Petromont Fishing Company Limited v Ministry of Primary Industries
[2018] NZHC 676
•16 April 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV-2016-404-3064
[2018] NZHC 676
IN THE MATTER OF An application for Judicial Review UNDER
Judicial Review Procedure Act 2016
BETWEEN
PETROMONT FISHING COMPANY LIMITED
Applicant
AND
THE MINISTRY OF PRIMARY INDUSTRIES
Respondent
Hearing: 9 August 2017 Appearances:
D W Grove for Plaintiff
N C Anderson and E J Couper for Defendant
Judgment:
16 April 2018
JUDGMENT OF CLARK J
Pursuant to r 11.5 of the High Court Rules I direct the delivery time of this judgment
is 4:30 pm on 16 April 2018
PETROMONT FISHING COMPANY LIMITED v THE MINISTRY OF PRIMARY INDUSTRIES [2018] NZHC 676 [16 April 2018]
Introduction [1]
Two preliminary points [4]
Terminology [4]
Jurisdiction [6]Background [8]
Scampi is brought into the Quota Management System [8]
Petromont’s permit: grant and revocation [11]
Factors in the delay [16]
Petromont’s application for judicial review [43]
Questions for determination [45]
Statutory context [47]Fisheries Act 1983 [47]
Fisheries Act 1996 [48]
First ground: Did the respondent err in limiting the administrative review to decisions made between 1 October 1992 and 1 October 1996? [53]
Applicant’s position [53]
Respondent’s position [54]
Analysis [58](i)Is the review pursuant to the 1983 Act, s 63 or the 1996 Act, s 329? [58]
(ii)Can pre 1 October 1992 decisions be reviewed by chief executive? [78]
Decision [81]
Second ground: does s 308 bar compensation or damages? [89]
Applicant's position [89]
Respondent’s position [93]Decision [94]
Third ground: Is provision of draft advice paper to decision-maker
in breach of natural justice? [101]
Decision [104]
Summary [108]
Result [113]
Introduction
[1] Section 329 of the Fisheries Act 1996 validated decisions and purported decisions of the Director-General of Fisheries in relation to fishing permits issued under ss 63 or 64 of the Fisheries Act 1983.1 If a decision or purported decision was subject to an internal review it was saved from retrospective validation.2
[2] In October 1997 Petromont notified the Director-General of its intention to request a review under s 329. Despite the passage of 20 years the review is still not
1 Fisheries Act 1996, s 329(1) and (2).
2 Section 329(4)(b).
underway. There are several explanations for the astonishing delay including the failure over time to agree the scope and nature of the review process.
[3] Petromont has filed this application for judicial review. It seeks declarations as to the scope of the internal review and as to procedural aspects of the internal review process.
Two preliminary points
Terminology
[4] For clarity, I propose to adopt the applicant’s terminology. I refer to the permitting decisions which Petromont seeks to have reviewed as the “review decisions” or decisions for “administrative review” or “internal review”. The decisions which are the subject of this judicial review proceeding I refer to as the “challenged decisions”.
[5] From 1995 the responsibility for fisheries was with the Ministry of Fisheries. The Fisheries Act 1996 is administered by the Ministry for Primary Industries. The chief executive responsible for the Ministry for Primary Industries is titled the Director-General. Unless the context makes it important not to do so I will refer to “the Ministry” when referring to the respondent or its predecessors. Likewise, I will use the term “Director-General” when referring to the chief executive of MPI or of the earlier entities which had, at different times, responsibility for fisheries.
Jurisdiction
[6] The respondent pleaded an affirmative defence protesting the amenability of the challenged decisions to judicial review. At the hearing, however, the objection was not pressed. Mr Anderson submitted that although the point was arguable the respondent did not object to determination of the issues in the case: “clarification of the issues in this proceeding would be useful and will enable the internal review to progress to completion.” Mr Anderson submitted that even if not reviewable the Ministry would find it helpful to have guidance.
[7] The amenability of a decision to judicial review is akin to a jurisdictional point. If the Court lacks jurisdiction, a party’s consent cannot bestow it. Similarly, if, as a matter of law, a decision is beyond the reach of the High Court’s supervisory jurisdiction and therefore not amenable to review, the consent of the parties will not make it so. The point is of practical relevance to two of the three issues and is addressed further in those contexts.3
Background
Scampi is brought into the Quota Management System
[8] In 1986, by amendment to the Fisheries Act 1983, the Quota Management System (QMS) was introduced to manage commercial fishing stocks. As described by the Court of Appeal:4
… the 1986 amendment provided for the allocation to fishers of what was in essence a proprietary right to fish for a particular species in one or more quota management areas (QMAs).
[9] Under the QMS initial quota was allocated to fishers based on their recorded catch history. Until 1 October 2004, scampi was one of the many species outside the QMS. As with other non-QMS species the method of regulating scampi was through the issuing of permits under the 1983 Act. Commercial fishing permits were issued under s 63 and special permits under s 64.
