Thomas, J.E. v Appleton, P.L

[1994] FCA 728

JOHN EDWARD THOMAS v. PATRICK LEONARD APPLETON
No. G17 of 1994
FED No. 728/94
Number of pages - 9
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
O'LOUGHLIN J

CATCHWORDS

Administrative Law - Judicial Review - Protected Zone Joint Authority - Torres Strait Fisheries - allocation of fishing days - whether applicant's fishing in Papua New Guinea waters to be taken into account - whether decision-maker estopped by earlier conduct of fisheries officers - whether applicant entitled to be credited for time laid up.

Torres Strait Fisheries Act (1984) (Cth)

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

HEARING

BRISBANE, 6 September 1994
#DATE 9:9:1994

Counsel for the Applicant : Mr D O'Gorman and

Ms Shannean Moncrieff

Solicitors for the Applicant : Miller Harris

Counsel for the Respondent : Mr D J McGill and Mr Murray

Beltcher

Solicitors for the Respondent : Australian Government Solicitor

ORDER

The court orders that:

1. The application be dismissed.

2. The applicant to pay the respondent's costs.

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

JUDGE1

O'LOUGHLIN J The respondent, acting in his capacity as Delegate of the Protected Zone Joint Authority, made a decision on 6 January 1994 whereby he refused to increase the allocated fishing days in the Torres Strait Prawn Fishery for the applicant's two fishing vessels, "Babirusa" and "Kelgar". The applicant now seeks a review of that decision.

1. The Authority known as the Protected Zone Joint Authority is established by subs30(1) of the Torres Strait Fisheries Act 1984 (Cth) ("the Act"). It consists of the Commonwealth Minister for the time being administering the Act and the Queensland Minister specially appointed for the purposes of the Act (or, where no such special appointment has been made, the Minister of the Crown of Queensland for the time being administering the laws of Queensland relating to marine fishing in the Protected Zone).

2. The Authority is concerned with the management of fisheries, including the prawn fishery, in the Protected Zone. The term "Protected Zone" is defined in s3 of the Act as meaning "... the area the boundaries of which are described in Annex 9 of the Torres Strait Treaty..." and that Treaty is defined as:
   

"... the Treaty between Australia and the Independent State of Papua New Guinea concerning sovereignty and maritime boundaries in the area between the two countries, including the area known as Torres Strait, and related matters..."

1. A copy of the Treaty with some, but not all, of the Annexes is set out in the schedule to the Act. Annex 9 is one that is reproduced; it describes the Protected Zone by reference to 17 longitudinal and latitudinal points. It is common ground that the Protected Zone lies partly in Australian waters and partly in the waters of Papua New Guinea.

2. The Torres Strait Treaty between Australia and Papua New Guinea is concerned with a variety of matters, including several fisheries. One such matter is sovereignty and the boundaries in the area between the two counties. For that purpose, the Treaty established a Protected Zone in the Torres Strait (Article 10) in which each country exercises sovereign jurisdiction on the respective sides of the fisheries jurisdiction line as defined in Annex 8 to the Treaty: See Article 4, clause 2. The Treaty also defines the term "fisheries jurisdiction" as meaning:
   

"Sovereign rights for the purpose of exploring and exploiting, conserving and managing fisheries resources other than sedentary species;"

1. Section 38 of the Act gives to the Authority a general power of delegation and on 6 September 1993 the Authority delegated to the respondent Patrick Leonard Appleton:
   

"... the power pursuant to sub-section 22(2) of the Act to make a decision for and on behalf of the Protected Zone Joint Authority regarding grievances by the holders of licences under section 19 of the Act that were issued during 1993 for the Torres Strait Protected Zone prawn fishery;..."

1. Licences that are issued under s19 of the Act are granted by the Minister in the exercise of a discretionary power to a person (subs(1)) and to a person in respect of a boat (subs(2)) for use for commercial fishing "in areas of Australian jurisdiction". The power in subs22(2), which was the subject of delegation to the respondent and which is a power of the Minister, is the power to specify further conditions to which the s19 licences would be subject. But the powers of the Minister with respect to licences and the other matters to which Part IV (ss17-27A) of the Act apply are exercisable in relation to a Protected Zone Joint Authority fishery by the Protected Zone Joint Authority: s36. Thus the power of the Minister to impose conditions with respect to licences was delegated to that Authority under s36 and that Authority could and did delegate that power to the respondent under s38. Under subs38(4) the delegate of the Protected Zone Joint Authority "is, in the exercise of his delegated powers, subject to the directions" of that Authority.

