R v the Minister for the Time Being Administering the Fisheries Act 1963; Ex Parte
[1990] TASSC 59
•9 October 1990
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 Crayfish–pot Licence."
There was no direct evidence before me as to precisely what it was that Mr & Mrs Robertson had agreed to do by way of giving security over the crayfish pot licence, nor as to the precise ambit of the power of attorney. However, the affidavit deposes to there having been placed before the Minister a number of documents including a document appearing to be an acknowledgment on the part of Mr & Mrs Robertson of a loan from the prosecutor in the sum of $285,920.00 containing the following statement:
"Item 6 – SECURITIES.
First Registered Mortgage over Certificate of Title Volume 4220 Folio 27 property situated at 215 Scenic Drive East Wynyard and ships Mortgage over Commercial Fishing Vessel 'Ocean Mist' and 39 pot crayfish licence. And General Law Mortgage over Block of Land situated next door to Wynyard House Property currently being converted to Real Property Act."
and a document purporting to be a form of lien over a "Tasmania 39 Cray Pot Licence in the name of Kevin John Robertson and Elaine Joyce Robertson" in which, by clause 7, Mr & Mrs Robertson purported to grant an irrevocable Power of Attorney in favour of the prosecutor to do various things in relation to the cray pot licence, including executing a transfer in relation thereto in the name of and on behalf of Mr & Mrs Robertson or otherwise.
By 22 May 1989, Mr & Mrs Robertson had defaulted under the terms of the loan. As a result, the prosecutor seized the vessel, presumably in the exercise of its powers under the ship's mortgage. On 17 May 1989, Mr & Mrs Robertson executed an application for the transfer of the fishing boat licence and the crayfish pot licence to Mrs Fabish, and on 24 May 1989, she was entered upon "the Register kept by the Minister for the time being administering the Sea Fisheries Act 1963 for the purpose of recording the names of those people who held entitlements to Commercial Crayfish–pot Licences". Her name was so entered "in respect of the entitlement to the Commercial Crayfish–pot Licence that had adhered to the 'Ocean Mist'."
On 31 July 1989 the prosecutor commenced an action in this court against Mr & Mrs Robertson and Mr Fabish wherein orders were sought which would have the effect of preventing them from further dealing with the crayfish pot licence or any entitlement thereto. Subsequently, the prosecutor's solicitors discovered that it was Mrs Fabish who had been recorded as the holder of that entitlement and she was joined as a further defendant in the action.
On 12 October 1989, the prosecutor entered into an agreement for the sale by it to Mr Pettit of the "Ocean Mist" and the 39 pot commercial crayfish pot licence. The agreement was expressed to be conditional upon the Minister approving an application for the issue of, or the transfer of, the fishing boat licence and the crayfish pot licence in respect of the "Ocean Mist" to Mr Pettit within ninety days of 12 October 1989. Subsequent to that agreement having been entered into, Mr Pettit applied to the Minister for the issue of such licences. The Minister refused to consider the application. Mr Pettit obtained an order nisi requiring the Minister to show cause why a Writ of Mandamus ought not to issue, directed to the Minister, requiring him to consider the applications. That order was made absolute on 6 February 1990 when mandamus issued requiring the Minister to consider the applications within fourteen days. The application made by Mr Pettit appears to be in a standard Departmental form whereby he applied for a fishing boat licence and a commercial crayfish pot licence in respect of 39 pots, which licences were expressed to apply to a particular boat, namely the "Ocean Mist". At the same time, Mr Pettit applied for a transfer of the licences attaching to the "Ocean Mist". It is agreed that that application was otiose, as the licences were not then in existence, having been cancelled. Both applications were acknowledged by letter from the Department of Primary Industry on 17 October 1989 in which Mr Pettit was advised that the Minister would not approve any application for the transfer of the licences until 31 January 1990. The application for new licences was not specifically dealt with in that letter, but it may be assumed that the letter was intended to convey that the grant of licences would not be considered until after 31 January 1990.
Subsequent to mandamus issuing, the Minister's delegate, by letter of 16 February 1990, wrote to Mr Pettit in the following terms:
"I am writing to you in my capacity of the duly appointed delegate of the Minister for Sea Fisheries under Section 8A of the Fisheries Act 1959. A copy of my delegation is enclosed.
By application dated 13th October 1989 you have applied for a fishing boat licence and a commercial crayfish pot licence for 39 pots in respect of the boat 'Ocean Mist'. Also, by application dated 10th October 1989 you have applied to have a 39 pot commercial crayfish pot licence/entitlement in respect of the same boat transferred to you and have named the present holder in that application as Kevin John Robertson and Elaine Joyce Robertson. I will deal with these two applications in turn:–
THE APPLICATION DATED 13TH OCTOBER 1989
I have considered this application, both with regard to a fishing boat licence and a commercial crayfish pot licence. In relation to a fishing boat licence, the Minister has determined, as a matter of Government policy, that a moratorium on the issue of such licences applied by his predecessor should remain in force in the interests of the orderly management of the fishing industry, to prevent overcrowding and overfishing in the industry. Under the terms of this moratorium a licence may be issued to an applicant, other than the holder of an existing licence applying for reissue or to the nominee of a retiring existing holder, (ie an applicant for a new licence) only where the applicant has notified the Department of Sea Fisheries prior to 11th November 1987 of his intention to build or buy the vessel in respect of which the licence is applied for and/or to invest in the Tasmanian Fishing Industry and the applicant has demonstrated a firm commitment prior to 11th November 1987 to build or buy the vessel.
In relation to a crayfish pot licence, the Government has a limited entry policy for the crayfish industry which has been in force for many years. The aim of this policy is to assist in the orderly management of the crayfish industry and to conserve the fishery.
In accordance with this policy a licence may be issued only to an existing licence holder applying for the reissue of his licence, or replacing his vessel, or, in the event of an existing licence holder wishing to retire from the industry, only to the nominated transferee of that retiring licence holder provided the nominee is a fit and proper person to hold the licence.
I am in agreement with both of the above policies.
In my view the application of those policies to your application requires a refusal of your application on one or more of the grounds enumerated in Regulation 18A(1)(c) of the Sea Fisheries Regulations (copy enclosed). Therefore, if I were to decide your application now in respect of both licences I would refuse them. However, before I decide I will give you an opportunity to make written submissions to me as to why the policies should not be applied in your case. I will allow you 14 days to do so.
