Puglisi, Joseph v Australian Fisheries Management Authority
[1996] FCA 618
•24 JULY 1996
CATCHWORDS
FISH and FISHERIES - application for judicial review of decisions leading to a decision by Australian Fisheries Management Authority ("AFMA") to refuse a 1996 fishing permit - Fisheries Act 1952 (Cth) - Fisheries Management Act 1991 (Cth), s 32 - applicant overcaught certain species in 1993, 1994 and 1995 - dispute in relation to 1995 permit - January 1996 AFMA refused 1996 fishing permit - dispute existed in relation to calculation of catch - refused to reconsider 1993 and 1994 overcatch figures - whether determination not to reopen consideration of 1993-1994 overcatch figures is reviewable under the Administrative Decisions (Judicial review) Act 1977 (Cth).
ADMINISTRATIVE LAW - whether decision not to reopen consideration of 1993-1994 overcatch figures is reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) - whether AFMA ignored a relevant consideration - whether AFMA failed to warn the applicant within reasonable time - whether there was a "legitimate expectation" arising from one previous decision - non-renewal of licence more serious than an initial refusal to grant a licence - non-renewal of licence may give rise to a duty to hear - reasonable for licence-holder to rely on past actions of a statutory authority - Wednesbury unreasonableness - conclusion reasonably available - whether decision punitive.
Fisheries Act 1952 (Cth)
Fisheries Management Act 1991 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited
Schmidt v Secretary of State for Home Affairs (1969) 2 Ch 149, cited
Haj-Ismail v Minister for Immigration and Ethnic Affairs (1981) 56 FLR 67, cited
Minister for Immigration and Ethnic Affairs v Haj-Ismail (1982) 57 FLR 133, cited
FAI Insurances Ltd v Winneke (1982) 151 CLR 342, applied
Heatley v Tasmanian Racing and Gaming Commission (1977)
137 CLR 487, considered
Banks v Transport Regulation Board (1968) 119 CLR 222, cited
Kioa v West (1985) 159 CLR 550, applied
Attorney-General of Hong-Kong v Ng Yuen Shiu (1983) 2 AC 629, considered
Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374, considered
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, considered
de Smith's Judicial Review of Administrative Action (1980)
4th ed.
JOSEPH PUGLISI v
AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
No NG 048 of 1996
Tamberlin J
Sydney
24 July 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 048 of 1996
GENERAL DIVISION )
BETWEEN: JOSEPH PUGLISI
Applicant
AND: AUSTRALIAN FISHERIES
MANAGEMENT AUTHORITY
Respondent
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 24 JULY 1996
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The respondent's decision not to grant a South-East Fishery fishing permit for 1996 be set aside.
The matter be remitted to the respondent for determination in accordance with law.
The respondent pay the applicant's costs.
NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 048 of 1996
GENERAL DIVISION )
BETWEEN: JOSEPH PUGLISI
Applicant
AND: AUSTRALIAN FISHERIES
MANAGEMENT AUTHORITY
Respondent
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 24 JULY 1996
REASONS FOR JUDGMENT
The applicant, Joseph Puglisi ("Puglisi"), is a fisherman in the South-East Fishery zone. He seeks judicial review of a decision by the respondent ("AFMA") to refuse him a fishing permit for the 1996 fishing year, commencing on 1 January 1996. He also seeks review of a determination leading to that decision which related to reconsideration of catch history in earlier years.
The South-East Fishery ("SEF") is a large area of the south-east coast of Australia which includes Barrenjoey Point in New South Wales and extends from the waters around Tasmania to the edge of South Australia.
Puglisi has owned and operated a vessel in the SEF since 1979. The vessel uses a particular form of fishing known as "the otter-board trawl method".
Background History
The SEF section of AFMA is responsible for management of that area. Dr Rayns, who gave evidence, is the Manager responsible for the supervision and direction of staff whose function it is to ensure that the SEF section achieves management objectives in relation to this Commonwealth Fishery. An outline of the relevant administrative controls is set out below.
The SEF is primarily a multi-species trawl fishery. The trawl fishery is largely dependent on the catch of certain species of fish including for present purposes, warehou, ling, blue grenadier and trevalla.
During the early 1980's fishing effort increased in the SEF resulting in the increase of pressure on fish stocks. As a result access to the SEF was limited in 1985 to persons who held a Commonwealth Fishing Boat Licence endorsed for operation in one or more of the three sectors adjacent to the southern New South Wales, eastern Victorian coast and south-west sectors. This was given effect through the gazettal of Fisheries Notices under the Fisheries Act 1952 (Cth) and endorsements on the Commonwealth Fishing Boat Licences were granted to persons who qualified on the basis of criteria developed to assess commitment to and dependence on the SEF during the specified periods.
In 1988 management arrangements for the SEF the were formalised in a South East Trawl Fishery Preliminary Management Plan 1988 ("the 1988 Plan"). This provided for management of the SEF by "input" controls, so that eligible participants were limited in the size of boat that could be used. The size of boats was calculated by reference to boat units through a formula based on hull size and engine capacity. These boat units were transferable between operators, so that if an operator wanted to increase or decrease the size of vessel used, the operator bought or sold units.
The boat unit system under the 1988 Plan failed to reduce pressure on fish stocks and was replaced on 1 January 1992 with the South East Fishery (Individual Transferable Quota) Management Plan 1991 ("the SEF Plan") made under the Fisheries Act 1952 (Cth) . This provided for management of the SEF by "output" controls which limited the quantity of key commercial species that could be taken from the SEF. A total allowable catch ("TAC") was set for each of the sixteen key species at the beginning of the year.
Quota units for each species were allocated to eligible persons and were based on a formula that took into account each operator's catch history over the years 1984 to 1989 and their boat units under the 1988 Plan. Each operator was therefore entitled to a proportion of the TAC depending on how many quota units they held. Puglisi's quota units were, and are for species which have a catch history weighting of 80% and a boat unit weighting of 20%. As Puglisi's boat is an otter trawler, his boat units were used to determine his allocation for each species.
In addition to quota units, each operator was required to hold a fishing licence to be eligible to fish in the SEF. Under the 1991 Plan, units of quota were transferable to enable operators to adjust their mix of species or, if they wished, to sell out of the SEF thus achieving adjustment within the SEF. During most of 1992 operators were not permitted to permanently transfer quota while initial quota allocations were under review. The only transactions permitted throughout that year were leases of quota between operators for that year.
