Sawyer, P.C. v Secretary, Department of Primary Industry

[1993] FCA 556

PHILLIP CHARLES SAWYER v. SECRETARY, DEPARTMENT OF PRIMARY INDUSTRY
No. VG499 of 1992
FED No. 556
Number of pages - 10
Fish and Fisheries
(1993) 44 FCR 66

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson(1), Gummow(1) and Whitlam(1) JJ

CATCHWORDS

Fish and Fisheries - general - fishing boat licence - "in respect of a boat" - whether boat must exist when licence granted.

Fisheries Act 1952 - ss. 9 (2), 9 (4)

HEARING

MELBOURNE, 9, 10 June, 19 July 1993

#DATE 16:8:1993

Counsel and Solicitors for the Appellant: Mr A.G. Uren QC and

Mr D.G. Henshall instructed by Higgins Teale

Counsel and Solicitors for the Respondent: Mr M.A. Dreyfus

instructed by Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

(1) The appeal be dismissed.

(2) The appellant pay one half of the costs of the appeal of the respondent.

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

JUDGE1

JENKINSON, GUMMOW and WHITLAM JJ This is an appeal from the decision of a Judge of this Court (Heerey J) in which his Honour dismissed an appeal on a question of law brought to the Federal Court under s. 44 of the Administrative Appeals Tribunal Act 1975. His Honour heard and determined the matter in November 1992. The judgment is reported: (1993) 38 FCR 375. The decision of the Administrative Appeals Tribunal ("the AAT") was dated 24 June 1991.

1. The issues of law considered by the AAT and by the primary Judge turned to a considerable degree upon the interpretation of certain provisions of the Fisheries Act 1952 ("the Act"), particularly as it had been amended up to the commencement on 15 June 1984 of the Fishing Legislation Amendment Act 1984 ("the 1984 Act"). The Act had been amended from time to time thereafter.

2. The appeal from the AAT to this Court had been instituted on 28 June 1991. In the period between the taking of this step and the hearing of the matter, the Act (with an exception not here relevant) had been repealed, with effect 3 February 1992. This was achieved by ss. 2, 3 of the Fisheries Legislation (Consequential Provisions) Act 1991.

3. However, counsel for neither party drew the attention of the primary Judge to this important circumstance. The point only emerged in the course of the hearing of the present appeal. This necessitated an adjournment for the obtaining of further instructions and the placing of further material before us. We then heard full argument as to the consequences for the appellant of the repeal of the Act if this Court were otherwise minded to allow his appeal.

4. We should add that the dispute between the parties had already come before a Full Court of this Court on appeal from the AAT The appeal to the Full Court had been dismissed on 1 June 1988. The judgment is reported: Sawyer v Secretary, Department of Primary Industry (1988) 9 AAR 92. The circumstances leading up to and following that appeal were summarised by Heerey J (38 FCR at 377-9) and we do not repeat them.

5. One consequence of the conclusion which we have reached upon the present appeal is that the appeal would fail even if the Act had not been repealed with effect 3 February 1992. It will therefore be unnecessary to consider the submissions as to the consequences of that repeal upon an otherwise successful appeal.

6. The appellant had been the owner of a fishing trawler named the "Shanidar" and for some years he had fished that vessel in the waters off south eastern Australia. On 27 June 1982, the vessel sank. It was insured for $260,000. After paying off a mortgage debt and other liabilities, the appellant was left with only about $30,000 of the insurance money. At that time, the appellant held a licence for the "Shanidar" pursuant to sub-s. 9 (2) of the Act. As it then stood, sub-s. 9 (2) of the Act stated:
   

"9 (2) The Minister or the Secretary may grant to a person a licence in respect of a boat authorizing the use of the boat by that person, or a person acting on his behalf, in, or in a specified area of, proclaimed waters for taking fish and for processing and carrying fish that had been taken with the use of that boat."

Sub-section 9 (4) dealt with the endorsement of licences so as to extend them to authorise the use of the boat in an area of proclaimed waters which included an area to which a notice under para. 8 (1) (d) applied. It stated:

"9 (4) Where a licence granted under this section authorizes the use of a boat for a purpose in an area of proclaimed waters that includes an area of waters to which a notice under paragraph 8

(1) (d) applies, the Minister or the Secretary may endorse the licence so as to extend it to authorize the use of the boat for that purpose in the area of waters to which the notice applies in respect of fish to which the notice applies."