2. The relevant facts in support of the orders sought in this court are principally contained in the affidavit of the applicant, John Edward Thomas, sworn on 12 April 1994, the two affidavits of his business associate, William Edward Hughes, sworn on 12 April and 30 May 1994 respectively and the affidavit of the respondent sworn on 3 May 1994. The respondent has not challenged any of the assertions contained in the affidavits of Mr Thomas or Mr Hughes and, subject to one aspect of Mr Hughes' affidavit to which I will refer in due course, there being nothing inherently implausible about them, I will accept their contents as being accurate for the purpose of my determination on this matter. The applicant was cross-examined on the contents of his affidavit as was the respondent but their oral evidence did not have any material impact on the outcome of the issues that are in dispute.

3. Mr Thomas is a professional fisherman; he has been involved in the fishing industry for over 22 years and he has fished the Torres Strait fishery since 1978. In 1988 Mr Thomas decided to investigate transferring his fishing activities to Papua New Guinea waters. He deposed in par4 of his affidavit -
   

"In early 1988 I decided that it would be of benefit to me to transfer to the Papua New Guinea side of the protected zone fishery..."

1. He said that he made inquiries of officials of the Queensland Fish Management Authority. The Queensland Fish Management Authority (of which the respondent is the Secretary) and the Australian Fisheries Management Authority jointly provide management and administrative support to the Protected Zone Joint Authority; it is also the body responsible for all licensing of vessels in the Torres Strait Protected Zone. Mr Thomas said that he was told that if he wished to make such a transfer:
   

- it would be necessary to surrender his Australian Torres Strait Protected Zone (TSPZ) licences for both vessels:

- he would have to apply for Papua New Guinea licences for both vessels;

- the issue of the Papua New Guinea licences would take three to four days;

- there would be '... no difficulties in being re-issued with the TSPZ licence upon my return to the Queensland side of the protected zone fishery.'

- it would take two or three days to process the re-issue of the Australian licences."

1. Mr Thomas decided to make the change to Papua New Guinea waters; he surrendered all his Australian licences for his two vessels to the Queensland Fish Management Authority in early August 1988. But 8 months later, in April 1989, Mr Thomas gave up his Papua New Guinea licences and returned to Australian waters. In response to his application, all Australian licences were re-issued. No explanation for this change was given in the papers or in his evidence but it must be said no explanation was necessary to determine the outcome of the case.

2. The principal purpose in establishing the Protected Zone, as disclosed in Article 10 of the Treaty, was to acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants, including their traditional fishing and free movement: see cl 3. But cl 4 of Article 10 went on to state:
   

"A further purpose of the Parties in establishing the Protected Zone is to protect and preserve the marine environment and indigenous fauna and flora in and in the vicinity of the Protected Zone."

1. The respondent has claimed, and the applicant has not disputed the claim, that as a management device to control the extent of commercial fishing in the Protected Zone, the Authority developed a plan in 1992 and 1993 "under which a limit was placed on the number of days for which vessels licensed to fish in the protected zone prawn fishery would be entitled actually to work that fishery". The respondent exhibited to his affidavit a copy of the decisions of the Authority that were recorded, pursuant to subs40(9) of the Act, by the Minister on 26 February 1993. Those decisions extended to management arrangements for the 1993 season for prawn fishing in the Protected Zone and included a decision that:
   

"3.1. Management arrangements for the 1993 season based on limiting the period of time each boat can operate in the prawn fishery be implemented by 1 March 1993 for the prawn fishery."

1. The next segment of the recorded decision to which reference must be made is that recorded in subpar 4.2.:
   

"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 any one financial year during the 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."

1. On the same day, 26 February 1993, the Minister used his regulation making power under s16 of the Act to impose a general ban on the taking or processing of prawns "... in the area of the prawn fishery", a term that was defined to mean:
   

"... the area of Australian jurisdiction within the area described in schedule 1."

1. Following the general ban, the regulation then exempted from those prohibitions a person who is the holder of a licence in respect of a boat where the licence contains a condition that limits the number of fishing days in a year that the boat can be in the area of the prawn fishery; that exemption would only be valid, of course, for so long as the allocated number of days remains incomplete.