THE APPLICATION DATED 10TH OCTOBER 1989
Again, I have considered this application. As a matter of practice, since a fishing boat licence and a commercial crayfish pot licence must co–exist for the place in the industry which they represent to be effectively enjoyed, the two licences are not split. There is a package of licences which is kept intact. This non–splitting of licences is a policy observed throughout the Australian fishing industry.
In accordance with the policies previously referred to, it is the practice to issue a licence package only to an existing licence holder applying for reissue or to the suitable nominee of a retiring licence holder.
On 17th May 1989 Mr and Mrs Robertson and Roseanne Aileen Fabish applied to transfer the fishing boat licence and 39 pot commercial craypot licence held by the Robertsons as owners of the boat 'Ocean Mist' to Mrs Fabish.
At the time the Department of Sea Fisheries had no notice that anyone other than Mr and Mrs Robertson claimed to be the owner of the vessel. The Robertsons advised that they did not propose continuing in the fishing industry nor did they propose selling the 'Ocean Mist' to Mrs Fabish. Because of pending charges for fisheries offences against Mr Robertson, the licences were cancelled on 24th May 1989 and held in suspense until 31st January 1990.
The entitlement represented by the licence package (ie the place in the industry or the fishing rights conveyed by the licences) was transferred to Mrs Fabish on 24th May 1989 with an indication that the licences would be issued to her as nominee of the Robertsons on application by her after that date provided she has acquired a suitable vessel. Issue of the licences to Mrs Fabish is of course subject to my satisfaction that she is a fit and proper person to hold the licences.
If I were to decide your application now I would refuse to issue either licence to you because you are not the nominee of the former licence holders, the Robertsons.
I am aware however that you are claiming a right to have the licence package transferred to you as assignee of the National Australia Bank which held a bill of sale over the 'Ocean Mist' and also alleges (although this is disputed by the Robertsons) that it held a lien over the licence package entitlement as at 24th May 1989. I am also aware that there is a dispute between the Bank, the Robertsons and Mrs Fabish as to who is entitled to the licence package and that that dispute is currently the subject of an action in the Supreme Court.
I cannot be the adjudicator of the legal rights of citizens created between themselves without the involvement of the Department and which are the subject of litigation.
I therefore feel I must abide, in deciding whether the licence package should be issued to you, the determination of the dispute (by agreement or Court order) between the Bank, the Robertsons and Mrs Fabish.
If Mrs Fabish applies for the issue of the licences before the dispute between the Bank, the Robertsons and herself is determined, I will have to consider and make a decision on her application but I will delay doing so until I have advised you of her application so that you may take such action as you consider appropriate.
I will give you an opportunity to make written submissions to me as to the appropriateness of the above proposed course. I will allow you 14 days to do so."
That letter is important for a number of reasons. It sets forth relevant government policy. It confirms that the existing licences were cancelled on 24 May 1989. It sets forth Mrs Fabish's position as to the issue of a licence insofar as the Minister is concerned. It confirms that the only application before the Minister which was capable of being granted was the application seeking the grant of new licences. It invited Mr Pettit to make submissions as to the application for new licences, but only as to why the existing government policy should not be applied in his case. Mr Pettit's solicitors responded by letter of 6 March 1990 to the Minister's delegate. The letter is very long. It challenged the validity of the policy. It made submissions as to why Mr Pettit's application should be granted notwithstanding the policy. It suggested that, in part, some aspects of the policy were unlawful. It suggested that Mrs Fabish was not on any view a fit and proper person to hold a licence. It suggested that Mr & Mrs Robertson's transaction with Mrs Fabish was an attempt to circumvent the bank's security.
The Minister's delegate, by letter of 8 May 1990, refused Mr Pettit's application for the licences to issue. In considering the application, the delegate had before him Mr Pettit's solicitor's letter of 6 March 1990, Mr Pettit's application, together with the extensive further material, which was indicative of the history of the matter. So far as is relevant for present purposes the material before the delegate included the following:
(a)A letter from the prosecutor's solicitors to the Director of Sea Fisheries of 17 July 1989 advising that a purported transfer from Mr Robertson to Mr Fabish was without the bank's consent.
(b)A further letter from the prosecutor's solicitors to the Director of Sea Fisheries dated 3 August 1989 advising that interlocutory orders had been made restraining Mr & Mrs Robertson and Mr Fabish from further dealing with the entitlement to a 39 pot Tasmanian rock lobster entitlement – "Ocean Mist".
(c)A copy of the order therein referred to made by Underwood J on 2 August 1989.
(d)A letter from the Director, Department of Sea Fisheries, to the prosecutor's solicitors dated 4 August 1989 indicating that the Department would consider any application for a licence on its merits, but that the current status of the entitlement to the licence was that no further transfer of the entitlement would be considered prior to 31 January 1990.
(e)A letter from the prosecutor's solicitors to the Department of Sea Fisheries dated 10 August 1989 enquiring whether, if the prosecutor obtained an order from the court requiring Fabish to co–operate in the issue of a licence to the purchaser, the Department would allow the licence to issue to a purchaser of the vessel from the bank, subject to such purchaser being a suitable person.
(f)A letter from the Department of Sea Fisheries to the prosecutor dated 4 August 1989 pointing out that the Department did not record third party interests against licences, but that if legal proceedings were taken by the prosecutor against Robertson and/or Fabish, the Department's records would be available.
(g)A letter from the Director of Sea Fisheries to the prosecutor's solicitors dated 17 August 1989 referring to a condition "accepted by RA Fabish at the time of transfer entitlement in May 198889".
(h)A letter from the prosecutor's solicitors to the Minister dated 6 September 1989 complaining of the lack of co–operation on the part of a Departmental officer as to making documents available and suggesting that the Department had misled them as to the identity of the transferee from Mr & Mrs Robertson.
(i)A response from the Minister to the prosecutor's solicitors dated 10 October 1989 controverting some of the assertions made.
(j)A letter from the prosecutor's solicitors to the Minister dated 19 October 1989 seeking information as to facts surrounding the various transactions and the application of the policy.