In 1991, the Fisheries Management Act 1991 (Cth) ("the Act") replaced the Fisheries Act 1952. The 1991 SEF Plan ceased to have effect on 31 December 1992 and pending the development of a new management plan, under the Act, interim management arrangements made under the Act replaced the provisions of the SEF Plan. In summary, the management regime, since 1 January 1993, can be summarised as follows:
AFMA sets an annual TAC for each species for which quota units have been granted;
ii.Quota entitlements for each operator are recorded on a quota register maintained by AFMA which provides AFMA with the information on which to base annual quota allocations and to monitor quota holdings and transactions during the year;
iii.Each eligible operator is granted an annual permit to fish under s32 of the Act. These fishing permits expire on 31 December each year;
iv.A condition that may be placed on such permits is a condition allowing the taking of certain quantities and species of fish known as the Individual Transferable Quota ("ITQ");
Operators may apply for a condition to be placed on their permits (through an assignment process), which allows the taking of all or part of the entitlement recorded in their names on the register;
vi.Quota units may be traded on a seasonal basis by way of leases, where a unit holder's entitlement for all or part of the quota species is leased to another person within a fishing year or, on a permanent basis when the entitlement is transferred for a period beyond the current fishing year. Since 1 January 1993, leasing has been permitted. Permanent transfers in 1993 were restricted so that it was only possible to transfer the whole of an ITQ and not part thereof. Since 1 January 1994 permanent transfers have been allowed in any quantity of quota units.
vii.As the SEF fishing permit is renewed annually, the permit and the conditions on it, including that referring to ITQ, expire on 31 December each year. AFMA then grants ITQ for the new fishing year, taking into account the operator's ITQ holdings in the previous year and any permanent transfers of ITQ that were processed in the previous year.
There is an advisory body on the Management Fishery
known as the South East Trawl Management Advisory Committee ("SETMAC"), which is established under the Fisheries Administration Act 1991. It comprises members of Commonwealth and State Governments, scientific and industry members.
The administration of the SEF calls for regular reporting by operators as to the catches which have been made in State and Commonwealth waters.
On occasion, operators exceed their quota and it is then necessary for them to "reconcile" that catch by making adjustments to bring their entitlements back within the quota.
The dispute in the present matter concerns the requirement for reconciliation of the 1994 overcatch by Puglisi prior to 31 December 1995.
Within the SEF, reconciliation involves a three step process, whereby:
(a)The operator notifies AFMA of any discrepancy between the catch figures notified to them on status reports and the operator's claimed catch;
(b)The catch figure, whether the same or varied as a result of the operator's notification, is then determined;
(c)If the operator is identified by AFMA as having an overcatch, in respect of a particular species, the operator is required to lease or buy quota to reconcile the catch.
The available avenues of reconciliation are by leasing in quota from other holders of SEF ITQ. The practice during the 1993 to 1995 fishing years was that operators had until the 15th day of the month following that in which the catch was taken, to do this. This was known as the "fifteen day rule" and was an informal arrangement to assist regular and timely reconciliation. SEF operators have also permitted to reconcile catches in excess of quota between two consecutive fishing years by what is known as "carryover" and "surrender" of uncaught ITQ from the current fishing year.
"Carryover" is in the form of credits and/or debits. The "carryover" of credits enables operators who have undercaught their net quota holding for a species in a fishing year, to be credited, with up to a specified percentage of their net quota holding, to the following fishing year. "Carryover" of debits enables operators who have overcaught their net quota holding for a species to have up to a specified percentage of net quota holding for that species debited from their net quota holding in the following fishing year. Calculation of "carryover" occurs in the year following, that in which either the debit is incurred or for which the credit is held. The onus is on quota holders to ensure that where they can reasonably expect to incur a debit in a fishing year, they retain sufficient ITQ in the following fishing year, while "carryover" is being calculated to cover the debit. For the 1994 to 1996 years, the "carryover" level was 20% for all ITQ species except one, which is not material to this proceeding.
Under the scheme, where an operator remains in overcatch for one or more species after the application of "carryover", then this overcatch may be treated as an over quota offence. In deciding whether to so treat it, AFMA takes into account an operator's actions in relation to overcatch prior to deciding whether to proceed with the prosecution action. A second further mode of reconciliation is surrender of uncaught ITQ from the current fishing year to reconcile their overcatch position. This method was strongly supported by SETMAC and the fishing industry as it enabled operators who were generally within a few hundred kilograms of reconciling their overcatch to do so.
By way of an example, a person who remains overcaught for the 1994 fishing year, following the application of "carryover" from 1994 to 1995 is able to use any uncaught 1995 ITQ they hold to cover the 1994 overcatch and also to permanently transfer or lease in 1995 ITQ from another operator to cover the 1994 overcatch. Some operators choose to wait until late in the fishing year before leasing in or surrendering quota to cover their previous year's overcatch. By so doing, they can obtain an economic advantage because firstly, the price of leasing quota tends to fall significantly in the last month or so of the fishing year, as uncaught quota is placed on the market for leasing making it a buyer's market. After the fishing year has ended uncaught quota has no value at all. Secondly, it maximises the length of time up to 2 years, between the overcatch being taken and the debit having to be repaid in the form of a lease.
Section 17 of the Act provides for the determination by AFMA of a plan of management for a fishery.
To date no plan has been determined for the SEF, but preparation of such a plan is at a relatively advanced stage. In the meantime, the area is managed under a series of Management Arrangements issued by AFMA which turn around the grant of fishing permits pursuant to s32 of the Act. That section relevantly provides:
"Grant of fishing permits
(1)AFMA may, upon application ... grant to a person a fishing permit authorising the use of a specified Australian boat by that person, ... for fishing in a specified area of the AFZ or a specified fishery.
(2)An application made for the grant of a fishing permit must provide AFMA with such information as it reasonably requires for a proper consideration of the application.
(3)Without limiting the operation of subsection (1), AFMA may refuse to grant a fishing permit if it has reason to believe that a requirement of a law of the Commonwealth, or of a State or Territory, has not been complied with in relation to the boat.
(4)A fishing permit may authorise the use of a boat:
(a)for commercial fishing generally; or
.....
(5)A fishing permit is granted subject to the following conditions:
(a)if the fishing permit authorises fishing in a specified managed fishery - the holder of the permit must comply with any obligations imposed by, or imposed by AFMA under, the relevant plan of management on the holder of such a fishing permit;
(6)A fishing permit:
(a)is subject to such conditions as are:
(i)specified in the permit; or
(ii)prescribed in relation to permits granted under this section; and
(b)comes into force on the day specified for the purpose in the permit or, if no day is so specified, on the day on which it is granted; and
(c)subject to this Act, remains in force until the day specified for the purpose in the permit, being a day not later than 5 years after the day on which it came into force.
(7)Without limiting the operation of paragraph (6) (a), the conditions that may be specified in a permit include conditions relating to :
(a)the fish that may be taken; or
(b)the quantity of fish that may be taken; or
(c))the rate at which fish may be taken; or
(d)the methods or equipment that may be used to take fish; or
(e)the methods or equipment that may be used to process or carry fish.