[10] Scampi became subject to the QMS in 2004 pursuant to s 369N of the Fisheries Act 1996 which repealed and replaced the 1983 Act.5 The allocation of quota for scampi was made on the basis of the fisher’s catch history for the fishing years commencing 1 October 1990, 1 October 1991, and ending 30 September 1992.6
Petromont’s permit: grant and revocation
[11] Petromont was issued a permit on 29 September 1992. This was one day before the end of the catch history period used for the allocation of quota for scampi under
3 The three issues for determination are set out at [45].
4 Minister of Fisheries v Pranfield Holdings Ltd [2008] NZCA 216, [2008] 3 NZLR 649 at [10].
5 Fisheries Amendment Act (No 2) 2004, s 5.
6 Fisheries Act 1996 s 369R(5); Minister of Fisheries v Pranfield Holdings Ltd, above n 4, at [22].
the QMS.7 The permit was granted subject to certain conditions. The term of the permit was from 1 October 1992 until 30 September 1993. The permit authorised Petromont to take specified quantities of scampi in specified quota management areas (QMAs). 8
[12] On 25 May 1993, the Director-General of Agriculture and Fisheries revoked Petromont’s permit in respect of some QMAs on the basis Petromont had made “no landings of certain non-ITQ fish stocks” listed on the permit. Petromont successfully brought judicial review proceedings challenging the revocation decision.9 Anderson J declared invalid the Director-General’s revocation of Petromont’s permit to fish for scampi.10
[13] The Director-General reconsidered his decision in light of the High Court’s directions. On 15 September 1993, pursuant to s 63(6) of the Fisheries Act 1983, the Director-General notified Petromont of the revocation of conditions then attached as schedule D to Petromont’s permit and the substitution of those revoked conditions with the conditions attached to the Director-General’s notification letter.11 The new set of conditions was said to reflect the High Court’s judgment.
[14] On 1 October 1996, s 329 of the 1996 Act came into force.12 The broad effect of s 329 was to validate decisions of the Director-General made prior to 1 October 1992 in respect of permitting decisions under ss 63 or 64 of the Fisheries Act 1983 and also decisions made between 1 October 1992 and 1 October 1996. Savings provisions exempted specific classes of decisions from the retrospective validating effect of s 329. I return to s 329 in my discussion of the legislative framework. Section 329 is central to Petromont’s application for judicial review. Indeed, in his reply submissions
7 The fishing permit issued to Petromont on 29 September 1992 was issued by the Director-General of Agriculture and Fisheries.
8 A quota management area is a term used under the quota management system to refer to a geographically isolated and biologically separate population of a fish species.
9 Petromont Holdings Ltd v Director-General of Agriculture & Fisheries HC Auckland M986/93, 7 September 1993 [High Court decision or decision of Anderson J].
10 At 13.
11 Letter from R Ballard (Director-General of the Ministry of Agriculture and Fisheries to Petromont Holdings Ltd regarding Director-General’s 1993 decision (25 May 1993) [Director-General’s 1993 decision].
12 Pursuant to cl 2 Fisheries Act (Commencement Order No 2) 1996 (SR 1996/255).
Mr Grove, counsel for Petromont, accepted that the correct interpretation of s 329 “has become the key issue in this matter”.
[15] In any event on 1 October 1997, Petromont’s solicitors wrote to put the Ministry on notice that it was “requesting a review of decisions and purported decisions of the Director-General…as we are entitled to do pursuant to s 329 of the Fisheries Act 1996”. The letter did not state what decisions or purported decisions Petromont wished to have reviewed.
Factors in the delay
[16] Since Petromont’s request for an internal review on 1 October 1997 there has been an extraordinary delay. The delay is explained in the affidavit of Louise Cook, a senior solicitor in the respondent’s legal team. Ms Cook’s affidavit evidence was unchallenged. Ms Cook’s evidence, and the extensive documentation which was exhibited to her affidavit, show a course of events which I have decided to set out. A delay of over 20 years before a review is even commenced, much less concluded, might be thought inexcusable without some explanation of the influences on the process.13
Negotiation of the process for administrative review
[17] I have already recorded that on 1 October 1997 Petromont notified the Ministry of its request for a review.
[18] In March 1998 the Ministry asked Petromont to urgently advise whether it intended to participate in the consolidated scampi proceedings then before the High Court.14 The Ministry asked Petromont whether it agreed to defer its review of the scampi permitting decisions until the various proceedings had been determined. Other scampi permit-holders, who were parties to the scampi proceedings, had agreed to have their reviews deferred.
13 I have summarised only that part of the extensive background which has some relevance to the proceeding.
14 Vautier Shelf Company No 14 Ltd v Chief Executive of the Ministry of Fisheries CP20/97, 24 July 2000.
[19] As at 20 May 1998 Petromont had not responded to that letter nor to the Ministry’s 17 February 1998 request for clarification of the decisions Petromont sought to have reviewed. The Ministry advised Petromont that, unless it confirmed by 27 May 1998 its requirement for the review, the Ministry would defer the review until determination of the scampi proceedings.
[20] Petromont’s solicitor, Mr Halse of Foy and Halse, advised during a telephone conversation with Crown Counsel on 31 July 1998 that Petromont did seek review in relation to its permit to take scampi. Mr Halse proposed to take instructions as to whether Petromont agreed to defer the review.
[21] Following correspondence from the Ministry of Fisheries in August 2000 Mr Halse advised that Petromont wished to proceed with its review “under s 329 of the Fisheries Act 1996 and/or s 63 of the Fisheries Act 1983”.
[22] On 7 December 2000, the Ministry advised the name of the officer undertaking the review, sought submissions or further material by 22 December and indicated a preliminary decision was intended by February 2001. The preliminary decision would be provided to Petromont for its response.
[23] On 22 December 2000 Mr Halse replied to advise that it had been agreed with Crown Law to defer the review until the conclusion of (other) litigation.15 The outcome of the appeals might render the review unnecessary.