Paragraph 8 (1) (d) authorised the Minister, by notice published in the Gazette, to:

"(d) prohibit fishing in an area of proclaimed waters in respect of fish included in the class of fish specified in the notice, other than -

(i) traditional fishing; or

(ii) fishing that consists of taking, processing or carrying fish of that class with the use of a boat in respect of which there is a licence under section 9 that, by virtue of an endorsement under sub-section 9 (4), extends to authorizing that taking, processing or carrying, as the case may be;"

Section 7 empowered the Governor-General by Proclamation to declare any marine or tidal waters to be proclaimed waters for the purposes of the Act.

1. At the time the "Shanidar" sank, there was no need for the appellant to hold any endorsement of his licence because the area in which the vessel fished was not the subject of a notice under sub-s. 2.8 (1). This did not take place until 3 June 1985.

2. In the meantime, with effect 15 June 1984, the Act had been amended by s. 12 of the 1984 Act. This omitted sub-s. 9 (4) and inserted a new sub-s. (4), together with sub-ss. (4A) and (4B). The Act then read:
   

"9 (4) The Minister or the Secretary may endorse a licence granted under sub-section (2) or (3) in respect of a boat so as to extend the licence to authorize the use of the boat, at any time or during a period specified in the endorsement, for activities by way of fishing that are prohibited by a notice in force under sub- section 8 (1), being a notice identified in the endorsement.

(4A) The Minister or the Secretary may, after being requested in writing to do so by the holder of a licence in respect of which an endorsement under sub-section (4) is in force, revoke the endorsement.

(4B) The Minister or the Secretary may, by notice in writing given to the holder of a licence in respect of which an endorsement under sub- section (3A) or (4) is in force, revoke the endorsement."

1. The appellant did not obtain a replacement for the "Shanidar". In September 1983, he wrote to the Victorian State Fisheries and Wildlife Division which was then acting as agent of the Department of Primary Industry. The applicant concluded his letter stating:
   

"During the last 12 months I have sorted out my affairs to the extent that I again contemplate investment in the trawl fishery. This intention is not unconnected to the proposed changes to abalone license matters, since I presently hold a western zone abalone license. Up until last year Shanidar was also issued a Commonwealth tuna endorsement through your licensing section here in Victoria. Since dual tuna/trawling capacity is essential for some flexibility in such a large investment, I respectfully ask that some form of written assurance about my continued access to the two fisheries be provided, so that I can proceed, with confidence and certainty, to consult designers and banks regarding my new vessel."

The Secretary, Commercial Fisheries Section, of the Victorian Department responded by letter dated 14 September 1983. He said:

"This Division will register your boat for fishing in both Commonwealth and State waters. However, the issue of the Commonwealth Tuna Endorsement is restricted and I suggest that you request Department of Primary Industry, Canberra, A.C.T., 2600, to advise whether they will be prepared to authorise this Division to endorse your Commonwealth Licence accordingly."

The next steps taken by the appellant appear in the following passage from the judgment of the primary Judge (38 FCR at 377-8):

"Some time towards the end of 1984 the applicant lodged with the respondent an application on a printed form which was described therein as 'Application for

endorsement of a Commonwealth Fishing Boat Licence to authorise use of that boat in the trawl fishery and Commonwealth waters off south eastern Australia as between (defined latitude and longitude)'. In that part of the form which required particulars of the boat for which the endorsement was sought, the applicant gave as the boat name 'Shanidar' and against that part of the form requiring the Commonwealth Fishing Boat Licence number, he wrote 'lapsed'. The form asked the question: 'Is the boat a replacement under Criterion C?'. That question was not answered, nor was the question: 'Have you taken any steps to acquire a replacement boat?' In answer to the question: 'Have you taken any action to acquire another boat?' the applicant answered, 'Yes' and gave the detail: 'Negotiations re 22.5m ex-tuna vessel at final stages'."

