Thomas, J.E. v Appleton, P
[1994] FCA 832
•11 NOVEMBER 1994
JOHN EDWARD THOMAS v. PATRICK APPLETON
No. QG134 of 1994
FED No. 832/94
Number of pages - 5
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
WILCOX, BURCHETT AND COOPER JJ
CATCHWORDS
Administrative Law - Fishery control - Challenge to decision refusing to increase allocation of fishing days in licence condition - Question as to the matters the decision maker could take into account - Question as to the existence and extent of any residuary discretion - Licence now expired - Application for declaration of right - No material to indicate utility - Appeal dismissed.
Torres Strait Fisheries Act 1984, ss.16, 19, 22, 30, 35 and 38.
HEARING
BRISBANE, 8 November 1994
#DATE 11:11:1994
Counsel for the Appellant: D O'Gorman
Solicitors for the Appellant: Miller Harris
Counsel for the Respondent: D J McGill
Solicitors for the Respondent: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
WILCOX, BURCHETT AND COOPER JJ This is an appeal from a decision of O'Loughlin J dismissing an application for review under the Administrative Decisions (Judicial Review) Act 1977. The relevant decision was a refusal by the respondent, Patrick Appleton, of a request by the appellant, John Edward Thomas, to vary the conditions attaching to a licence issued to the appellant under the Torres Strait Fisheries Act 1984.
The appellant is a professional fisherman. For many years he has fished waters in Torres Strait that are within the Protected Zone declared under the Torres Strait Fisheries Act. In 1988 the appellant surrendered his Australian fishing licences and commenced to fish the waters of Papua New Guinea. In the following year he decided to return to Australian waters. His Australian licences were re-issued and he resumed fishing in the Australian Protected Zone.
Section 30 of the Torres Strait Fisheries Act constitutes an Authority known as the Protected Zone Joint Authority. It consists of the relevant Commonwealth Minister and a Queensland Minister. The functions of the Authority include the formulation of policies and plans for the good management of the fishery (s.30). In respect of a Protected Zone Joint Authority fishery, the Authority exercises certain powers given under the Act that would otherwise be exercised by the Minister (s.35). Section 38 empowers the Authority to delegate its powers and provides that a delegate is subject to the directions of the Authority in the exercise of his delegated powers.
It appears that, by the beginning of 1993, concern had developed about over-fishing for prawns in the fishery. On 26 February 1993 the Minister made a regulation imposing a general prohibition on the taking or processing of prawns "in the area of the prawn fishery". The "prawn fishery" was defined to refer to a specified part of Australian waters. The regulation went on to exempt from the prohibitions a person who was the holder of a licence in respect of a boat where the licence contains a condition limiting the number of fishing days in a year that the boat can be in the area of the prawn fishery.
On the same day the Authority made a decision adopting a prawn management plan. This plan referred specifically to the 1993 season (para.3). It provided for the initial allocation of fishing days in these terms:
"4.1 A number of fishing days be allocated initially in respect of each prawn licence which was eligible for renewal as at 31 December 1992, the number to be determined in accordance with paragraph 4.2, and assigned by the licensing delegates.
4.2 The number of fishing days to be allocated initially in respect of a prawn licence be worked out as follows:
(a) If a prawn licence relates to a boat that has fished in the prawn fishery in any of the financial years 1988-89, 1989-90, 1990-91, and 1991-92 then:
(i) a number of fishing days will be allocated in respect of the licence which is equal to the total of the greatest number of fishing days the boat was used to take prawns in the area of the prawn fishery in financial years 1988-89, 1989-90, 1990-91, and 1991-92, increased by 10% and rounded up to the nearest ten days; where
(ii) the greatest number of fishing days must be derived from the logbook returns submitted to the PZJA in respect of that boat; provided that
(iii) logbook returns submitted after 18 August 1992 must not be used in calculating the greatest number of fishing days; and
(b) If a prawn licence relates to a boat that has not fished for prawns in the area of the prawn fishery in any of the financial years 1988-89, 1989-90, 1990-91, and 1991-92, then 10 fishing days only will be allocated in respect of the licence."
The plan went on to deal with the giving of a notice "closing the prawn fishery during 1993", but exempting holders with allocated fishing days (para.7), and for the constitution and operation of a Review Panel (para.8). The Review Panel was to "consider any individual grievances over the assignment of fishing days" (para.8.1). Paragraph 8.3 provided that, when examining claims, the Review Panel "must act in accordance with the following guidelines:
"(a) Each claim should be supported by documentary evidence that the initial allocation of time units is incorrect.
(b) The documentary evidence should support actual fishing time for prawns only in the area of the prawn fishery.