[24] Almost a year later, on 29 November 2001, the Ministry wrote to Mr Halse to advise that it was proceeding to carry out the review. The Ministry asked for Petromont’s confirmation it wished to proceed and, if so, to specify the decisions to be reviewed. Submissions in support of the application for review were requested by 14 December 2001. A preliminary decision would be sent to Petromont for its comment by 18 January 2002 and Petromont would have 15 working days to respond.
[25]Mr Halse replied:
15 Official Assignee v Chief Executive of the Ministry of Fisheries [2002] NZLR 722 (CA).
… Petromont’s review will include decisions made prior to 1 October 1992 under s 329(1) & 329(3) of the Act. You will be aware that Petromont took review proceedings in the High Court…in relation to a decision of the Ministry made in respect of the 1991-1992 fishing year and as such the decision that is being challenged was subject to Court proceedings in accordance with the requirements of section 329(3).
The review therefore encompasses a total of some 11 years of decision making.
…
[26] Mr Halse added that it was impossible to meet the proposed timetable in light of the volume of material to be assembled and reviewed. Mr Halse suggested submissions could be filed and oral submissions presented to the reviewer towards the end of February 2002, some four weeks after his return to work on 15 January 2002.
[27] The Ministry responded on 13 December 2001 maintaining its view that only decisions made between 1 October 1992 and 30 September 1996 could be reviewed under s 329 as decisions made before 1 October 1992 were validated. If Petromont wanted review of decisions of fishing years outside these dates “it must specify the aspects of the decisions to be reviewed”. Submissions were required by 21 January 2002.
[28] The parties continued to dispute the scope of the review. Petromont insisted that the 1993 High Court decision16 related to decisions made by the Ministry prior to 1 October 1992 and accordingly Petromont was entitled to have those decisions reviewed. In February 2002 Petromont foreshadowed the likelihood of applying for judicial review of the Ministry’s view that the Director-General’s 1993 decision, which was the subject of final determination by the 1993 High Court decision, could not be reviewed.
[29] Through 2002 the date for submissions continued to be missed and reset accompanied by ongoing assurances Petromont still “required the review to be conducted in full”.
16 See [12] above.
[30] The review was placed on hold pending the outcome of inquiries by the State Services Commission and Primary Production Committee.
[31] On 23 December 2004 Petromont confirmed to the Ministry that it wished to continue with its s 329 review.
[32] Between 2005 and 2009 the parties attempted to agree the process for the review. Petromont requested the appointment of a retired High Court Judge to conduct the review. It considered the Ministry’s decision-maker was compromised and could not be impartial given his role in the scampi inquiries. The Ministry took the view it was inappropriate to outsource the chief executive’s s 329 decision. It proposed contracting an independent external individual (John Edwards, barrister) to provide a recommendation to the Ministry decision-maker. The Ministry also proposed the advice of a Queen’s Counsel (Mary Scholtens QC) be obtained as to the lawfulness of proposals in the draft decision paper and as to the relevance, or irrelevance, of any disputed considerations.
The process is agreed
[33] By November 2009 the parties had reached agreement. In a letter dated 12 August 2009 to Bruce Gray QC, acting for Petromont, Crown Counsel agreed to Mr Gray’s clarification of the process “which would therefore be as follows”:
·Petromont makes such submissions as it thinks appropriate.
·The Ministry prepares a paper for the designated decision-maker Mr Peacey, which addresses those submissions and makes a recommendation as to the outcome of the review.
·If it wishes, Petromont responds to the paper.
·Mary Scholtens QC reviews the paper, Petromont’s submission and any other documents referred to in the paper or the submissions that she wishes to see.
·Ms Scholtens advises on the relevance of any disputed factor and advises whether she considers the outcome recommended by the paper is lawfully open.
·The paper, Petromont’s submissions and Ms Scholten’s comments are provided to the decision-maker for a decision on the review.
[34] In his acknowledgment dated 17 November 2009 Mr Gray confirmed that “Petromont accepts the process for review described in your letter”. Mr Gray advised that Petromont was currently preparing its submissions and expected to provide its submissions by 28 February 2010.
The process stalls
[35] On 11 February 2010 Ms Cook (who was the deponent in this proceeding) sought from Mr Gray his confirmation that Petromont would meet the 28 February date for provision of its submissions. Mr Gray replied: “Petromont has had an unexpected event which has slowed its ability to help its lawyers complete the submission”. Mr Gray hoped to be able to write the following week to propose a new timeframe.
[36] Five years later, by letter dated 13 May 2015 from Mr Halse, Petromont sought to have the review concluded. It was not, however, prepared to accept anyone associated with the Ministry undertaking the review.
[37] The Ministry expressed its surprise at receiving a letter questioning the process agreed five years earlier particularly when it had been expecting Petromont’s submissions and supporting material to enable the review to proceed. The Ministry’s position was that, bearing in mind the five years of inactivity in respect of a review requested 18 years earlier, the review had lapsed. However, following further correspondence with Mr Halse during 2015, in March 2016 the Ministry agreed to reactivate the review in the interests of resolving the matter. In a letter dated 3 March 2016 to Mr Halse, Ms Cook set out the process agreed in 2009:
1Petromont Holdings Limited (Petromont) provides MPI with full submissions on all matters that Petromont wishes to have considered in the review;
2MPI prepares a paper for the designated decision maker (Dave Turner, Director Fisheries Management acting under delegation) which addressed those submissions and makes a recommendation as to the outcome of the review;
3If it wishes, Petromont responds to the draft decision paper;
4External Legal expert reviews the draft paper, Petromont’s submissions and any other documents referred to in the paper or the submissions that he/she wishes to see, for the limited purposes of:
a Advising on whether the outcome recommended in the paper to the decision-maker is lawful; and
b Advising on the relevance or irrelevance of any disputed considerations
(The external legal expert’s advice will be provided to MPI upon MPI’s instructions and at MPI’s expense and will not be made available to Petromont);
5The paper, Petromont’s submissions and external legal expert’s comments are provided to the decision maker for a decision on the review; and
6Petromont is informed of that decision.