(k)A letter from the Minister to the prosecutor's solicitors dated 24 November 1989 setting forth particulars of the dealings with the relevant licences and relevant policy matters, and stating that if legal ownership of the "Ocean Mist" had vested in the prosecutor, then it or its nominee would "prima facie be entitled to the place in the industry which was represented by the licence package as at 24 May."
(l)A letter from the prosecutor's solicitors to the Minister dated 6 December 1989 which took up his invitation to establish that the legal ownership of the vessel had vested in the prosecutor. That letter enclosed a copy of the ship's mortgage; a copy of an affidavit of David Allen Banks, sworn in the action, recording the loan to Mr & Mrs Robertson, to which I have previously referred, and the circumstances surrounding it, the seizure of the vessel and its sale, the loan terms and conditions accepted by Mr & Mrs Robertson and other matters; an affidavit of Douglas Eric Farley, also filed in the action, covering much of the material covered in Mr Bank's affidavit; a copy of the lien to which I have referred; a copy of the affidavit of Robert Sugden, again dealing with much the same material; a copy of the statement of claim in the action; a copy of the memorandum of intent as to the sale of the licences by Mr Robertson to Mr Fabish expressed to be conditional upon the consent of the prosecutor; a copy of the affidavit of Mr Robertson, filed in the action, alleging that the execution of the lien had been procured as the result of misrepresentations made; and a copy of a company search said to be indicative of the transaction between Mr & Mrs Robertson on the one hand and Mrs Fabish of the other, being, at its lowest, an attempt to circumvent the prosecutor's security.
(m)A letter from the Solicitor–General to the prosecutor's solicitors dated 20 December 1989 expressing the view (subject to the Minister's confirmation which was, in fact, provided on 5 January 1990) that there appeared to be no issue as to the right of the prosecutor to sell the vessel, but denying the prosecutor's claim to the licences. At the same time, that letter indicated that the Minister would seek the views of the other persons interested.
(n)A letter from the Department of Primary Industry to the prosecutor's solicitors dated 19 January 1990 indicating that Mrs Fabish and Mr Robertson had each denied that the prosecutor had any entitlement to the licences.
(o)A letter from the Solicitor–General to the prosecutor's solicitors dated 25 January 1990 questioning whether an interlocutory injunction granted in the action by Neasey J on 12 September 1989 had the effect of precluding Mrs Fabish from applying to have the licences issued to her.
(p)A letter from the prosecutor's solicitors to the Minister dated 5 February 1990 alleging misrepresentation, breach of undertaking and a general absence of good faith on the part of the Minister.
Having all that material before him, the Minister, by his delegate, made a determination on Mr Pettit's applications. It was communicated by letter of 8 May 1990, which was in the following terms:
"In exercise of the powers vested in me by delegation of the Minister pursuant to the provisions of Section 8A of the Fisheries Act 1959 I have now completed my consideration of your applications dated 13th of October 1989, in relation to which I note that I have taken into consideration representations made by you and put on your behalf.
Being of the opinion that to issue the licence would be contrary to the public interest and/or detrimental to the fishing industry, I have determined to refuse the application, and hereby notify you of that pursuant to the provisions of Section 18A(2) of the Sea Fisheries Regulations 1962."
The Minister's delegate was asked to state the reasons for his determination by the solicitors who at all times appear to have been acting both for the prosecutor and for Mr Pettit. The delegate responded by letter of 18 May 1990 in the following terms:
"I acknowledge receipt of your letter of the 11th instant received at this office on the 14th instant. My letter of the 8th May to Mr Pettit set out my reasons for refusing his application – viz. that to do otherwise would be contrary to the public interest and/or detrimental to the fishing industry. Nevertheless, I am prepared to elaborate, as follows:
1It has been the policy of successive State Governments for upwards of 20 years, and is the policy of the present Government, to maintain limited entry into the rock lobster industry. The purpose of this is to ensure the stability of the industry through effective control and management, including of course proper conservation of the resource.
2As part of this policy, the Government made a determination (which has been consistently acted upon) –
(a)to issue crayfish–pot licences only as part of a licence 'package' which included a fishing boat licence; and
(b)to restrict the issue of such packages to the extent that they are issued only to existing licence holders renewing their licences or, in the event that an existing licence holder wishes to retire from the industry, only to the nominated transferee of the retiring holder (provided that the nominee was not in some way disqualified from holding the package).
3A consequence of the implementation of the abovementioned policy has been that commercial crayfish licence 'packages', securing as they do a place in the industry, are assets the commercial value of which help to introduce and maintain professionalism within the industry.
4Mr Pettit is neither an existing licence holder renewing a licence nor the nominated transferee of an existing licence holder. It would accordingly be inconsistent with the policy to which I have referred and inimical to its objectives to grant the application."
I turn to the specific grounds set forth in the order nisi. The first is that the Minister refused to decide between the competing claims of the prosecutor and Mrs Fabish to the "entitlement" to the 39 pot commercial crayfish pot licence. No reference to an "entitlement" is to be found in the Act or the regulations made under it. The evidence suggests that it is a creature of policy. An entitlement represents a licence which is held in abeyance or more accurately, an expectation conferred by the Minister that a particular licence will issue in the future, which licence effectively replaces one previously granted but no longer in existence. The prosecutor does not lay claim to any entitlement. It did not apply for an entitlement. It does not seek to transfer an entitlement. Whilst there may have been expressions in correspondence relating to an entitlement, the evidence does not satisfy me that the Minister refused to make such a decision, and even that if he did, that he would have been wrong in so doing.
The second ground set forth in the order nisi effectively restates the first ground with greater particularity. It has no merit.
The third ground alleges that the Minister erred in adhering to his view that Mrs Fabish validly holds the entitlement, or a claim to the entitlement, and that he formed that view without considering whether or not she was a fit and proper person to take the relevant licence. That ground has no merit. If the Minister is to issue a licence to Mrs Fabish at some time in the future, the regulations require him to consider whether she is or is not a fit and proper person. It is at that time that he must consider this.
