Skoljarev, Ivo v Secretary, Department of Primary Industries & Energy

No judgment structure available for this case.

IVO SKOLJAREV v SECRETARY, DEPARTMENT OF PRIMARY INDUSTRIES AND ENERGY
No. NG146 of 1992
FED No. 140/94
Number of pages - 26
Administrative Law - Statutory Interpretation - Jurisdiction - Practice And
Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BEAZLEY J

CATCHWORDS

Administrative Law - appeal from AAT - error of law - no evidence - failure to take into account relevant considerations - matters bound to be taken into account where general discretion- application of policy - whether deviation from policy only justified where "special or unique" circumstances demonstrating a commitment to the Fishery - whether too narrow an interpretation of "special or unique" circumstances - whether Tribunal fettered its discretion.

Statutory Interpretation - effect of repeal - application of Acts Interpretation Act 1901, s8 - whether repealing statute exhibits a contrary intention - limited preservation of existing rights.

Jurisdiction - invalid decision - whether Tribunal had jurisdiction to review decision which had already been reviewed - Fisheries Act 1952, s16A.

Practice And Procedure - repeal of legislation - futility of making order - whether court should make declaration - whether Tribunal should make application.

Fisheries Act 1952, s9(4), 16A

Fisheries Legislation (Consequential Provisions) Act 1991, s3

Administrative Appeals Tribunal Act 1975, s43(1)

Fisheries Management Act 1991, s32, s16, s17, s17(10)

Acts Interpretation Act 1901, s8

Re Robinson and Secretary, Department of Primary Industry (1986) 10 ALD 302

Re Sawyer and Secretary, Department of Primary Industry (1987) 12 ALD 523

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Waterford v The Commonwealth of Australia (1987) 163 CLR 54

R v District Court; Ex parte White (1966) 116 CLR 644

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Evans and Secretary, Department of Primary Industry (1985) 8 ALD 627

Sawyer v Secretary, Department of Primary Industry (1988) 9 AAR 92

Peko-Wallsend v Minister for Aboriginal Affairs (1986) 162 CLR 24

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307

Hospital Benefit Fund of Western Australia Inc v Minister for Health Housing and Community Services (1992) 111 ALR 1

HEARING

SYDNEY, 12 October 1993
#DATE 25:3:1994

Counsel for the Applicant: Mr R B S Macfarlan QC

with Mr P W Bates

Solicitors for the Applicant: Thomson Rich O'Connor

Counsel for the Respondent: Mr P Roberts with

Ms S Welsman

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed

2. The applicant pay the respondents costs incurred in respect of matters contained in the Supplementary Notice of Appeal which were not argued on appeal. Otherwise, the respondent to pay the applicant's costs.

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

JUDGE1

BEAZLEY J This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) dated 14 February 1992, affirming the decision of a delegate of the Minister of Primary Industry and Energy, made on about 27 March 1990, to refuse an application for endorsement of the applicant's fishing boat licence to operate in the Eastern Sector of the South Eastern Trawl Fishery (the Fishery), pursuant to the provisions of s9(4) of the Fisheries Act 1952 (the Fisheries Act). On 3 February 1992 the Fisheries Act was repealed by the Fisheries Legislation (Consequential Provisions) Act 1991 (the Consequential Provisions Act). The consequences of that repeal are relevant to the ultimate determination of this matter. However, it is convenient to deal first with the applicant's case as it relates to his application for endorsement of his fishing boat licence pursuant to s9(4) of the Fisheries Act.

The Fisheries Act:
2. The Fisheries Act empowered the Governor-General by Proclamation, to declare any marine and tidal waters to be proclaimed waters for the purposes of the Act: s7. Section 8(1) provided that the Minister could regulate fishing by publishing notices in the Gazette prohibiting certain types of fishing activity. For example, the Minister could prohibit the taking, processing or carrying of fish, or fish included in a class of fish specified in the notice: s8(1)(a), or the taking of fish included in a class of fish of specified dimensions: s8(1)(b). A notice in respect of the Fishery was gazetted on 28 May 1985. Section 9 provided for the grant and endorsement of licences by the Minister or Secretary to the Department. A licence could be granted authorising the use of a boat for taking fish in a specified managed fishery: s9(2). The maximum period for which a licence could be granted was 12 months: s9(5)(c). The Minister could renew a licence upon application being made within a prescribed period prior to the expiration of the licence (as originally granted or renewed): s9(6B). Section 9(4) provided for the endorsement of a fishing boat licence as follows:

"9(4)...the Minister or the Secretary may endorse a licence granted ... 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 prohibition contained in a notice in force under sub-section 8(1), being a notice identified in the endorsement."

Provision was made in s16A for the reconsideration and review of decisions of the Minister and the Secretary.
On 3 June 1985, the Minister introduced a Management Plan for the Fishery (the Management Plan). The intention to introduce such a plan had been foreshadowed from about 1981, at which time there was increasing governmental concern about the major depletion of fish stocks from over-exploitation and about the reduction in the profitability of the fishing fleet due to a large increase in fishery capacity and a decline in catches. In August 1981, the Minister for Primary Industry issued a press release stating that Commonwealth and State Governments were considering a proposal to limit the fishing fleet extending from northern New South Wales to eastern Bass Strait. The press release also stated that trawlers and Danish seiners which had fished in the area in recent years and fishermen who could clearly demonstrate a firm commitment before 7 July 1981 to enter the Fishery, would be eligible for an endorsement to fish in those waters. A joint statement to like effect was made by the Minister for Primary Industry and the New South Wales Minister for Agriculture on 18 May 1982. On 21 August 1984, the Minister formally announced that a Management Plan for the South-East Trawl Fishery would be adopted. Application forms to operate in the Fishery had to be submitted by 31 December 1984. The Management Plan provided that after 31 March 1985 the Fishery would be closed to all those whose licences were not appropriately endorsed pursuant to s9(4).
The Management Plan did not have statutory force. Rather it embodied the Minister's policy in respect of the Fishery and thus, to the extent it related to various provisions of the Fisheries Act, it provided a guide to the exercise of the Minister's discretion under the Act: Re Robinson and Secretary, Department of Primary Industry (1986) 10 ALD 302. The Management Plan contained provisions relating to the grant of fishing boat licences under subss9(2) and (3), and in respect of any endorsement thereof under s9(4). The following criteria were specified for the endorsement of licenses to permit trawl fishing in the Fishery:

"Criterion A Eastern Sector, Region A:

The holder of a current Commonwealth Fishing Boat Licence for a boat which has been used to fish commercially for fish or royal red prawns using trawl gear or Danish sein nets in Region A of the Eastern Sector between 1 January, 1980 and 6 July, 1981 and can provide proof that the boat for which endorsement is sought has continued to operate in Region A of the Eastern Sector. Criteria for Eastern Sector, Region B:

The criteria for this region are equivalent to those of Eastern Sector, Region A. However, applicants seeking endorsement to operate in this Region will be required to provide documentary evidence of their participation in the Region with their application for endorsement."

The rationale underlying these criteria was that fishermen who had shown a commitment to the Fishery should be able to continue to fish within the new regime to the exclusion of others: see Re Sawyer and Secretary, Department of Primary Industry (1987) 12 ALD 523 at 525.