[38] Ms Cook’s letter included confirmation that Mr Turner “had no prior involvement in Petromont’s original permitting decisions, the subsequent litigation or the current section 329 review”. Finally, Ms Cook proposed a timetable for the above steps. The timetable envisaged Petromont’s submissions being provided to the Ministry by 31 March 2016, thereafter comments from Petromont and expert external legal advice on the lawfulness of proposals in the draft decision paper. Mr Turner’s decision on the s 329(4) review would be provided to Petromont on 17 June 2016.
[39] In his capacity as counsel instructed by Petromont to deal with the review Mr Grove replied on 14 March 2016 to attempt agreement on timing which would need to take into account his and his client’s availability as well as the “substantial volume of material to be compiled given the extensive history of the matter”. Mr Grove advised the “thrust” of Petromont’s case was that it was unlawfully prejudiced by the conduct of the former Ministry of Fisheries and:
as a result of that conduct the scampi allocation received was too low, particularly compared to the allocation made to other companies such as Simunovich and Sanford. If the allocations had been allocated fairly, Petromont would have ended up with a far higher quota.
[40] Mr Grove suggested the review should begin with a determination of what allocation should have been made and when that allocation would have been received. If the reviewer considered Petromont should have received a higher allocation the issue of remedy would arise – whether by way of further quota or damages. Mr Grove
took issue with other aspects of the review including the role of the expert legal adviser. Mr Grove nominated an alternative Queen’s Counsel to the Queen’s Counsel originally agreed with Mr Gray in 2009.17
[41] In its reply, dated 1 April 2016, the Ministry expressed disappointment in the attempt to renegotiate a process agreed in 2009 and with which Petromont had failed to comply. Further, the Ministry:
(a)disputed that compensation by way of damages or further quota was available following a s 329(4) review;
(b)maintained that a s 329(4) review was confined to decisions in respect of the issue, variation, refusal, revocation, or cancellation of any permit issued under ss 63 or 64 of the Act made in the period 1 October 1992 to 30 September 1996; and
(c)required particulars of the specific decisions which Petromont sought to have reviewed.
[42] The parties continued to dispute the scope and nature of the review. On 1 December 2016 Petromont filed this application for judicial review.
Petromont’s application for judicial review
[43] In its amended statement of claim dated 1 December 2017 Petromont pleads it has applied to the respondent under s 63(11) of the Fisheries Act 1983 for a review of the following decisions:18
(a)The decision by MFish, prior to 1 October 1992, to allocate retrospective interim catch limits for scampi in Quota Management Areas (QMAs) 1 and 2, based on catch landings for the 1990-91 fishing year. The plaintiff asserts this decision, and the actions of MFish that preceded it, were unlawful, unfair and unacceptable, and led to very small catch limits being imposed on the plaintiff. As a result, these decisions have caused the plaintiff substantial economic loss and have prevented it from establishing itself in the scampi fishery.
17 Above at [33].
18 Amended statement of claim dated 31 January 2017 at [4].
(b)The decisions made by MFish each year in relation to the plaintiff to continue the unfair, inconsistent, unlawful and prejudicial actions and decisions made prior to 1 October 1992, despite the ongoing complaints by the plaintiff.
(c)The inconsistent and unlawful decisions made by MFish not to allocate catch limits for QMAs 3 and 6B in the 1992-93 fishing year, despite the interim catch limits being fully caught.
[44] Petromont pleads that during the negotiations about the review process the Ministry made a number of decisions that “are improper, contrary to law and/or a breach of natural justice”:19
(a)that it is not open to the decision-maker to award relief to Petromont as either there is no basis to award relief and/or Petromont is barred by s 308(2)(c) of the Fisheries Act 1996 from claiming compensation;20
(b)that the review is limited to decisions made on or after 1 October 1992;21 and
(c)that the Ministry will prepare a “draft advice paper” for the decision- maker which will be reviewed by an external legal adviser prior to the decision-maker making her or his decision on the review.22
Questions for determination
[45] I propose to address the challenged decisions in a slightly re-ordered sequence. Logically the first issue for resolution concerns the scope of the administrative review. The availability of relief following that review, and the process issue raised by the contention around the provision of a draft advice paper, will then be addressed. Accordingly, the questions for determination are:
(a)Was the Ministry in error in limiting the administrative review to decisions of the Director-General made between 1 October 1992 and 1 October 1996?
19 Amended statement of claim at [6], [10], [16] and [21]. These are the three decisions described above, at n 4, as the review decisions, or decisions for administrative or internal review.
20 Amended statement of claim at [10]–[12].
21 Amended statement of claim at [16]–[18].
22 Amended statement of claim at [21]–[24].
(b)Is an award of compensation or damages barred by s 308(2)(c) of the Fisheries Act 1996?
(c)Does the Ministry’s proposal to provide to the decision-maker a draft advice paper which will reflect the legal advice of Queen’s Counsel breach Petromont’s right to natural justice?
[46]First, it is necessary to set out the statutory context.
