Antons Trawling Company Limited v Minister of Fisheries

[2007] NZCA 561

IN THE COURT OF APPEAL OF NEW ZEALAND

CA641/07
[2007] NZCA 561

BETWEENANTONS TRAWLING COMPANY LIMITED

First Appellant

ANDESPERANCE FISHING CO LIMITED AND ORNEAGAN DEVELOPMENTS LIMITED

Second Appellants

ANDMINISTER OF FISHERIES

First Respondent

ANDCHIEF EXECUTIVE OF THE MINISTRY OF FISHERIES

Second Respondent

Hearing:5 December 2007

Court:William Young  P, Glazebrook and Robertson JJ

Counsel:F M R Cooke QC for Appellants

A E L Ivory and P A McCarthy for Crown

Judgment:5 December 2007 at 12.15 pm

ORAL JUDGMENT OF THE COURT

A        The application for a stay is dismissed.

BTHE RESPONDENTS ARE TO PAY THE APPELLANTS COSTS OF $1,000 AND USUAL DISBURSEMENTS.

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REASONS OF THE COURT

(Given by William Young P)

[1]       The Minister and Chief Executive have applied for a stay of the interim relief granted in our earlier judgment pending the outcome of their application for leave to appeal to the Supreme Court against that judgment.

[2]       The effect of our judgment is that we considered that interim relief was appropriate pending the hearing of the substantive case at the end of January 2008. 

[3]       It is not suggested that the refusal by us of a stay will have an adverse impact on the sustainability of the orange roughy fishery.  Rather what is in issue seems to be a question of principle and, importantly, a question of principle which, in all probability, can still be pursued by the respondents if we dismiss the present application.  For instance, even if Antons is able to catch all the orange roughy affected by the interim relief we granted before the Supreme Court decides whether to grant leave to appeal (or before an appeal is heard) there could still be a challenge to the costs fixed in this Court meaning that the proposed appeal would not be moot.  On the other hand, if we stayed the interim relief there will be some problems for Antons, broadly along the lines addressed in our earlier judgment.

[4]       The question whether there should be a stay is best addressed by the Supreme Court which will, presumably at the same time, be able to deal with whether leave to appeal should be granted.

[5]       Perhaps recognising this, counsel for the Minister and Chief Executive had earlier this morning sought an adjournment of the present application pending developments in the Supreme Court (and in particular whether leave was granted). But this would involve unnecessary duplication of proceedings in circumstances in which we can see no countervailing benefit. 

[6]       Alternatively, and in the course of the hearing this morning, Mr Ivory suggested that we should grant a stay but leave it in abeyance for 14 days and make it conditional on leave being granted by the Supreme Court and otherwise subject to review in the Supreme Court.  This seems a very cumbersome process.  Further, the timing proposed by Mr Ivory would appear to leave ample scope for the Minister and Chief Executive to approach the Supreme Court for a stay.

[7]       So we dismiss the application with costs of $1,000 and usual disbursements.

Solicitors:
Oceanlaw New Zealand, Nelson
Crown Law Office, Wellington