RE NICOLETTA CIFFOLILLI; EX PARTE PETER PHILLIP ROGERS, Executive Director of the Fisheries Department of Western Australia [1999] WASCA 205

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 205
Court:	THE FULL COURT (WA)
Case No:	CIV:1110/1999	Heard:	11 JUNE 1999
Coram:	PIDGEON J ANDERSON J PARKER J	Delivered:	15/10/99
No of pages:	23	Judgment Part:	1 of 1
Result:	Order nisi for certiorari made absolute
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Parties:	PETER PHILLIP ROGERS, Executive Director of the Fisheries Department of Western Australia NICOLETTA CIFFOLILLI, Fisheries Objections Tribunal GUARDON PTY LTD
Catchwords:	Administrative law Prerogative writs Certiorari Statutory power to make order Error of law on face of record Administrative law Fisheries Objections Tribunal Application to Director to vary fishing licence Additional entitlements sought Statutory notice by Director of "proposed" decision Objection lodged Proposed decision and objection referred to Tribunal Statutory power of Tribunal Not wider than Director's power Fish Resources Management Act 1994 (WA) s 142(1) Administrative law Fisheries Objections Tribunal Management Plan subsidiary legislation Legal force of Management Plan prevails over equity and good conscience Fish Management Plans Plan dealt exhaustively with licence entitlements No provision for additional entitlements Whether discretionary power to grant additional entitlements Fish Resources Management Act 1994 (WA) s 142(1)
Legislation:	Fish Resources Management Act 1994 (WA) s 142(1) Interpretation Act 1984 s 42
Case References:	Avon v Administrative Appeals Court (1997) 69 SASR 7 Craig v South Australia (1994-1995) 184 CLR 163 Esber v The Commonwealth (1992) 174 CLR 430 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Santos v Saunders (1988) 49 SASR 556 Secretary, Department of Primary Industries and Energy v Collins (1992) 34 FCR 340 Trittenheim v H & H Nominees (1994) 63 SASR 434 Commonwealth v Huon (1945) 70 CLR 293 Ex parte Herman; re Mathieson (No 1) [1961] NSWR 1139 Klahn v Talbot (1995) 83 A Crim R 535 Lambidis v Commissioner of Police 37 NSWLR 320 R v Commonwealth Court of Conciliation and Arbitration; ex parte Brisbane Tramways Co Ltd (No 1) (1914) 18 CLR 54

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE NICOLETTA CIFFOLILLI; EX PARTE PETER PHILLIP ROGERS, Executive Director of the Fisheries Department of Western Australia [1999] WASCA 205 CORAM : PIDGEON J

ANDERSON J

PARKER J

HEARD : 11 JUNE 1999 DELIVERED : 15 OCTOBER 1999 FILE NO/S : CIV 1110 of 1999 MATTER : Application for Writ of Certiorari against Nicoletta Ciffolilli, Fisheries Objections Tribunal

EX PARTE

PETER PHILLIP ROGERS, Executive Director of the Fisheries Department of Western Australia

Applicant

AND

NICOLETTA CIFFOLILLI, Fisheries Objections Tribunal

First Respondent

GUARDON PTY LTD

Second Respondent

(Page 2)

Catchwords:

Administrative law - Prerogative writs - Certiorari - Statutory power to make order - Error of law on face of record

Administrative law - Fisheries Objections Tribunal - Application to Director to vary fishing licence - Additional entitlements sought - Statutory notice by Director of "proposed" decision - Objection lodged - Proposed decision and…

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

Case: [1999] WASCA 205
Decision Date: 15 OCTOBER 1999

CaseChat Overview and Summary

In the case of Re Nicoletta Ciffolilli, the applicant sought to challenge the decision of the Fisheries Objections Tribunal in relation to a fishing licence application. The Tribunal had considered an application by the applicant to vary her fishing licence to include additional entitlements, but ultimately refused the application. The decision was made under the Fish Resources Management Act 1994 (WA). The applicant sought a writ of certiorari to quash the decision of the Tribunal, arguing that the Tribunal had erred in law by not considering the equity and good conscience in granting the additional entitlements.

The primary legal issue before the court was whether the Fisheries Objections Tribunal had the statutory power to grant additional entitlements under the Fish Resources Management Act 1994 (WA) s 142(1). The applicant argued that the Tribunal had the discretion to grant additional entitlements on the basis of equity and good conscience, notwithstanding the exhaustive nature of the Management Plan. The respondent, on the other hand, argued that the Tribunal's power was limited to the statutory power of the Director, and that there was no provision in the Management Plan for additional entitlements.

The court held that the statutory power of the Fisheries Objections Tribunal was not wider than the statutory power of the Director. The court noted that the Management Plan dealt exhaustively with licence entitlements and that there was no provision for additional entitlements. The court further held that the legal force of the Management Plan prevailed over equity and good conscience. The court found that the Tribunal had not erred in law and dismissed the application for certiorari.

The court made an order nisi for certiorari, which was subsequently made absolute. The decision of the Fisheries Objections Tribunal was upheld, and the applicant's application for additional entitlements was refused.

Orders

Orders of the court

Order nisi for certiorari made absolute

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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