...
(10)Except where a fishing permit is stated to be non-transferable, AFMA may, on the application of the holder of the permit and of another person as proposed transferee, transfer the permit to that other person."
The Act excludes, from the definition of Australian Fishing Zone ("AFZ"), coastal waters of, or waters within the limits of a State or Internal Territory (s4 and s5).
In 1993 Puglisi substantially overcaught several species of fish. As a result there was a dispute as to whether he should be granted a 1995 permit. As it turned out, he was permitted to reconcile this overcatch in late 1994/early 1995, by leasing quotas from other operators and also by making use of part of his prospective 1995 quota for which he had applied. Puglisi reconciled his overcatch position for 1993 to the satisfaction of AFMA and was granted a permit to fish in 1995. Mr Parkinson, Senior Manager of Southern Fisheries, made the suggestion in December 1994 that Puglisi could cover any remaining overcatch from quota in 1995.
During 1995 AFMA regularly notified Puglisi that he was in an overcaught position and required him to reconcile that position at the risk of losing his licence.
At the end of 1995 a dispute arose between Puglisi and AFMA as to reconciliation of the 1994 fishing year overcatch and as to whether his permit should be renewed for 1996.
At this stage it is appropriate to refer to the decisions under challenge.
Decision to Refuse Permit to Fish
This decision was notified in a letter, dated 4 January 1996, written by Mr Rohan of AFMA. He was the General Manager, Operations, and the letter relevantly reads:
".....
I refer to your application of 13 December 1995 for a South East Fishery (SEF) fishing permit for the 1996 calendar year. In considering your application I have, among other things, applied the policies of AFMA in relation to eligibility for the grant of a SEF fishing permit for 1996.
One of the policies requires that an applicant must have reconciled all 1994 overcatch by 31 December 1995 through the surrender of 1995 quota. The surrendered quota may be either the applicant's own quota or that of another SEF quota holder which has been leased in to cover the overcatch.
According to AFMA's records as at 3 January 1996 you have outstanding 1994 overcatch for ling (21,955kg), spotted warehou (12,834kg) and ocean perch (4,384kg). These figures take account of lease applications submitted in late December 1995 for 8,000kg of ling, 54,000kg of spotted warehou, 10,872kg spotted warehou and 220kg of blue-eye trevalla. However, you have not surrendered these leases to AFMA to enable them to be formally acquitted against your 1994 overcatch. Please complete the attached form if you wish to surrender these leases against your 1994 overcatch.
In considering your 1994 overcatch position I also note that you have had most of 1995 to reconcile that catch and have a substantial amount of 1995 quota that you did not utilise (through lease or permanent transfer) to cover that overcatch.
I also understand that in discussion with Mr Martin Exel, General Manager, Fisheries, you indicated a desire to use some ling and spotted warehou quota carryover from the 1995 year to offset your 1994 overcatch of these species. However, as explained, final carryover figures for 1995 will not be available until around the end of March 1996 so this option is not available to you. Further, I note that the intention of the carryover provisions is to account for over/undercatch in the fishing year just
completed (ie 1995) and not to handle over/undercatches from previous fishing years (ie 1994 or 1993).
Having taken the above matters into account my conclusion is that you do not meet the eligibility criteria to be granted a SEF fishing permit for 1996 and I have decided to refuse your application for such a permit. (Emphasis added)
Mr Rohan's affidavit of 15 March 1996 elaborates on the reasons for his decision as follows:
"....
On 3rd January 1996 I spoke to Mr Martin Exel in relation to Joseph Puglisi's overquota position. Mr Exel informed me that he had just had a telephone conversation with Joseph Puglisi in relation to his over quota. I informed Mr Exel that I was about to make a decision in relation to Joseph Puglisi's application for a 1996 fishing permit. I made that decision on 4 January 1996.
For the purposes of making a decision in respect of Joseph Puglisi's 1996 fishing permit application, I spoke to a number of AFMA personnel who were acquainted with Joseph Puglisi's overquota position in order to familiarise myself with the latest position.
For the purposes of making a decision under section 32 of the Fisheries Management Act in relation to Mr Joseph Puglisi's application for a SEF fishing permit for 1996, I made the following findings of fact:-
(i)Joseph Puglisi had been operating in the SEF in his current boat since at least the introduction of the Individual Transferable Quota (ITQ) System.
(ii)Joseph Puglisi had been allocated quota for a number of species for the 1993 season.
(iii) During the course of 1994 a number of letters
were sent to Joseph Puglisi advising that he was overquota and advising him that he should reconcile his position. AFMA did not receive any immediate response from Joseph Puglisi to those letters.
(iv)In late December 1994, when the 1995 fishing permit applications were being considered, Joseph Puglisi approached AFMA in relation to his 1993 overquota position.
(v)Joseph Puglisi was granted a 1995 fishing permit.
(vi)AFMA permitted Joseph Puglisi to reconcile his 1993 quota through the use of 1994 quota and through the use of notional 1995 quota.
(vii) During the course of 1995 Joseph Puglisi had
been advised that he was in an overquota position in relation to a number of species for the 1994 fishing year.
(viii) Joseph Puglisi had advised AFMA during 1995
that AFMA records in relation to Joseph Puglisi's overcatch in 1993, 1994 and 1995 were incorrect. Joseph Puglisi had subsequently claimed that some of his catch recorded by him in records submitted to AFMA as having been caught in Commonwealth waters had in fact been caught in State waters and therefore should not have been included.
(ix)AFMA had refused to review its records in relation to Joseph Puglisi's catch against quota claims in respect of the 1993 and 1994 years. However, AFMA had looked at Joseph Puglisi's claims in relation to 1995. Some alteration was made to the 1995 records to reflect Joseph Puglisi's claims.
(x)As at the 3rd of January 1996, AFMA had calculated that Joseph Puglisi had outstanding 1994 overcatch of 21,955 kg of ling, 12,834 kg of spotted warehou and 4,384 of ocean perch.
(xi)Mr Joseph Puglisi had purported to cover 1994 overcatch with leases and transfers but he remained in an overquota position for 1994.
(xii) Mr Joseph Puglisi had been advised on a number
of occasions that failure to reconcile his 1994 overcatch by 31 December 1995 would result in his ineligibility for a 1996 SEF fishing permit.
I was familiar with AFMA's policy relating to quota reconciliation and the reasons behind that policy.
10.I determined that Joseph Puglisi's application did not comply with AFMA's policy requirements in relation to eligibility for a 1996 fishing permit, in that he was in an overquota position (in excess of 20%) for one or more species for the 1994 fishing year and had not reconciled his 1994 overquota position prior to 31 December 1995. Annexed hereto and marked "GVR1" is the relevant extract from the policy notified to all operators.