1. The reference to Criterion C is to a provision in the South Eastern Trawl Fishery Management Plan ("the Plan") which had been published by the respondent in August 1984. The purpose of the Plan was to regulate fishing in certain defined waters. The Plan did not have the force of law. The Plan described a number of what were called "entry criteria". Criterion C was in the following terms:
   

"A person may be issued with a Commonwealth Fishing Boat Licence endorsement where the boat is a recognised replacement (under the arrangements operating prior to 16 January 1984) for a boat which operated in Region A of the Eastern Sector in the period 1 January 1980 to 7 July 1981 or which was under construction or being purchased as at 6 July 1981 and for which a substantial irrevocable financial commitment had been entered into as at 6 July 1981 provided the person is either:

(i) the holder of a current Commonwealth Fishing Boat Licence and provided the original boat continued to operate in Region A of the Eastern Sector prior to the replacement taking place and the replacement boat has continued to operate in the fishery, or

(ii) one who is building or purchasing a boat and who will have commenced trawling or Danish seining in Region A of the Eastern Sector by 31 July 1985 provided the original boat had continued to operate in Region A until such time as a commitment to replace the boat had been undertaken."

1. As the primary Judge pointed out, what the appellant had done in late 1984 was to apply for the endorsement of a licence, admittedly lapsed, and nominally in respect of a vessel which was and had been for some time at the bottom of Bass Strait.

2. The application was refused in February 1985 and an appeal to the AAT was dismissed on 7 May 1987. The decision under review was affirmed. The appeal to the Full Court of this Court, to which we have earlier referred, was dismissed on 1 June 1988.

3. Nevertheless, in the light of legal advice which apparently had been received, the respondent took the view that the appellant should have the opportunity of a reconsideration of his application. It was the lack of success on that reconsideration which led to the proceeding in the AAT which in turn founded the appeal to Heerey J.

4. In the meantime, in the period before the repeal on 3 February 1992, s. 9 of the Act had been further amended. By the Fishing Legislation Amendment Act (No. 2) 1984, which commenced 31 August 1985, the opening words of subs. (2) had been amended so as to read: "Subject to subsection (8AA), the Minister . . . ". Subsection (8AA) provided that where a levy was payable under the Fisheries Licences Levy Act 1984, or under the Act itself, on or in respect of the grant of a licence, the Minister or the Secretary should not grant the licence unless the amount of the levy or fee was tendered by the grantee.

5. The Fishing Legislation Amendment Act 1985 ("the 1985 Act"), which also commenced 31 August 1985, introduced provisions for the determination by the Minister of plans of management for fisheries in proclaimed waters. Subsection 9 (2) was amended accordingly by omitting all of the words after "on" and substituting:
   

"that person's behalf, for

(a) taking fish in proclaimed waters or a specified area of the proclaimed waters; or

(b) a specified managed fishery, and for processing and carrying fish that have been taken as a result of that use of the boat."

Subsection 9 (4) was amended so as to refer to para. (2) (a). In addition, subs. (7A) was added. This stated that on application by the holder of a licence granted under s. 9 in respect of a boat, the Minister or Secretary might "vary the licence by omitting the name of the boat and substituting the name of another boat".

1. Section 18 of the Fishing Legislation Amendment Act 1987 (which commenced 23 January 1988) inserted a new subsection 9 (3AA). This provided that without otherwise limiting the generality, inter alia, of subs. (2), the Minister or the Secretary might refuse to grant a licence thereunder in respect of a boat if they had 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".

2. As we have indicated, the primary Judge dismissed the appeal. His Honour accepted the submission for the respondent that there was no power to endorse under subs. 9 (4) unless there was a licence in respect of an existing boat. His Honour said:
   

"I think that follows from the plain language of subs. (4) which refers to authorisation of the use of 'the boat' and also from the terms of s. 9 (2) which provide that the licence is to be 'in respect of a boat' and authorises the use of the boat by the licensee, or a person acting on that person's behalf."

