Perder Investments Pty Ltd v Elmer

[1991] FCA 529

Re: PERDER INVESTMENTS PTY LTD
And: MARK ALBERT VINCENT ELMER
No. G81 of 1991
FED No. 529
Administrative Law
(1991) 31 FCR 201
(1991) 23 ALD 552

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Morling(1), Neaves(1) and Spender(1) JJ.

CATCHWORDS

Administrative Law - Torres Strait Fisheries Act - licence - application for transfer - application refused - review of decision to refuse - expiry of licence before hearing of review - refusal of relief - whether relief should have been granted

Torres Strait Fisheries Act 1984

Administrative Decisions (Judicial Review) Act 1977

HEARING

BRISBANE

#DATE 30:8:1991

Counsel for the appellant: Mr K. Copley QC and Mr D. O'Gorman

instructed by Hemming and Hart Brisbane Agents for: Bottoms Davies Nash (Cairns)

Counsel for the respondent: Mr W.v Vitali instructed by

Australian Government Solicitor

ORDER

Appeal dismissed.

No order as to costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an unfortunate case. The appellant has twice sought review of decisions refusing to transfer to it a Fishing Boat Licence issued under the Torres Strait Fisheries Act 1984 ("the Act") in relation to the Torres Strait Protected Zone Prawn Fishery within the jurisdiction of the Protected Zone Joint Authority established by the Act. On both occasions it has been successful in establishing that the decisions were improperly made. Yet, in the events which have happened, it has been held that it is not entitled to any relief. The decision given at first instance by the trial judge, Pincus J, that the decision under review was improperly made has not been challenged on appeal. The only question which arises on the hearing of the appeal is whether his Honour erred in declining to grant some relief to the appellant.

1. The unhappy course of events which gives rise to the appeal is as follows. In 1978 representatives of Australia and Papua New Guinea signed a treaty dealing with, inter alia, the fisheries resources of the Torres Strait. The treaty was subsequently ratified by both nations. It established a Protected Zone to protect the livelihood of the traditional inhabitants of the area, including their traditional fishing. The parties to the treaty agreed to share the allowable catch in the Protected Zone.

2. On 15 February 1985 the Act came into force. It established an Authority to be known as the Protected Zone Joint Authority ("the Authority") to manage a number of fisheries in the Australian part of the Protected Zone. Under s.19(2) of the Act the Minister is empowered to grant a licence:
   

"...in respect of a boat authorizing the use of the boat for taking fish in the course of commercial fishing in areas of Australian jurisdiction and for carrying, or for processing and carrying, in areas of Australian jurisdiction, fish that have been taken with the use of the licensed boat".

1. The licence which the appellant sought to have transferred to it was a licence issued under s.19(2). Section 25(1) of the Act provides as follows:
   

"Subject to sub-section (2) and to any condition of a licence relating to the transfer of the licence, the

Minister may, in his discretion, upon application being made in accordance with the appropriate form by the holder of a licence granted under section 19 in respect of a boat and by another person as proposed transferee, transfer the licence in respect of the boat to the other person."

1. By reason of provisions in Part V of the Act the Authority is given the powers of the Minister to grant licences under s.19(2) and to transfer licences under s.25(1).

2. The licence in question in the present proceedings was issued on 14 April 1989 and was valid until 2 December 1989. It related to a boat called the "Dhikarr". On 21 April 1989 the appellant agreed to buy from the then licensees ("the original licensees") certain property including the "Dhikarr" and licences associated with it, including the licence in issue in the present proceedings. The price was $320,000 and settlement was made conditional upon approval of the transfer of the licences. However, settlement took place in the absence of approval of the transfer of the subject licence. The sale was completed, although neither the Minister nor the Authority acted to transfer the licence under s.25(1).

3. On 21 April 1989 the original licensees and the appellant applied for transfer of the licence to the appellant. On 1 August 1989 a delegate of the Authority refused the application for transfer. Reasons for the decision of 1 August 1989 to refuse the transfer of the licence were not given until 6 December 1989, shortly after the expiry of the licence on 2 December 1989. No mention of the expiry of the licence was made in those reasons. On 2 January 1990, the appellant filed an application in this Court challenging the decision to refuse the transfer. That application was heard by Spender J on 3 July 1990, who on 16 July 1990 ordered that the decision to refuse the transfer be set aside and that the application be remitted to the Authority to be determined according to law. There was no challenge to Spender J's decision.