On 25 April 1985, the applicant, whose boat the 'Carole S' was licensed pursuant to s9(2), made application for endorsement of that licence to permit him to fish in Regions A and B of the Fishery. The applicant satisfied the first criterion, that is, that the boat had been used between 1 January 1980 and 6 July 1981 to fish commercially in the Fishery using trawl gear. However, the delegate found that the second criterion, that the boat "has continued to operate" in the Fishery, had not been satisfied. This decision was affirmed by the Tribunal, and is not challenged in these proceedings. The Tribunal also held that, in the exercise of its discretion, there were no "special or unique circumstances" to justify approval of the endorsement, that being the test which the Tribunal found had to be satisfied if an application for endorsement did not satisfy the criteria specified in the Management Plan.
The applicant contends that the Tribunal erred in law in reaching this determination in that: there was no evidence to support the Tribunal's finding that, at the relevant time, the applicant had the financial capacity to replace certain trawl gear on his boat, that being a finding which was central to the Tribunal's decision in relation to the existence of "special or unique circumstances"; the Tribunal had applied too narrow a test of "special or unique circumstances" in determining that there were no such circumstances in the applicant's case to justify a departure from the policy contained in the Management Plan; and that the Tribunal failed to take into account the applicant's ignorance of the requirement for a commitment to the Fishery and certain other matters which it was alleged were relevant considerations in the determination of whether there were "special or unique circumstances" in the applicant's case.
Counsel for the respondent not only disputed that the Tribunal had erred in law as alleged, but also submitted that the court had no jurisdiction to hear the appeal, and in the alternative, that it would be futile for the court to make any order because the Fisheries Act had been repealed.

Background Facts
9. The applicant, who is approximately 50 years of age, immigrated from Yugoslavia to Australia in 1961, and had worked in the fishing industry in Australia since that time. He purchased his boat, the "Carole S", in 1978. From that time until 1981, the applicant operated in the New South Wales Trawl Fishery and the South Australian Tuna Fishery. The applicant earned a reasonable income from fishing, the business apparently being conducted as a partnership between he and his wife. The net profits of the partnership in the financial years ending 30 June 1980, 1981 and 1982 were $61,000, $55,000 and $72,000 respectively. By 1982, the applicant owned a home in Burwood, a Sydney suburb. The home was subject to a mortgage securing a debt of $50,000. It is not known what the value of the home was at that time, but it was implicit in the evidence that it exceeded $50,000. He also owned a home at Port Lincoln, South Australia, which was for sale.

The applicant's trawl equipment had been specially made and fitted for the "Carole S". It was removed each year prior to the commencement of the tuna season and stored at the premises of Marine Food Distributors Pty Ltd. The applicant fished in South Australia during the 1981-1982 tuna season. When he returned to Sydney at the end of the tuna season in April 1982, he found that his trawl gear was missing, either having been stolen or misplaced whilst in storage. The gear was worth at least $17,000. The police were not informed of the loss. The gear was not insured and it was never recovered. Initially, the applicant was not worried about the loss. His evidence was: "Well, I always thought it's got to be somewhere. It's not something small that you hide it somewhere that's very hard to find. But I always thought probably it'll turn up somewhere, surely." Evidence was given by a Mr Larcos of Marine Food Distributors Pty Ltd that the fishing gear had been left for storage in the yard of the company's old premises at Pyrmont. He stated that the applicant had looked for it in 1982 but could not find it. He said "it was amongst freezer panels and other equipment of ours which was stolen in 1982". Another witness said that it was possible that the equipment had been taken away with other stored material when the Pyrmont premises were cleared. Whatever be the position, the gear was never recovered and the Tribunal found that it was removed from the premises sometime in early 1982 by a person or persons unknown.
Between 7 May and 9 July 1982, the applicant and his family took a long vacation to Yugoslavia. This trip had been planned for quite some time and cost the applicant about $10,000. The applicant said he had taken his holiday to Yugoslavia during these months so as to be home in time for the trawling season. He said that had he known the consequences of his failure to replace the trawl gear, he would not have gone to Yugoslavia: "...if I could have lasted 22 years, I could have last (sic) another 5 years". He also said that if he knew the gear was going to disappear completely "then I probably would have done something about it. But I thought the gear was going to turn up tomorrow, next week and/or following month..." When the applicant returned from Yugoslavia, he decided that as the trawl gear was missing, he would use the opportunity to recondition the boat's engine. The Tribunal found that "this was an unavoidable expense because it was soon realised that had the engine not been overhauled, it would have been extremely dangerous to venture out to sea". The engine was not replaced until after the 1982 trawling season. The Tribunal did not consider the applicant's work on the engine and the utilisation of funds for that purpose, rather than for the replacement of the missing trawl gear, as indicative of a lack of commitment to commercial fishing using trawl gear. The applicant went to South Australia for the 1982/83 tuna season. He returned to Sydney in early 1983 but experienced some difficulties with the boat, including refrigeration problems. He continued fishing, (otherwise than trawl fishing) up until October 1984, both in the Fishery and in South Australia, during such times as the boat was not under repair.
As at 1982, the applicant banked with the Commonwealth Bank, and had an overdraft account with a limit of $20,000. In late 1982, the bank increased the overdraft from $20,000 to $30,000. Mr Skoljarev gave evidence that the increase was used to pay existing debts. The applicant and his wife changed banks in about 1983 from the Commonwealth Bank to the ANZ Bank. They did not approach either bank for a loan specifically to replace the trawl gear.
In early 1984, the applicant commenced to buy materials to build the new trawl gear, which he had completed and installed by 1985. The applicant said the reason he built the gear himself was because he wanted it to be good: "I know whatever you do yourself is always better than somebody (else)". He was aware that professional engineers built trawl gear and said that he had gone to boat builders in Sydney for information and advice as to where to obtain materials, but not to obtain a quote for the cost of the replacement and installation of the equipment. He said that he had heard that the commercial cost of replacement of the gear was "$20,000, $30,000, 40 (sic)". The Tribunal found that the cost of building the new trawl gear was approximately $17,500, although the applicant had stated variously that he had installed trawl gear at a value of $50,000, and that he had spent approximately $50,000 on the replacement of the gear. In late 1985, the applicant recommenced trawling. However, by this time, trawl fishing in the region was closed, except to those whose licences had been endorsed pursuant to the provisions of s9(4) of the Fisheries Act.
I have already referred to the applicant's net profits between 1980 and 1982. Gross income from fish sales in the 1981/82 season was $304,000. This dropped in 1982/83 to $163,975. A substantial portion of the applicant's income at this time went to repay a loan of $135,000 from H J Heinz Company Australia Ltd, the company to which the applicant sold his catch and which had provided a ship's mortgage for the purchase of the "Carole S". H J Heinz deducted the loan monies from the amount payable for its purchase of the applicant's catch. The loan was repaid in full by 18 October 1982. Mr Skoljarev gave evidence that he also borrowed money from H J Heinz to carry out repairs to the main engine and that that loan was repaid in the same manner as the previous loan. However, he said he was not able to borrow further monies from Heinz and that he had fixed the refrigeration problems himself. He said that the 1983/84 tuna season in Port Lincoln was considerably worse than the prior season. He sold his home in Port Lincoln in July 1984 at "a very low price" of $53,000, the net proceeds of which were paid directly to the bank. He said: "This left me no choice. I couldn't borrow enough money to replace the trawl gear". The applicant did not go tuna fishing from late December 1984, as, at about that time, he decided he did not want to work in South Australia. He leased his tuna quota for that season for $48,000, and, at the end of the next year, sold the quota for slightly in excess of $500,000, receiving the substantial portion of the sale price in about October 1986.
As I have said, the applicant built and installed the trawl equipment himself over a period of about twelve months, completing the task in late 1985. His evidence as to why it took over three years to install the trawl gear was:

"(t)hat first year - I couldn't done it because the gear wasn't there, it was gone, missing, disappear, then if I knew somebody stole it or somebody destroyed it, it may be, one thing that...(inaudible)...I could've maybe done something about it, maybe. But when you think you're going to find - if you're going to spend $50,000 on another gear and you're going to find this one following season - if somebody told me you're going to have it, it would be a different story, but when you know that its going (to) come up maybe, maybe I'll, find it next week, next month, next six months, its a different thought in your mind that why spend $50,000 if I don't have to and plus that you don't have it".