2. It is relevant to emphasise that neither the Authority's recorded decisions of 26 February 1993 nor the exercise on the same day by the Minister of his regulation making power have been challenged in these proceedings. The challenge has been directed to the manner in which the respondent has exercised his delegated power.

3. When the applicant applied for a renewal of his Australian licences in respect of his two fishing vessels for the Torres Strait Protected Zone prawn fishery for 1993, the licences were renewed with conditions limiting the number of fishing days in the year that the vessels could be in the area of the prawn fishery; 80 days were allocated to "Babirusa" and 130 days were allocated to "Kelgar". Those allocations were determined by having regard to the vessels' proven number of fishing days in the preceding four years. The figures for the two vessels were said to be:
   

"Babirusa

Year 1988-89 1989-90 1990-91 1991-92 Days - - 71 30 Calculation 71 + 10% = 78.1 rounded to 80 "Kelgar"

Year 1988-89 1989-90 1990-91 1991-92 Days 6 88 82 118 Calculation 118 + 10% = 129.8 rounded to 130

1. The applicant's challenge to these figures stems from his fishing activities in Papua New Guinea waters in 1988-1989. He has claimed that in that year "Babirusa" fished in all waters for 172 days and "Kelgar" for 142 days. (There would seem to be an arithmetical mistake in the calculation of 172 days but that can be ignored for present purposes).

2. It is the applicant's case that those fishing days should have been used by the respondent in the calculation of the 1993 allocations. But the applicant claims more; he maintains that he should be given credit (that is, as if he had been fishing) for the times that his vessels were laid up and unable to fish whilst he was awaiting the surrender and issue of licences - not only from Australian authorities but also from Papua New Guinea authorities. Thus, in his final calculations, the applicant says that his 1993 allocations should have been calculated by having regard to the details of the activities of his two vessels in 1988-89. Those calculations are as follows:
   

"Babirusa" "Kelgar" Fishing in Australian

Waters 21 15 Fishing in Papua New

Guinea Waters 149 127 Lost Time 22 61 192 203 Add 10% 19.2 20.3 211.2 223.3 Rounded up 220 230

1. The grounds upon which the applicant relies in support of his application to have the decision of the respondent reviewed were, in their final form:-
   

" ...

4. that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

5. that the decision involved an error of law, whether or not the error appears on the record of the decision;

6. ...

7. The reference in ground 4 above to 'an improper exercise' includes the following:

(a) the respondent took an irrelevant consideration, or irrelevant considerations, into account;

(b) the respondent failed to take a relevant consideration, or relevant considerations, into account;"

1. The further and better particulars that the applicant supplied showed that there were three factual issues permeating these grounds. First, the applicant complains that the respondent failed to take relevant considerations into account; they were said to be "promises" made by the Australian authorities to the applicant "to the effect that if the applicant transferred to the Papua New Guinea side of the protected zone fishery he would not be penalised when he returned to the Australian side of the Protected Zone Fishery"; other relevant considerations that were allegedly not taken into account were the delays incurred by the applicant in relation to transferring his activities to Papua New Guinea and retransferring them back to Australia and the time spent by the applicant fishing in Papua New Guinea waters during 1988-89. Secondly, it is claimed that the respondent exercised a discretionary power (to determine the allocation of fishing days) in accordance with the decision of the Authority of 26 February 1993 and in accordance with the notice of the same date without taking account of the three matters referred to above. Thirdly, it is claimed that an estoppel operates against the respondent; as to this, it is said that the respondent's decision
   

"... was contrary to law in that the respondent was estopped from not adhering to the promises of the Queensland Fish Management Authority made to the applicant to the effect that if the applicant transferred to the Papua New Guinea side of the Protected Zone Fishery, he would not be penalised when he returned to the Australian side of the Protected Zone Fishery."

1. This last mentioned ground of objection must be dismissed summarily. It derives from a vague and unexplained statement by Mr Hughes in his earlier affidavit, in which he claims that he was told that he "would in no way be penalised for such surrender and it would not affect the re-issuing of the licences at a later date". In my opinion, the allegation that there are facts giving rise to an estoppel is an inaccurate gloss on the material that is before the court; it is inconsistent with the contents of the applicant's affidavit, in par9 of which he uses the word "penalised" as his interpretation of the relevant events. He there said:
   

"9. At no time was I advised that the re-issuing of my Torres Strait Protected Zone licence would be subject to the number of days I had previously fished in the Queensland waters of Torres Strait Protected Zone but rather, I was advised by Mr Lightowler and Mr Elmer that the re-issuing of the Australian licences was a mere formality. Additionally, at no time was I advised that fishing on the Papua New Guinea side of the protected zone fishery that fishing affect (sic) my right to fish on the Queensland side of the fishery. It was not until March/April 1993 that I learnt that I was to be penalised for fishing on the Papua New Guinea side of the fishery."

