R v the Minister for the Time Being Administering the Fisheries Act 1963; Ex Parte - [1990] TASSC 59

Serial No 57/1990
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION:R v The Minister For The Time Being Administering the Fisheries Act 1963; ex parte National Australia Bank Limited [1990] TASSC 59; A57/1990

PARTIES:  R
  v
  THE MINISTER FOR THE TIME BEING
  ADMINISTERING THE FISHERIES ACT 1963;
  EX PARTE NATIONAL AUSTRALIA BANK

FILE NO/S:  M139/1990
DELIVERED ON:  9 October 1990
JUDGMENT OF:  Zeeman J

Judgment Number: A57/1990
Number of paragraphs: 51

Serial No 57/1990
List "A"
File No M139/1990

R v THE MINISTER FOR THE TIME BEING
ADMINISTERING THE FISHERIES ACT 1963;
EX PARTE NATIONAL AUSTRALIA BANK LIMITED

REASONS FOR JUDGMENT ZEEMAN J

9 October 1990

This is the return of an order nisi made by Neasey J on 25 June 1990 calling upon the respondent Minister to show cause why Writs of Certiorari and Mandamus should not issue in relation to a decision made by the Minister by his delegate in connection with an application made by one Allan Pettit on 13 October 1989 for the issue of a fishing boat licence and a commercial crayfish pot licence. Certiorari is sought for the purpose of bringing up that decision and having it quashed and mandamus is sought (inter alia) so as to require the Minister to determine that application according to law. The Minister appeared by counsel to show cause. No directions were given as to the service of the order nisi nor did the order nisi call upon any person other than the Minister to show cause, but in fact, service of the order was effected on Kevin John Robertson, Elaine Joyce Robertson, Michael Lester Fabish and Roseanne Aileen Fabish. Each of those persons appeared by counsel, Mr Fabish submitting that he was not a person affected by the proceedings, and the others of those persons and the Minister submitting that the order nisi should be discharged.

The facts are not in dispute and appear from the affidavits of Robert Edgar Sugden. It is necessary that I recite the history of the matter at some length. That recital is taken from Mr Sugden's affidavit sworn 12 June 1990. In late 1987, Mr & Mrs Robertson borrowed the sum of $285,000.00 from the prosecutor to enable them to purchase the commercial fishing vessel, "Ocean Mist", and the 39 pot commercial crayfish pot licence attached to that vessel for a total purchase price of $300,000.00, of which sum $156,000.00 related to the crayfish pot licence. Mr & Mrs Robertson agreed to give to the prosecutor by way of security for the loan a ship's mortgage over the vessel and security over the 39 pot commercial crayfish pot licence. A ship's mortgage was duly executed and much later, on 18 May 1989, which was long after the loan moneys had been advanced, Mr & Mrs Robertson executed a "letter of lien" over the crayfish pot licence. The affidavit deposes to that letter of lien containing "a Power of Attorney in favour of the Bank over the said Commercial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v the Minister for the Time Being Administering the Fisheries Act 1963; Ex Parte [1990] TASSC 59
Case: [1990] TASSC 59
Decision Date: 9 October 1990

CaseChat Overview and Summary

The case involved a dispute over the issuance of fishing boat and commercial crayfish pot licences under the Fisheries Act 1963. The National Australia Bank, acting as the mortgagee, sought certiorari and mandamus against the Minister for Sea Fisheries, arguing that the Minister had improperly refused to issue the licences to the applicant, Allan Pettit, and had instead allowed them to be held in suspense by Roseanne Fabish. The Bank argued that it held a valid security interest over the licences and that the Minister should have recognised this interest when deciding the application. The legal issues included whether the Minister had correctly exercised his discretion in refusing to issue the licences and whether the Minister had failed to provide adequate reasons for his decision.

The court found that the Minister had exercised his discretion improperly by failing to consider whether the government policy should be departed from in the particular case. The Minister had merely applied the policy without considering whether it should be followed in light of the specific circumstances of the case. The court emphasised that decision-makers must consider each case on its merits and be prepared to depart from policy in exceptional circumstances. The court also noted that the reasons provided by the Minister's delegate did not sufficiently explain the decision, as required by the relevant regulations. However, the court declined to grant the relief sought by the prosecutor, considering the availability of alternative legal remedies and the need to resolve the underlying dispute in the ongoing litigation between the parties. The order nisi was discharged, and no further relief was granted.

Orders