(c) Time for steaming, travelling to the zone, breakdowns or any other circumstances should not be taken into account."
Recommendations of the Review Panel were to be submitted to the Authority for its decision.
It will be noted that the base years referred to in para. 4.2 included 1988-89, the financial year during which Mr Thomas was fishing in Papua New Guinea. He apparently felt disadvantaged by this and applied for review of his initial allocation so as to take into account his Papua New Guinea fishing days and the time he lost in changing licences. The review was a slow process, the delay not being all on one side. It was not completed until 6 January 1994, on which date Mr Appleton refused to increase the allocation.
It is clear from Mr Appleton's evidence before O'Loughlin J that he took the view that he had no power to take into account the time lost by the appellant in 1988-89 in changing over licences or the days he had spent in Papua New Guinea waters. The issue his Honour had to determine was whether or not this view was correct. O'Loughlin J held that it was. He said that Mr Appleton "was not entitled to take either of these matters into account".
O'Loughlin J rejected a submission that the decision was defective because Mr Appleton "slavishly adhered to 'guidelines' or ... failed to exercise a discretionary power". He said:
"In failing to give any weight to the applicant's claims in the area of broken promises, delays and fishing time in Papua New Guinea waters, the respondent acted properly and within the ambit of his delegated power. Any discretion that was reposed in the respondent would not have extended to any of those matters and it would have been an improper exercise of power if the respondent had taken any of them into account. This, therefore, is not a case of a decision-maker abrogating a discretion by the application of some universal policy with no consideration of the merits of the matter."
Initially, the appellant contested O'Loughlin J's holding about the matters the respondent was not entitled to take into account. But this ground was abandoned at the outset of the hearing. Counsel contented himself with challenging O'Loughlin J's further holding that any discretion reposed in the respondent would not have extended to either of those matters. It will be apparent that this presents extreme logical difficulties. If it is correct to say that the respondent was not entitled to take into account particular matters, it can hardly be denied that any discretion reposed in him did not extend to those matters. For the appellant to obtain any satisfaction, he would need to obtain a decision overruling O'Loughlin J's holding about the matters the respondent could not take into account.
These problems were raised with counsel for the appellant during the course of his submissions. We also drew attention to the fact that the Court was being asked to rule on the validity of a decision made in respect of a licence that had now expired. The Appeal Papers do not indicate the date of expiration, but it was apparently about the end of 1993 or early 1994. Even supposing (contrary to the view of O'Loughlin J) that Mr Appleton erred in respect of his decision on the application to review the allocation of fishing days under that licence, and that we remitted the matter to him for reconsideration, he could not now do anything to improve Mr Thomas' position under the 1993 licence. It is spent.
When this position was pointed out to counsel, he indicated a belief (he was not able to be specific) that the 1993 fishing day allocation had some significance in relation to 1994. That may be so. Perhaps more importantly, having regard to the fact that the 1994 licence must now be close to expiry, it may influence Mr Thomas' allocation for future years. But there is no evidence of any of this. If the 1993 allocation has continuing significance it must be because of the terms of later documents that we have not seen.
Counsel suggested that, if we were with him on the merits, we might make an appropriate declaration of right. He suggested that it should take the form of a declaration:
"that the directions contained in the decision of 26 February 1993 of the Protected Zone Joint Authority relating to the allocation of fishing days in the prawn fishery are not mandatory and allow the delegate to exercise his own discretion".
We do not see utility in a declaration in that form. It is tied to a particular document that is no longer operative. As previously indicated, the 26 February 1993 plan of management related only to 1993. Moreover, the form of the proposed declaration leaves unanswered the critical question as to the extent of any discretion. It will be remembered that O'Loughlin J did not deny the possibility that Mr Appleton had some residuary discretion; he merely held that any discretion that was reposed in him did not extend to particular matters. The suggested declaration would not deal with the correctness of that statement.
Having considered the matter, we are of the opinion that it would be inappropriate to make a declaration of right in this case. The Court does not have the information necessary to enable it to frame a declaration that would be helpful in respect of a future allocation. An uninformed declaration may have unanticipated and prejudicial results.
We do not wish it to be thought, from the fact that we have canvassed the feasibility of a declaration of right, that we are of the opinion that O'Loughlin J fell into error in his disposal of the case. On the contrary, our position is that, because it is not apparent that there is utility in our doing so, we decline to reach a final view about the extent of the respondent's discretion and the matters he was entitled to take into account.
The appeal should be dismissed. However, we think that the respondent must share the blame for the fact that it has proved abortive. The problem seen by us ought long ago to have been raised by the respondent, in which case the appeal would probably not have proceeded. Under the circumstances, there should be no order in respect of the costs of the appeal.
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