The fourth ground alleges that the Minister misapplied his policy of seeking to ensure the stability of the crayfishing industry through the bringing about of substantial investment in that industry and professionalism on the part of the fishermen engaged in it. The ways in which it is said he misapplied his policy are as follows: by adhering to his view that Mrs Fabish validly held the entitlement, when, in the circumstances known to him, Mrs Fabish's reasons for purporting to take that entitlement were that it formed the consideration for the sale by her husband to Kevin John Robertson of a boat broking business she having no intention of becoming actively involved in the crayfishing industry, wanting the entitlement only as a speculative investment. That ground fails on a number of bases. I will assume that the Minister's policy is correctly stated. It is not the function of this court to consider whether or not any particular decision of the Minister best serves his policy. This is not a court of policy. It is a court of law. Provided that the Minister exercises his discretion in accordance with the law, the court will not interfere with it. Whilst the alleged reasons for Mrs Fabish taking the entitlement were reasons which one suspects might have existed, they were not established in fact before me, nor, more importantly, was the material before the Minister such as to establish them in fact to him.
The fifth ground upon which the order nisi was granted again asserts that the Minister misapplied the policy to which I have previously referred by refusing to decide that the prosecutor's interest in the entitlement to the 39 pot crayfish licence should be protected by declaring the purported transfer of the entitlement to Mrs Fabish as invalid to defeat the prosecutor's claim as an investor in the Tasmanian crayfishing industry, by declaring the prosecutor the rightful holder of that entitlement by issuing the licence to Mr Pettit, or in some other way. It is not a matter for this court to determine how the Minister's policy would best be given effect to nor to determine whether the Minister misapplied his policy to the material before him.
The final ground stated in the order nisi is that the Minister failed to consider whether Mr Pettit was the nominee of the holder of an existing entitlement to a commercial crayfish pot licence. I do not consider that the Minister was required to consider this. I have mentioned the basis upon which entitlements come into existence. They are creatures of the Minister's discretion. There is no evidence before me, nor was there evidence before the Minister, that any person other than Mrs Fabish was ever the holder of the relevant entitlement. There is no evidence before me, and there was no evidence before the Minister, that Mr Pettit was ever the nominee of Mrs Fabish in respect of that entitlement. The matter did not, therefore, fall for consideration.
I conclude that none of the grounds stated in the order nisi form any sufficient basis for granting the relief sought by the prosecutor. However counsel for the prosecutor submitted that the relief should be granted upon a basis not stated in the order nisi. I turn to consider the submissions made in this regard.
The Sea Fisheries Regulations 1962, as amended, deal with relevant licences. A fishing boat licence is required under reg5 and a commercial crayfish pot licence under reg9A. Provisions relating to licences are contained in Division 8 of Part II of those Regulations. The relevant portions of those Regulations are in the following terms:
"18 — (1) Each licence shall be issued by the Minister.....
18A — (1) The Minister may refuse to issue a licence to an applicant –
(a)who has been convicted of an offence against the Act or these regulations;
(aa)who, while holding a commercial fishing licence or a processing premises licence, has failed to furnish a return that he is required by these regulations to furnish the Minister after being requested by the Minister so to do;
(ab)who has failed to apply for the licence within 2 months after the expiry of any licence of the same type previously held by him;
(b)who is not, in the opinion of the Minister, a fit and proper person to hold a licence; or
(c)if, in the opinion of the Minister, the issue of the licence –
(i)would be contrary to the public interest;
(ii)would be detrimental to fish or the fishing industry; or
(iii)would be detrimental to the preservation of good order among persons engaged in fishing in State fishing waters.
.....
(2) Where the Minister refuses to issue a licence pursuant to subreg.(1), he shall, within thirty days after refusing the application for the licence, notify the applicant in writing of the refusal and of his reasons for the refusal."
It is appropriate to consider the nature and extent of the obligation imposed by reg18A(2). It was submitted that the letter of 8 May 1990 by stating the delegate's opinion "that to issue the licence would be contrary to the public interest and/or detrimental to the fishing industry" stated a reason or reasons for the refusal of the applications sufficient to satisfy the requirements of the subregulation. I reject that submission. Decision–makers who are required by law to state reasons for their decisions do not discharge their obligations merely by repeating a statutory ground sufficient to enable the exercise of the discretion in a particular way. A fortiori they do not discharge their obligations by stating statutory grounds in the alternative. Those who have reposed in them discretions conferred by statute requiring them to give reasons for the ways in which those discretions have been exercised ought to understand that such statutory obligations are not discharged by paying ritualistic lip service to them. They must be discharged in accordance with well established legal principles. I consider that the relevant principles are correctly stated in Aronson and Franklin Review of Administrative Action at pp407–8, in the following terms:
"There is a very large number of cases discussing the content of the statutory duty to give reasons, and the consequences of a breach of that duty. Even where the duty is simply to give reasons, unaccompanied by the companion general federal and Victorian AAT duties of referring to the evidence and stating the findings, it is said that the reasons must canvas all the significant points of argument and display the decision's legal and factual bases."
It may be that in certain particular circumstances, merely stating the statutory ground is adequate, but that will rarely be so. In any event, in the present case, the delegate did not even state that he had formed any particular opinion which provided justification for refusal of the licence under reg18A(1). The use of the expression "and/or" was indicative of such a failure. It follows that the letter of 8 May 1990 cannot constitute the statement of reasons for the purposes of 18A(2). One needs to go to the further letter of 18 May 1990 to find such a statement of reasons. That letter sets forth reasons which might be summarised as follows:
(a)A statement of government policy to maintain limited entry into the rock lobster industry for the purpose of ensuring the stability of the industry by effective control, management and conservation of the resource, such policy at least in part being given effect to by restrictions on the issue of licences.
(b)A statement that a consequence of the implementation of that policy has been that commercial crayfish licences constitute assets of commercial value that help introduce and maintain professionalism within the industry.
(c)A conclusion that as Mr Pettit did not satisfy the policy requirements as to the issue of licences, it would be inconsistent with the policy and inimical to its objectives to grant the application.
Counsel for the prosecutor attacked this statement of reasons as being indicative of the Minister's delegate having determined Mr Pettit's application by way of considering whether that grant would or would not be in accordance with the policy without giving consideration to the question as to whether or not, upon the material before him, he ought to depart from that policy. In other words, the argument was that the delegate had unlawfully fettered his own discretion by limiting the ambit of the matters being considered by him to those which were only relevant to the question whether or not Mr Pettit's application was one which could be granted upon the application of existing government policy.