11.I considered whether it was appropriate to permit Joseph Puglisi to utilise notional quota for 1996 to offset his 1994 overcatch, as requested in a facsimile letter from Mr Puglisi's solicitor dated 3 January 1996, but decided that it was not appropriate to do so as this would have created inequities vis a vis other operators and it would have given Joseph Puglisi a significant economic advantage over those operators who had complied with their quota requirements. For the same reason, it was considered inappropriate to permit 1995 quota to be leased in after 31 December 1995 to cover 1994 overcatch. I also considered that it was contrary to the proper working of the quota scheme to permit operators to utilise future notional quota to reconcile past over catch.
12.I considered that Joseph Puglisi had been made aware of the his over quota position in ample time for him to have made arrangements to rectify his overquota position but that he had taken insufficient action by 31 December 1995, and that such action that he took after 31 December 1995 had still not rectified his overquota position.
13.I considered whether there were circumstances existing in Joseph Puglisi's case for not applying the policy, bearing in mind the impact on Mr Puglisi of not being granted a SEF fishing permit for 1996. However, in my view there were no circumstances sufficient to warrant a departure from policy...." (Emphasis added)
Decision not to reconsider 1994 overcatch
The second "decision" under challenge is the refusal by AFMA in or about 1995 to reconsider whether an adjustment should be made in respect of the overcatch figures relied on by AFMA on the ground that a large quantity of fish used in the calculation were wrongly included because they were caught outside the Australian fishing zone. It is contended that the refusal to reopen a consideration of the 1993 and 1994 fishing year figures was itself a reviewable decision. The argument is that AFMA based its refusal to grant the permit on an overcatch position which was demonstrably erroneous. Alternatively, it is said that AFMA failed to take into account, in relying on the failure to reconcile the overcatch position, the possibility that the figures used by it were erroneous.
In my opinion, the determination to reopen or review the catch figures for 1993 or 1994 was not itself a decision made under an enactment and is not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth). I agree with the submission by AFMA that this determination is to be characterised as a step in the reasoning leading up to the decision to refuse to renew the permit for 1996. Cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 339. However, that step in the reasoning can be canvassed in the course of reviewing the decision not to grant the 1996 permit.
Applicant's Position
The principal bases on which the 1994 decision not to renew the permit is challenged are as follows:
In reaching the decision that Puglisi had exceeded quota for 1994, Mr Rohan failed to consider the possibility that quota either had not been exceeded or had not been exceeded to the extent determined by AFMA, because of the possibility that the calculation of catch included fish caught in State territorial waters. Fish caught in these waters should not be included in the calculation of individual catch for quota purposes because they are outside the Commonwealth regulatory regime. The calculation of overcatch on which the decision was made was to the knowledge of AFMA inaccurate because it did not take into account the doubt as to whether quantities of fish used to calculate overcatch were caught in State or Commonwealth waters. This was a failure to take into account a relevant consideration.
The decision to refuse the permit on 4 January 1996 was void because AFMA failed to inform Puglisi within a reasonable time, prior to 31 December 1995 in sufficient time for him to take alternative measures, that it would not allow him to use any part of the prospective 1996 quota to reconcile the 1994 overcatch position. AFMA was under a duty to notify Puglisi before 31 December 1995 of its proposed change in approach from that of the previous year to allow him to use part of the 1996 quota to reconcile overcatch.
Alternatively, AFMA was aware of a dispute as to the amount of catch to be taken into account for calculation of over quota. The existence of the dispute, regardless of the objective facts, was a relevant matter to be taken into account. It was not. Therefore, there was failure to take into account a relevant consideration.
Application of the policy in the face of knowledge of the dispute on the basis of the facts alleged by AFMA was an error of law. Messrs Rohan and Davis acknowledged there was a possibility that AFMA's calculations were wrong.
Respondent's Position
During 1993 and 1994 Puglisi was regularly in a massive overcatch position. Despite continuing reminders he left it until the last minute to reconcile quota. This was disruptive to efficient administration. It was not until January 1995 that despite receiving numerous notices to which, on his version of events, he raised the argument that the catch figures could be wrong. The figures are as follows. In 1993 his quota was 6487 kg of ling, and he caught more than 37,000 kg. For spotted warehou, it was 658 kg and he caught more than 41,000 kg. Even after surrenders, Puglisi was about 22,000 kg over 1994 quota for ling and about 12,800 over 1994 quota for spotted warehou.
Entitlement to use 1996 quota would not have made any difference. For example, suppose his quota, as in the previous years was about 6,000 kg, this figure would go nowhere towards fully reconciling the overcatch.
It was logical for AFMA not to reopen the figures for 1993 and 1994 because they had been "closed off". To open them up would lead to inequity as regards other operators because those years had been "closed off" for quota adjustments. AFMA had to look at the matter having regard to its overall administrative functions. Three specific matters were raised:
•There was no complaint about calculations of catch for a period of about 2 years despite being given regular reports and information showing such overcatch.
•There was no way to accurately check catch location because Puglisi had not followed proper instructions about latitude and longitude. He used grid references instead. He did not use the correct form to show State water catches; namely SEF2 forms.
•AFMA was reasonably suspicious that his figures were not accurate. His figures showed large catches of ling in coastal waters when ling was a fish not usually found in Commonwealth waters.
•The seasons had been closed on AFMA's books.
The September 1995 decision of AFMA not to adjust or reopen was not a "decision".
There was nothing wrong with the decision that was made not to review or revisit position in those two years. A part reconsideration of figures and readjustment was done in 1995 for the first half year period but this did not involve a reopening of figures for a year which had been closed.
There could be no legitimate expectation of a warning or of the use of the prospective 1996 quota from the previous decision of AFMA to allow use of prospective 1995 quota.
It was not unreasonable for AFMA to refuse in any event the use of prospective 1996 quota because there had been recourse to the 1995 prospective quota in 1994 and to allow such a process to continue would be simply to compound the breaches of quota requirement and the resultant problems.
The granting of a concession on one occasion cannot properly be taken as a basis for a legitimate expectation that a similar offer will be made in later years. There must be something akin to a regular practice. In this case, Puglisi had been told on numerous occasions that he must reconcile his position by 31 December 1995, yet he failed to do so. He must have known by December 1995 that he would not have been able to reconcile his 1994 position. Puglisi had a solicitor acting for him and despite his literacy problems, he was in a position to be properly advised. Accordingly, there was no procedural unfairness. He was well aware of the likely cause of action of AFMA and it was of his own making.
He did not get a permit because he did not comply with the policy and there were no exceptional circumstances to warrant a departure from policy.
10.It was not true to say that AFMA sat on its hands and did nothing. It made a positive decision in 1994 and 1995 not to allow a re-opening of the 1993/1994 catch position. AFMA was entitled to and accepted the position shown in the SEF2 forms as the material on which they based their decision. They did not have to go beyond that and had sound reasons for not re-opening the figures.
