Secretary, Department of Primary Industries v Costa & Anor
[2007] VSC 88
•2 April 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 8456 of 2006
| THE SECRETARY OF THE DEPARTMENT OF PRIMARY INDUSTRIES | Plaintiff |
| v | |
| SAMUEL PETER COSTA & ANOR | Defendants |
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JUDGE: | SMITH, J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2007 | |
DATE OF JUDGMENT: | 2 April 2007 | |
CASE MAY BE CITED AS: | Secretary of the Department of Primary Industries v Costa and Anor | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 88 | |
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Judicial review – Licensing Appeals Tribunal – relevant issues – onus of proof on disqualifying facts – review application refusal.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R Senathirajah | Solicitor for Department of Primary Industries |
| For the Defendant | Mr J A Bell | Brian V O’Haire |
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HIS HONOUR:
On 18 March 2005, Samuel Peter Costa, the first defendant, applied to the Secretary of the Department of Primary Industries (the plaintiff) to be issued with an Aquaculture (Private Land) License. The license was to enable him to culture warm‑water finfish on his property at Piangil in Victoria. It is common ground that Mr Costa had had such licences but they had lapsed and, as a result, was applying to be issued with a new licence.
The Executive Director of Fisheries Victoria (on behalf of the plaintiff) considered the application and on 5 January 2006, refused to issue the licence. The licence was refused on the grounds that the Executive Director considered that the first defendant was not a fit and proper person within the meaning of s.51(4)(c) of the Fisheries Act 1995 (the Act).
On 7 February 2006, the first defendant appealed the decision to the Licensing Appeals Tribunal pursuant to s.136(4) of the Act. On 13 July 2006, the Tribunal heard and upheld the appeal.
The plaintiff seeks a review of this decision under Order 56. It seeks an order that the decision of 13 July 2006 be quashed and an order directing the second defendant to re-determine the appeal according to law.[1]
[1]As to the latter orders, specific directions are sought to be given to the second defendant in the event that the latter order is made. In light of the conclusions I have reached is not necessary to consider these specific directions.
The reasons given by the Tribunal were brief and comprised the following:
“We will be guided by you whether you want further reasons for our decision, and if you feel that that is necessary, then that will be done in due course. I might say that it is a decision that the Tribunal did not reach easily, and there was certainly a very strongly dissenting view as to – from the Department’s representative who argued strongly and cogently. Certainly it is not a decision that the two remaining members of the Tribunal reached with great ease either. Certainly it is fair to say that lack of due diligence on the part of the Department and perhaps others initially who should have been overseeing or regulating Mr Costa’s activities preparatory to the issue of his aquaculture licence and subsequent to it led to the situation we find ourselves in today.
Notwithstanding what is alleged about the unlawful construction of the habitat myriad of other matters now relied upon by the Department, it is not until 2005 that the poison chalice is passed to Mr Fowler and he is asked to assess from the files alone Mr Costa’s fitness to hold the aquaculture licence. By its actions, or perhaps by its inaction, the Department has allowed Mr Costa to develop this project, no doubt at great financial and emotional cost to both his wife and his family.
It is significant in the majority’s view that it is not the operation of the aquaculture licence itself that the Department relies upon, but largely issues peripheral to it. For the Department to now say in 2006 that Mr Costa is not a fit and proper person for what essentially began in 1998 certainly has done Mr Costa no favours at all. To oppose the licence at this stage places him, certainly in the majority’s view, at a distinct and unfair disadvantage. Having said that, Mr Costa has in our view been less than impressive on a number of issues upon which he has given evidence, but it is the majority view that the objectives of the Act would not be thwarted by the issue of an aquaculture licence to Mr Costa. The application or the appeal is granted.”
In the statement of grounds relied upon in seeking relief in the originating motion, the plaintiff first alleges that the Tribunal took into account irrelevant considerations namely,
(a)the financial and emotional costs incurred by the first defendant in establishing and developing an aquaculture business;
(b)the alleged lack of due diligence on the part of the Department (and/or others).
