Jens Rydher Jenssen v Ministry of Fisheries

[2003] NZCA 132

IN THE COURT OF APPEAL OF NEW ZEALAND

CA211/02

BETWEENJENS RYDHER JENSSEN

Appellant

ANDMINISTRY OF FISHERIES

Respondent

Hearing:25 June 2003

Coram:Keith J
O'Regan J
Doogue J

Appearances:  J W Jenssen, with the leave of the Court, for the Appellant

P A McCarthy and A H Cecil-Gibson for the Respondent

Judgment:1 July 2003 

JUDGMENT OF THE COURT DELIVERED BY KEITH J

[1]       Mr Jenssen, the plaintiff and appellant in this Court, has long been involved in commercial fishing, including the opening up of the orange roughy fisheries.  The grant of fisheries quota is in general based on catch histories.  To resolve disputes about that history arising between the applicants for quota and the Ministry of Fisheries the Catch History Review Committee has been established. These proceedings arise at least in substantial part from a hearing in that Committee.

[2]       In February 1998 Mr Jenssen, through his accountants, complained that the Ministry had wrongly withdrawn his permit to catch cardinal, a bycatch of orange roughy.  That action, he said, was taken by the Ministry on the basis that Mr Jenssen did not hold orange roughy quota at the relevant time.  Following successful litigation in this Court in 1992 (Jenssen v Director-General of Fisheries and the Quota Appeal Authority CA313/91, 16 September 1992) the Quota Appeal Authority increased Mr Jenssen’s allocation of orange roughy quota.  The accountants said that as a result of his success through the Courts “he should have been entitled as a consequence to retain his Cardinal permit”.  The Ministry disagreed in a letter of 27 April 1998: under s34 of the Fisheries Act 1996 provisional catch history is the total weight of eligible catch reported in the person’s eligible returns for twelve consecutive months within the 1990-91 and 1991-92 fishing years.  Under s284(3) of the Act the Committee shall not create or allocate provisional catch history in respect of fish unless it was actually taken and reported by a commercial fisher.  Mr Jenssen had provided no evidence rebutting the lack of a catch history during those years. 

[3]       In June 1998 Mr Jenssen appealed to the Committee.  At his request his appeal was adjourned five times.  On 26 September 2001 the Committee directed that the appeal be heard on 30 October 2001, fully three years after the date first fixed for hearing the appeal. 

[4]       At 2pm on 30 October when the appeal was to be heard Mr Jenssen was not present.  He had earlier advised the Committee that on that day he had a related matter in the High Court.  The Committee responded that it was not convinced that whatever other commitments the appellant may have had on 30 October 2001 they could not have been met on or around the same date and time as the appeal.  With or without the appellant, the Committee said, the appeal would be called and considered at the time and date stated.  Mr Jenssen did not respond to that direction.  At the hearing, two officials of the Ministry, in response to a question from the chair of the Committee, said that they were not aware that any of the proceedings brought by Mr Jenssen against the Ministry had a court fixture for 30 October.  In fact at 4pm on that day there was a scheduled initial telephone conference, expected to last no more than 10-15 minutes, in respect of proceedings brought by Mr Jenssen against the Ministry.

[5]       The Committee proceeded with the appeal at 2.20pm.  The Committee agreed with the Ministry’s submissions that the appellant did not meet the statutory threshold required under the Act for the allocation of provisional catch history in respect of the cardinal species during the statutory qualifying years.  There was no evidence that the appellant took that fish and lawfully reported it during the qualifying years.  On the face of it there was no merit in the appeal.  But in any event, the Committee continued, the appellant had not prosecuted his appeal.  He had not turned up at the hearing date and “the reason he [had] given for his absence appears to be incorrect”.  The proper course for the Committee to follow was therefore to formally dismiss the appeal by reason of the appellant’s failure to prosecute it.

[6]       The basis for the current proceeding is that the information given by the officials to the Committee at the hearing was incorrect and was given in breach of a duty of care.  The statement of claim also appears to allege, as a distinct matter, that the plaintiff had been removed from the cardinal fishery by erroneous decisions of the Ministry.  The total claim is for $12m made up of the value of a specified tonnage of catch and “hardship damage along with the extreme distress”.

[7]       Master Gendall issued summary judgment in favour of the defendant.  The claim could not succeed.  The Master based that conclusion on three independent bases:  the two officials at the hearing did not owe the plaintiff a duty of care, they did not in any event breach any duty (assuming there was one) and they were protected by advocate immunity.  The Master was, as well, satisfied that there was no substance in the plaintiff’s argument that action on behalf of the defendant caused the loss complained of.  Further, he also tended to the view that the Committee could not have decided the plaintiff’s claim in any other way, given, first, that Mr Jenssen had no qualifying catch history in the relevant years and, second, the bar on the review of permit decisions made before 1 October 1992, created by s329 of the Fisheries Act 1996.  He was also inclined to accept the defendant’s arguments that the proceeding failed because any application for review of a Committee decision needs to be brought within ninety days as prescribed by s293(5) of the Fisheries Act and that there was an abuse of process. 

