Yennett Pty Ltd and Department of Fisheries (WA) and Anor - [2006] WASAT 56

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: FISH RESOURCES MANAGEMENT ACT 1994 (WA)

CITATION: YENNETT PTY LTD and DEPARTMENT OF FISHERIES (WA) & ANOR [2006] WASAT 56

MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)

HEARD: DETERMINED ON THE PAPERS

DELIVERED : 7 MARCH 2006

FILE NO/S: DR 557 of 2005

BETWEEN: YENNETT PTY LTD
Applicant
AND
DEPARTMENT OF FISHERIES (WA)
First Respondent
LATITUDE FISHERIES PTY LTD
Second Respondent

Catchwords:

Fisheries Interim management plan Application to vary permit Suspension of permit Effect of suspension Whether suspended permit can be varied

Legislation:

Fish Resources Management Act 1994 (WA), s 4, s 137, s 137(1), s 142, s 143, s 147, s 147(1)(f), s 147(1)(g), s 147(2), s 147(2)(b), s 194

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     Self-represented
First Respondent           :     Mr M Cavanagh
Second Respondent      :     No appearance

Solicitors:

Applicant:     Self-represented
First Respondent           :     Mr M Cavanagh
Second Respondent      :     N/A

Case(s) referred to in decision(s):

Shark Bay Tuna Farms Pty Ltd v Executive Director, Fisheries WA and Anor [2000] WASC 79
Yennett Pty Ltd and Department of Fisheries (WA) [2005] WASAT 31

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Yennett Pty Ltd (Yennett) applied to the Executive Director of the Department of Fisheries (Executive Director) to vary a permit which it held under the West Coast Deep Sea Crab Fishery (Interim) Management Plan 2003 (the plan). The permit allowed fishing in Area 5 of the fishery, and the application sought to vary it to permit fishing in Area 3. At the time of Yennett's application there were two other permits granted which allowed fishing in Area 3. Under the plan no more than two permits can authorise fishing in any one zone.
One of the Area 3 permits had, however been suspended prior to being varied from an Area 1 permit to an Area 3 permit. It remained suspended at the time Yennett made its application.
The Executive Director rejected Yennett's application to vary the permit. Yennett sought a review of that decision by the Tribunal. In the review proceedings, the parties identified two issues which the Department contended were determinative of the review. One of those was whether the Executive Director had power to vary a suspended permit. The other was whether the suspension of the other permit was validly effected.
The Tribunal concluded that the Executive Director does have power to vary a suspended permit and had validly done so. There was therefore the maximum number of permits granted in relation to Area 3 and the application could not succeed. It followed that Yennett's application should be dismissed. It was not necessary to deal with the issue of validity of the suspension.