It also alleges that the Tribunal decided a question other than that which was brought before it, namely, whether the objectives of the Act would be thwarted by the issue of an aquaculture license to the first defendant.
Finally, it alleges that the Tribunal failed to address a relevant question -- whether the first defendant has discharged his onus of establishing that he is a fit and proper person to hold an aquaculture license having regard to the conduct of the first defendant since 1998 that was relied upon by the Department.
In considering the grounds of appeal relied upon it is necessary to consider the relevant statutory provisions:
“51(1) Subject to this Act, the Secretary may issue a fishery licence on—
(a)the application of a person who satisfies the eligibility criteria, if any, for the issue of the licence; and
(b)the payment of any fees, royalties and levies payable in respect of the issue of the licence.
(2)An application for a fishery licence must be made in the form required by the Secretary.
(3)In considering whether to issue a fishery licence to a person, the Secretary must also have regard to any relevant recommendations of the Commercial Fisheries Licensing Panel.
(3A)Despite anything to the contrary in any law, the Secretary may only issue an access licence or an aquaculture licence to an individual, a single corporation or a co‑operative—the Secretary must refuse to issue such a licence to a partnership or a consortium.
(3B)Despite anything to the contrary in any law, the Secretary may only issue an access licence or an aquaculture licence to an individual who is an Australian resident.
(3C)Despite anything to the contrary in any law, the Secretary may only issue a Fish Receiver's Licence to an individual, a single corporation or a co-operative.
(3D)The Secretary must refuse to issue a Fish Receiver's Licence to a partnership or a consortium.
(4)The Secretary must refuse to issue a fishery licence if the Secretary considers that—
(a)the applicant does not satisfy the relevant eligibility criteria, if any; or
(b)the issue of the fishery licence would be inconsistent with any regulations, Order in Council, fisheries notice, management plan or Ministerial direction; or
(c)the applicant is not a fit and proper person to hold the fishery licence; or
(d)the issue of the fishery licence would be inconsistent with an intergovernmental agreement or arrangement; or
(e)any other ground prescribed for the purposes of this sub-section applies.
(4A)In the case of a licence that the Minister has determined under section 51A is to be publicly sold—
(a)the Secretary may only issue the licence to the person who was the successful party under the sale process; and
(b)the Secretary may only issue the licence to that person if there are no grounds under sub-section (4) to refuse to issue the licence.
(4B)For the purposes of sub-section (4A), "the successful party under the sale process" is the first person who pays for the licence under the terms of the sale who is also eligible to be issued the licence under sub-section (4A)(b).
(5)If there is no relevant management plan, the Secretary may refuse to issue a fishery licence if the Secretary considers that the issue of the fishery licence would be harmful to the welfare of a fishery.
(6)If a licence is issued for a period of less than 1 year, the licence fee payable for the licence is reduced pro rata (to the nearest month) to take account of the reduced period for which it is to be in force.
(7)Despite sub-section (6), a licence fee equal to the pro rata amount payable for a month must be paid for a licence that is issued for less than a month.
(8)Sub-sections (6) and (7) also apply to any levy that is a fixed amount.
(9)Sub-sections (4), (5), (6), (7) and (8) do not apply to recreational fishery licences.”
It should be noted that s.51(1) confers upon the Secretary a discretion to issue a fishery license on the application of a person who satisfies the "eligibility criteria, if any". Those criteria would appear to include requirements that the applicant be an individual, single corporation or a cooperative and, if an individual, an Australian resident. Subsection (4) does not set out criteria of eligibility as such but fetters the discretion of the Secretary by stating that the Secretary must refuse to issue a fishery license if the Secretary considers amongst other things that the "applicant is not a fit and proper person to hold a fishery licence".
The appeal proceedings are governed by ss.136 and 137 of the Act which are in the following form:
“136. Proceedings of Licensing Appeals Tribunal
(1)The chairperson and one other member of the Licensing Appeals Tribunal constitute a quorum of the Tribunal.
(2)A matter arising at a meeting of the Licensing Appeals Tribunal must be determined by a majority of the members at the meeting.