Statutory context
Fisheries Act 1983
[47] Under s 63 of the Fisheries Act 1983 the Director-General had power to grant fishing permits allowing the holder to take fish, for the purpose of sale, using a fishing vessel. Under s 63 the Director-General could impose conditions on permits and, from time to time, amend, revoke and add new conditions.23 Section 63(11) also created an entitlement to an administrative review of decisions made under s 63 by a delegate of the Director-General:
63 Fishing permits
…
(11) Where any decision is made under this section by any officer acting under the delegated authority of the Director-General, the applicant for the permit or permit holder, as the case may be, shall be entitled to have the decision reviewed by the Director-General or by an officer designated by the Director-General who was not involved in the making of the original decision.
Fisheries Act 1996
[48] Section 329 of the 1996 Act came into force on 1 October 1996. Because its interpretation is central to determination of the issues in this proceeding s 329 is reproduced in its entirety:
23 See the Court of Appeal’s description of s 63 in United Fisheries Ltd v Ministry of Fisheries [2001] NZAR 707.
329 Validation of certain decisions relating to permits
(1)Every decision and every purported decision of the Director-General of Agriculture and Fisheries—
(a)made in respect of the issue, variation, refusal, revocation, or cancellation of any fishing permit under section 63 or any special permit under section 64 of the Fisheries Act 1983; and
(b)made before 1 October 1992—
is hereby declared to be and always to have been valid.
(2)Every decision and every purported decision of the chief executive (whether made by the chief executive or the Director-General of Agriculture and Fisheries)—
(a)made in respect of the issue, variation, refusal, revocation, or cancellation of any fishing permit under section 63 or special permit under section 64 of the Fisheries Act 1983; and
(b)made on or after 1 October 1992 but before the commencement of this section—
is hereby declared to be and always to have been valid.
(3)Subsection (1) does not apply to a decision or purported decision referred to in that subsection if the decision or purported decision is being challenged in or is otherwise subject to any court proceedings commenced before the date of commencement of this section.
(4)Subsection (2) does not apply to a decision or purported decision referred to in that subsection if—
(a)the decision or purported decision is being challenged in or is otherwise subject to any court proceedings commenced before the date of commencement of this section; or
(b)the applicant for the permit which was the subject of a decision or purported decision referred to in that subsection—
(i)has, before the commencement of this section, lodged with the chief executive; or
(ii)within 12 months after the commencement of this section, lodges with the chief executive—
a notice requesting the chief executive to review that decision or purported decision.
(5)Notwithstanding anything in section 93 of this Act or in section 63(13) of the Fisheries Act 1983, if a person has been or is granted a special permit under section 64(1)(c) of that Act or section 97(1)(c) of this Act, being a special permit granted to rectify an administrative error, the following provisions shall apply:
(a)the chief executive may from time to time, but is not obliged to, issue to the person an appropriate fishing permit in place of the special permit:
(b)upon the commencement of a fishing permit issued to any person under this subsection, the special permit held by that person shall be deemed to be revoked.
[49] In summary, s 329 validated every decision and purported decision of the Director-General made before 1 October 1996 in respect of the issue, variation, refusal, revocation or cancellation of any fishing permit under s 63 or special permit under s 64 of the 1983 Act. The legislative purpose in retrospectively validating permitting decisions was to ensure appeals did not undermine the introduction of new species into the QMS.24 But, in respect of challenges that had been commenced by the time the 1996 Act came into force, the legislature did not intend that permit applicants should lose the opportunities those challenges afforded. As the Select Committee observed in its report on the bill:25
There is a need to validate permitting decisions so that challenges to those decisions do not undermine the introduction of new species into the QMS. However, this can be achieved by validating permitting decisions up to 30 September 1992, the period including the catch history years. We consider that appeals against permit decisions after 30 September 1992 should be able to be lodged up to one year after the Bill’s enactment. Any proceedings filed before the commencement of the Bill should be allowed to continue.
[50]Thus, s 329 exempted from validation two categories of decision:
(a)The first category, those decisions or purported decisions made before 1 October 1992, were exempted from validation if they were the subject of court proceedings commenced before 1 October 1996.26
(b)The second category, those decisions or purported decisions made on or after 1 October 1992 but before 1 October 1996, were exempted from validation if they were the subject of court proceedings commenced before 1 October 1996.27 They were also saved from validation if the permit holder had lodged a notice requesting a review either before
24 Fisheries Bill No 63-2 as reported from the Primary Production Committee, at p xxxviii.
25 At p xxxviii.
26 Fisheries Act 1996, s 329(3).
27 Section 329(4)(a).
1 October 1996, when s 329 commenced, or within 12 months of its commencement.28
[51] Section 308 is also relevant. Section 308 limits the Crown’s liability to pay compensation or damages. Relevantly s 308 provides:
308 Protection of the Crown, etc
…
(2) Nothing effected or authorised by—
…
(c)any of sections … 329...
…
shall be regarded as making the Crown liable to pay compensation or damages to any person.
[52] Finally, in this legislative overview, s 322 provides that where there is any inconsistency between a provision in the 1983 Act and a provision in the 1996 Act the provision in the 1996 Act prevails to the extent of the inconsistency:
322 Relationship between offence provisions of Fisheries Act 1983 and this Act
(1)If there is any inconsistency between any provision of the Fisheries Act 1983 … and any provision of this Act (in so far as the provisions of this Act are in force), the provision of this Act shall prevail to the extent of the inconsistency.