This question was considered, albeit obiter, in Ansett Transport Industries (Operations) Pty Limited v The Commonwealth (1977) 139 CLR 54. Differing opinions were expressed. Barwick CJ, at p61, said:
"..... I do not regard the observance of government policy by the Comptroller–General of Customs as any breach of his duty. Indeed, he would be bound, in my opinion, to carry out the communicated policy of government in deciding whether or not to grant his consent to importation. The vesting of a discretion in an official in an area such as the control of entry into Australia of goods of persons does not, in my opinion, give him a power to ignore or to depart from government policy in the exercise of this discretion in relation to such entry."
A contrary view was expressed by Mason J at p82:
"The Regulations vest discretion in the Secretary of the Department; they therefore contemplate a decision by him. If in truth he is bound as a matter of law to accept a direction from his Minister it cannot be said that the decision is his decision; it then becomes the decision of the Minister. Unquestionably, important considerations of aviation policy are relevant to the exercise of the discretion in the sense that most, if not all, imports of aircraft take place within a framework of established government policies, some relating to aviation and others relating to finance and economics. It is to be expected that the Secretary will, before making his decision, if he does not already know them, ascertain what are the government policies which happen to be relevant to the application before him. Moreover, it is to be expected that he will have regard to any relevant government policy, nevertheless deciding for himself whether the existence of the policy is decisive of the application. Whether it is so decisive will depend upon the nature and terms of the policy and the circumstances of the particular case. But I cannot think that this means that the Secretary is entitled to abdicate his responsibility for making a decision by merely acting on a direction given to him by the Minister."
Gibbs J, at p62, said:
"Nor do I think that it would be wrong for the Secretary, in exercising his discretion under the regulations, to give weight, and indeed conclusive weight, to the policy of the government."
Aickin J, at p 115, after a consideration of the judgments in R v Anderson; Ex parte Ipec–Air Pty Limited (1965) 113 CLR 177, concluded:
"It is clear from these citations that, although the discretion is that of the Secretary of the Department of Transport, it is not one to be exercised entirely according to his personal views. Government policy, and particularly that applicable to matters within the scope of his Department must in every case be a matter for his serious consideration. Moreover the Minister or the cabinet may properly indicate to him what government policy is in relation to imports of aircraft generally or the importation of particular aircraft. There is nothing improper in the Minister requesting him to act in a particular manner or seeking to influence or persuade him to act in a particular manner, nor is there any failure of duty by the head of a department of government in acting in accordance with such a request. In many matters of policy it might indeed be the duty of the Secretary to act in accordance with the policy of the government of the day."
Murphy J, at p87, expressed a view similar to that expressed by Barwick CJ when he said:
"Unless the language of legislation (including delegated legislation) is unambiguously to the contrary, it should be interpreted consistently with the concept of responsible government. It would be inconsistent with that concept for the secretary or any other officer of a department to exercise such a power or discretion contrary to the Minister's directions or policy (provided of course that these are lawful). It is not for the officer to distinguish between "government policy" and the Minister's policy. The duty of those in a department is to carry out the lawful directions and policy of their Minister. It is the Minister who is responsible to the government and the parliament for the directions and policy."
With respect, I find that view somewhat difficult to reconcile with a statutory provision which confers a discretion upon a particular officer. That view appears to negate the existence of a discretion at all, even though such a discretion is conferred by statute, if a Minister (upon whom is conferred no discretion or power at all) may dictate the manner in which the discretion is to be exercised. The relationship between a Minister and his departmental head ought not to lead to such a result where Parliament or the regulation making authority has seen fit to confer the discretion upon the departmental head and not upon the Minister.
Whilst that case does not indicate that there was a majority for any one view, it would appear that the majority (Gibbs, Mason and Aickin JJ) agreed to the extent that it was the duty of the Secretary to give considerable weight to the views of the Minister and that in certain circumstances the weight of that policy might be such that, in the circumstances of the case, it was the duty of the Secretary to act in accordance with the relevant policy. That falls short of suggesting that the Secretary ought to be a cipher of the Minister. The Secretary remains an officer exercising an independent discretion who must consider all relevant matters, including government policy, but in certain circumstances the policy may be of such weight that it ought to be treated as conclusive, but only upon the basis that in the circumstances of the case, and on any proper exercise of the discretion, it must necessarily out–weigh any competing considerations.
In the earlier case of R v Anderson; Ex parte Ipec–Air Pty Limited (1965) 113 CLR 177, the High Court dealt with the discretion conferred upon a departmental head to issue import licences. Windeyer J took a view similar to that expressed by Barwick CJ and Murphy J in the Ansett case (supra) but the other four members of the court took a different view. Taylor and Owen JJ, in a joint judgment, took the view that as a matter of fact the departmental head had exercised an independent discretion. However, they implicitly appeared to have acted upon the basis that the officer could do no more than take into account government policy when they said, at p200:
"It should perhaps be added that while we think the evidence shows that in considering the prosecutor's application for permission to import aircraft the Director–General took into account the policy laid down by the Government, we are unable to accept the view that this was not a matter proper to be considered by him nor, with respect, do we agree with the conclusion reached by Kitto J that the refusal to grant the permission sought was, in truth, not the decision of the Director–General but that of the Government."
Kitto J, with whom Menzies J concurred, concluded as a matter of fact that the determination under challenge was not a refusal by the person to whom the regulations committed the power of decision but simply and solely a reflection of the decision of the government, upon the basis of which he concluded, at p192:
"The proper conclusion seems to me to be that the application which the Director–General purported to refuse still awaits a decision according to law – a decision which in truth is a decision of the person to whom alone the Regulations entrusts the power and duty of deciding whether the general prohibition of importation should be lifted in the particular case."
Whilst some of the dicta in each of the two cases to which I have referred express the view that a departmental officer upon whom is conferred a discretion pursuant to a statute or regulation is required to exercise that in accordance with policy directions given to him by his Minister (subject to those directions not being unlawful), those views are the views of the minority. In each case, the majority proceeds upon the basis that such an officer is required to act in accordance with his own discretion, at the same time being entitled in the exercise of such a discretion, to give weight and indeed give very considerable weight, sometimes conclusive weight, to expressions of government policy.