(3)Where voting is equal, the chairperson has a casting vote, provided that—
(a)the chairperson discloses that he or she has exercised a casting vote; and
(b)the chairperson and the other voting member give reasons for their decision.
(4)A person who is aggrieved by a reviewable decision within the meaning of section 137 may within one month after receiving notice of the decision appeal to the Licensing Appeals Tribunal against the decision.
(5)An appeal must—
(a)be in writing; and
(b)specify the grounds of the appeal; and
(c)be lodged with the registrar of the Licensing Appeals Tribunal.
(6)The registrar of the Licensing Appeals Tribunal must notify the appellant of the time and place fixed by the Tribunal for the hearing of the appeal.
(7)The Licensing Appeals Tribunal—
(a)must act according to the substantial merits of the case and without regard to legal forms and technicalities; and
(b)is not bound by the rules of evidence but, subject to the requirements of justice, may inform itself on any matter in any manner it thinks fit; and
(c)may on the application of the appellant, if the Tribunal considers that it is desirable to do so after taking into account the interests of any persons who may be affected by the appeal, order that the decision or the operation or implementation of the decision to which the appeal relates be stayed pending the determination of the appeal.
(8)For the purposes of sub-section (7)(c) an application to stay a decision may, by leave of the appellant, be heard and determined by the chairperson sitting alone.
(9)A party to an appeal may appear and be heard before the Licensing Appeals Tribunal personally or by an Australian lawyer or by a person authorised in that behalf by that party.
(10)Subject to this section, the Licensing Appeals Tribunal may regulate its own proceedings.
(11)After hearing an appeal, the Licensing Appeals Tribunal may—
(a)affirm the decision; or
(b)vary the decision; or
(c)set aside the decision and either—
(i) make a decision in substitution of the decision; or
(ii)remit the matter that gave rise to the decision for re-consideration in accordance with any directions or recommendations of the Tribunal.
(12)The Licensing Appeals Tribunal may make any order necessary to give effect to its determination of an appeal under sub-section (11).
(13)A person to whom such an order is directed must comply with the order.
137. Reviewable decisions
For the purposes of section 136, "reviewable decision" means a decision by the Secretary—
(a)to refuse to issue a licence under section 51 or renew a licence under section 57;”
It should be noted that under s.136(7) the Tribunal is required to act
"According to the substantial merits of the case and without regard to legal forms on technicalities and is not bound by the rules of evidence but may, subject to the requirements of justice, inform itself on any matter in any manner it thinks fit."
Because the Tribunal is required to act according to the substantial merits of the case, the appeal to the Tribunal would appear to be a rehearing of the original application in which the Tribunal is asked to stand in the shoes of the Secretary. The plaintiff accepts that the Tribunal does stand in the shoes of the Secretary but it argues that the Tribunal's task is to consider only the decision made by the Secretary confined to the reasons advanced by the Secretary for refusing the application. Thus it is put on behalf of the plaintiff that the hearing before the Tribunal was concerned only with the question whether Mr Costa was a fit and proper person to hold a license that he had sought.
It is on the basis of this analysis that counsel for the plaintiff submitted that it was irrelevant for the Tribunal to consider any financial or emotional costs incurred by Mr Costa in establishing and developing an aquaculture business and irrelevant to consider any alleged lack of due diligence on the part of the plaintiff. Similarly it is on the basis of this analysis that counsel submitted that the Tribunal had decided a question not before it, namely, whether the objectives of the Act would be thwarted by the issue of an aquaculture license to Mr Costa.
There are several difficulties with this argument. First, it requires the definition of the decision to include, and be confined to, the reasons given for the decision. The right of appeal, however, relates to a "reviewable decision" and that is defined in s.137(a), relevantly, to include:
" A decision by the Secretary…. to refuse to issue a licence under section 51...”
Second, as noted above, s.136 (7) (a) requires the Tribunal to act "according to the substantial merits of the case".