…
(4) Without limiting anything in the Interpretation Act 1999, the provisions of the Fisheries Act 1983 shall, notwithstanding their repeal by section 314, continue to apply to proceedings in respect of any offence against the Fisheries Act 1983 committed before the commencement of section 252.
…
28 Section 329(4)(b).
First ground: Did the respondent err in limiting the administrative review to decisions made between 1 October 1992 and 1 October 1996?
Applicant’s position
[53] Referring to the Director-General’s refusal to accept for review decisions made before 1 October 1992, Mr Grove advanced two bases for submitting the refusal was wrong in law:
(a)Petromont seeks review pursuant to s 63 of the 1983 Act not s 329 of the 1996 Act which the respondent relies upon. Section 329 does not create any right of review. In fact s 329 does not create rights but curtails the extent of existing rights under s 63. Accordingly, any review must occur under s 63.
(b)In any event the review decisions are saved by s 329(3). Because Petromont challenged the pre 1 October 1992 decisions in its 1993 judicial review proceeding the decisions “were ‘otherwise subject’ to court proceedings”.
Respondent’s position
[54] The respondent accepts the decisions made after 1 October 1992 are reviewable pursuant to s 329(4)(b)(ii) because Petromont lodged a notice within the statutory timeframe.29
[55] Beyond that, the respondent says, Petromont’s submissions are an attempt to circumvent the proper operation of s 329 the plain meaning and intent of which is clear:
(a)Section 329 validated the decisions made during the fishing years commencing 1 October 1990 and 1 October 1991 which were the catch
29 That is, where the applicant for a permit lodged with the chief executive a request for a review either before the commencement of s 329 or within 12 months of its commencement then the decisions sought to be reviewed are saved from the validating effect of s 329(2). Section 329 came into effect on 1 October 1996. Accordingly, the request for review notified on 1 October 1997 falls within s 329(4)(b)(ii).
history years used to establish the provisional catch history allocated to fishers (and which allocations were fixed in sch 14 to the 1996 Act). Thus, the effect of s 329(1) and (3) was to prevent fishers from calling into question the validity of quota allocations at some time in the future.
(b)Section 329 subs (2) and (4) created a stand-alone review procedure for decisions made in the period 1 October 1992 to 30 September 1996. The same catch history issue did not arise for decisions made during this period. That is why a review procedure was provided.
[56] Mr Anderson submitted Petromont is unable to retrospectively rely on the repealed s 63(11). Allowing reviews under the repealed s 63(11) would not only cut across the 1996 Act but would defeat the purpose of s 329. Even if s 63(11) could be relied upon it is confined to decisions made under the delegated authority of the Director-General whereas all relevant decisions in this case were made by the Director-General personally. Further, s 322 applies so that, to the extent of any inconsistency with the 1983 Act, the 1996 Act prevails.
[57] As to Petromont’s reliance on the 1993 High Court proceeding Mr Anderson advanced detailed submissions. The essential argument was that Petromont cannot bring itself within the s 329(3) savings provision by relying on a proceeding that once existed and has been finally determined.
Analysis
(i)Is the review pursuant to the 1983 Act, s 63 or the 1996 Act, s 329?
[58] This part of the analysis addresses the first of Petromont’s two bases for its contention (at [53] above) that the respondent erred in refusing to accept for review decisions made before 1 October 1992.
[59] Petromont relies on s 63 of the 1983 Act as the source of its entitlement to the administrative review which it seeks. Petromont’s insistence that s 63 prevails is tied to the position it takes on the availability of relief under s 308. I address that issue when considering the second ground of challenge.
[60] The respondent says there are a number of reasons why Petromont cannot rely on s 63 including that Petromont’s review was notified on 1 October 1997 when s 329 was in force and s 63 was repealed. In turn Petromont says the repeal of s 63 “did not and does not affect Petromont’s right to continue its review under that section”.
[61] Both parties’ cases have proceeded on a misapprehension of the legislation in force at the operative time. Section 63 was not in fact repealed as at 1 October 1997. Section 63 was not repealed until 1 October 2001. If counsel were aware of this fact they did not draw it to my attention. The oversight contributed to avoidable complexity and confusion.
[62]The position regarding s 63 of the 1983 Act is as follows:
(a)The 1996 Act came into force on 1 October 1996.30 But the coming into force of the 1996 Act did not mean the whole of the 1983 Act was repealed as at that date. Repeal of the provisions of the 1983 Act was staggered.
(b)Section 314(1)(a)–(zi) of the 1996 Act provided for repeal of provisions in the 1983 Act. Section 314(r) provided for the repeal of ss 62 to 64 of the 1983 Act.
(c)Section 314(r) came into force on 1 October 2001 thereby effecting the repeal of ss 62–64 on 1 October 2001.31 Although the bulk of the Fisheries Act 1983 was repealed from1 October 1996, ss 62, 63 and 64 remained extant for a further five years until their repeal on 1 October 2001.
[63] Consequently, when Petromont’s solicitors wrote on 1 October 1997 to put the Ministry on notice of its request for a review of the Director-General’s permitting decisions32 Petromont was exercising the right to a review conferred by s 63(11) of the 1983 Act. Confusingly, perhaps, the solicitor’s letter of 1 October did say
30 Apart from the provisions specifically exempted by s 1(2A) and (3) of the 1996 Act.
31 Fisheries Act Commencement Order (No2) 2001.
32 See [15] above.
Petromont was “requesting a review as entitled … pursuant to s 329 of the Fisheries Act 1996” but of course 329 creates no right or entitlement to review.
