Tasmanian Seafoods Pty Ltd v Bell
[1991] TASSC 64
•14 June 1991
Serial No 45/1991
List "A"
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Tasmanian Seafoods Pty Ltd v Bell [1991] TASSC 64; A45/1991
PARTIES: TASMANIAN SEAFOODS PTY LTD
v
BELL, David Walter
FILE NO/S: FCA 6/1991
DELIVERED ON: 14 June 1991
DELIVERED AT: Hobart
JUDGMENT OF: Cox, Wright and Slicer JJ
Judgment Number: A45/1991
Number of paragraphs: 14
Serial No 45/1991
List "A"
File No FCA 6/1991
TASMANIAN SEAFOODS PTY LTD v DAVID WALTER BELL
REASONS FOR JUDGMENT FULL COURT
COX J
WRIGHT J
SLICER J
14 June 1991
Order of the Court
Appeal dismissed.
Serial No 45/1991
List "A"
File No FCA 6/1991
TASMANIAN SEAFOODS PTY LTD v DAVID WALTER BELL
REASONS FOR JUDGMENT FULL COURT
COX J
14 June 1991
I agree with the reasons for judgment prepared by Wright J. and have nothing to add.
File No FCA 6/1991
TASMANIAN SEAFOODS PTY LTD v DAVID WALTER BELL
REASONS FOR JUDGMENT FULL COURT
WRIGHT J
14 June 1991
The respondent (plaintiff) sued to recover $21,000 being one half of the price of abalone purchased by the appellant (defendant). Judgment was entered in the plaintiff's favour on 21 December 1990. The history of the relationship between the parties, the agreed facts upon which the case went to trial, the relevant provisions of a deed executed by the parties and the relevant provisions of the Fisheries Act 1959, regulations thereunder and licences issued pursuant thereto, are all set forth in the reasons for judgment handed down by the learned trial judge. I see no reason to repeat these matters.
The substance of the dispute between the parties was stated by the learned trial judge in the following terms:
"The essential issue is whether the abalone referred to in para 12 of the agreed statement of facts answered the description in clause 3(a) of the Deed.
In essence the plaintiff contends that the abalone that he sold to the defendant were not taken under the commercial abalone licence but pursuant to the exploratory licence and that therefore the defendant was not entitled to retain any part of the sale price.
In essence the defendant submits that the plaintiff's authority to take the abalone came from the commercial abalone licence and that the exploratory licence should be regarded as only having the effect of exempting the plaintiff from complying with some of the provisions of the commercial abalone licence not as an authority by itself to take the abalone."
The learned trial judge then went on to consider whether or not it could be said that the abalone in question were caught by the plaintiff "pursuant to the quota of the abalone permitted to be fished each year under the licence". His Honour took the view that the defendant was prima facie liable to pay the plaintiff the full price of the abalone which it had purchased and that it could only escape this obligation by demonstrating that the abalone caught by the plaintiff came within cl3(a) of the agreement between them, the operative part of which was in the terms which I have just mentioned. Taking the view that the defendant had been unable to show this, the learned trial judge entered judgment for the plaintiff.
The defendant now appeals and seeks to rely primarily upon cl3(b) of the deed which reads:
"The owner of the licence shall participate in any bonus paid or other revenue earnt pursuant to the licence in the same proportions as if such payment or bonus was received for the sale of abalone pursuant to this agreement."
It was submitted that the learned trial judge had overlooked this provision despite argument being addressed to him that it was supportive of the defendant's case. Whilst this may be so, I am not persuaded that his Honour's oversight in any way alters the outcome of these proceedings. I take this view because, in my opinion, it cannot be said that for the purposes of cl3(a), the abalone in question were "caught pursuant to the quota". Nor can it be said that for the purposes of cl3(b), the monies payable upon sale of these abalone constituted "revenue earnt pursuant to the licence". The term "the licence" is defined in the deed as meaning "the commercial abalone fishing licence issued by the Minister of Fisheries bearing the number 'entitlement no 66'."
The parties were agreed that the abalone sold to the defendant were abalone which were below the minimum size permissible under the commercial abalone licence and which were caught in an area of Bass Strait other than the area in which the plaintiff was entitled to fish under the commercial licence. These two factors alone illustrate what a strained interpretation it is to suggest that the plaintiff was able to catch and, in consequence thereof, to sell, the abalone in question "pursuant" to the commercial licence.
The exploratory licence issued on 3 April 1989 is, in my opinion, the source of the plaintiff's entitlement to catch and sell the fish, the subject matter of these proceedings. This view is supported, I think, by the decision of the Full Court of Western Australian in Garbin v Wild [1965] WAR p72 and is consistent with John Mackintosh & Sons Ltd v Baker's Bargain Stores (Seafood) Ltd. (1965) LR 5 RP 305. Certainly it cannot be disputed that if he had not been the holder of a commercial licence the plaintiff would not have been invited to apply for an exploratory licence. It is also plain that the exploratory licence was issued subject to conditions which were expressed in terms which seemed to assume that the exploratory licence holder was also the holder of a commercial abalone licence.
These factors, whilst relevant to showing how the scheme works in operation, have little bearing upon the legal effect of the exploratory licence itself. In my opinion it cannot be said that in catching the abalone and selling them the plaintiff was acting "consequent on and conformable to" the commercial abalone licence.
The learned trial judge took the view that the provisions of reg17A(1) not having been the subject of express exemption in the exploratory licence issued by the Minister, applied so as to make it unlawful for the plaintiff to take abalone in the exploratory area without a commercial abalone licence. Whilst not saying in specific terms that it was exempted from the provisions of reg17A, the terms of the exploratory licence were plainly inconsistent with the application of reg17A to the holder of that licence. The exploratory licence itself empowered the licence holder, the plaintiff, to take abalone of a reduced size, a course of conduct which would clearly not have been permitted under the commercial abalone licence. Indeed, such activity would have exposed a commercial licence holder to prosecution for an offence. It is therefore difficult to see how reg.17A could clothe the taking of undersized fish with legality. It seems to me that the legality of taking such fish derived solely from the exploratory licence.
Counsel for the respondent argued that cl3(b) of the deed applied only in respect of "revenue earnt pursuant to the licence". He pointed out that pursuant to the terms of the exploratory licence his client had been exempted from the operation of reg31(1)(c) which reads:
"No person shall take, buy, sell, offer or expose for sale or have in his possession or under his control, an abalone (commonly known as a mutton fish) that is less than 132 millimetres in its widest diameter whether the shell thereof is broken or chipped in any way or not."
It was argued therefore that the sole source of the plaintiff's legal right to sell undersized abalone came from the exploratory licence and that it is immaterial whether or not the power to "take" the abalone derived from one or both licences. It was argued further that the revenue earnt by the plaintiff was therefore pursuant to his entitlement arising from his exemption from reg31, an entitlement which was created solely by the exploratory licence. In my opinion, this is a sound and irrefutable argument and provides an independent basis for upholding the actual decision of the learned trial judge to uphold the plaintiff's claim.
In my opinion the appeal should be dismissed with costs.
File No FCA 6/1991
TASMANIAN SEAFOODS PTY LTD v DAVID WALTER BELL
REASONS FOR JUDGMENT FULL COURT
SLICER J
14 June 1991
I agree with the reasons for judgment prepared by Wright J. and have nothing to add.
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