[8]       Mr Jenssen appeals.

[9]       We have no doubt that the Master’s conclusion was correct insofar as the proceeding was based on the actions of the officials at the hearing.  Apart from his reasons relating to the lack of any duty of care on their part owed to Mr Jenssen, Mr J W Jenssen, representing the appellant at the hearing before us, accepted that he could not challenge the Committee’s decision dismissing the appeal.  He did not have a permit in the qualifying years.  The Committee could not have decided in his favour (see also s284(3) of the Act, para [2] above).  The actions of the officials accordingly had no causative effect.  For that reason alone the proceeding has to fail so far as it relates to the proceedings of the Committee.

[10]     But the appellant, both in his statement of claim and in the argument in this Court and, we were told, in the High Court contends that he has a cause of action, distinct from that arising from the Committee hearing, relating to the permitting or other decisions concerning cardinal.  He said that he had foreshadowed the possibility of amending the statement of claim in the High Court but that agreement had not yet been reached on that.  The pleading, we have to say, is difficult to understand:

6.        THAT the plaintiffs third cause of action is that the plaintiff had once more been locked out of his livelihood in being kept away from the plaintiff’s right to fishing permits of a catch history of a species of fish called Cardinal.

Having at the time in 1990/91 a Cardinal permit and therein been removed without direct reasons this affected the plaintiff’s applications for the 1992/93, 1993/94, 1994/95, 1995/96 and the 1996/97 fishing years therein causing the plaintiff substantive damage and loss, and with the plaintiff having developed entitlements to orange roughy the Court of Appeal under decision CA313/91 provided the plaintiff with a 100 tonne of Orange Roughy quota, plus quota for alfonsino, blue nose and oreo dory which by that stage had also come under the quota management system, in the interim the plaintiff had been unable to fish for orange roughy and its bycatch (inter alia) of Cardinal due to failure of the Ministry of Fisheries to grant permits for quota of orange roughy and Cardinal all of which the plaintiff by way of appeal to the Catch History Review Committee preserved on 22 June 1998.

[11]     That pleading could well be read, as the Master must have read it, as being directly related to the Committee hearing.  We do however consider it as a distinct cause of action which alleges that Mr Jenssen was entitled to quota or permits for cardinal in the years stated.  The argument was made by reference to s28N of the Fisheries Act 1983 as enacted in 1986.  But that provision applied only to cardinal quota held by the person claiming under those provisions and the appellant held no such quota.  (Cardinal did not become subject to the quota management system until 1 October 1998.)  It cannot assist the appellant.

[12]     Insofar as the pleading concerns Ministry decisions about permits for cardinal, the matter principally emphasised in para 6 of the statement of claim, the appellant faces a further insurmountable barrier.  Section 329(1) and (2) validates every decision in respect of a permitting matter under ss63 and 64 of the Fisheries Act 1983 – the provisions in force at the time of the decisions impugned.   That does not apply to a decision which “is being challenged in or is otherwise subject to any court proceedings commenced before the date of the commencement of this section [1 October 1996]” (s329(3) and (4)(a)).  That provision was plainly designed to protect proceedings pending on 1 October 1996.  The 1992 decision of this Court (para [2] above) had long since been given and had as well been given effect to by the decision of the Quota Appeal Authority.  There was no court proceeding on foot at the relevant time and it follows that the validation in s329 applies to prevent any challenge to permitting decisions relating to cardinal in the period in issue.

[13]     Accordingly, the pleading in para 6, if it is read as dealing with a matter completely distinct from the Committee hearing, cannot possibly succeed.  It follows that the claim as a whole cannot succeed and that summary judgment is properly entered in favour of the defendant, the respondent in this appeal.

[14]     Mr J W Jenssen suggested orally, particularly in his reply, that the claim might be related to the lawfulness of taking cardinal as a bycatch to orange roughy under the quota management system – a bycatch in that situation not requiring a permit.  That approach would avoid the validation and barrier created by s329.  It is however an approach which does not appear in any way in the statement of claim before us. It provides no basis at all for allowing the current proceeding to remain before the High Court.

[15]     It follows that the appeal fails.  The respondents are entitled to costs of $3,000 and reasonable disbursements to be fixed by the Registrar in the absence of agreement.

Solicitors:

Crown Law Office, Wellington for the Respondent