1. It stands to reason that the applicant was not advised in 1988 that the re-issue of his Australian licences would be subject to a quota for fishing days in 1993 because the concept of such a quota was not suggested until 1992 and it was not implemented until 1993. And if it is true to say that his fishing in Papua New Guinea waters affected his right to fish "on the Queensland side of the fishery" it likewise calls for the observation that no one could have known of such an event until 1992 at the earliest. What the applicant sought and obtained in 1988 was an assurance that if he surrendered his Australian licences so that he could fish in Papua New Guinea waters, he would be able to resume his Australian licences if he decided to leave Papua New Guinea and return to Australia. An example of that assurance appears in a letter dated 24 May 1988 from the Queensland Fish Management Authority to Mr Hughes. A copy of that letter was exhibited to Mr Hughes' affidavit of 30 May 1994. The relevant section of that letter was as follows:
   

"(c) Officials indicated on 18 January as follows:- 'an assurance (to Australian boats going to PNG) that when an Australian boat returns after surrendering all its PNG licences, the Australian authorisations will be restored provided the boat has not breached either country's fishery laws while operating from PNG.'

With respect to (c), the means whereby the surrender of Australian/Queensland licences and subsequent re-issue would be effected as rapidly as possible and QFMA and Australian Fisheries Service and use would be made of facsimile, telex and telephone communication to minimise delays."

1. Another example of the same assurance appears in the letter of 8 July 1988 from the Queensland Fish Management Authority to the applicant; a copy of that letter is exhibit "B" to the applicant's affidavit. After explaining that it would be necessary for the applicant to surrender his Australian licences in order to obtain Papua New Guinea licences, the author of the letter then explained:
   

"Such surrender is on the understanding that you are eligible to apply for and have granted those same licences on the same terms and conditions when the boat has cleared inward through Australian Customs after finally leaving Papua New Guinea..."

1. In my opinion there is no question of estoppel being available to the applicant. There is nothing in the material that is before the court with respect to the events of 1988 and 1989 that would point to any broken promise that might constitute a "relevant consideration", let alone give rise to an estoppel.

2. The other issues which the applicant claimed were "relevant considerations" that the respondent did not take into account may be dealt with together; they were the questions of delay in obtaining the changeover of licences and the time spent by the applicant fishing in Papua New Guinea waters. In my opinion, the respondent, as the decision maker, was not entitled to take either of these matters into account. I have come to the conclusion that the decision maker was required to have regard, in determining the allocation of fishing days, only to the actual fishing days of a particular vessel in the four relevant financial years within Australian waters. The relevant passage in the decisions of the Protected Zone Joint Authority of 26 February 1993 is:
   

"... the greatest number of fishing days the boat was used to take prawns in the area of the prawn fishery..." (See cl 4.2)

1. The term "area of the prawn fishery" was earlier defined in the decisions as meaning:
   

"... the area of the Torres Strait Prawn Fishery, which is described in Column 3 of Item 1 of Schedule 2 of the Torres Strait Fisheries Regulations."

1. Save for the territorial sea of Australia's islands that are north of the Fisheries Jurisdiction line, the area of the prawn fishery means Australian waters, that is, those waters in the Protected Zone that are south of the line.

2. This conclusion is reinforced by the terms of cl 8, which set up a Review Panel to consider grievances before they were referred to the respondent. Subclause 8(3) also refers to the area of the prawn fishery and specifically addresses the need to have regard only to actual fishing time. It states:
   

"When examining the claims, the Review Panel must act in accordance with the following guide-lines:

(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 cone, breakdowns or any other circumstances should not be taken into account."

1. I have therefore come to the conclusion that the three areas that have been identified by the applicant as areas of complaint were not relevant matters to which the respondent was required to direct his attention. It remains only to mention that the respondent performed his duty as required by the instrument pursuant to which he was acting. I reject any suggestion that he slavishly adhered to "guidelines" or that he failed to exercise a discretionary power. 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. Contrary to the submissions of counsel for the applicant, this is not a case to which the remarks of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 apply.

2. The application is dismissed. The applicant is to pay the respondent's costs.