[64] Section 329 retrospectively validates decisions coming within its reach. Decisions saved from validation are those decisions to which s 329(3) and (4) apply. Subsection (3) saves from validation decisions, or purported decisions, being challenged in or otherwise the subject of court proceedings. And subs (4) saves from validation decisions, or purported decisions, being challenged in or otherwise the subject of court proceedings, as well as decisions subject to administrative review already commenced or to be lodged within the statutory timeframe.33
[65] The effect of the savings provisions is to recognise challenges, such as court proceedings or administrative reviews, already afoot. Legislative recognition of a challenge already underway, or to be initiated within a strict timeframe, is altogether different from legislative conferral of a right to institute a challenge. Section 329(4) no more creates a right of administrative review than does s 329(3) create a right to commence court proceedings.
[66] The respondent says Petromont cannot “retrospectively rely on the repealed s 63(11)”. My view is that the Interpretation Act 1999 governs the position. Section 18 of the Act provides:
18 Effect of repeal on enforcement of existing rights
(1)The repeal of an enactment does not affect the completion of a matter or thing or the bringing or completion of proceedings that relate to an existing right, interest, title, immunity, or duty.
(2)A repealed enactment continues to have effect as if it had not been repealed for the purpose of completing the matter or thing or bringing or completing the proceedings that relate to the existing right, interest, title, immunity, or duty.
[67] Subject to one qualification s 18 of the Interpretation Act applies so that Petromont’s review, commenced as it was in 1997 pursuant to the then extant s 63(11), is to be completed despite the repeal of s 63 on October 2001. The qualification is that
33 That is, commenced in accordance with s 329(4)(b)(i) or (ii).
the decisions which Petromont seeks to have reviewed must be decisions which are eligible for administrative review.
[68] The three decisions which Petromont wants to have reviewed are set out at [43] but are reproduced for convenience.
(a)The decision by MFish, prior to 1 October 1992, to allocate retrospective interim catch limits for scampi in Quota Management Areas (QMAs) 1 and 2, based on catch landings for the 1990-91 fishing year. The plaintiff asserts this decision, and the actions of MFish that preceded it, were unlawful, unfair and unacceptable, and led to very small catch limits being imposed on the plaintiff. As a result, these decisions have caused the plaintiff substantial economic loss and have prevented it from establishing itself in the scampi fishery.
(b)The decisions made by MFish each year in relation to the plaintiff to continue the unfair, inconsistent, unlawful and prejudicial actions and decisions made prior to 1 October 1992, despite the ongoing complaints by the plaintiff.
(c)The inconsistent and unlawful decisions made by MFish not to allocate catch limits for QMAs 3 and 6B in the 1992-93 fishing year, despite the interim catch limits being fully caught.
[69] Mr Anderson submitted a stand-alone procedure for decisions in the period 1 October 1992 to 30 September 1996 reflects the recommendation of the Primary Production Committee in its Report on the Fisheries Bill 1996.
[70] The full extract from the Select Committee’s report is set out at [49] above. I reproduce the particular passage upon which the respondent relies as demonstrating a legislative intent to create an entitlement to review:34
We consider that appeals against permit decisions after 30 September 1992 should be able to be lodged up to one year after the Bill’s enactment. Any proceedings filed before the commencement of the Bill should be allowed to continue.
[71] This passage does not reveal an intention to create a statutory entitlement to an administrative review. As stated previously, when s 329 came into effect on 1 October 1996 s 63 was in force. The right to an administrative review which s 63(11) conferred
34 Fisheries Bill No 63-2 as reported from the Primary Production Committee, above n 24 above, at xxxviii.
existed until the repeal of s 63 on 1 October 2001. Entitlements to review under s 63(11) were not time-bound. The apparently open-ended entitlement to have a permitting decision reviewed under s 63(11) was of little avail, however, in the face of the validating effect of s 329. Mr Grove characterised s 329 as “a rights-destroying provision, not a rights-creating provision”. In a sense, he is correct. Review rights were effectively extinguished by s 329 unless the review had been lodged with the chief executive prior to 1 October 1996. The respondent’s arguments on this point cannot be sustained. Section 329 did not confer any rights of review. The extract from the Select Committee report reveals no more than the Select Committee’s proposal to allow court proceedings to continue and the opportunity to challenge to be available for one year post enactment.
[72] The respondent advanced two further arguments against the application of s 63(11). It is necessary to address them only briefly.
[73] The first is that s 322 of the 1996 Act can be relied upon to resolve the inconsistency between s 63 and s 329. Section 322 was included because the Select Committee recognised at the time some provisions of the Fisheries Act 1983 would be operative at the same time as the newly enacted Fisheries Act 1996. I discern no inconsistency between s 63(11) and s 329. It is unnecessary, therefore, to invoke s 322.
[74] Next the respondent contended that, even if s 63(11) does apply, it does not avail Petromont because s 63(11) is confined to reviews of decisions made by officers acting under the delegated authority of the Director-General and the pre 1 October 1992 decisions Petromont seeks to have reviewed were all made by the Director- General personally.
[75]Two obstacles stand in the way of that argument:
(a)First, no evidence as to who made the challenged decisions was adduced. In fact, the copy of the permit issued on 29 September 1992 and included in the exhibits to Ms Cook’s affidavit, is signed by an
official “acting under delegated authority of the Director-General of Agriculture and Fisheries”.