Mr Puglisi
Mr Puglisi is a person of limited education. When he was twelve and a half years old he left school to go fishing with his father at Ulladulla. Five or six years ago he attempted to learn to write but to no apparent avail. He says that all he can do is sign his name and fill out fishing log books. He says he is unable to read at all. I am in some doubt about his complete lack of literacy, but basically I accept his evidence as to his literacy difficulties. Nevertheless, I am satisfied that he had an opportunity to have documents read and explained to him by friends and members of his family and access to legal advice when required. He also obviously learned a lot about what was happening to him from committee meetings and discussions with other operators. Despite these opportunities, he described his practice on receiving communications from AFMA, of sometimes giving it to his wife to read and sometimes just throwing it aside. In my view, this practice and attitude amounted to carelessness on his part in his communications with AFMA and it would not be reasonable for him to seek to rely on misunderstanding or non-understanding of communications, reports and requirements of AFMA issued to him from time to time as a result of this conduct. Nevertheless, it should be observed that the policies and requirements of AFMA were fluid, often complex and by no means clear or well defined even from the viewpoint of a person not disadvantaged by literacy problems. Some criticism was directed at his credit on the basis of statements to the Court concerning the dimensions of the grids used in maps of the coastal waters. There is some force in this submission. He first asserted that these were approximately 15 nautical miles square, whereas in fact the correct figure was in the order of 30 nautical miles square. He conceded after questioning that his evidence was incorrect and this is something he should be taken to have correctly understood all along.
Further, in affidavit evidence he deposed to a conversation which he says took place with Dr Rayns on 18 November 1995, when I am satisfied, on the evidence, that the conversation in fact took place in early January 1996. This was an important conversation because it asserted a statement by Dr Rayns that he would "get back" to Mr Puglisi on the question whether he would be allowed to use the projected 1996 quota. While, in fact this recollection was incorrect, I am satisfied that it arose from an inaccurate recollection and it was not intended to mislead the Court. I have some serious reservations as to the accuracy of Puglisi's recollection in general and I entertain real doubts as to the accuracy of his assertions in the SEF1 documents as to the quantities of fish caught in State waters. One instance of this was his assertion as to the very large quantities of ling caught in State waters when I am satisfied on the evidence that only 1 or 2 percent of that species is normally found in State waters.
Procedural Fairness -
Legitimate Expectation - General Principles
A starting point for consideration of the general principles in this area is the statement in de Smith's Judicial Review of Administrative Action (1980) 4th ed. at 223-4:
"Non-renewal of an existing licence is usually a more serious matter than refusal to grant a licence in the first place. Unless the licensee has already been given to understand when he was granted the licence that renewal is not to be expected, non-renewal may seriously upset his plans, cause him economic loss and perhaps cast a slur on his reputation. It may therefore be right to imply a duty to hear before a decision not to renew when there is a legitimate expectation of renewal, even though no such duty is implied in the making of the original decision to grant or refuse the licence."
This proposition has been cited with approval in a number of cases including Schmidt v Secretary of State For Home Affairs (1969) 2 Ch. 149 at 170-171, 173; Haj-Ismail v Minister for
Immigration and Ethnic Affairs (1981) 56 FLR 67 (Ellicott J); on appeal (1982) 57 FLR 133.
In FAI Insurances Limited v Winneke (1982) 151 CLR 342, the High Court considered the application of natural justice principles to the renewal of an insurance licence by the Governor in Council. The Court held that in deciding whether to renew an approval previously given, the Governor in Council was subject to the requirements of natural justice and should give the company an opportunity to be heard before a decision not to renew before the approval is made.
In Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 508-509, after considering leading English cases in which a "reasonable", "legitimate" or a "settled" expectation of a licensee that his licence will be renewed, observed:
"It cannot be said that the true extent of the notion that an expectation may be the foundation of a right to compel observance of the relevant principles of natural justice has yet been fully worked out or stated with precision."
In Winneke (supra) at 362, Mason J said that an applicant for renewal of a licence generally has a legitimate expectation that his licence will be renewed when the statutory power is entrusted to a statutory authority. Wilson J at 393 considered that it was commonplace to refer to the possibility that a person is under a duty to be fair if in the exercise of a power, he can affect the "legitimate expectation" of a
person to some form of right or liberty. At 377, Aickin J took the view that it was clear that, in the absence of a contrary legislative provision, the cancellation of, or refusal to renew, a permit or licence to carry on some business activity must comply with the rules of natural justice. He considered this was clearly established by the decision in Banks v Transport Regulation Board (1968) 119 CLR 222. His Honour contrasted the position with an initial application for a licence.
In Kioa v West (1985) 159 CLR 550, the Court again looked at the question of legitimate expectation in the context of immigration.
At 582-583 Mason J said:
"The reference to 'legitimate expectation' makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice.... However, later decisions demonstrate that the concept of 'legitimate expectation' extends to expectations which go beyond enforceable legal rights provided they are reasonably based: ..... Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 at 636. The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. ... Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI ... or from the existence
of a regular practice which the person affected can reasonably expect to continue: Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 401... The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case.
.....
And it has been recognized that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness..." (Emphasis added)
At 633, Deane J points out:
"... Clearly enough, the mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the making of a deportation order neither excludes nor renders otiose the obligation of the administrative decision-maker to observe the requirements of procedural fairness. Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious..."
In Attorney-General of Hong Kong v Ng Yuen Shiu (1983) 2 AC 629, a senior immigration officer, responding to a petition to the Governor of Hong Kong, made an announcement of government policy which it was intended should be applied to illegal entrants living in Hong Kong who had entered from Macau. The Privy Council held that where a public authority charged with the duty of making a decision promised to follow a certain procedure before reaching the decision, good administration required that it should act by implementing the promise, provided the implementation did not conflict with the authority's statutory duty. As a result, it was held an applicant should be given an opportunity to state his case and the failure to ask whether it was desired to make representations was a sufficient ground for setting aside a decision to deport. At pp 636-637, their Lordships said:
" ... Accordingly, 'legitimate expectations' in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis: ... So it was held in Reg v Borders Visitors of Hull Prison, Ex parte St. Germain (No 2) [1979] 1 WLR 1041 that a prisoner is entitled to challenge, by judicial review, a decision by a prison board of visitors, awarding him loss of remission of sentence, although he has no legal right to remission, but only a reasonable expectation of receiving it.
...
The expectations may be based upon some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry." (Emphasis added)
Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 at 408, in referring to the expression "legitimate expectation" said that such an expectation could arise in a number of ways, one of which was as the result of a decision which affects a person by:
" ... depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment;or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn ..." (Emphasis added)
The principle expressed in (i) above is apposite to the circumstances before me.
In Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, ratification by the Commonwealth Executive of the United Nations Convention on the Rights of the Child, was held by the majority to give rise to a legitimate expectation that the Minister would act in accordance with its terms and treat the best interests of the applicant's children as a primary consideration. The majority considered that the action of ratification of the Convention was a statement that the Executive Government would act in accordance with the it. That being so, there was then an adequate foundation for a legitimate expectation, absent statutory or executive indication to the contrary, that administrative decision- makers would act in conformity with the Convention. As a result, if a decision-maker proposed to make a decision inconsistent with such a legitimate expectation and inconsistently with the Convention, procedural fairness required that persons affected should be given notice and an opportunity to present a case against such a course. (See 183 CLR 273 at 291-292).
McHugh J dissented.
In order to engender a legitimate expectation, a single act, statement, or decision may suffice in particular circumstances. It is not necessary to find a repeated series of acts, statements or courses of conduct.
The applicant's contention is that the conduct of the respondent in late 1994 to early 1995 gave rise to a legitimate expectation that:
(a)The applicant would be given a warning if he was to be given permission to use part of his notional and prospective 1996 quota to reconcile the 1994 overcatch position.
(b)Such warning would be given within a reasonable time prior to the reconciliation cut-off date of 31 December 1995.
The applicant relies on the fact that he was permitted in 1994/1995 to use part of his then prospective 1995 quota to reconcile the 1993 overcatch.
On 9 December 1994 a meeting took place at AFMA's office with the applicant, his brother Tori Puglisi, Mr Broad, their solicitor and Mr Parkinson, the Senior Manager of Southern Fisheries for AFMA. At this meeting, Mr Broad said the applicants wanted to use part of the prospective 1995 quota to cover the 1993 overcatch.
Mr Parkinson pointed out that AFMA had provided regular status reports to the applicant throughout 1993 and 1994 and had given every opportunity to the applicant to reconcile 1993 overcatch. Mr Parkinson pointed out that the applicant had an opportunity to lease in quota to cover any overcatch during that year and the early part of 1994, in order to reconcile the 1993 figures.
Other operators, it was said, had reconciled their quota in 1993 and paid the lease price at the time. If AFMA agreed to the request of the applicant, the quota would have no value and he would be given preferential treatment. Mr Parkinson also said that in any event operators no longer had their 1993 uncaught quota to trade. The applicant indicated that he undertook to cover his 1993 quota, whereupon Mr Parkinson said words to the effect:
"If you give us a written undertaking to reconcile your 1993 overcatch but are unable to do so because of a shortage in some quota species, AFMA would probably look favourably at issuing you a permit for 1995, if you also undertake to cover any remaining overcatch in 1993 from quota in 1995. We've gone about as far as we can now, you go away and think about and I'll expect to hear from you in writing."
After exchange of correspondence AFMA confirmed that the applicant would be permitted to use 1995 quota to make up any residual difference in reconciliation of the 1993 catch. The overcatch related to three species, namely ling, ocean perch and blue warehou.
The 1995 permit was duly issued. Mr Rohan, the General Manager of Southern Fisheries who made the decision not to grant the 1996 permit, said in cross-examination, that he agreed with the decision to allow use of the 1995 quota and that he thought it "reasonable in the circumstances".
Throughout calendar year 1994, AFMA had issued a series of catch against quota status reports and warnings which pointed out that the applicant's catch had exceeded assigned quota by large amounts and required reconciliation within a short period. Notwithstanding these reports AFMA permitted use of a 1995 quota to reconcile the 1993 overcatch position.
A series of regular status reports and warnings were issued throughout 1995. In that period there was an ongoing dispute as to the accuracy of the AFMA figures in relation to a claim by the applicant that substantial quantities of fish included in AFMA's Commonwealth waters catch figures were really taken from State waters and therefore should not have been included in the overcatch calculation.
The applicant swore an affidavit on 4 April 1996, shortly before the present hearing commenced, in which he said that he had a conversation with Dr Rayns, the Manager South East Fishery on 18 November 1995, in which he said:
"Can we surrender 1996 quota to make up any overs like we did last year?"
The affidavit states that Dr Rayns replied:
"I don't know, I will have to check on that, I'll get back to you."
I do not accept that this conversation took place on that date. It is more likely that it took place in early January 1996. Dr Rayns said that he had a conversation with Puglisi, but that it was in December 1995. He does not recollect the words being said. His practice was to make a note of any requests made to him and he could find no record of any such note. Moreover, there is no subsequent complaint or reference to this matter having been raised in December when subsequent relevant conversations took place in early January 1996. It would have been relevant and appropriate in early January when discussions were taking place between Mr Broad, Puglisi and AFMA in relation to use of the prospective 1996 quota, to have raised this conversation or to have recorded it or made reference to it in correspondence.
It is however, clear from the evidence, particularly a conversation Mr Exel of AFMA in early January 1996, that the
applicant, to the knowledge of AFMA, had made substantial efforts to reconcile the 1994 overcatch and that he expected to be able to use part of the 1996 quota towards reconciliation of the 1994 overcatch as had occurred in late 1994, early 1995 in relation to the 1993 overcatch.
AFMA did not take any steps to warn the applicant, before making its decision to refuse to permit the applicant to rely on the 1996 quota in effecting the reconciliation for 1994, that the advantage conferred in the previous year would not be repeated.
It is not really to the point to say that the applicant had been continually apprised and warned of the necessity to reconcile the 1994 catch before 31 December 1995 or that a failure to reconcile would mean that there would be no permit issued for 1996. These warnings and requirements related to the need for reconciliation and not as to the manner in which he might be permitted to reconcile the overcatch.
In my opinion, in the present case, the following circumstances existed which, taken together, gave rise to a legitimate expectation of timely warning that the benefit of the prospective 1996 quota would not be available for reconciliation of 1994 overcatch, namely:
•The decision concerned the refusal of a licence for a person to continue to earn his livelihood. Renewals of licence cases comprise a well recognised class of circumstances which may give rise to a legitimate expectation of notice or continuance.
•The policy which required reconciliation of quotas by 31 December 1995 in relation to a 1996 permit only came into operation in October 1994 and there were no general guidelines as to how the policy would be applied in practice.
•The permission given in late 1994 early 1995 to use the prospective 1995 quota, to effect reconciliation, was proffered by Mr Parkinson of AFMA of its own accord. Mr Rohan agreed that it was a reasonable action to take. There was no indication by AFMA that the permission was a one-off concession.
•The administrative arrangements surrounding the renewal of fishing permits in late 1995 were extremely complex and fluid. In this uncertain and changing regulatory environment, it was reasonable for the holder of a licence to rely on the past actions of the statutory authority in administering the scheme as an indication as to its future approach, unless forewarned to the contrary.