Notwithstanding the period between the applicant discovering that the trawl gear was missing in 1982, and December 1985 when he had replaced it, the applicant said he was at all times committed to trawling in the South-East Trawl Fishery. He said that it was the last thing in his mind to leave the Fishery and it was because of his commitment to trawl fishing in the Fishery that he had sold his home in South Australia and moved to New South Wales. Had he been thinking of getting out of the trawl Fishery he would never have left South Australia to come to Sydney.

The applicant's wife gave evidence that her husband had built the trawl gear himself because he had ideas as to what he wanted and "I suppose he thought he could do it more cheaply himself". Mrs Skoljarev said that the applicant did not replace the trawl gear on his return to Sydney in 1983 because the tuna season had been quite bad and they ended up having no money to build the gear straight away. She stated that the trawl gear has to be tailor made for each individual boat and would have taken at least a month and probably more for it to be built, although she later said that she did not know how long it would take to build the replacement gear. The reconditioning of the engine took two to three months and cost just over $8,000. Mrs Skoljarev said that they were having difficulties meeting their loan repayments, that they had exceeded their overdraft limit with the Commonwealth Bank, and that the Bank was making demands upon them. Mrs Skoljarev said she remembered going to see the bank to try to explain the situation but that the bank wasn't very sympathetic. However, in cross-examination Mrs Skoljarev agreed that the Commonwealth Bank "was not being difficult" when it increased the overdraft facility in August of 1982 and that it was willing to lend them money in 1982, but not in 1983 and 1984. She also said that they had tried to obtain more money or to rearrange their loan with the Commonwealth Bank but that the bank was not interested in helping them.
Mrs Skoljarev said that had she known of the criteria to be satisfied to obtain an endorsement, she would have told the applicant "to get the trawl gear back on somehow and go trawling". She said that it was always the applicant's intention to do that, but their financial situation had stopped him. She said that they would have tried to find the funds although she was not sure they would have been able to, as they were not feeling confident about obtaining finance because of the way the bank was treating them. However, Mrs Skoljarev said that they probably did not make an attempt to replace the missing trawl equipment by borrowing money to build it, as they did not understand the urgency of the matter. She reiterated, "if we knew how important it was he would have found the money somewhere, perhaps his brother or...".
Mrs Skoljarev said that in 1983 they could not have afforded to expend approximately $20,000 on replacing the trawl gear. Mrs Skoljarev thought that they were being treated unfairly by the Commonwealth Bank, which is why they transferred their loan to the ANZ Bank. The main reason why she thought that they were being treated unfairly was because, notwithstanding their cash flow problems, they had considerable assets at their disposal. They had never discussed special financing with the ANZ Bank to replace the trawl gear as they didn't realise that it was going to make such a big difference to their future. Mrs Skoljarev also said that as the bank had lost confidence in them she thought they had more or less lost confidence in themselves. She also said that they did not approach the ANZ Bank for a loan as they had received such bad treatment at the hands of the Commonwealth Bank that she did not want to make a fool of herself in front of the ANZ Bank. She was particularly sensitive about this because she was employed by the ANZ Bank at that time.

No evidence ground
19. The applicant's case before the Tribunal was that it was the missing trawl gear which prevented him from continuing to fish in the Fishery, thus causing him to fall outside the criteria specified in the Management Plan, and that his failure to replace the gear was because he did not have the money to do so. However, the Tribunal found that the applicant "was in a financial position to replace the trawl gear soon after he discovered it was missing". Counsel for the applicant submitted that critical to this finding was a finding that the applicant's wife had "reluctantly agreed" that the overdraft facility with the Commonwealth Bank would have enabled them to replace the trawl gear without undue strain on their financial resources, but that there was no evidence upon which the Tribunal could have made this finding.

A finding of fact will be reviewable as involving an error of law on the ground that there is no probative evidence to support it and an inference will be reviewable on the grounds that it was not reasonably open on the facts: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 359-360. However, the making of a wrong finding of fact does not constitute a reviewable error of law: Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77 per Brennan J; Australian Broadcasting Tribunal v Bond (supra) per Mason CJ at 355-356. The principle was explained by Menzies J in R v District Court; Ex parte White (1966) 116 CLR 644 at 654 as follows:

"Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg. illogical) inference of fact would not disclose an error of law".

In Bond (supra) Mason CJ said at 356:

"...at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place".

Counsel for the applicant referred to certain passages in the cross-examination of Mrs Skoljarev, as being the only possible evidence which, it might be argued, supported the Tribunal's finding as to Mrs Skoljarev's evidence, but submitted that it did not do so. It was submitted that there was no other evidence to support the finding. The relevant cross-examination was:

"MR MARIEN (counsel for the Department): When you returned from your holiday in 1982 you said the bank had become difficult at that time, you said?

MRS SKOLJAREV: Probably it wasn't - I think I did say that but now thinking about it, it was more 1983 where they became difficult.

MR MARIEN: Well, they were hardly being difficult when they offered you an overdraft facility in August of '82 for $20,000 were they?

MRS SKOLJAREV: That's right I have to agree with that."

There then followed this exchange:

"MR MARIEN: Can I ask why it was that you - that your husband didn't set about replacing the trawl gear then, using those months of the trawl season in 1982 when the vessel wasn't being used for tuna fishing?

MRS SKOLJAREV: Yes.

MR MARIEN: Why didn't he set about when you had these facilities from the bank?

MRS SKOLJAREV: Yes

MR MARIEN: You say the bank wasn't at that stage...being difficult.

MR RELF (counsel for the applicant): Yes, well look, I really object to that. That's got so many hypotheses, ifs, buts and what have you in it.

MR MARIEN: Well, I'm just putting what the witness has put in evidence before.

THE D.PRESIDENT: Well, I think the witness understands the thrust of the question.

...

MR MARIEN: I was simply putting evidence the witness had given earlier and - - -

THE D.PRESIDENT: I think the witness now resiles from the 1982 lack of bank facility.

MR MARIEN: Yes.

THE D.PRESIDENT: In 1982 there was no problem with banks when you came back from overseas?

MRS SKOLJAREV: Not really, not a big problem. THE D.PRESIDENT: Yes, what's put to you is, well now why didn't you set about replacing the missing trawling equipment? MRS SKOLJAREV: Because it would have taken up the whole of the trawl season to replace it.

MR MARIEN: Yes?

MRS SKOLJAREV: And by the time the trawl gear was back on the boat it would have been time to take it off again and go back to the tuna season, and like I said before the engine was due for reconditioning so that's why my husband decided to do that at that stage rather than make new gear then. And I think he was still at that stage thinking that he might see the gear, you know, somewhere, still find it.

...