4. The appellant thereupon pressed for reconsideration of the application for the transfer of the licence and on 2 November 1990 a further decision was made refusing to transfer it to the appellant. Thereupon another application was made to the Court for an order of review under the Administrative Decisions (Judicial Review) Act 1977. This application came before Pincus J. His Honour concluded that in arriving at the decision of 2 November 1990 the decision-maker took into account a policy which was inconsistent with the Act. Although his Honour did not expressly say so, it is plain from his reasons that he concluded that the decision was not properly made. On the hearing of the appeal to this Court, the respondent did not seek to argue that Pincus J erred in concluding that the decision of 2 November 1990 had been improperly made in the sense that it was based upon a policy which was inconsistent with the Act.

5. The appellant sought an order from Pincus J that the decision under review should be set aside. The appellant also asked his Honour to make a declaratory order having the effect of requiring a favourable answer to be given to the application for transfer of the licence. He declined to grant either form of relief.

6. Pincus J observed that the Act gives the Minister power to renew a licence, under s.24, but only if application for renewal is made not earlier than two months, nor later than one month, before the expiration of the period for which the licence was granted, renewed or last renewed: s.24(1). Since there was no evidence that any such application for renewal had been made, his Honour thought it would not be proper for the Court to require that a transfer of the licence be effected when such a transfer would be futile, since the transfer of an expired licence would achieve nothing, the licence having become non-renewable.

7. It is curious that the effect of the expiration of the license and of the absence of any application for its renewal was not raised by the respondent to the proceedings before Spender J. It is curious because the licence had expired before that proceeding was commenced. It is equally curious that the matter was not adverted to by the present respondent in the course of reconsidering the application by the appellant for the transfer of the licence and was not raised by his counsel during the hearing before Pincus J. Counsel for the appellant pointed out that the respondent did not submit to Pincus J that it would be futile to grant any of the relief sought and that the question of futility was not raised by his Honour during the course of argument. Accordingly, so it was submitted, the appellant was denied natural justice because his Honour decided the application for review on a ground of which the appellant had no notice. The Queen v Lewis 165 CLR 12 was relied on.

8. A perusal of the transcript of the proceedings before Pincus J reveals that at no time was it mentioned that the licence sought to be transferred had long since expired and that no application had been made for its renewal. In these circumstances, it was inappropriate for Pincus J to refuse relief on the ground that the granting of the relief sought would be futile without affording the appellant an opportunity of making submissions to the contrary. However, the question whether it would be futile to grant to the appellant the relief sought was fully canvassed on the hearing of the appeal and we are in a position to express our view upon it.

9. It is not in doubt that relief (declaratory or otherwise) may properly be refused when to grant it would be futile or when what is involved is the decision of a theoretical and not real question: Re Tooth and Co Ltd (1977) 31 FLR 314 at 325; Gardner v Dairy Industry Authority of New South Wales (1977) 52 ALJR 180 per Mason J at 188; Young v Wicks (1986) 13 FCR 85 at 89 per Beaumont J and McPhee v Minister for Immigration and Ethnic Affairs (1988) 16 ALD 77 at 82 per Lee J.

10. Unfortunately for the appellant, it appears that even if Pincus J had made the orders which it sought, its position would not have been materially improved. It was not contested, nor could it have been, that the licence had expired and that the time for applying for its renewal had also expired. In these circumstances, an order setting aside the decision made on 2 November 1990 would not have achieved anything. If such an order had been made and the matter remitted for reconsideration, the decision-maker would have been called upon to make a decision which, even if favourable to the appellant in a theoretical sense, could not have resulted in the appellant becoming the holder of an operative licence. In these circumstances, we do not think that Pincus J erred in declining to grant the relief sought.

11. We have considered whether there would be some advantage to the appellant in the making of a formal declaration that the decision of 2 November 1990 was invalid. However, we do not think the making of such a declaration would serve any purpose. The appellant already has the advantage of Pincus J's decision that the decision under review was invalid, a decision which has not been challenged. It is open to the appellant to make an application under s.19(1) of the Act for a new licence. To the extent that any such application may gain support from the fact that the decision of 2 November 1990 was improperly made, that support will be derivable from an examination of Pincus J's reasons. The making of a formal declaration would not give the appellant any greater advantage should it apply for a new licence.

12. As we have already observed and as the history of this litigation discloses, this is an unfortunate case from the appellant's point of view. However, it should be said that the appellant's misfortune in part stems from its decision to complete the purchase of the "Dhikarr" and the licences associated with it without first obtaining approval of the transfer of the relevant licence or arranging for an application for the renewal of the licence to be made within the time prescribed by s.24(1) of the Act. Had the appellant not taken that course, it would now not be in the position of having paid for a licence which has since expired and cannot be renewed.

13. For the above reasons, we do not think that Pincus J erred in refusing to grant any of the relief sought by the appellant, notwithstanding his finding that the decision under review was invalid.

14. The appeal must be dismissed, but in the special circumstances of this case and having regard to the history of the litigation, there should be no order as to the costs of the appeal.