The views of the majority in each of those cases is consonant with the general principle that a public officer or body upon whom or which is conferred a statutory discretion is entitled to adopt general principles of policy relevant to the manner in which the discretion is to be exercised in particular cases, provided that such policy relates to matters which are legally relevant to the exercise of the discretion. It might be thought that generally it is desirable or even necessary for there to be such a general policy to avoid any inconsistent, arbitrary or capricious exercise of the discretion. The policy must be lawful, ie it must not require the discretion to be exercised for extraneous purposes (Marks v The Shire of Swan Hill [1974] VR 896), or in a manner which would be contrary to the statutory requirements for the exercise of the discretion (Green v Daniels (1977) 13 ALR 1), but provided that it does not offend such requirements, it may govern the exercise of the discretion even to the extent that it will be departed from only in exceptional circumstances (Legal Services Commission of New South Wales v Stephens [1981] 2 NSWLR 697). The decision–maker must never attribute to policy a status which precludes him from forming a genuine discretionary judgment. He must be prepared to consider each case on its merits, at least so to the extent that he is prepared to exercise his discretion in the exceptional case in a manner not conforming to the policy, and always so that he will consider each case with a view to determining whether it is such an exceptional case and, if it is, whether the discretion ought to be exercised otherwise than in accordance with the policy. The leading authority for this proposition is R v Port of London Authority; Ex parte Kynoch, Ltd [1919] 1 KB 176, per Bankes LJ at p184, adopted by Underwood J in R v Minister for Sea Fisheries; Ex parte Byrne [1987] Tas R 191 (N.C. 17). Counsel for the prosecutor submitted that the reasons set forth in the delegate's letter of 18 May 1990 demonstrate that the delegate applied government policy without giving any consideration to the question as to whether or not it ought to be departed from in the particular case. He submitted that those reasons disclose that the delegate considered no more than whether or not the application was one that ought to be granted upon the application of the policy without giving any consideration to the question as to whether or not the policy ought to be departed from in the particular case. On the face of the reasons, it might be thought that that submission has considerable merit. The reasons do little more than state the policy, its purpose and aspects of its implementation and effect, and conclude that as Mr Pettit did not answer to certain criteria, the grant of his application would be inconsistent with the policy and inimical to its objectives.
Counsel for Mrs Fabish submitted that I ought to infer from the exchange of correspondence, the chronology of which I have set out, that in fact the delegate had directed his mind to the proper issues. That exchange of correspondence took place before the delegate made the decision communicated by the letter of 8 May 1990. However, I feel unable to draw the necessary inference. The letter of 16 February 1990 invited Mr Pettit to make written submissions as to why the policy ought not to be applied. Such a submission was made. The only communications following that submission were the letter of 8 May 1990 and the letter of 18 May 1990 setting forth the delegate's reasons. The reasons were given pursuant to a requirement contained in the regulations. It ought to be assumed that the reasons constitute the whole of the reasons, albeit in summary form. Those reasons do not suggest that the delegate considered whether or not the policy ought to be departed from in the particular case. There may well have been very good reasons why the policy ought not to have been departed from. It is not my function to express any view on that. All I am concerned with is whether the reasons given disclose that any consideration was given to departing from the policy. I consider it to be plain upon a reading of the letter of 18 May 1990 that no such consideration was given but that the matter was dealt with merely by way of determining whether or not Mr Pettit qualified as a licence holder in the terms of the policy. The discretion miscarried because the delegate gave no consideration to the submission made to him that the policy ought to be departed from on the facts of the case.
Error in the manner in which the discretion was exercised having been established, the following matters need to be considered:
(a)Whether the failure to specify this error in the order nisi precludes it now being relied upon;
(b)Whether the Minister or his delegate was bound to determine Mr Pettit's application judicially and not merely ministerially;
(c)Whether the prosecutor is a person aggrieved by the delegate's refusal to issue the relevant licences;
(d)Whether the error is one which makes the delegate's determination illegal on its face;
(e)If the determination is not illegal on its face, whether in the exercise of my discretion, I should grant certiorari.
It does not appear as though the Rules impose any requirement that an application for an order nisi calling upon a respondent to show cause why specific prerogative relief ought not to be granted or the order nisi made upon such application state the grounds upon which the application is made or upon which the respondent is asked to show cause. In that respect, an order nisi calling upon a respondent to show cause why specific relief should not be granted may be distinguished from a general order to show cause under O72, r1A. That rule was inserted by the Rules of the Supreme Court (No 2) 1967, Statutory Rules 1967, No 265. The reasons for some of the consequential amendments effected by those rules are somewhat difficult to understand, as their effect appears to be that a number of the provisions of O.72, which previously were of general application, are now limited in their application to general orders to show cause. I do not consider that the prosecutor is precluded from obtaining relief merely because it is sought on a ground not specified in the order nisi.
It was not argued that the Minister, whether acting personally or by his delegate, was not required to act judicially. It should be noted that the regulations require the Minister to state his reasons for refusing an application for the issue of a licence. That requirement is indicative of an obligation on the part of the Minister to observe the rules of natural justice in dealing with an application. The grant of an application confers upon the successful applicant a valuable commercial right. A refusal excludes him from participating in the commercial exploitation of a valuable resource. Clearly the Minister was required to act judicially in considering Mr Pettit's application. Reference may be had to Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222 and R v Public Vehicles Licensing Appeal Tribunal; Ex parte Gray's Transport Pty Ltd [1968] Tas SR (NC 13).
At first blush it might be thought that the prosecutor is not a person aggrieved by the delegate's decision in that it was Mr Pettit's application that was refused. However that application was made with a view to satisfying a condition contained in the agreement for sale between the prosecutor and Mr Pettit to which I have referred. One might assume that a satisfaction of that condition would enable the contract to be completed with the prosecutor receiving the purchase moneys as mortgagee. The time within which the condition was to be fulfilled has long expired but the parties to the contract appear to have continued to proceed upon the basis that it remains on foot. Those circumstances are sufficient to give the required status to the prosecutor (see Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73 at p80).