Introduction

On 28 January 2003 the West Coast Deep Sea Crab Fishery (Interim) Management Plan 2003 (the plan) was published in the Government Gazette. The plan has been extended in its operation on two occasions so that the expiry date of the plan is now 31 December 2006.
The plan regulates fishing for deep sea crabs off the West Australian coast. The plan prohibits a person from fishing for deep sea crabs within the regulated area other than in accordance with the plan and under the authority of a permit granted under it. The coastline is divided into five areas ranging from the Northern Territory border to Cape Leeuwin. Clause 9 of the plan limits the number of permits which can authorise fishing in any one area to one Class F permit and one Class P permit, or two Class P permits. Class F permits allow fishing all year round, and Class P permits allow fishing for three calendar months in any calendar year.
The applicant is the holder of a Class P permit, being Permit 2673. That permit was initially issued for fishing in Area 3. On 13 August 2004, Yennett Pty Ltd (Yennett) applied to the Executive Director of the Department of Fisheries (the Executive Director) to vary Permit 2673 from a Class P Area 3 permit to a Class F, or alternatively a Class P, Area 5 permit. The Executive Director initially indicated that he proposed to refuse that application for variation on the basis that it was not open to him to vary it under the terms of the plan. Yennett sought a review of that decision before this Tribunal (the first Yennett application). The question of the authority to grant the variation sought was dealt with as a preliminary issue. The matter was argued and reasons for decision delivered in March 2005 – Yennett Pty Ltd and Department of Fisheries (WA) [2005] WASAT 31. The Tribunal's conclusion was that there was power under the plan to grant the variation sought. The Executive Director then considered the application on its merits, and eventually consent orders were made in the Tribunal varying Permit 2673 from a Class P Area 3 permit to a Class P Area 5 permit as of 8 April 2005.
Latitude Fisheries Pty Ltd (Latitude) is also the holder of a permit issued under the plan, being Permit 2675. Permit 2675 was a Class F Area 1 permit.
Clause 16 of the plan provides:
"Ground to suspend a permit
16.The receipt by the Executive Director of a notice in writing from the holder of a permit, being a notice stating that the holder does not intend to carry out fishing under the authority of the permit for the remainder of the calendar year, shall be a ground for the Executive Director to suspend the permit."
On 15 February 2005, the Executive Director approved the suspension of Permit 2675 pursuant to cl 16. By a letter of that date, the Executive Director advised:
"By powers provided to me under Regulation 181 of the Fish Resources Management Regulations 1995, I have agreed to waive the whole renewal fee of $8000 payable by Latitude Fisheries P/L and renew full time Permit 2675. However, I have decided to suspend Permit 2675 for the 2005 licensing period ending on 31 December 2005, under the provisions of clause 16 of the Management Plan ….
…
Permit 2675 will be renewed on the Department's licensing system, but will be immediately suspended for the remainder of 2005. Please note that you will not receive a hard copy of the permit for 2005."
The proposed action by the Executive Director was then taken by the Department of Fisheries, and Latitude was advised of the renewal and suspension by letter dated 28 February 2005, and the register was amended to record the suspension on 4 March 2005.
The Executive Director's power to suspend the permit arises under s 143 of the Fish Resources Management Act 1994 (WA) (FRM Act) which enables suspension, "on any other ground specified in a relevant management plan". Section 147 of the FRM Act requires that, before giving effect to a decision to, amongst other things, suspend an authorisation under s 143 –
"the Executive Director must –
(f)give to each affected person notice in writing, or in such other manner as is prescribed, of the decision; and
(g)allow sufficient time for the person to make an application under this Division for a review of the decision and the application to be determined."
Section 147(2) provides:
"(2)A notice under subsection (1)(f) must –
(a)give details of the decision and the reasons for it; and
(b)state that the affected person may, under section 149, apply for a review of the decision."
Although the letter of 15 February 2005 to Latitude gave details of the proposed decision and the reasons for it, it did not, nor did the subsequent letter of 28 February 2005, state that Latitude may, under s 194 of the FRM Act, apply for a review of the decision.
On 9 March 2005, an application was made by Latitude to vary Permit 2675 from Class F Area 1 to Class P Area 3. Latitude was advised that it should await the outcome of the first Yennett application before proceeding with its application for variation. At that point, the first Yennett application had been heard five days earlier, but no decision delivered. Latitude acceded to that suggestion and sought a deferral of consideration of the application to vary pending the outcome of the first Yennett application.
The decision on the first Yennett application was delivered on 21 March 2005.
Consent orders having been made by the Tribunal varying Permit 2673 from Area 3 to Area 5, the Executive Director approved the variation to Permit 2675 from Area 1 to Area 3 on 11 April 2005 and the variation was effected on 29 April 2005. Latitude was advised of the variation to its licence by letter dated 6 May 2005.
As a result of the variation of Permit 2675 (if it was validly varied), there have been two permits in relation to Area 3 since at least 6 May 2005, and thus the plan prohibits any further permits being issued in respect of that area.
On 12 May 2005, Yennett applied for a further variation to Permit 2673 from Area 5 back to Area 3.
On 10 September 2005, a delegate of the Executive Director refused to vary Permit 2673 from Area 5 to Area 3. In this application, Yennett applies for a review of the determination of its application to vary its permit from Area 5 back to Area 3.
Against that background, the first respondent has identified two preliminary issues of law which it says are potentially determinative of the application, and the Tribunal directed that those matters be dealt with as preliminary issues. Those issues are:
i)where the Executive Director has decided to suspend an interim managed fishery permit under s 143 of the FRM Act on the ground specified in cl 16 of the plan, then does the failure of the Executive Director to –
a)give notice provided in the manner provided for in s 147(1)(f) and s 147(2)(b) of the FRM Act; and
b)allow the time provided for in s 147(1)(g) of the FRM Act;
invalidate or render ultra vires the giving effect to the decision?
ii)does the power of the Executive Director to vary an interim managed fishery permit under s 142 of the FRM Act extend to varying the permit during a period for which it has been suspended under s 143 of the FRM Act?
For reasons that will emerge, it is appropriate to address the second preliminary issue first.

Can a suspended permit be varied?