His Honour continued (38 FCR 380-381):

"It was argued on behalf of (the appellant) that there was power to make a decision to grant a licence, as distinct from the actual grant of a licence, at an earlier stage notwithstanding that there was no boat in existence. On this reading of the Act presumably the decision would be of a conditional or provisional nature and if and when a boat was acquired by the licence holder or the endorsee, the licence or endorsement would then be granted. I think that such a construction is quite inconsistent with the plain words of the Act. It would lead to very strange results which are perhaps well illustrated by the present case. An application for endorsement of a licence, admittedly lapsed, was made in late 1984 nominally in respect of a vessel which was, and is, at the bottom of Bass Strait. Eight years later that application is said to be something which can result in an endorsement, notwithstanding that the applicant has acquired no other boat in the meantime, let alone a licence for such a boat."

1. The primary Judge drew support for these conclusions from what had been said by Northrop J in the earlier Full Court decision (9 AAR at 99).

2. However, in Re Southern Ocean Tuna Fisheries Pty Ltd v Minister for Primary Industries and Energy (1991) 23 ALD 83 at 96, the AAT said:
   

"In our view section 9 (4) of the Act can be viewed as requiring the minister or the secretary to make an intermediate decision on the eligibility or suitability of an applicant to have a licence endorsed before he makes the decision to take the operative step of actually endorsing it. We can see no reason why that intermediate decision cannot be made before there is a licence in existence and before there is even a boat in existence in respect of which a licence may be granted. If such a decision is made, undoubtedly it is made under section 9 (4) of the Act . . ."

1. Subsection 9 (1) is concerned with the granting of licences to persons to engage in a particular activity. Subsection 9 (2) deals with the grant of a licence in respect of a boat authorising a particular use of that boat by the licensee or a person acting on behalf of the licensee.

2. As amended by the 1984 Act, subs. 9 (1) stated:
   "9 (1) The Minister or the Secretary may grant to a
   

person a master fisherman's licence authorizing the person to be in charge of a boat that is being used for fishing in proclaimed waters or in a specified area of proclaimed waters."

We have set out earlier the text of subs. 9 (2).

1. Subsections 9 (1) and (2) exemplify a distinction found in various legislation between the licensing of persons to conduct a particular activity, and authorisation to use particular land, improvements or chattels in relation to that activity.

2. The legislation, dealing with the licensing of hackney cabs (not drivers thereof), which was considered in The King v Weymouth Borough Council, Ex parte Teletax (Weymouth), Limited (1947) KB 583, is an example of the second category. See also Dougan v Ley 71 CLR (1946) 142 at 149150. Likewise, in Mullen v Hood (1935) 54 CLR 35 at 45, the High Court described a publican's licence held pursuant to the Liquor Act 1912 (N.S.W.) as a valuable piece of intangible property. It even continued to exist in respect of the site after destruction of the relevant building. Further, that legislation permitted the grant of a new licence in respect of an existing or prospective building, the plans for which had been approved by the licensing authority; see Bogeta Pty Ltd v Wales (1977) 1 NSWLR 139 at 1423.

3. Counsel for the appellant submitted that the provisions in s. 9 for licensing of boats and endorsing of licences were of a like nature. He contended that there was power under subs. 9 (4) to grant an endorsement in respect of a boat which had sunk, in respect of a replacement for a boat which had sunk, and also where the applicant for the grant did not at that stage hold a licence issued under subs. 9 (2). He submitted that there was no necessary reason why a decision could not be made which was predicated on the coming into existence of a matter of fact necessary for the grant itself.

4. Subsection 9 (2) is concerned with the granting of a licence "in respect of a boat" which authorises "the use of the boat" by the licensee or a person acting on behalf of the licensee. Further, subs. 9 (7A), added with effect 31 August 1985, provided that the Minister or the Secretary might, on the application of the holder of a licence granted in respect of a boat, "vary the licence by omitting the name of the boat and substituting the name of another boat".

1. We accept the submission for the respondent that the licensing system established by the Act is directed to a particular vessel with particular characteristics. We also accept that if a licensed vessel has been lost, there is no scope for an endorsement upon what otherwise would be an unexpired and current licence for that vessel.

2. Nevertheless, in our view, there is no difficulty with a construction of the legislation such that subss. 9 (2) and (4) contemplate what in substance is the one administrative act, the issue of a fresh licence which is endorsed so as to extend the authority granted by it. There need be no temporal gap between the issue of the licence and the endorsement.