I need to consider whether the Minister's delegate's failure to properly exercise his discretion appears upon the face of the "determination" so that it may be said that it is a determination which is illegal on its face within the meaning of s75(12) of the Supreme Court Civil Procedure Act 1932. That question is to be determined by reference to whether or not the reasons provided by the letter of 18 May 1990 constitute part of the determination. In some respects, the provisions of s75 appear to be unique to Tasmania. The common law allowed certiorari to issue for error appearing on the face of the record. However, it does not follow that the draftsman of s75 had in mind the "record" when he spoke of "determination" in s75 although it may have been assumed that the two expressions are synonymous (eg R v Bryan; Ex parte Harris, Serial No 62/1984). Counsel for the prosecutor submitted that the expression "determination", as used in s75, ought to be given a meaning equivalent to the meaning of the word "record" at the time that the Supreme Court Civil Procedure Act 1932 was enacted. For that proposition, he cited R v Solomon; Ex parte Transport Commission [1968] Tas SR 89 and R v Public Vehicles Licensing Appeal Tribunal; Ex parte Gray's Transport Pty Limited (supra). In the former case, Neasey J (unreported on this point, Serial No 40/1968), at p2, said:
"The provisions of Part VII of that Act, in which secs. 74 and 75 are found, appear to represent an attempt to codify the substance of the common law relating to the granting of the prerogative writs of certiorari, prohibition, mandamus, quo warranto and sciere facias."
At common law, the Writ of Certiorari could be directed to inferior courts provided that they were courts of record. Courts which were not courts of record were not amenable to the writ but other forms of relief were available. The Writ of Recordari Facias Loquelam was a writ directed to the sheriff to remove a cause depending in an inferior court to the King's Bench or Common Pleas. It commanded the sheriff to make a record of the plaint and other proceedings in the inferior court and then to send up the cause to the superior court. The writ was in the nature of a certiorari. The Writ of Accedas ad Curiam was a writ to the sheriff issued out of the Chancery available in the case of a false judgment in a Hundred Court or Court Baron requiring the sheriff to make record of the suit in the inferior court and to certify it into the Kings's Court. Prior to the enactment of the Summary Jurisdiction Act 1848 (Imp), inferior courts were required to set out the proceedings on summary convictions at great length and certiorari issued not only in the case of errors of substantive law appearing on that record, but also for insufficient evidence on a material point or for a trivial formal defect. The Act prescribed a standard form of conviction that omitted all mention of the evidence before the inferior court or the reasoning by which the inferior court had come to its decision. Whilst the Act did not effect any change in the law relating to certiorari, it meant that errors were unlikely to be found on the face of the record constituted by the form prescribed by the Act. The effect of the Act was to transform what had formerly been speaking orders into bare orders containing no indication as to the basis upon which they were made.
It has been suggested that in civil cases the "record had to contain everything necessary to show that the justices had jurisdiction to deal with the matter, and it had to set out their adjudication; but it was not necessary to set out either the evidence or the reasons" (per Denning LJ in R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 at p349). In the present case, what is sought to be quashed is the Minister's refusal of a licence to Mr Pettit which was notified by the delegate's letter of 8 May 1990. Whilst it purported to set forth the reasons for that refusal, it did not do so. The reasons were provided at a time later than the refusal and the notification thereof.
It may be that the "record" is of wider import than the "determination" referred to in s75, but it is useful to consider the law as to what constitutes the "record" at common law in the context of construing the word "determination".
Whether the reasons given for a decision form part of the record is a vexed question. After referring to conflicting authorities, Gibbs J declined to express a concluded opinion as it was not strictly necessary to do so in R v Cook; Ex parte Twigg (1980) 147 CLR 15 at p28. For reasons which follow I would refuse certiorari in the exercise of my discretion. If the determination is illegal on its face (which would be so if the reasons form part of the determination) the prosecutor would be entitled to relief by virtue of s75(12)(b) of the Act.
It is appropriate to consider some of the authorities referred to by Gibbs J R v Industrial Appeals Court; Ex parte Henry Berry & Co (Australasia) Ltd [1955] VLR 156 was a case where the inferior court gave a reserved decision in writing which incorporated its reasons for the decision. That written decision constituted the only permanent record of the Court's determination. Hudson J, following the Northumberland case (supra), held (at p165) that the reasons formed part of the record because the inferior court had "put its adjudication upon record and as part thereof [had] incorporated its reasons." In R v Tennant; Ex parte Woods [1962] Qd R 241, at 247, 257, the court proceeded upon the basis that the reasons for its decision given by an inferior court formed part of its determination and were part of the record but no authority for that proposition was referred to. Again, in Ex parte Tooth & Co Ltd; Re The Council of the City of Sydney (1962) 80 WN (NSW) 572 it was held that the written decision of the inferior court, including the reasons therefor (if any), formed part of the record. However that conclusion appears to have been based upon a provision in the rules of the inferior court (which was a court of record) that the records required to be kept by the registrar included all judgments, orders and findings of the court.
In R v The District Court of Queensland Northern District; Ex parte Thompson (1968) 118 CLR 488 each of McTiernan and Menzies JJ expressed the view that the reasons for judgment given by a judge of the District Court did not form part of the record. The other members of the court did not find it necessary to express any concluded opinion on this point. It should be noted that there was no requirement for the District Court judge to state reasons for judgment in writing nor was there any provision which constituted such reasons in writing as were given part of the court record. In R v Wright and Pope [1980] VR 41, the Full Court of the Supreme Court of Victoria adopted the view previously expressed by it in R v Judge McNab; Ex parte The Acting Attorney–General (unreported, 17 August 1977) that when certiorari is sought to bring up and quash for error an order of the County Court made in proceedings with respect to an indictable offence the reasons given by the presiding judge did not form part of the record. At the same time the court left open the question as to whether in certain circumstances such reasons might not be examined as part of the record.
All these cases were concerned with courts of record. Largely they are reconcilable upon the basis that in determining what is the "record" of a court of record regard may be had to legislative provisions governing the keeping of the record. Different conclusions were arrived at in Tooth's case (supra) and by Menzies J in Thompson's case (supra) but by consistent application of principle.