THE D.PRESIDENT: Had you wanted to go trawling urgently would it have been possible for $20,000 to replace the missing equipment in a fairly short time?

MRS SKOLJAREV: Well, it - coming back as we did in July, even if somebody else had made the gear for him it would have been really too late, you know."

In my opinion, contrary to the submission of the applicant, this material is probative of the Tribunal's finding that the applicant was in a financial position to replace the trawl equipment soon after he discovered it was missing: see Bond (supra). There was also other evidence upon which the Tribunal could have based this finding, namely, Mrs Skoljarev's evidence that the bank was willing to lend them money in 1982, (although not in 1983 or 1984), and her further evidence that had they known how important it was to have the trawl gear replaced the applicant "would have found the money somewhere...". There was also the evidence that the applicant had a reasonable income from fishing and had a substantial equity in the home in Sydney. It follows that I am of the opinion that the applicant has not made out this ground of appeal.

Special or Unique Circumstances
24. Having found that the applicant did not satisfy the criteria in the Management Plan, the Tribunal went on to consider whether there existed "special or unique circumstances" to justify the grant of the endorsement and found that the evidence did not reveal a "commitment to the (F)ishery on the part of Mr Skoljarev such as to ground special circumstances...". Counsel for the applicant submitted that in coming to this conclusion, the Tribunal took too narrow an approach to the meaning of "special or unique circumstances" in that it confined itself to a consideration of whether the applicant had demonstrated a commitment to the Fishery, whereas the question which should have been considered was whether there were "special or unique circumstances" which justified the endorsement of Mr Skoljarev's licence, whether or not those circumstances demonstrated a commitment to the Fishery. In particular, it was submitted that the following factors, which it was argued should have been taken into account other than in the context of commitment to the Fishery, constituted "special or unique circumstances": (i) the financial hardship that would be suffered by the applicant if he could not use his boat in the Fishery, given the substantial capital tied up in the boat; (ii) the fact that the applicant was ignorant of the need for endorsement of his licence and thus of the requirement to satisfy the entry criteria, due to his cultural background, lack of education, limited English and lack of social contacts; (iii) the applicant's bleak prospects of obtaining alternative employment given the factors outlined above, his age and lifetime commitment to fishing; (iv) the applicant's long history of fishing in Australia including trawl fishing in the Fishery; and (v) the loss of his trawl gear and the financial difficulties which prevented its replacement. The second and third of these factors were not directly referred to in the Tribunal's reasons in the context of whether there were "special or unique circumstances", and it was not certain whether they had been raised before the Tribunal. However, as counsel for the respondent did not object to these matters being considered, I shall deal with the matter on the bases argued before me.

It is a well established principle of administrative law that a Minister may implement policy to guide him in the exercise of a statutory discretion, provided the policy is consistent with statute: see Stringer v Minister of Housing and Local Government (1970) 1 WLR 1281 at 1298; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In Re Drake Brennan J said at 640:

"There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process."

It is also well established principle that the Tribunal is not bound to apply Ministerial policy when reviewing a decision, although it is free to do so. As Brennan J said in Re Drake at 643:

"If the Tribunal applies ministerial policy, it is because of the assistance which the policy can furnish in arriving at the preferable decision in the circumstances of the case as they appear to the Tribunal. One of the factors to be considered in arriving at the preferable decision in a particular case is its consistency with other decisions in comparable cases, and one of the most useful aids in achieving consistency is a guiding policy."

Notwithstanding the freedom of the Tribunal to apply or not to apply Ministerial policy, Brennan J, at 639, emphasised the importance of consistency of decision-making:

"Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice."

The significance of this factor led his Honour to conclude at 645: "These considerations warrant the Tribunal's adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary", and that the general practice of the Tribunal in relation to the application of Ministerial policy should be that:

"When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply the policy in reviewing the decision, unless that policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application...".

As I have already stated, the Management Plan was a policy document. The Tribunal held that in circumstances where the specific criteria in the Plan had not been satisfied, "special or unique" circumstances demonstrating a commitment to the Fishery had to be shown. The phrase "special or unique circumstances" does not have a statutory basis in the Fisheries Act, nor does it appear in the Management Plan. Its source may be the decision of the Tribunal in Re Evans and Secretary, Department of Primary Industry (1985) 8 ALD 627 which involved a question of whether Ministerial policy should be applied by the Tribunal in the review of the exercise of a discretion relating to an interim management scheme of the scallop industry in Bass Strait. In that case, the President of the Tribunal (Davies J) and Mr Sinclair said at 643:

"(i)n these circumstances, it seems to us that the Tribunal ought to apply the policy enunciated by the Minister for Primary Industry, save in so far as it finds that there are special or unique circumstances which ought to be taken into account. This is particularly so as the policy enunciated by and given effect to by the Minister...has led to a restructuring of the industry and has affected adversely or beneficially a large number of fishermen in Victoria and Tasmania...The credibility of the administrative process requires that a scheme having such effects be applied uniformly, subject to any unique circumstances that arise. A finding in favour of one applicant who does not meet the eligibility criteria and who has no special or unique circumstances would lead to arbitrary and unjust decision-making."

This statement was adopted by the Full Tribunal in Re Robinson (supra) in relation to the refusal of trawl fishing endorsements. However, the Tribunal added at 312:

"We should respectfully wish to add the comment however, that we do not regard the Tribunal's reference to "unique circumstances" where secondly appearing therein, to be intended either to derogate from the earlier and later references to "special circumstances" or to suggest that the circumstances of an individual case must be unique before a discretion should be exercised in variation of overall policy". (emphasis added)

The question of whether there were "special or unique" circumstances was also raised in Re Sawyer and Secretary, Department of Primary Industry (1987) 12 ALD 523. In that case, the applicant for endorsement had argued his case before the Tribunal on the basis that he had demonstrated "special or unique circumstances" such that the discretion ought to be exercised in his favour. The Tribunal held (at 524) that whilst the Management Plan, being no more than a policy instrument, was not binding on the decision-maker, the Tribunal should be slow to depart from it in circumstances where it was the basis for a "wholesale reorganisation of the fishery...", and that a decision refusing a licence should only be set aside where "special or unique circumstances can be made out." On appeal to the Full Court of the Federal Court (see Sawyer v Secretary, Department of Primary Industry (1988) 9 AAR 92), Sweeney and Ryan JJ, referred to the passages in Re Evans and Re Robinson set out above. Their Honours then concluded at 97-98:

"It was also submitted that the Tribunal erred in law in applying Re Evans. In our opinion, it was proper for the Minister to formulate the entry criteria as guidelines for consideration by himself and his officers. The Tribunal was entitled to have regard to them. It was clear from the transcript that it did not seek to apply them slavishly in dealing with the applicant's case.

Before the Tribunal, the applicant contended that his case was a special one by reason of his long association with trawl fishing. The Tribunal considered this submission carefully and rejected it on the facts. In our opinion, the applicant has failed to show that the Tribunal made any error of law."

Their Honours do not state expressly that they accept what was said by the Tribunal in Re Robinson. However, their Honours' conclusion is consistent with it and there seems to have been no point in their having referred to the passage in Re Robinson without comment, if it was not intended to accept its correctness.

The separate judgment of Northrop J is also consistent with an acceptance of the explanation of Re Evans made by the Tribunal in Re Robinson. His Honour referred to the facts relied upon by the applicant, noting that those facts "were described as establishing special or unique circumstances". His Honour continued at 105:

"The description used is immaterial. What is important is the question whether the Tribunal was in error in what it did".

