancelled licence and in the meantime would grant the applicant an exemption allowing him to operate in the Fishery without a managed fishery licence.  The correspondence from the applicant to the Minister which prompted this response was not in evidence.

18. On 18 February 2004, the applicant wrote a detailed letter to the second respondent setting out the evidence upon which he claimed "the right to one managed fishery licence (MFL) and one unit, and to request you recognise that right and take action to restore these rights."  In the letter the applicant alleged that Fay & Blenkinsop were not authorised to transfer the Managed Fishery Licence, the second respondent had failed to create and maintain a licensing system which adequately safeguarded beneficial interests in licences, and that as a result the applicant had lost the Managed Fishery Licence.  The letter, which is seven pages in length, is, with respect, not easy to follow.  It is also expressed in very belligerent terms.  The essence, however, was that the applicant blamed the Department for the loss of the Managed Fishery Licence and demanded that within three months the second respondent provide to him a managed fishery licence and compensation to be agreed upon.

19. On 22 December 2004, the Minister wrote to the applicant informing him that the exemption would remain in force until 31 December 2005.

20. The Minister wrote to the applicant on 9 March 2005 to say that until the investigation by the Department into the applicant's claims had been concluded, the applicant would continue to have an exemption to permit him to operate in the Fishery as if he held a managed fishery licence.

21. On 21 October 2005, the Minister for Fisheries wrote to the applicant informing him that the Department had completed its investigation and his claim of a lost right to fish in the Fishery was dismissed.  In light of that, the exemption permitting him to operate in the Fishery would not be renewed.  The Minister said that the second respondent would provide a detailed response.

22. On 25 October 2005, the second respondent wrote to the applicant, referring to the applicant's letter of 18 February 2004 in which the applicant had advanced a "claimed right to one managed fishery licence and one [gear] unit".  The second respondent said, among other things, that any claim the applicant may have had against the Department of Fisheries (as it then was), officers of the Department or the Minister was statute barred and there were no remedies at law available to the applicant.

23. The second respondent went on to say that he had been advised that, after the transfer of the applicant's Managed Fishery Licence to Mandare Holdings on 28 August 1988, the applicant had no further interest in it, so that nothing done by the Department, its officers or the Minister could have deprived the applicant of any interest in the licence.  There was no ability under the then existing legislation for a licensee to enter into valid arrangements by which a third party could have a valid "interest" in a licence.  The licence was personal to the registered holder.  Accordingly, none of the Department, its officers or the Minister was obliged to take the applicant's views into account, or to notify or consult the applicant, in connection with the subsequent transfer of the Managed Fishery Licence.

24. In relation to the applicant's request for an inquiry under s 249 of the Act, the second respondent said that he had been advised that it was arguable that the power to hold an inquiry under s 249 could only be exercised in respect of a current licence. In any event, the power to do so was discretionary and as the applicant had held no interest in the Managed Fishery Licence after its transfer to Mandare Holdings in 1988, no useful purpose would be served by such an inquiry.

The applicant's submissions

1. It was submitted on behalf of the applicant that the letter from the second respondent of 25 October 2005 was a refusal or denial of the applicant's claimed right to a managed fishery licence.  The second respondent's decision was the basis upon which the first respondent advised the applicant that the applicant's claim was dismissed.

2. It was not suggested that the claim to a managed fishery licence was made by the applicant pursuant to any legislative provision or any practice applicable to such licences.  As the applicant's counsel put it in argument, in view of the circumstances and the Department's involvement in the loss of the applicant's licence, it was only just and equitable that he be granted a replacement.

3. It was submitted that the applicant had a reasonable expectation that the Department would properly investigate the circumstances of the transfer, and the Department's involvement in it, and if the Department formed a view negative to the applicant it should have informed him of that and given him an opportunity to make submissions.