Having regard to these matters, it seems to me that the argument advanced for the plaintiff to confine the boundaries of the decision appealed should not be accepted because it runs counter to the provisions of the Act itself. The Act requires the Tribunal to consider the merits of the application and so is expected to consider all the matters that the Secretary should consider when considering the application. The Secretary is given a discretion by s.51 which is restricted only by the requirement that the applicant satisfy the eligibility requirements and pays the necessary fees and the proviso that the Secretary must refuse to issue the licence if he or she considers that any of the matters listed in s.51(4) exist.
In those circumstances, the two matters said to be irrelevant considerations are plainly relevant to the exercise of the discretion because they go to issues of fairness and justice. I refer to the passage in the reasons in the first paragraph where it is stated that it was the:
"lack of due diligence on the part of the Department … [which] led to the situation we find ourselves in today"
and the passage where the Tribunal stated that:
"by its actions, or perhaps by its inaction, the Department has allowed Mr Costa to develop this project, no doubt at great financial and emotional cost to both his wife and his family."
Counsel for Mr Costa submitted that these matters were in any event relevant to the issue of whether Mr Costa was a fit and proper person because it was reasonably clear from the reasons of the Tribunal that it saw them as having contributed to the events upon which the Secretary and the Department relied on the issue of whether Mr Costa was a fit and proper person. In my view, this is a correct interpretation of the reasons.
The third issue raised is that the Tribunal, in addressing the question whether the objectives of the Act would be thwarted by issuing a license to Mr Costa, decided a question that was not brought before it. That issue, however, appear to me to be an issue relevant in most if not all licence applications under the Act and was plainly relevant to this application. The system of licensing under the Act is part of the machinery created to meet the objectives of the Act. If the argument advanced for the Secretary is correct, the Secretary would not be able to refuse an application for a license even though it was clear that to grant it would thwart the objectives of the Act. In my view, the Secretary and, therefore the Tribunal, must be entitled to consider the question as to whether the granting of the licence in question would serve or thwart the objectives of the Act.
The remaining issue concerns the question that plainly troubled the Secretary and was canvassed before the Tribunal - whether the first defendant was a fit and proper person to hold an aquaculture license having regard to his conduct since 1998. The references in the reasons to this issue are brief. They state:
"It is significant in the majority's view that it is not the operation of the aquaculture license itself that the Department relies upon, but largely issues peripheral to it. For the Department to now say in 2006 that Mr Costa is not a fit and proper person for what essentially began in 1998 certainly has done Mr Costa no favours at all."
The Tribunal directly referred to the issue in that way. Its earlier remarks, however, indicated that to the extent that the Department was relying on the past conduct of Mr Costa in support of its case which was solely that he was not a fit and proper person, the Tribunal took the Department's lack of due diligence to have contributed to the situation. But the reasons do not include any passage which directly addresses in any detail the issue of whether Mr Costa was a fit and proper person to receive a license. The parties were invited by the Tribunal to seek written reasons if they wished and it appears from a portion of the transcript immediately following the reasons given that counsel for the Secretary in fact sought written reasons. It appears that as at the date of the hearing before me, however, no written reasons had been provided. It seems that the plaintiff has elected to seek a review of the decision on the basis of the transcription of the oral reasons. I note in particular, that the plaintiff has not sought to review the decision on the grounds that insufficient reasons were given.
Considering the above section of the reasons, it is reasonably clear that the Tribunal had not reached the conclusion that Mr Costa was not a fit and proper person to hold a license. Whether an error was made, therefore, would appear to depend on whether there was, as was argued for the plaintiff, an onus on Mr Costa to establish that he was a fit and proper person - the final ground of appeal.
Counsel for the plaintiff submitted that Mr Costa did in fact carry the onus before the Tribunal (and the Secretary), that he was a fit and proper person. Counsel relied upon the following cases; Delaney v Boyling[2]; Sobey v Commercial and Private Agents Board[3]; Frugtniet v Board of Examiners[4]; Re S (a solicitor)[5]. Counsel submitted that they supported the proposition that an applicant for a license carries the onus of proving the propriety and desirability of the granting of a license.[6] In the alternative, the plaintiff submits that if the correct analysis was that the Tribunal was left in a state of uncertainty as to whether Mr Costa was a fit and proper person to hold an aquaculture licence, it will have failed to have been satisfied that he was a fit and proper person and must therefore find in favour of the Department.