His Honour noted again that the applicant had presented his case on the basis that his situation was unique or special and concluded that the Tribunal did not blindly apply the entry criteria specified in the Management Plan but had regard to the particular facts and exercised its discretion according to law. In my opinion the Tribunal's exposition of Re Evans in Re Robinson and its statement that circumstances need not be unique before a discretion should be exercised in variation of overall policy, are correct.

Counsel for the applicant did not dispute the entitlement of the Secretary to be guided by the policy contained in the Management Plan. However, he submitted that the Tribunal had erred in its application of the concept of "special or unique circumstances" by considering the factors to be taken into account in determining whether there were such circumstances in the context of a commitment to the Fishery, rather than by considering those matters generally to determine whether they provided grounds which would justify the endorsement of the licence, whether or not they related to a commitment to the Fishery. In my opinion, this submission is correct, and indeed, as Re Robinson demonstrates, is itself too narrow a description of the discretion which resides in the Tribunal. However, at least in the first instance, I propose to deal with the submission in the terms in which it was made. The Tribunal's Reasons for Decision on this issue were as follows:

"46. That brings me to "unique and special circumstances". Hartigan J dealt with that aspect succinctly, and I gratefully adopt what his Honour said on the previous occasion as being equally applicable to the evidence led before me. Thus his Honour noted: "Accepting as I do Mr. Skoljarev's account, it follows that he did not operate in a trawl fishery from the time he departed for the South Australian tuna fishery in 1981 until he completed the trawl gear work in 1985 after the drop-line season in New South Wales. I find that Mr. Skoljarev had taken a decision to turn his face against trawl fishing in the relevant area in favour of tuna fishing or drop-line fishing. In doing this I consider he made a commercial decision to follow fishing outside the relevant fishery and of a type other than trawl fishing. No doubt the loss of gear and financial problems which were experienced by Mr. Skoljarev played a part in his decision. I am satisfied that if Mr. Skoljarev had a commitment to the (Fishery) or, for that matter, trawl fishing along the New South Wales coast, this would have been demonstrated by a greater effort on his part to return to the Fishery instead of continuing with tuna fishing and drop-line fishing. I am satisfied that Mr. Skoljarev could have returned to trawl fishing earlier than the 1985/86 season if he had turned his mind and his attention to achieving that end. The subsequent sale of the tuna quota for a figure between $520,000 and $540,000 suggests very strongly to me that Mr. Skoljarev could in fact have taken steps to re-enter the relevant trawl fishery earlier than 1985. I am satisfied on all of the evidence before me that at all relevant times there has been no commitment to the fishery on the part of Mr. Skoljarev such as to ground special circumstances in this case. I take into account all of the matters raised by Mr. Skoljarev, including his long history in the industry, the value of the "Carole S" the actual fishing histories of Mr. Skoljarev and the "Carole S", the circumstances of the loss of the trawl gear and his financial difficulties.

47. On that finding, his Honour was satisfied that there were no special or unusual circumstances such as to require granting Mr Skoljarev's application.

48. I have come to a similar conclusion on the evidence, albeit with some regret since I realise that the applicant is, to a large measure, a victim of circumstances and is now saddled with a boat which is unlikely to yield him the profitable returns he could achieve by trawling in the restricted area. However, Mr Skoljarev has not persuaded me that he has the historical commitment - the magic password to the Fishery - which for better or for worse, the Plan of Management for (the Fishery) demands as the discrimen, limiting entry into commercial fishing using trawl gear to those who can demonstrate a genuine dependence and commitment to the fishery. This the applicant has clearly failed to do. Like Hartigan J, I have found nothing in the evidence to persuade me that the Plan of Management ought not to apply in this case." (emphasis added)

As I have already stated, it was open to the Tribunal to apply or not to apply the policy contained in the Management Plan: see Drake (supra). It was also open to the Tribunal to consider the underlying rationale of the policy, which it identified as a "commitment to the fishery". However, the Tribunal was not entitled to consider itself bound by the policy or its underlying rationale, although as Brennan J said in Re Drake, the Tribunal should be satisfied of the existence of cogent reasons before departing from policy. In my opinion the same principle applies in relation to a departure from the underlying rationale of the policy.
The last sentence of par48 of the Tribunal's reasons which is set out above, read in isolation, might arguably be read as a general statement consistent with the principle stated in Re Robinson. However, the sentence cannot be read in isolation. It is qualified by the passages which go before it to which I have referred. In my opinion, those three paragraphs, as a whole, reveal that the Tribunal confined its consideration of "special or unique circumstances" to the context of whether the matters relied upon by the applicant demonstrated a commitment to the Fishery. In confining its consideration in this way, and by failing to consider whether there were "special or unique circumstances" generally, the Tribunal fettered itself in the exercise of its discretion in considering whether the applicant's fishing boat licence should be endorsed, and thus erred in law.
Further, although counsel for the applicant accepted the correctness of the Tribunal's statement that the effect of Sawyer was that "in the absence of "special or unique circumstances", the policy enunciated by the Minister for Primary Industries and Energy ought to be applied", there is need for care in applying Sawyer or attempting to extract from it a principle unassociated from the context in which the principle was stated. It should be noted that the Tribunal did not refer to the decision of the Full Court of the Federal Court in Sawyer, but only to the Tribunal's decision. Sawyer does not require that there must be "special or unique circumstances" before the discretion under s9(4) can be exercised in favour of an applicant for endorsement. In my opinion, the Tribunal failed to appreciate this. This failure is implicitly revealed in the Tribunal's exercise of its discretion only in the context of the existence of "special or unique circumstances". There is nothing in the legislative scheme to so confine the discretion as was clearly recognised by the Tribunal in Re Robinson (supra). However, as the applicant has succeeded on the narrower basis upon which he challenged the Tribunal's exercise of discretion, it is not necessary to consider this aspect of the matter further.

Failure to take into account relevant circumstances
34. The error of law constituted by a failure to take into account a relevant matter is one which depends upon an identification of relevant matters which the Tribunal, upon a proper construction of the statute, is bound to take into account. Where the relevant factors are not specified in the legislation, as is the case here, the matters which the decision-maker is bound to take into account depends upon the subject matter, scope, and purpose of the legislation: Peko-Wallsend v Minister for Aboriginal Affairs (1986) 162 CLR 24.

As I have already stated, in determining whether to endorse a licence under s9(4) the decision-maker is not confined to ascertaining whether there are "special or unique circumstances" which demonstrate a commitment to the Fishery, but has a general discretion to determine whether there are circumstances which exist which would justify the endorsement. However, even if one accepts that the discretion is limited to a consideration of whether there exist "special or unique circumstances" sufficient to justify an endorsement, the Tribunal is bound to take into account the whole matrix of facts to determine whether such circumstances exist.
It was submitted that in determining whether or not there were "special or unique circumstances" the Tribunal failed to take into account the following matters: (1) the applicant's ignorance of the introduction of the restrictions on trawling in the Fishery; (2) the fact that having regard to the applicant's age, his lifetime commitment to fishing and his language and educational deficiencies, his prospects of obtaining alternative gainful employment must be bleak; (3) the applicant's long history of fishing in Australia, including in the South-East Trawl Fishery; (4) the loss of his trawl gear and the financial difficulties which prevented its replacement; and (5) the financial hardship which would be suffered by him if he could not use his boat in the Fishery given the substantial capital tied up in the "Carole S". It is necessary to deal with each of these matters, to determine whether and how they were dealt with by the Tribunal.
The Tribunal, at par16 and following of its Reasons dealt with the question of whether there were "special or unique circumstances" to justify the endorsement. At par30 the Tribunal stated:

"Not being aware of the coming into effect of the new licence endorsement system and its strict requirements, the applicant saw no need to give a high priority to replacing the missing trawl gear"

The Tribunal did not state whether the applicant's ignorance, which is what par30 deals with, was or was not, such a "special or unique circumstance". However, that omission does not mean that the Tribunal did not take that matter into account in relation to the existence of "special and unique circumstances". There was no purpose in the Tribunal referring to it in the context in which it did unless it was taken into account. Accordingly, I reject the first allegation in the submission that relevant matters were not taken into account.