•It would have been a simple matter to have alerted Puglisi and to have afforded an opportunity to make submissions as to why the earlier indulgence should be renewed.
•The earlier permission to use the 1995 quota was given notwithstanding a prior history of continual failure to heed status reports and warnings during 1993 and 1994. This consideration diminishes the cogency of the suggestion that Puglisi was given frequent reminders in 1995 that a 1996 permit would not be granted unless the overcatch was reconciled and that for this reason he could not reasonably entertain any expectation.
•AFMA knew by late 1995 that Puglisi was making strenuous efforts to reconcile his catch by 31 December and that Puglisi expected to use part of the 1996 prospective quota to assist reconciliation of the 1994 overcatch.
•The non-reconciliation of the 1994 overcatch by 31 December 1995 was conceded by Mr Rohan to be the most important single factor in refusing the permit for the year 1996. As the non-reconciliation was the single most important consideration in the eyes of Mr Rohan when making the decision not to review the permit, then it is all the more important that he should alert Puglisi that AFMA would or may not allow recourse to the prospective quota in the ensuing 1996 year towards reconciliation of overcatch as had occurred in respect of the permit for the 1995 year.
•Mr Rohan agreed in cross-examination that if he had decided that the prospective 1996 quota could have been used to reconcile 1994 catch, he may well have either given Puglisi more time to become eligible to meet the eligibility requirements for the grant of permit, or have simply granted the permit on his undertaking to surrender the notional 1996 quota.
•Permission to use the 1995 notional quota was on the basis that it was a measure of last resort in the sense that Puglisi had to pursue all other avenues to reconcile the overcatch. In late 1995 Puglisi was pursuing other avenues.
Puglisi was offered no warning of the unavailability of the 1996 quota for reconciliation of quota nor any opportunity to make submissions and therefore, in my view, the decision to refuse the 1996 permit amounted to procedural unfairness.
Failure to Take Account of Relevant Consideration
In substance, the other principal submission for the applicant was that AFMA in making its decision on 4 January 1996 to refuse the permit failed to take into account a relevant consideration, namely the fact that the 1994 overcatch figures may be inaccurate because they took into account fish which had been caught in State waters.
As indicated earlier, from AFMA's point of view the unreconciled 1994 overcatch was the single most important factor in his thinking when making his decision not to grant a fishing permit for 1996.
It is true that during the years 1993 through to 1995, the applicant had continuously engaged in massive overcatching and had failed on numerous occasions, despite notification to reconcile the overcatches as and when requested.
It was not until 13 January 1995, that the applicant by his solicitor, first suggested that the figures on which the AFMA complaints of overcatch did not "tally" with the records of the applicant or that they were unreliable.
It is clear that the AFMA figures used to calculate the catch of the applicant from Commonwealth waters, from time to time were based on information supplied on what are known as SEF2
forms, the purpose of which was to provide a record of quota species, catch, landed and delivered to the processor.
The SEF2 form was the "principal" document used to determine the weight of quota species landed on the vessel.
Up to 27 June there were exchanges of information between AFMA and the solicitor for the applicant.
On 27 June 1995 Mr Broad wrote to AFMA enclosing a "reconciliation" of SEF catches. The material parts of that letter read as follows:
"We further refer to your letter of the 17th February enclosing 1993 and 1994 records in which you set out the basis of the calculation therefor.
Our client has now completed the reconciliation of South East Fishery catches and we attach herewith a letter from Mr James Thompson, Accountant of Milton and his calculations attached thereto.
It is apparent from Mr Thompson's calculations that there are substantial discrepancies between your figures and his and we attach a further statement for 1993 and 1994 showing the difference.
It appears that the problem has arisen from the manner in which your authority has drawn its records. Clearly, as disclosed in your letter of the 17th February, you have relied on the part C forms of the SEF 2 log books. Regrettably, these only provide details of the total landings and do not make provision for catch in State waters.
Our clients have, in accordance with the instructions contained on such log books, interpreted these as requiring a declaration for the total catch listed.
Your Authority will, of course, be aware that our clients have, in the SEF 1 log books, noted (as required therein) State waters catch and SEF catch. It is from these records that the accountant's figures have been derived. Obviously, the SEF 1 figures were not exceeded (this is of course acknowledged by the Authority) and where discrepancies have arisen between the estimate and the actual weight, the figure has been corrected by pro rata adjustment.
We might also note in passing that our client's accountant, has always applied catches to the South East Fishery unless the log book specifically stated that a particular shot has been made in State waters.
This may be seen in situations where the log book indicates shots in depths of 40m (which would be prima face in shore) but in respect of which there is no notation that the shot actually inccurred in State waters.
You will of course, be aware that the course adopted by the Department ... not to renew our clients endorsement in 1995, has resulted in financial hardship to our clients. Firstly; our client expended in excess of $100,000 leasing quota, secondly our client has swapped quota, thirdly or client has not received notices of carry overs on under quota and fourthly our client has had his quota otherwise available for 1995 reduced by virtue of its obligations to make up purported over quota catches in 1993 and 1994." (Emphasis added).
On 19 September 1995, a meeting took place in AFMA's office in Canberra. Present were the applicant, his brother Tori, Messrs Davis and Exel of AFMA.
The conversation, which included a useful summary of AFMA's position, went as follows:
"Davis:AFMA will agree to credit back to you some 1995 catch based on your State waters catch claims between 26 January 1995 and 29 June 1995.
T. Puglisi:We want a similar review for the 1993 and 1994 fishing years as well?
Davis:No, AFMA can't do this. Joseph was advised on numerous occasions during 1993 and 1994 of his catch against quota position and at no time then did he indicate that a problem existed. As a result AFMA closed the 1993 and 1994 fishing years. More importantly, even if AFMA were to agree to review Joseph's position in 1993 and 1994 it would be impossible to determine exactly where the fish were taken as Joseph had chosen to record his catch position in 1993 and 1994 by using 15 nautical miles grid squares which overlapped both the State and the SEF boundary. The use of grid squares is in contravention to the instructions on the SEF1 log book instructions. AFMA has been very firm when closing fishing years. No other operator has been afforded the opportunity to reopen those years. It is imperative for effective management of the quota system that the season be shut off to changes or the advised cutoff dates as for quota to be allocated in new seasons and carryover and over quota issues to be effectively addressed a final season position must be determined for each operator. This is why AFMA has sent so many advices and reports out to the industry. Also the failure to close each fishing year on the prescribed dates may result in 120 operators working the 16 quota species across multiple years which would result in an administrative disaster. Re-opening these years to any operator could set a dangerous precedent for the fishery and adversely affect other quota holders.
J.Puglisi:You can do a review because you can work out whether or not the fish were caught inside the State waters by looking at the depths on the SEF1's, shallow water is State caught fish and deep is SEF. Besides, I marked on the SEF1's which shots I did in State waters.
