Saxon Fishing Company Pty Ltd v Department of Primary Industries & Energy, Secretary
[1991] FCA 194
•24 Apr 1991
IN THE FEDERAL COURT OF AUSTRALIA
) )
AUSTRALIAN CAPITAL TERRITORY )
1 No. ACT G 10 of 1991 DISTRICT REGISTRY ) ) GENERAL DIVISION )
BETWEEN: SAXON FISHING COMPANY PTY
LIMITED
Applicant
AND: THE SECRETARY TO THE DEPARTMENT
OF PRIMARY INDUSTRIES AND
ENERGY
Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER : Neaves J.
24 APR 1991
DATE OF ORDER 24 April 1991
AUSTRALIA PRINCIPAL
WHERE MADE Canberra REELSTRV THE COURT ORDERS THAT:
1. The motion notice of which was given on 4 April 1991 be dismissed.
36 of the Federal Court Rules.
2. Proceedings upon the application herein dated 20 February 1991 be stayed until further order.
3. The application herein dated 20 February 1991 be listed for mention only on 1 November 1991.
4. The costs of the motion referred to in order 1 be reserved.
Either party have liberty seven days ' notice.
m: Settlement and entry of orders is dealt with in Order
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 10 of 1991 DISTRICT REGISTRY ) GENERAL DIVISION
BETWEEN: SAXON FISHING COMPANY PTY
LIMITED
Applicant
AND: THE SECRETARY TO THE DEPARTMENT
OF PRIMARY INDUSTRIES AND
ENERGY
Respondent
LRAM: Neaves J.
DATE: 24 April 1991
REASONS FOR JUDGMENT
The Secretary to the Department of Primary Industries and Energy ("the Secretary") is the respondent to an application ("the substantive application") made to the Court by Saxon Fishing Company Pty Limited ("Saxon") under s.5 of the Administrative Decisions f Judicial Review) Act 1977
respect of a decision made under s.9(5B) of the Fisheries Act (Cth) ("the Judicial Review Act") for an order of review in 1952 (Cth). The Secretary has moved the Court for an order dismissing that application on the ground, provided for by s.l0(2)(b)(ii) of the Judicial Review Act, that adequate provision is made by s.16A of the Fisheries Act under which Saxon is entitled to seek a review of the decision by another tribunal, namely the Administrative Appeals Tribunal.
L.
The decision in respect of which Saxon seeks an order of review is described in the substantive application as a decision "to impose the following cond~tion on Commonwealth Fishing Boat Licence Number 25618 issued in relation to [Saxon's] fishing vessel 'Moira Elizabeth' namely
'That the maximum whole weight of deep sea trevalla, species Hyperoglyphe antarctica, which may be taken during each fishing trip and carried on board at any time is 500 kilograms"'.
Section 9(2) of the Fisheries Act provides that 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 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
may be subject to conditions (s.9(5) and (5A)). Section 9(5B) result of that use of the boat. A licence granted under s.9 provides :
"(5B) The Minister or the Secretary may, by notice in writing given to the holder of a l~cence, vary or revoke a condition of the licence or specify further conditions to which the licence is to be subject."
Section 16A, so far as material for present
purposes, provides:
"16A. (1) In this sectlon, unless the contrary intention appears -
'decis~on' has the same meaning as in the
Administrative ADDealS Tribunal Act 1975;
'relevant decision' means a decision of a delegate of the Minlster or of a delegate of the Secretary under section 6B, section 9 (other than a decision under sub-section (3A), (9) or (10) of that section), sub-section gA(3A) or (4) or sub-section (2) of thls section;
'reviewable decision' means -
(a) a decision of the Minister or the Secretary (other than a decision of a delegate of the Minister or of a delegate of the Secretary) under section 6B, section 9 (other than a decision under sub-section (3A), (EB), (9) or (10) of that section), sub-section 9A(3A) or (4) or sub-section (2) of this section; or (b) a decision of the Minister or the Secretary under sub-section (4) of this section.
(2) A person affected by a relevant decision who is dissatisfied with the decision may, within 21 days after the day on which the declsion first comes to the notice of the person, or within such further period as the Minister or the Secretary (either before or after the expiration of that period), by notice in writing served on the person, allows, by notice in writing given to the Minister or the Secretary, request the Minister or the Secretary, as the case may be, to reconsider the
decision. (3) There shall be set out in the request the reasons for making the request.
(4) The Minister or the Secretary shall, within 45 days after the receipt of the request, reconsider the relevant decision and may make a decision -
(a)
in substitution for the relevant decision whether in the same terms as the relevant decision or not; or
(b) revoking the relevant decision.
(5) Where, as a result of a reconsideration under sub-section (4), the Minister or the Secretary makes a decision in substitution for or revoking the relevant decision, he shall, by notice in writing served, either personally or by post, on the person who made the request under sub-section (2) for the reconsideration, inform the person of the result of the reconsideration, set out findings on material questions of fact, refer to the evidence or other material on whlch those findings were based and give the reasons for his decision.