4. Counsel for the applicant referred, in particular, to statements in the second respondent's decision referring to information on Department of Fisheries' files, and information from other sources, which had been taken into account by the second respondent in reaching his decision.  That information had not been disclosed and the applicant had been given no opportunity to respond to it.  The decision also referred to legal advice obtained by the Department without saying in respect of what matters advice was sought or what that advice was.  The applicant's counsel submitted that the applicant should have been invited to make submissions in relation to the application generally or in relation to any of the matters in respect of which the second respondent had sought and received advice.

5. Counsel for the applicant submitted that, although there was no general rule that reasons for decision be given in inquiries such as that which led to the decision in question, the lack of any indication as to what issues had been raised, evidence considered and reasoning used in arriving at the decision, and the absence of a statement of findings of fact, constituted a failure to accord procedural fairness and thereby a denial of natural justice.  The applicant was entitled to, but had been denied, a properly constituted, directed and informed inquiry, the processes and decisions of which were transparent.

6. It was also submitted that the second respondent had, in his discretion, refused to hold an inquiry under s 249 of the Act without stating the matters taken into account in the exercise of his discretion.

The respondents' submissions

1. It was submitted on behalf of the respondents that for certiorari to issue it must be possible to identify a decision that has a discernible or apparent legal effect upon rights.  In the present case, the decision of the second respondent did not have any effect on the applicant's legal rights.  It was not a statutory decision and did not represent a condition precedent to the exercise of any power.

2. On the question of procedural fairness, it was submitted that the second respondent was not under any obligation to conduct any investigation into the applicant's complaint, much less to conduct an investigation in a particular way or to take the result of the investigation into account in making any decision.  The second respondent's decision was not a reviewable statutory decision susceptible to certiorari.

3. It was submitted that, in any event, the second respondent had afforded the applicant procedural fairness.  The applicant had sent a letter of 18 February 2004, with 22 annexures setting out his claim, to the second respondent.  The second respondent's letter of 25 October 2005 indicated that the second respondent had considered that information.  It is unclear what additional information or evidence the applicant could or would have provided or submissions that would have been made that might have materially influenced the decision of the second respondent.

4. In respect of the first respondent, it was submitted that the "decision" by the Minister that the investigation had been concluded had no direct legal consequences.  It was not a statutory precondition for the making of any decision and the "decision" itself was not a reviewable decision.

Should an order nisi issue?

1. The applicant's counsel conceded that if the applicant could not make out a case in respect of the second respondent, there was no case against the first respondent in relation to the failure to continue to provide the exemption to the applicant.

2. The first question is whether the applicant appears to have an arguable case for an order nisi in respect of the second respondent: Talbot v Lane (1994) 14 WAR 120 at 152, 157. It is, I think, unnecessary for the purposes of this application to consider the view expressed in some of the cases that the appropriate test is not whether the applicant has an arguable case but rather whether the applicant has an arguable case with some prospect of success.

3. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, the High Court reiterated that the function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. Quashing annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity but, if an act or decision has no legal effect, there is nothing to quash. The Court pointed out in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159, that for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing. A decision will affect legal rights if it directly determines, or of its own force affects, rights or if it satisfies some condition precedent to the exercise of power which will in turn affect rights or otherwise give rise to legal consequences: Hot Holdings Pty Ltd v Creasy (supra) at 161.

1. I consider it is clear that the decision relied upon by the applicant is not amenable to review.

2. The applicant had alleged that the Department had been at fault in allowing the Managed Fishery Licence to be transferred beyond the applicant's reach.  He demanded that the Department compensate him by providing him by way of compensation with a replacement managed fishery licence for the Fishery and monetary compensation.  As a result of those allegations, the second respondent caused internal departmental inquiries to be conducted to ascertain whether there was any substance in them and, presumably, if there was, what, if anything, the second respondent might be prepared to do to compensate the applicant.