[2](1967) 86 WN (Pt 1 (NSW) 291 at 295-296 per Moffitt J.
[3](1979) 22 SASR 70 at 76 per Walters J.
[4][2002] VSC 140 at [9] and [15].
[5][1986] VR 743 at 744 per Brooking J (FC).
[6]Delaney v Boyling, above, at 295 –296.
Generally, concepts of onus of proof are inapplicable to appeals against administrative decisions.[7] The cases cited, and other authorities[8] demonstrate, however, that is necessary to have regard to the terms of the statutes which describe the nature of the application and define the questions to be decided in determining whether there is an onus of proof as to any matter, and, if so, on whom it rests.
[7]McDonald v Director General of Social Security (1984) 1 FCR 354; Bushell v Repatriation Commission (1992) 175 CLR 408, 425.
[8]Minister for Health v Thompson (1985) 8 FCR 213, 223-4; Casarotto v Australian Postal Commission (1989) 86 ALR 399, 413; Professor Enid Campbell, Principles of Evidence and Administrative Tribunals, Campbell and Waller (ed.) “Well and Truly Tried”, Monash Studies in Law, 1982, 53.
The Act in this case does not in express terms address the question of onus of proof. It is, therefore, necessary to look at the nature of the inquiry involved in the application and the way in which the issue of being a fit and proper person is formulated in the Act.
It was of course Mr Costa who had to make the application for the license. By s.148(2) he was obliged to lodge an application in the form approved for the purpose by the Secretary. It was also required that the application be accompanied by any information that the Secretary requires for the purpose of the application. The application forms part of the record and was tendered in evidence before me[9]. It does not require any information relevant to the issue of whether he was a fit and proper person. The Act itself could have, but does not, require the applicant to supply such information. The language of s.51 requires only that the applicant satisfy the eligibility criteria and pay the fees. The legislation does not in terms seek to place any onus on the applicant to prove satisfaction of the eligibility criteria. Thus, if the applicant does not supply the evidence relevant to eligibility criteria, the application will fail. In that sense the applicant carried the onus of proof on those issues. Section 51(4)(a) does not alter that analysis, but makes it clear that in that situation no discretion may be exercised in favour of the applicant.
[9]Exhibit D1.
Turning to the other requirements of s.51(4), the language used does not expressly place an onus on anyone. But it sets out the circumstances in which an application, otherwise satisfactory, must be refused.
In relation to s.51(4)(c), the question for the Secretary, and the Tribunal, where the issue is raised, will be whether they consider the applicant "is not a fit and proper person …”. The obligation on the part of the Secretary, and the Tribunal, to refuse to issue a license under s.51(4)(c) arises if they consider that the applicant is not a fit and proper person to hold a licence. In such a situation there will be an onus of proof to be applied. It will rest, however, with the person seeking to persuade the Secretary, or the Tribunal, to consider that the applicant is not fit. It would not rest on the applicant to prove that he was a fit and proper person. Therefore, it did not rest on Mr Costa. In the present case, what occurred was that the Tribunal was not persuaded that Mr Costa was not a fit and proper person - partly because it would seem that it held the Department responsible for significant aspects of the events relied upon by the Department on that issue.
If, on the other hand, an analysis in terms of onus of proof is incorrect and the task before the Tribunal was simply to consider the issue, its obligation to refuse a license only arose if it considered that the applicant was not a fit and proper person. Plainly on its reasons, it had not reached that conclusion or was in a state of uncertainty about it.[10] It had concerns about him but had not concluded that he was not a fit and proper person.
[10]McDonald v Director General of Social Security, above, at 358.
In those circumstances, on either analysis, no error of law is shown on the bases advanced by the plaintiff.
For the foregoing reasons, the grounds relied upon to review the decision have not been made out and the originating motion should be dismissed.
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