(6) An application may be made to the Administrative Appeals Tribunal for a review of a reviewable decision.
Section 6A(1) authorises the Minister or the Secretary, subject to the section, to delegate to a person or authority all or any of his powers and functions under the Act with certain exceptions which are not material for present purposes. Section 6A(2) provides:
"(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Minister or the Secretary, as the case may be."
Section 6A(4) provides that the Minister or the Secretary is not to delegate to a person other than a person holding, or
performing the duties of, an office in the Department of
Primary Industries and Energy certain of his powers including
his powers under s.l6A(4).
Notice of the decision in respect of which the order of review is sought was given to Saxon by letter dated 23 October 1990. Although that letter states that the decision was made by the Australian Fisheries Service, the Court was informed, though there is no evidence before it to that
effect, that the decision was in fact made by a Mr C. McGregor actlng under a delegation to him by the Secretary. It appears that M r McGregor then held the position of Manager, Shark and Southern Trawl Fisheries in the Australian Fisheries Service, a division of the Department of Primary Industries and Energy. The letter also stated that the additional condition was to be effective immediately upon receipt of the letter.
By letter dated 12 November 1990 addressed to the Secretary, Saxons's solicitors made a request, pursuant to s.13 of the Judicial Rev~ew Act, that within 28 days a written statement be provided in relat~on to the decision setting out the findings on material questions of fact, the evidence or other material on which those findings were based and the reasons for the decision.
Under cover of a letter dated 23 January 1991, that is to say, well outside the period of 28 days specified in sub-S. (2) of s.13 of the Judicial Review Act, Saxon's solicitors were furnished with a statement under that section.
By a further letter dated 12 November 1990 addressed to the Secretary, Saxon's sol~citors had requested, pursuant to S. 16A(2) of the Fisheries Act, that the Secretary reconsider the decision conveyed by the letter dated 23 October 1990. The reasons advanced for the request were as follows :
"(a) at the time when the licence was originally granted, there was no indication to our client that the condition would be imposed;
(b) the imposition of the condition adversely affects our client's business and commercial activities; and (c) there is no scientific evidence to support the imposition of the condition."
The period of 45 days referred to in s.l6A(4) of the Fisheries Act expired on or about 27 December 1990 but by that date Saxon had not received notice pursuant to s.l6A(5) of any decision having been made in subst~tution for or revoking the earlier decision. Indeed, no notice of any such decision had been received on or before 20 February 1991 when the substantive application herein was flled. By that application Saxon seeks an order that the declsion made on or about 23 October 1990 be quashed. It also seeks unspecified damages
It was not until 7 March 1991 that a letter bearing
that date was sent to Saxon's solicitors in relation to the
reconsideration of the decision made by Mr McGregor on or
about 23 October 1990. That letter read as follows:
"I refer to your letters of 12 November 1990 and 4
February 1991 (Reference: SOUT 3500 001 CMD) on behalf of Saxon Fishlng Company Pty Limited requesting an internal review of the decision to impose a condition on the Commonwealth Fishing Boat Licence issued in respect of 'Moira Elizabeth' limiting the catch of deep sea trevalla that may be taken during a fishing trip to 500 kilograms.
I have reviewed the decision and am satisfied that the imposition of this condition on your client's licence was necessary to protect stock of deep sea trevalla from the additional effort that would have followed the introduction of mid-water trawl
technology to a species of which little is currently known but for which concerns have been expressed in both Australia and New Zealand.
If you are not satisfied with the outcome of this review you may, subject to the provisions of the
Administrative Appeals Tribunal Act 1975, make
application to the Administrative Appeals Tribunal
for a review of that decision.If you have any further enquiries in regard to this matter please contact Paul Ryan on (06)272 5284."
The letter was signed by Mr D.L. Coutts who described himself as Assistant Director, Southern Fisheries Branch, Australian Fisheries Service. The Court was informed, although there is no evidence before it of the fact, that, in reviewing the decision, Mr Coutts was acting under a delegation to him by the Secretary.
By letter dated 12 March 1991 addressed to Mr Coutts, Saxon's solicitors, noting that the contents of the letter dated 7 March 1991 did not comply with s.l6A(5) of the Fisheries Act, requested, pursuant to s.28 of the
Administrative Appeals Tribunal Act 1975 (Cth), that, within 28 days after the receipt of the request, a written statement be provided setting out, in relation to his decision, his findings on material questions of fact, the evidence or other material on which those findings were based and the reasons for the decision. At the time the Secretary's motion came on for hearing on 5 April 1991, the statement had not been provided. However, it appears from the affidavit of Antonio Pintori sworn on 5 April 1991 and filed on behalf of the Secretary that the statement was to be provided to Saxon's
solicitors on 8 April 1991. Under s.29(2) of the Administrative Appeals Trlbunal Act, the tune (28 days) within which to lodge an appeal to that Tribunal will not commence to run until that statement is furnished to Saxon.