Section 137 of the FRM Act provides that:
"(1)An authorisation is granted and has effect subject to the provisions of this Act and does not authorise the doing of anything in contravention of any provision of this Act.
(2)The authority conferred by an authorisation is of no effect at any time when any of its conditions are being contravened or it is suspended."
"Authorisation" is defined by s 4 of the FRM Act as meaning "a licence or permit". Section 137(1) refers to an authorisation being "granted" and having effect. Clause 8 of the plan places a limit on the number of permits that "are to be granted". It provides that not more than five Class F permits (to accommodate the possibility of one for each area), and seven Class P permits, are to be granted under the plan.
The consequences of an authorisation being of "no effect" by reason of a contravention of conditions was considered by Wheeler J in Shark Bay Tuna Farms Pty Ltd v Executive Director, Fisheries WA and Anor [2000] WASC 79. Her Honour said (at [36 ‑37]):
"36.So far as s 137 is concerned, the argument runs that the aquaculture licence was of 'no effect' while it was contravened, and that there was therefore not at any relevant time anything which the intervener could apply to vary, or which the Executive Director could propose to vary. This argument overlooks the opening words of s 137(2). It is the authority conferred by the licence which is of no effect. The licence is still in force, but no action which would be prohibited by the FRMA in the absence of a valid authorisation may be carried out under it by the holder.
37.The continued existence of the licence for some purposes has legal consequences. For example, contravention of a condition of an aquaculture licence would still be an offence pursuant to s 96, notwithstanding that by reason of the earlier contravention of some other condition, the authority conferred by that licence was of no effect pursuant to s 137(2). It would also appear to me that any holder of such a licence may apply to vary it, although a variation which purports to authorise the doing of any act which would otherwise be prohibited, will not be of effect while the condition continues to be contravened. Indeed, one can envisage a variation application being made in such a circumstance where a condition has proved to be impossible for the holder of the licence to comply with, seeking to remove that condition. It appears to me that the distinction between s 137, which provides that 'the authority' conferred by an authorisation is of no effect, and s 139, which provides that 'the authorisation' is to have taken to have been of no effect during a relevant period, is carefully drawn."
It is clear that, notwithstanding a suspension, a permit granted under the plan continues to exist notwithstanding its suspension. It is only the authority to fish which the permit confers that is of no effect during the period of the suspension. A permit issued under the plan is capable of variation notwithstanding its suspension.
The answer to the second preliminary issue is therefore that power of the Executive Director to vary an interim managed fishery permit under s 142 of the FRM Act does extend to varying the permit during the period for which it has been suspended under s 143 of the FRM Act.
Regulation 9 of the plan reads:
"Permit to authorised fishing in a specified area of the Fishery
9.(1)A permit may only authorise fishing in one Area of the Fishery.
(2)Not more than –
(a)one Class F permit and one Class P permit; or
(b)two Class P permits,
may authorise fishing in the same Area of the Fishery."
It is true that permit 2675 was suspended at the relevant time, and accordingly the authority to fish conferred by it was of no effect (assuming the suspension to have been validly imposed). In my view, however, that does not remove permit 2675 from the operation of cl 9 of the plan. A construction of cl 9 which excluded suspended permits from consideration of the total number of permits authorising fishing in a particular area would be practically unworkable. On the proper construction of cl 9, the reference to Class F permits and Class P permits includes permits which are suspended.
It follows that Yennett's application cannot succeed. As at the time Yennett made its application to vary its permit back to an Area 3 free permit, there were two permits which authorised fishing in Area 3.

The failure to comply with s 147

In view of my conclusion as to the capacity to vary a suspended permit, is unnecessary, and in my view undesirable, to answer the other question posed as a preliminary issue. There are two ways in which the question of the validity of the suspension might be relevant to Yennett's application for variation. The first is that, if the suspension was invalid, permit 2675 would have remained effective at the time the variation was granted. Had the Tribunal concluded that a variation to a suspended permit was not possible, a conclusion that the permit was not validly suspended may have saved the efficacy of the variation. In view of my conclusion that a suspended permit is capable of variation, the variation of permit 2675 was effective, regardless of whether the permit was suspended at the time or not.
The second possible relevance of the validity of the suspension concerns the possible application of cl 9 of the plan. An argument may be contemplated that a suspended permit should not be counted for the purposes of cl 9(2) of the plan because it is not a permit which authorises fishing in an area of the fishery. That construction of cl 9 having been rejected, the validity of the suspension is not relevant in that way to the application by Yennett.
The reason that it is undesirable, in the context of these proceedings, to address the issue of validly is because to do so would be to make observations which would merely be obiter dicta in relation to a matter that may have implications for the private rights and obligations of Latitude. Latitude's interest in the outcome of these proceedings was raised by counsel for the Department of Fisheries at the time the preliminary issues were identified. As a consequence, the Tribunal ordered that Latitude be joined as second respondent and for it to be served with all documents filed in the proceedings. A direction was made giving the second respondent the opportunity to file and serve any submissions it wished in relation to the preliminary issue. Latitude was served with all of the relevant papers but has not sought to participate in the proceedings. Notwithstanding the opportunity that has been provided to Latitude to participate in the proceedings, I do not consider it appropriate to express views as to its legal position when those views have no practical consequences to the subject matter of this application.

Yennett's additional questions

In November 2005, directions were made for the filing of submissions by the parties in relation to the preliminary issue. Rather than filing submissions going to the identified issues, Yennett wrote to counsel for the first respondent posing certain questions, and copied that letter to the Tribunal. The questions posed relate to the waiver by the Executive Director of fees on the renewal of Latitude's permit. I am satisfied that there is nothing in the matters touched upon by those questions which affect the conclusions reached on the issue before me. Questions were indeed posed to the Department, rather than the Tribunal, and it is a matter for the parties to address the concerns raised by Mr Dorrington outside of the Tribunal process.

Conclusions

In view of the fact that, at the time of the application by Yennett on 13 May 2005 and since, there are two permits authorising fishing in area 3, Yennett's application for variation is incapable of approval. It follows that Yennett's application for review of the decision to refuse the variation should be dismissed.

Orders

The application for review is dismissed.

I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, DEPUTY PRESIDENT