3. Those inquiries were not conducted pursuant to any statutory or other legal obligation or any established practice.  The purpose of the inquiries was not to decide whether or not the applicant had any entitlement to have restored to him the Managed Fishery Licence.  In that respect, I should say that the applicant did not point to any power in the second respondent or the Minister which would enable either to reverse the cancellation of the licence upon its transfer to Fay & Blenkinsop or to set aside the transfer of the licence by Fay & Blenkinsop to third parties.  It was not suggested that there existed any legal power to restore the Managed Fishery Licence to the applicant.

4. Nor were the inquiries directed to whether, pursuant to the relevant statutory provisions, a new managed fishery licence for the Fishery should be granted to the applicant.  Whether or not a managed fishery licence should be granted would necessarily involve consideration of a range of issues quite separate from the matters raised by the applicant, including, among other things, the current state of the Fishery.

5. In fact, it appeared from the letters from the Minister and the second respondent that, in the meantime, the applicant had separately made a formal application for a managed fishery licence.  Counsel for the applicant confirmed in the course of argument that such an application had been made.  It was, however, made clear in the letter from the Minister of 21 October 2005, and again in the letter from the second respondent of 25 October 2005, that that application was a quite distinct matter which would be dealt with separately.  No complaint was made on this application about the manner in which that application has in fact been dealt with, if it has been finally determined.

6. As I have said, the applicant's claim was made on the basis that the Department was responsible for his loss of the Managed Fishery Licence so it was just and equitable that he be granted a replacement.  The contrary conclusion at which the second respondent arrived as a result of the internal inquiries, as set out in the letter of 25 October 2005, did not, in my view, constitute a decision which determined or affected the applicant's rights.  It did not deal with any right of the applicant, or satisfy any condition precedent to the exercise of power which would in turn affect the applicant's rights, or otherwise give rise to legal consequences.  The second respondent simply rejected the applicant's allegation that the Department was at fault and rejected his demand for compensation, leaving him to pursue any legal remedies he may have, in respect of which the second respondent reiterated some previously stated views.

7. In the course of his oral submissions, counsel for the applicant suggested that the outcome of the internal departmental inquiries affected the applicant's rights because it bore upon his pending application for a managed fishery licence. That was because, under s 71(2) of the Act, in considering such an application the second respondent is to take into account the applicant's past history of fishing in the Fishery. It was submitted that the past history included, in this case, the circumstances of the alienation of the applicant's previous licence. I must say, with respect, that it was not at all clear to me quite how it was said that the subject‑matter of the allegations made by the applicant against the second respondent relevantly bore upon the applicant's past history of fishing in the Fishery.

8. In any event, assuming for present purposes that the circumstances of the alienation of the applicant's previous licence are in some way relevant to the applicant's pending application for a managed fishery licence, I do not consider that conclusions reached by the second respondent as to whether, as alleged by the applicant, the Department was at fault in connection with the transfer of the Managed Fishery Licence can be said to affect the applicant's legal rights in any relevant respect.

9. It follows, in my view, that it is clear there is no reviewable decision by the second respondent and that the applicant does not have an arguable case.  The application in respect of the second respondent must fail.

10. I should also say that I do not consider there is an arguable case that the applicant had the right to be heard which he claims.  In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 27, McHugh and Gummow JJ held that the following statement by McHugh J in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 311 ‑ 312 should be accepted as representing the law in Australia:

    "I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials.  In the absence of a clear contrary legislative intention, those rules require a decision‑maker 'to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it', Kioa v West (1985) 159 CLR 550 at 587. If that approach is adopted, there is no need for any doctrine of legitimate expectations. The question becomes, what does fairness require in all the circumstances of the case?"

11. See also Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Callinan J at 155.

12. In my view, in the circumstances of this case fairness did not require that the second respondent provide the applicant with an opportunity to be heard on any matters adverse to his demand for compensation which arose in the course of the internal departmental inquiries into his allegations regarding the Department's conduct.

13. In my view, it is equally clear that there was no reviewable decision by the first respondent in informing the applicant that the inquiry had been completed and the claim by the applicant dismissed.

14. I would dismiss the application for an order nisi.