The delegate's letter of 8 May 1990 did not constitute his decision. It merely notified Mr Pettit of a decision which had been previously made. That much is clear from the terms of the letter and is in accordance with reg18A(2). Even if the duty to furnish reasons imposed by reg18A(2) is one to be discharged contemporaneously with the notification of the refusal (and that may be doubtful), it is a duty which is to be discharged within 30 days of the refusal. The delegate did not constitute a court, whether of record or otherwise, so that cases which largely turn on defining the "record" of a particular court of record are of limited assistance. It is more appropriate to go back to the distinction between a "speaking order" and an "unspeaking order" drawn in Overseers of the Poor of Walsall v London and North Western Railway Co (1878) 4 App Cas 30. An "unspeaking order" remains such notwithstanding that reasons may have been stated outside the order. Whilst in certain circumstances the reasons given for an adjudication may form part of the record even if those reasons are not to be found in a "speaking order" I consider that the "determination" referred to in s75 is the bare adjudication only. If it is in the form of a speaking order then the reasons therein expressed form part of the determination to be examined to see whether it is illegal on its face. Otherwise the reasons given for the adjudication may not be examined for this purpose although they may be examined for other purposes, eg s75(12)(c). There is no suggestion that the delegate's actual refusal (as distinct from subsequent communications thereof) recited any reasons. In the absence of the prosecutor establishing that the actual refusal recited any reasons for that refusal I can not conclude that the determination was illegal on its face. There is no suggestion that the refusal can be said to be illegal without an examination of the reasons therefor.
It follows that whether or not the relief sought by the prosecutor is granted is a matter of discretion. Without considering whether or not a crayfish licence constitutes "property", as to which there is conflicting authority, I consider that the determination of the Minister's delegate did affect a "right" of the prosecutor. In any event, it may be that s86(a) of the Act, which preserves the common law jurisdiction, would enable me to grant the relief sought by the prosecutor, even if it could not bring itself within s75(1), as it appears that at common law certiorari might be granted on the application of a stranger (R v Surrey Justices (1870) LR 5 QB 466, R v Grove, Wiltshire Justices (1893) 57 JP 454). However, the extent of the prosecutor's interest is a matter relevant to the exercise of the discretion.
The principal matter going to the exercise of my discretion is the fact that there is currently on foot an action in this court wherein the prosecutor is plaintiff and Mr & Mrs Robertson and Mr & Mrs Fabish are defendants. The question as to the respective rights of the parties to the entitlement to the crayfish pot licence is directly in issue in that action. A perusal of the statement of claim indicates that in the action, the court will be required to determine whether or not any valid lien or other form of security was given by Mr & Mrs Robertson over the licence. The standing of the prosecutor in the present proceedings is said to derive (at least in part) from its assertion that it does or did have a valid lien over the relevant licence. It is inappropriate to require the Minister to consider issues relating to the existence and efficacy of security over the licence in the context of considering whether or not a licence ought to be granted. Inevitably the Minister would need to do this if he determined, notwithstanding the submissions put to him by the prosecutor, that his general policy ought to apply. That same issue will fall for determination in the action. It appears that there is no danger of the entitlement falling into the hands of third parties because interlocutory injunctive relief has been granted. The urgency about the present matter appears to relate to the use of the crayfish licence during the coming season, which commences on 1 December 1990. It might be thought surprising that at this stage I should be asked to exercise jurisdiction in the nature of prerogative relief when the statement of claim in the action was apparently delivered well over a year ago. One might have expected steps to have been taken to ensure that the action would have been listed for trial quite quickly, if necessary by invoking judicial intervention to ensure that all interlocutory steps were completed expeditiously. During argument, counsel for the prosecutor volunteered that if the relief were granted, and if the licences were to be issued to Mr Pettit or the prosecutor as a result of a re–determination, then it would be appropriate to grant interlocutory relief to Mrs Fabish to restrain the new holder from dealing with the crayfish pot licence, or the entitlement thereto. One might wonder as to what Mr Pettit's view might be as to that. It is reasonable to assume that he would be satisfied by nothing less than holding the licences absolutely without the possibility of the crayfish pot licence being taken from him. If the prosecutor is seeking no more than an entitlement to that licence pending the determination of the action that would be a pointless remedy. Regardless of how the Minister exercises his discretion, the real underlying issue as to who ought to have the crayfish pot licence, not only in the eyes of the Minister, but as between the parties, will not have been determined. It is true to say that as a matter of law the Minister could grant Mr Pettit's application whilst maintaining Mrs Fabish's entitlement on his register. That would be contrary to his policy and might be considered to be an unlikely outcome. The real question is likely to remain one of determining competing interests. Those competing interests ought to be resolved in the action.
What Lord Denning said in Baldwin and Francis Limited v Patons Appeal Tribunal [1959] AC 663 at p696 is relevant:
"My Lords, I have come to the conclusion that this is not a case in which certiorari should issue. The effect of a special reference under section 9 (1) of the Patents Act, 1949, is very limited. It is interlocutory in its nature. Even when made, it does not give the appellants any greater rights than they had before. It is more a detriment to the respondents than a benefit to the appellants. It serves as a notice to the public that there is a substantial risk of infringement. But it decides nothing as to whether there is in fact an infringement. That must still be decided in an action brought for the purpose. This was, I expect, the reason why Parliament did not think it a proper case in which to give a right of appeal to one side or the other. It left a person aggrieved to his other remedy – the new patentees could make the article and the old patentees could sue for infringement – and only then would they know for certain where they stood. And this, I must say, seems to be the proper remedy rather than to apply for a certiorari. I am prepared to assume that the appellants are persons aggrieved, but, as they have another remedy open to them, the court in it discretion should refuse a certiorari."
Whilst the availability of alternative relief is not dispositive (R v Cook; Ex parte Twigg (supra)) it is of great weight in the present case.
In the exercise of my discretion, I conclude that I ought not to grant certiorari in this case. It follows that there is no occasion for mandamus to issue requiring the Minister to determine Mr Pettit's application. As to the balance of the relief sought by way of mandamus, the relief should not be granted. There is no basis for mandamus to issue requiring the Minister to remove Mrs Fabish from the register of entitlement holders and to substitute the prosecutor therefor or to require the Minister to consider applications which have yet to be made.
The order nisi will be discharged.
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