Davis:To some extent that is true, however, for the purpose of quota monitoring we need accurate positions as depth is only an approximate guide of where fish are caught.
J or T Puglisi: We feel that it can be done and
that AFMA should review the 1993/1994 position.
Davis:We have not done this for other operators, and besides if this was a problem in 1993 and 1994 why didn't you raise it then so we had a chance to address the issue right back at the start?
J.Puglisi:Well the point at hand is will you do the 1993 and 1994 reconciliations.
Davis:No, we can't." (Emphasis added)
The same day, 19 September, Mr Broad confirmed in writing that the Department refused to review in respect of the 1993 and 1994 years and sought reasons with a view to testing the matter in the courts.
On 7 December 1995 Mr Davis held a meeting with Mr Tori Puglisi and Mr Broad, in which Mr Davis confirmed that AFMA would not conduct a review of the applicant's claimed State water catches for 1993 and 1994 as it had done for 1995. Mr Broad stated that he would be forced to take the matter to court and handed a draft Statement of Claim for filing in the District Court. The substance of that Statement of Claim, which was never filed, was that AFMA had misrepresented the catch position of the applicant in that the catch figures were wrong and that there had been misleading and deceptive conduct. Damages were claimed under s82 of the Trade Practices Act, 1974 (Cth) together with other relief.
It was clear from this exchange and particularly the Statement of Claim that there was a serious dispute between the parties as to the true factual position concerning the overcatch.
There were several grounds on which AFMA refused to accept the figures of Mr Thompson. He was the accountant who prepared the reconciliation. These grounds were:
Use of SEF1 forms: AFMA did not consider the information on those forms should be accepted because it was the SEF2 forms which were required to contain this information.
The information furnished as to catches in State waters did not give latitude and longitude details as required by AFMA but rather used large scale grids which were capable of including both State and Commonwealth waters. Prior to a change in procedure in 1994 AFMA had accepted claims in relation to State water catches based on "grids" as being sufficient.
It would be inequitable with respect to other operators to allow the applicant to reopen the figures for 1993 and 1994 in respect of which relevant calculations had been made for the allocation of quotas for succeeding years.
I am satisfied that to the knowledge of AFMA there was a genuine dispute as to the extent of the overcatch. However, for the purposes of the present application, it is not necessary to resolve the substance of this dispute or as to whether proper or adequate information had been supplied to AFMA in the SEF1 or SEF2 forms or as to whether the areas and quantities of alleged State catch had been properly identified.
Essentially, the applicants claim is that in making his decision on 4 January 1996, Mr Rohan did not take into account or refer to the possibility of the inaccuracy of the 1994 AFMA figures, on which overcatch was calculated. The argument was that because Mr Rohan knew that the applicant claimed the 1994 figures were inaccurate and that the 1994/5 figures up to 27 June 1995 had been adjusted in Mr Puglisi's favour, Mr Rohan ought to have taken into account the possibility, at least, that the 1994 overcatch figures were wrong. The basis on which Mr Davis refused to reopen, it is said, was mere administrative inconvenience.
Among the matters which Mr Rohan claims he took into account in reaching his decision of 4 January 1996, were the following:
"8 (viii)Joseph Puglisi had advised AFMA during 1995 that AFMA records in relation to Joseph Puglisi's overcatch in 1993, 1994 and 1995 were incorrect. Joseph Puglisi had subsequently claimed that some of his catch recorded by him in records submitted to AFMA as having been caught in Commonwealth waters had in fact been caught in State waters and therefore should not have been included.
AFMA had refused to review its records in relation to Joseph Puglisi's catch against quota claims in respect of the 1993 and 1994 years. However, AFMA had looked at Joseph Puglisi's claims in relation to 1995. Some alteration was made to the 1995 records to reflect Joseph Puglisi's claims." (Emphasis added)
His evidence was not shaken in cross-examination and I accept that Mr Rohan did not ignore the fact that the applicant disputed the AFMA overcatch figures for 1993 to 1995 nor did he ignore the fact that adjustments were made in relation to the 1995 figures.
In these circumstances, it cannot be properly said that Mr Rohan failed to take into account the possibility that the overcatch figures for 1993 and 1994 were disputed or might prove to be wrong in fact. That possibility must have occurred to Mr Rohan because he was aware that the 1995 figures had been revised in favour of the applicant. I am satisfied that they were taken into account. These matters were not the sole considerations which had to be taken into account and they needed to be evaluated together with the other matters referred to in Mr Rohan's affidavit. The relative importance assigned to each of the considerations in carrying out the balancing process is the task of Mr Rohan, as General Manager of Southern Fisheries, and is not a function of this Court when undertaking judicial review.
Wednesbury Unreasonableness and Lack of Proportionality
An argument was raised that the decision not to renew the permit or review the catch calculations was so unreasonably disproportionate to the conduct of Puglisi that it was grossly unreasonable.
This principle is sometimes applied in the constitutional characterisation of laws and in relation to delegated legislation
On the present state of the law, it appears that the more accurate view is that the principle is not itself an independent ground for judicial review of administrative decisions, but is rather, a matter which can be taken into account when considering whether a decision is unreasonable in the Wednesbury sense. See "Reasonableness, Proportionality and Delegated Legislation" by Peter Bayne, 67 ALJ 448; Cunliffe v The Commonwealth (1994) 182 CLR 272, per Dawson J at 350-357
and Toohey J at 371-377; Peverill v Backstram (1994) 127 ALR 197 at 213.
In my view, this argument has no substance because the decision not to reopen the catch calculations were open to AFMA having regard to the evidence as to Puglisi's conduct of his fishing operations in massively overcatching and failing to reconcile his catch as required.
Punitive Measure
It was also submitted that the determination not to grant the 1996 permit was punitive in nature. In substance, this amounts to the suggestion that the power was exercised for an improper or collateral purpose, namely to punish Mr Puglisi for his contraventions of policy and therefore the decision should be set aside. This argument was not raised in the amended grounds on which the application was based, nor was it put in cross-examination. It should not now be entertained. In any event, there is, in my view, no evidentiary basis to support any such inference and I reject this submission.
Conclusion
The decision of the respondent not to grant an SEF fishing permit for 1996 should be set aside. The matter should be remitted to the respondent for determination in accordance with law. The respondent should pay the applicant's costs.
I certify that this and
the preceding forty-eight (48)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 24 July 1996
Counsel for Applicant: Mr R Harper
Solicitor for Applicant: Sparke & Broad
Counsel for Respondent: Mr P Roberts
Solicitor for Respondent: Australian Government Solicitor
Date of Hearing: 10,11 April, and 17 June 1996
Date Judgment Delivered: 24 July 1996
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