There is no express reference in the Tribunal's reasons to the applicant's educational deficiencies. However, his background, including his birthplace, immigration to Australia, age and work history in Australia, was canvassed in the Tribunal's reasons. Those matters formed part of the matrix of facts which the Tribunal was bound to into account in the exercise of its discretion. When dealing with whether there were "special or unique circumstances", the Tribunal stated that it had come to its conclusion "on all the evidence". In my opinion, by express reference to these matters and by basing its conclusion on all the evidence, these matters were taken into account. The Tribunal also referred to the fact that unless the licence was endorsed, the applicant was left with a boat which was unlikely to yield him a profitable return, and thus took account of his possible economic situation should the endorsement not be granted. The Tribunal did not find or refer to the fact that the applicant's employment prospects "must be bleak". However, the difficulty with this submission is that there was no evidence to this effect. It was submitted this factor was something that should have been obvious to the Tribunal. I do not agree. Nor do I consider that the only inference which could be drawn from the evidence which was before the Tribunal was to that effect. In my opinion, there is no basis for contending that there has been an error of law constituted by a failure to take into account a relevant matter when that matter is not the subject of the necessary evidence before the decision-maker.
The Tribunal expressly dealt with the applicant's long history of fishing in Australia, including in the Fishery. It did so in the context of considering the existence of "special or unique circumstances". Therefore, the third alleged basis of this submission also fails.
The Tribunal specifically dealt with the loss of the trawl gear, that being one of the focal elements in the case. The Tribunal also dealt with the reasons why that gear had not been replaced. The applicant contends that a relevant factor which ought to have been taken into account was that financial difficulties prevented its replacement. That submission involves a contention that such a fact existed, whereas the Tribunal's finding of fact was to the contrary. In those circumstances no complaint can be made that a relevant factor was not taken into account unless it is alleged that such finding was wrong. No such submission was made and in any event a wrong finding of fact does not constitute a reviewable error: see Waterford at 77; Bond; at 355-6. Accordingly, this aspect of the submission also fails.
Finally, I am of the opinion that the Tribunal's reference to the fact that Mr Skoljarev now has a boat which is unlikely to yield him a profitable return, is clearly a reference to the financial hardship the applicant would suffer if he could not use his boat in the Fishery. Thus, the applicant has failed to establish the last of the matters relied upon in support of this ground.
It follows from what I have said that I am of the opinion that all the matters of which complaint is made were either taken into account, or were not proved in evidence before the Tribunal, or were contrary to the findings of fact made by the Tribunal. Accordingly I reject the submission that the Tribunal erred by failing to take into account relevant considerations.

Court's Jurisdiction
43. Counsel for the respondent submitted that the court had no jurisdiction to hear this appeal, as the three tier statutory review process established by s16A of the Fisheries Act, required that each stage in the review process be completed before the next step was taken. It was submitted that upon a proper construction of s16A, once a decision at any stage of the review process had been subject of review, that decision was "spent" and could not be relied upon or utilised subsequently in any other review process. The argument continued that s16A did not permit the review of a decision which had already been the subject of review under that section. Further, it was submitted that if any stage of the decision making/review process was missed, a decision made at any subsequent stage was a nullity. It was submitted that here, there was either no relevant decision, or no reviewable decision. That being so, the Tribunal had no jurisdiction, and it followed that this court had no jurisdiction to hear this appeal.

This submission requires a consideration of the complicated history of the application, as well as the provision s16A. It is convenient first to refer to the provisions of s16A, which are as follows:

"(1) In this section, unless the contrary intention appears - "decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975;

"relevant decision" means 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), (9) or (10) of that section), sub-section 9A (3A) or (4) or sub-section (2) of this 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), (8B),

(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 decision 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 which 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."

The applicant applied for an endorsement of his Commonwealth fishing boat licence on 25 April 1985. The application was rejected on the basis that the applicant had not met the requirements of the entry criteria as "no evidence could be found of a continuing commitment to the fishery". The applicant was advised of this decision by letter from the Department of Agriculture on 18 April 1986. The decision constituted a "relevant decision" for the purposes of s16A(2). By letter dated 25 September 1986 the applicant sought a review of the 18 April decision. The request for review was determined on 19 August 1987, however the application for endorsement was again rejected. Subject to what appears below, this decision constituted a "reviewable decision" for the purposes of s16A. The applicant was advised of the decision by letter dated 23 August 1987. The applicant sought a review of this decision by the Administrative Appeals Tribunal pursuant to the provisions of s16A(6). The applicant's application to the Tribunal was unsuccessful. However, after the AAT determination in August 1988, the Department of Primary Industries and Energy ascertained that the licensing officers who made the "reviewable decision" did not have appropriate delegations to make any decision. The Department, without admitting it to be the case, acted on the basis that the decision-making process from the point of that decision was flawed. Accordingly, the Australian Fisheries Service wrote to the applicant (and certain other applicants) advising them that "they could ask for the decision to be internally reviewed again". The applicant accepted that offer. On 27 March 1990, Mr Coutts, Assistant Director, Southern Fisheries, noted on the departmental report in respect of the applications for review: "I have considered Mr Skoljarev's case and have decided that there are no grounds to overturn earlier decisions not to approve endorsement for SETF Regions A and B". Mr Coutts wrote to the applicant's solicitors on 4 April 1990 advising them of his decision. The letter was in these terms:

"I refer to your client Mr Skoljarev's application for a review of the decision not to grant him an endorsement to operate the fv "Carole S" in the Eastern Sector of the south east trawl fishery. Mr Skoljarev's request was referred to me as the delegate of the Minister for Primary Industries and Energy appointed under the Fisheries Act 1952, nominated for the purpose of reviewing these decisions. I have considered all the information submitted in relation to Mr Skoljarev's claims and confirmed the original decision not to grant Mr Skoljarev an endorsement to the fishery. In reaching this decision I have considered Mr Skoljarev's claims of special and unique circumstances. In my view these claims do not justify the exercising of discretion to override the criteria for granting of the endorsement.

I am satisfied that the original decision taken on Mr Skoljarev's application was correct and consistent with the management plan for the fishery.

If Mr Skoljarev is not satisfied with this decision he may, subject to the provisions of the Administrative Appeals Tribunal Act 1975, make application to the Administrative Appeals Tribunal in his State, for a review of this decision. Applications should be lodged in writing within 28 days of receipt of this letter."