3. A further question is whether a licence (with or without such an endorsement) may be granted prospectively in respect of the use of a boat answering a particular description, being a boat which, at the time of grant, cannot be put into use. This may be, for example, because, whilst owned by the applicant for the licence, the boat is but partly completed or outfitted, or exists in the ownership of another.

4. The licence may come into force on a date after the date of grant. This, in our view, follows from the terms of para. 9 (5) (b). The paragraph stated that a licence granted under s. 9 comes into force "on the day specified in the licence or, if no day is so specified, on the day on which it is granted".

5. However, the licence will be subject to such conditions as are specified in it and these may include the methods and equipment that may be used to take, process, or carry fish (paras. 9 (5A) (d), (e)). Such a condition may be varied or revoked (subs. 9 (5B)).

6. In our view, upon a proper construction of the legislation, the discretion to make the grant may be exercised only upon a sufficiently specific consideration of the matters with which the licensing system is concerned. Some of these are referred to above. They include the imposition of conditions. Even if it is unnecessary that at the date of grant and endorsement there be a boat ready for use by the licensee or persons acting on behalf of the licensee, in carrying out the licensed activities, nevertheless something more is required than appears on the facts found in this case by the Tribunal. At the very lowest, there must be a specific proposal before the Minister or the Secretary for the applicant to purchase or otherwise acquire a vessel to clear specifications.

7. In Gimbert v Minister for Primary Industries and Energy (26/8/88, unrep.) the Tribunal found of the applicant:
   

"He has now a plan to have a boat built by Broadwater Engineering, dependent upon his being able to secure the necessary endorsement so that he may reenter the fishery. He has apparently got financial backing to enable him to proceed with this plan should the endorsement be available."

The boat was to replace his vessel which had been lost at sea. The decision of the Tribunal was in the following form:

"(i) That the applicant's licence in respect of a replacement for the boat 'Apollo X' be endorsed so as to authorise activities by way of fishing that are prohibited in regions A and B of the Eastern Sector of the SETF pursuant to Fisheries Notices numbered 142 and 143 provided that:

(a) the replacement boat is of no greater size, underdeck volume and horsepower (for the purposes of unit allocation) than 'Apollo X', unless additional units are acquired in accordance with the appropriate boat replacement policy; and

(b) the replacement boat is either purchased and licensed within six months, or built and licensed within two and a half years from the date of this decision provided that the same be substantially constructed within eighteen months of such decision.

(ii) That the licence be endorsed so as to have

effect from the date on which the licence comes into force."

1. It is unnecessary to determine whether a decision framed in this way took a too generous view of the specificity required of an applicant. However that may be, the above situation may be compared with the finding in the present case of the Tribunal. The Tribunal, in the decision from which the appeal was taken to Heerey J, found:
   

"(T)his Tribunal is reasonably satisfied that the applicant's domestic and financial problems were the main reasons for his lack of financial commitment to the trawlery. Nevertheless it remains a fact that there was no substantial financial commitment by the applicant to any vessel. He did make inquiries about vessels, some inquiries being in Darwin, but he made no contract nor did he invest any money in a trawler. We accept that inquiries made by the applicant led to the conclusion that finance was not available to purchase a replacement."

The position of the applicant was further discussed by the primary Judge in a passage we have set out earlier in these reasons.

1. In those circumstances, s. 9 did not authorise the grant and endorsement of a licence. This is so if regard be had to the relevant provisions of the Act at any relevant date before its repeal.

2. For these reasons, which are not identical with those of the primary Judge, the appeal should be dismissed.

3. There remains the question of costs. The appeal was heard on 9, 10 June and 19 July. As we have indicated, the adjournment was necessary to enable the preparation of considered submissions to the Court on the significance of the repeal of the Act during the pendency of the proceeding in this Court at first instance. It is a matter of serious concern that the attention of the primary Judge was not drawn by either party to the repeal of the Act. We would then have had the advantage of his Honour's conclusions upon the matter, had the point become necessary for his decision. The time taken by the hearing of the appeal would then have been shortened. A matter for further concern is that the respondent is the Secretary to the Department of State with the administration of the legislation in this field. The Court expects particular attention to these matters by a litigant in such a position.

4. Taking into account all the relevant circumstances, we will order, notwithstanding his success on the appeal, that the respondent have but one half of his costs of the appeal.