Counsel for the Secretary submitted that the letter dated 7 March 1991 evidences a decision of the Secretary, made by Mr Coutts as his delegate, which, in terms of s.l6A(4) of the Fisheries Act, is properly characterised as a decision in substitution for that made by M r McGregor and notified to Saxon by the letter dated 23 October 1990 and in the same terms as the earlier decision. Consequently, so it was submitted, Saxon is entitled under s.l6A(6) to have the decision reviewed on the merits by the Administrative Appeals Tribunal and the Court should, in the exercise of its discretion, dismiss the substantive application.
Counsel for Saxon submitted that, while it would be
appropriate to stay further proceedings upon the substantive
application for the time being, the Secretary had not discharged the onus which rests upon him to satisfy the Court that that application be dismissed. He referred to a number of matters which, he submitted, taken singly or in combination, justified the Court in declining to accede to the Secretary's application.
Counsel acknowledged that Saxon was proceeding on the basis that the letter dated 7 March 1991 evidences a "reviewable decision" within the meaning of that expression in s.l6A(6) but said that Saxon wished to preserve whatever rlghts it might have in relatlon to the earlier decision against the possibility of the contrary being held to be the position. Saxon, therefore, wished the substantive application to remaln on foot.
The submission that there is a doubt whether the letter dated 7 March 1991 evidences a "reviewable decision" had two bases. The first bas~s was that, notwithstanding the provisions of s.6A and, in particular, of sub-ss.(2) and (4) of that section, the language of s.l6A, when properly construed, requires that a reviewable decision be made by the Minister or the Secretary personally and not by a delegate. The second basis was that, even if Mr Coutts had authority to make a "reviewable decision", he had not done so. He had not cast the decision he made in the language of s.liiA(4). He had done no more than express his satisfaction that the imposition of the condition in question was necessary: he had not
expressed himself as having made a decision in substitution for that made by Mr McGregor nor spelt out the terms of his decision. It was further submitted that, if either of those bases were made out, Mr McGregor's decision remained the operative decision and Saxon was entitled to have it reviewed under the Judicial Review Act.
Counsel for Saxon further submitted that it was arguable that s.16A of the Fisheries Act does not make adequate provision, within the meaning of that expression in s.lO(2) (b) (il) of the Judicial Review Act, for the review of
Mr McGregor's declsion by reason of the circumstance that the section does not require that the person seeking a review of the initial decision be afforded an opportunity to represent his case to the Minister or the Secretary before a decision is made upon that review.
Two further matters were relied upon by counsel for
Saxon. The relief claimed in the substantive application
includes a claim for damages. Counsel conceded that therewould be difficulty in succeeding in such a claim in the light of expressions of opinion by judges of this Court, but said that, notwithstanding this, Saxon wlshes to pursue that claim. The point was made that any damages suffered by Saxon in the period between the operative date of Mr McGregor's decision and that of Mr Coutts' decision would flow from the earlier decision and this provided an additional reason why the
decision should be allowed to stand. A submission based on application for an order of review in respect of Mr McGregor's s.5l(xxxi) of the Constitution was also foreshadowed, a submission which would characterise the provision authorising the imposition of the additional condition here in question as a law with respect to the acquisition of property but would assert that the law does not provide just tens for such acquisition.
Finally, it was submitted that, provided further proceedings thereon were stayed for the time being, there would be no prejud~ce to the Secretary in allowing the substantive application to remain on foot.
As the matters have not been fully argued, I express no opinion upon the various submissions made by counsel for Saxon. It must be said, however, that, at least as to some of those submissions, their prospects of success could not be rated as very high. Nevertheless, I think I should avoid the risk that dismissal of the substantive application as sought by the Secretary would deprive Saxon of a remedy to which it may be entitled. The Court, in my opinion, clearly has power to stay further proceedings upon the substantive application until such time as it becomes clear whether there is a need
for that application to proceed: see v. Coats (1981) 35 A.L.R. 93 per Toohey J. at p.94: F.J. Hospital Enterprises Ptv Ltd v. Grimes (16 February 1987 - Jenkinson J. - unreported). I am further of opinion that, in the
circumstances of this case, it is appropriate to exercise that power.
I, therefore, make the following orders:
1. The motion notice of which was given on 4 April 1991 be dismissed.
2. Proceedings upon the application herein dated 20 February 1991 be stayed until further order.
3. The application herein dated 20 February 1991 be listed for mention only on 1 November 1991.
4. The costs of the motlon referred to rn order 1 be reserved.
5. Either party have llberty to apply on seven days' notice.
I certify that this and the
preceding 11 pages are a true copy of the Reasons for Judgment herein of the
Honourable Justice V Associate
Dated: 24 April 1991
Counsel for the applicant, : Mr R. Refshauge
Saxon Fishing Company Pty
Limited
Solicitors for the applicant : Macphillamy Cummins & Gibson
Counsel for the respondent : Mr P.A. Coppel
Solicitor for the respondent : Australian Government
Solicitor
Date of hearing : 5 April 1991
Date of judgment : 24 April 1991
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