It was submitted by counsel for the respondent that the earlier decisions, namely the "the relevant decision" and the purported "reviewable decision" to which I have referred above, were "part and parcel" of the review procedure which ended with the decision of the AAT in 1988, "and any new decision that was made after that time would constitute a fresh decision as a matter of law. You just do not cut in at a review procedure." It was further submitted that Mr Coutts' decision was, for the purpose of the new decision-making and review procedure instigated by the applicant's acceptance of the Department's offer, either the initial "relevant decision" for the purposes of s16A, in which case there was no "reviewable decision" before the Tribunal so as to enliven its jurisdiction under s16A(6), or alternatively, if Mr Coutts' decision purported to be a "reviewable decision", it was not founded upon a "relevant decision" within the meaning of s16A, in which case also, the Tribunal had no jurisdiction under s16A(6).
It is unnecessary to decide whether a decision, which falls within s16A, once reviewed, can be reviewed again as part of a separate or fresh review process, as an invalid administrative decision does not deprive the Tribunal of jurisdiction: see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 where Bowen CJ said at 317:

"...an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong."

(See also Hospital Benefit Fund of Western Australia Inc v Minister for Health Housing and Community Services (1992) 111 ALR 1).

Futility
48. Counsel for the respondent next submitted that even if the decision of the Tribunal was a valid decision, subject only to appeal pursuant to s44 of the Administrative Appeals Tribunal Act 1975, it would be futile for the court to make any order, should it uphold the appeal, as the Fisheries Act (save for Pt IVA, which is not relevant here) was repealed by s3(2) of the Consequential Provisions Act.

The relevant provisions of the Consequential Provisions Act are s3, which provided that the Fisheries Act, other than Part IV was repealed, and s6 which provides:

"(1) Despite the repeal of the Fisheries Act 1952...a licence granted to a person under section 9 of that Act that was in force immediately before the commencement of this section continues in force after that commencement until its date of expiry...as if the Fisheries Act 1952...had not been repealed and that Act and instruments made or determined under that Act (including regulations, proclamations, orders, plans of management or notices) as in force immediately before the commencement of this section continue to apply in relation to the licence, the holder of the licence or a person acting on behalf of the holder of the licence to the extent that they are capable of so applying. ...

(3) A person is not guilty of an offence against the Fisheries Management Act 1991, or regulations under that Act, because of anything done by the person that is authorised by a licence continued in force under subsection (1).

It will be recalled that at the same time as the repeal of the Fisheries Act, a new Act, the Fisheries Management Act 1991, was introduced, Pt3 of which provides for the regulation of fishing. Division 5 makes provision for fishing permits. Relevantly, s32 provides:

"32. (The Australian Fisheries Management Authority) may, upon application made in the approved form, grant to a person a fishing permit authorising the use of a specified Australian boat by that person, or a person acting on that person's behalf, for fishing in a specified area of the AFZ or a specified fishery."

A permit under s32 is granted subject to a number of statutory conditions. Other conditions may be imposed: s32(5) and (6). The maximum period a permit may be in force is five years: s32(6)(c). The Australian Fisheries Management Authority (AFMA) is required to pursue its objectives and act in accordance with its corporate plan and current annual operational plan: s16. However, nothing in s16 is to limit the operation of s17(10). Section 17 provides for the determination of a Plan of Management for a fishery. Once a Plan of Management has been determined, AFMA must perform its functions and exercise its powers under the Act in relation to the fishery in accordance with the Plan of Management: s17(10).
I was informed by counsel for the respondent that no Management Plan for the South-East Fishery has been determined under s17. AFMA is currently operating under its 1993-1994 Annual Operational Plan, which thus has the status of a policy document to guide AMFA in the exercise of the discretions vested in it under the new legislative scheme. The Operational Plan specifies criteria for issuing permits for the South-East Fishery for 1993, which relate back to the 1991 South-East Fishery (Individual Transferable Quota) Management Plan (the Plan), as follows:

"Eligibility for a SEF Fishing Permit

In regard to the assessment of an individual's eligibility for an SEF (South-East Fishery) fishing permit, it is proposed that, where an individual was eligible for and held quota under the 1991 South-East Fishery (ITQ) Management Plan (As Amended)("the Plan"), they would be assessed as being eligible for a SEF (South-East Fishery) fishing permit. Any SEF fishing permit issued would expire on 31 December 1993, to reflect the period over which the TAC is set and available to be taken."

This criterion is summarised in the Operational Plan as follows:

"That Fishing permits for the South-East Fishery in 1993; . should only be granted to individuals who were eligible for and held quota under the 1991 Management Plan, ...". (emphasis added)

The objectives of the Plan are stated to be: (a) to achieve a level of parental biomass for each stock in the Fishery with optimum sustainable yields for that stock and (b) to promote optimum utilisation of the resource in the Fishery . The principal measures for attaining these objectives are by (a) determining the Total Allowable Catch (TAC) for each specified species that may be taken from the Fishery and (b) at the commencement of the Plan, by dividing the TAC for each specified species into units of fishing capacity and allocating those units to individual operators in the Fishery. Under the Plan an "endorsement" means an endorsement made to a licence under s9(4) of the Fisheries Act 1952.
Paragraph 11 of the Plan deals with the allocation of units of a specified species. The criteria for the allocation of units is contained in par10 which states:

"10.1 A determination under paragraph 11 in respect of a specified species may be made to a person who -

(a) at the commencement of this plan is the holder of an endorsed licence; or

...

(c) prior to the commencement of this plan has applied to the Department for entry to the South-East Trawl Fishery and, as a result of a decision by the Administrative Appeals Tribunal, after the commencement of this plan, is eligible for entry to that fishery."

The Operational Plan provides that a proportion of the total allowable catch for each species subject to quota may be withheld for scientific research and also for "the allocation of additional units upon reconsideration of decisions under this plan". It was submitted therefore that there was a "pool" of units available for allocation for persons who did not satisfy the criteria specified in the Plan but who, for discretionary reasons were determined to be entitled to quota. Put simply, it was submitted there were units which were available to be allocated to the applicant.
Counsel for the applicant submitted that despite the repeal of the Fisheries Act the applicant's appeal from the Tribunal's decision was not futile. He submitted that the transitional provisions of the Consequential Provisions Act had the effect of extending the period of the licence. He submitted that pursuant to s9 of the Fisheries Act, a licence was in force for a period of twelve months from the date the licence came into force: s9(5)(c)(i); and that such licence could be renewed by making application to the Minister not earlier than two months, or later than one month, before the expiration of the period for which the licence was granted: s9(6B) of the Fisheries Act. The renewal took effect from the expiration of the period for which the licence was granted. Subsection 9(6) of the Fisheries Act provided that where a licence was renewed under s9(6B), the licence was to remain in force until the day specified for its expiry. Section 6(1) of the Consequential Provisions Act provides that a licence in force immediately before the commencement of that Act continues in force until its date of expiry "as if the Fisheries Act 1952...had not been repealed and that Act...continue(s) to apply in relation to that licence...". It was submitted that there was evidence that the applicant had a licence, and that having regard to the terms of ss9(6) and (6B) he had a legitimate expectation of that licence being renewed, that the transitional provisions in s6 of the Consequential Provisions Act extended the operation of the licence and the application of the Fisheries Act to it, and thus the licence could still be endorsed. This submission was also put another way, namely, because s9(6B) of the Fisheries Act provided for renewal prior to expiry, the licence thereby remained in force until the renewed date, so that the date of expiry specified in the licence never in fact arrived. It was extended by virtue of a renewal before the date of expiry arrived.
I do not agree with this submission in either of the ways it was put. Even if the concept of "legitimate expectation" could be said to be relevant to the question of statutory construction at issue here, it cannot, of itself, create the statutory right which is sought to be invoked. In a given case, a licence holder may have had a legitimate expectation that a licence would be renewed under s9(6) of the Fisheries Act, such as to give an entitlement to procedural fairness before an application for renewal was refused: see Salemi v Mackellar (1977) 137 CLR 396 at 451-2; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 361. That is quite different from saying that a legitimate expectation that a licence would be renewed has the effect of extending the licence. The effect of a renewal of a licence under s9(6) was not to eliminate or expunge the expiry date of the licence. Rather, the effect of the subsection was that the applicant had a licence for a further period of 12 months commencing on the date next following the date of expiry of the existing licence, as first granted or subsequently renewed. Each renewal was the grant of a new licence: see Salemi v Mackellar at 452; FAI Insurances Ltd v Winneke at 361, 378. Accordingly, there was no ongoing licence to be saved by operation of the transitional provisions.
It was next submitted by the applicant that under the Fisheries Management Act, the power to issue permits was a general power conferring a discretion upon the Minister for that purpose. It was submitted that it must be relevant to the exercise of that discretion to know whether or not the applicant held an endorsed licence under the previous Act, or to know that an applicant would be entitled to hold such a licence. It was submitted that the Operational Plan clearly recognised that the holding of an endorsed licence was relevant to a consideration of whether an application for permit would be successful. It was argued, therefore, that it would be appropriate for the court to make an order under s44 or alternatively to declare that under the provisions of the Fisheries Act the applicant was, at the time of the Tribunal's decision, entitled to have an endorsement of his licence. It was submitted that such an order or declaration would not be futile because it would be relevant to a consideration of whether that applicant should be granted a licence under the new Act. Section 8 of the Acts Interpretation Act 1901 is relevant to this issue. It provides:

"Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:

(a) ...

(b) ...

(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or

(d) ...

(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid; and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed."

Pursuant to this provision, at the time of the repeal of the Fisheries Act, subject to any contrary intention expressed in the repealing legislation, a matter to which I shall turn shortly, the applicant had the right to have his application to the Tribunal determined in accordance with law: see Esber v The Commonwealth (1992) 174 CLR 430 at 440; Free Lanka Insurance Co Ltd v Ranasinghe (1964) AC 541 at 552. This the Tribunal has not done, on the findings which I have made.
This leaves the question of whether the Consequential Provisions Act exhibited a contrary intention within the meaning of s8 of the Acts Interpretation Act. The answer to this question revolves around the operation of ss3 and 6 of that Act, the terms of which I have already set out. The Fisheries Act was repealed on 2 February 1992 and the new legislative regime commenced on 3 February 1992. The applicant made his application to the Tribunal on 9 September 1987. The Tribunal's decision was delivered on 14 February 1992. As at the date of repeal of the Fisheries Act, the applicant's licence remained in force, but only for a maximum period thereafter of 12 months, so that the latest date at which the licence would have subsisted was 2 February 1993. It appears that the more likely date of expiry was December 1992, as I was informed that licenses were routinely issued to expire in December each year. A decision of the Tribunal favourable to the applicant at that stage would have resulted in the applicant's licence being endorsed. The applicant was not successful before the Tribunal and exercised his right of appeal to the Federal Court: s44(1) of the Administrative Appeals Tribunal Act. However, the transitional provisions in s6 only preserved the applicant's license and the rights attaching to it for the period of the licence, notwithstanding that that period extended beyond the date of repeal of the Fisheries Act. One of the rights available to the applicant was an entitlement to apply for endorsement of the license under s9(4). However, once that licence expired, there was nothing to which the endorsement could attach. Accordingly, I am of the opinion that although the applicant's rights were preserved by s8 of the Acts Interpretation Act, they were preserved to a limited extent only, that is for the period that the licence remained extant and to that extent, s6 of the Consequential Provisions Act exhibits a contrary intention to the provisions of s8 of the Acts Interpretation Act.
Counsel for the applicant submitted that even if the effect of the new legislation was that the applicant did not now have a right to have his licence endorsed, it was open to the court to declare that, but for the repeal of the Fisheries Act his license should have been endorsed. It was submitted such a declaration would assist the applicant in any application he might make for a permit under the new Act. Having regard to the error of law which I have determined the Tribunal made, and had there been no question about the effect of the repeal, the appropriate order would have been to remit the matter to the Tribunal for redetermination: s44 Administrative Appeals Tribunal Act 1975. This is not a matter where it would have been appropriate for the court to have made its own order finally disposing of the matter, as that would have involved the court exercising the discretion vested in the Tribunal. For this reason, it is not appropriate that the court make the declaration sought.
The question next arises whether I should remit the matter to the Tribunal. If I remitted the matter, the Tribunal's function would be to review Mr Coutts' decision of 27 March 1990. In so doing it would be bound by s43(1) of the Administrative Appeals Tribunal Act which provides:

"43(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing -

(a) affirming the decision under review; or

(b) setting aside the decision under review and-

(i) making a decision in substitution for the decision so set aside; or

(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal."

Section 43 of the Administrative Appeals Tribunal Act does not empower the Tribunal to make declarations unless the reviewable decision itself was a declaration, which is not the case here: see s3(3)(c). If the matter was remitted to the Tribunal there would be nothing for the Tribunal to do, as there is no subsisting licence to endorse. Thus, whilst a declaration may be of assistance to the applicant, the Tribunal is not, in the circumstances here, empowered to make a declaration. In those circumstances, I consider it would be futile to remit the matter to the Tribunal. Accordingly, I propose to allow the appeal but to make no other order, other than in relation to costs.

The applicant has been successful in his appeal, and in the ordinary course would be entitled to an order for costs. However, his appeal to the court was argued on the limited bases referred to in these Reasons for Judgment, which were not necessarily identified within the Supplementary Notice of Appeal. More significantly, the constitutional challenge raised in par4(g)(i) and (ii) of the Supplementary Notice of Appeal was not pursued, although no notice of this was given until the conclusion of the applicant's submissions. This has unusual cost consequences, in that I was informed by counsel for the respondent that there is a standing direction within the Attorney General's Department that whenever constitutional issues are raised in a case in which the Commonwealth or a Commonwealth department, instrumentality or agency is a party, an outline of the Commonwealth's proposed submissions on the constitutional issues are to be submitted to the Solicitor General at least ten days prior to the hearing. The respondent complied with that requirement. It was submitted that for that reason and because most of the grounds raised in the Notice and Supplementary Notice of Appeal were not argued, the respondent should not be required to pay the applicant's costs, assuming it succeeded on the jurisdictional basis.
I am of the opinion the respondent should be entitled to the costs thrown away by the abandonment of the constitutional issue. I am also of the opinion that the respondent should be entitled to any costs incurred in respect of matters not argued on the appeal. However, as the applicant has been successful on the appeal, the respondent should otherwise pay the applicant's costs.

Actions

Download as PDF Download as Word Document

Citations

Skoljarev, Ivo v Secretary, Department of Primary Industries & Energy [1994] FCA 140

Cases Citing This Decision

0

Cases Cited

12

Statutory Material Cited

0

Craig v South Australia [1995] HCA 58

Australian Broadcasting Tribunal v Bond [1990] HCA 33

Waterford v the Commonwealth [1987] HCA 25

[1994] FCA 140

25 MARCH 1994