(b)Secondly, the respondent’s contention is at odds with the Court of Appeal’s attribution of responsibility for similar permitting decisions. In Minister of Fisheries v Pranfield Holdings Ltd the Court of Appeal addressed the question whether the Director-General or a delegate made permitting decisions. Mr Grove relied on the following two passages:35
[11] Initially only a few species were brought within the ambit of the QMS, and scampi was one of the many species which remained outside the QMS. For non-QMS species, the method of regulation of the fishery was through the issuing of permits by MAF (or, more accurately, by designated officers of MAF acting on delegation from the Director-General of Agriculture).
[14] The practical position was that the power to issue permits was delegated by the Director-General to MAF officials, and s 63(11) provided for a right of review of any decision in relation to commercial fishing permits made by an officer acting under the delegated authority of the Director-General.
(Petromont’s emphasis)
[76] In the absence of any evidence as to who made the decisions the Court of Appeal’s rather specific observation on the very point is authoritative. There is no basis for finding the Director-General personally made the challenged decisions.
[77] In summary the purpose of s 329(1) and (2) is to validate decisions and purported decisions in relation to fishing permits under s 63 and s 64 of the 1983 Act. Those decisions became “unassailable” with the enactment of s 329.36 Section 329 subs (3) and (4)(a) save from validation decisions and purported decisions which were the subject of court proceedings commenced prior to 1 October 1996. Section 329(4)(b) further exempts from validation those decisions in respect of which an applicant sought an administrative review in time. The savings provisions do not confer a right to commence court proceedings or a right to request an administrative review. Rather, s 329 recognises the existence of that right or entitlement and saves
35 Minister of Fisheries v Pranfield Holdings Ltd, above n 4, at [11]–[14].
36 Jenssen v Attorney General CA273/98, 25 May 1999, at [49].
from validation those discussions subject to the exercise of that right provided the right was exercised in time. The right to an administrative review was given by s 63(11). Section 63 was in force on 1 October 1997 when Petromont lodged its review and I conclude that Petromont’s review is pursuant to s 63(11) not s 329.
(ii)Can pre 1 October 1992 decisions be reviewed by chief executive?
[78] The respondent accepts decisions made after 1 October 1992 are reviewable because Petromont’s notice was lodged within the statutory timeframe. The dispute concerns, therefore, only the decisions set out above at [68](a) and (b) that is, the decisions made before 1 October 1992.
[79] The submissions on behalf of Petromont directed to this, the core of its case, were concise:
(a)For all the reasons advanced in respect of the first limb of this ground of challenge (that is, whether the review right is conferred by s 63 or s 329) Petromont submits its right of review is contained in s 63(11).
(b)In basing its decision on the savings provisions in s 329 of the 1996 Act the respondent’s view that decisions made prior to 1 October 1992 are not open to review is wrong in law.
(c)The review decisions made before 1 October 1992 were the subject of Anderson J’s decision in Petromont Holdings Ltd v The Director- General of Agriculture and Fisheries.37 As the review decisions made prior to 1 October 1992 were the subject of a High Court decision prior to 1996 “they were ‘otherwise subject to’ court proceedings and are thus excepted from the application of section 329”.
(d)Consequently, the review decisions were not retrospectively validated and, Petromont submits, there is no legal basis for the defendant to exclude them from the administrative review.
37 Petromont Holdings Ltd v The Director-General of Agriculture and Fisheries, above n 9.
[80] The respondent’s position and submissions with respect to s 63 have been set out and discussed in the preceding section. Its position on this part of Petromont’s case may be shortly stated. The respondent relies on s 329 as providing the complete answer to Petromont’s contention that the 1993 High Court Decision saves the pre 1 October 1992 decisions from retrospective validation.
Decision
[81] For the following reasons my clear view is that Petromont cannot rely on its 1993 High Court proceeding as entitling it to an administrative review of decisions made prior to 1 October 1992.
[82] Section 329(1) validates every decision or purported decision taken by the Ministry under s 63 or s 64 of the 1983 Act before 1 October 1992. The validation is subject to only one exception.38 Section 329(3) saved from validation decisions then the subject of court proceedings. Petromont’s argument overlooks that s 329(3) is cast in the present tense:
(3)Subsection (1) does not apply to a decision or purported decision referred to in that subsection if the decision or purported decision is being challenged in or is otherwise subject to any court proceedings commenced before the date of commencement of this section.
[Emphasis added]
[83] Petromont says there is nothing in s 329 that requires the decisions to be the subject of ongoing court proceedings. In my view the position which Petromont has so strongly pressed over the years and which it maintains in this proceeding is hopeless. The effect of its argument is that the pre 1 October 1992 decisions are not validated because they were once the subject of a court proceeding. The argument for Petromont is tantamount to a submission that wherever a pre 1 October 1992 permitting decision has been challenged in a court proceeding it remains amenable to administrative review even where the proceeding is long concluded. The argument is untenable. Petromont’s approach requires the validating purpose expressed in s 329(1)
38 Sealord Group Ltd v Chief Executive of Ministry of Fisheries CA238/02, 1 April 2004, at [54].
to be read so narrowly as to “defy the will of Parliament which the history makes plain”.39
[84] The decision which Petromont seeks to have internally reviewed is not only superseded by Petromont’s successful and concluded judicial review but by the replacement decision made by the Director-General on 15 September 1993. To the extent any element of the 29 September 1992 decision to issue a fishing permit was not subject to the 1993 judicial review challenge, that element of the decision is validated by s 329(1).
[85] As to the respondent’s replacement decision made on 15 September 1993, the respondent has always accepted it can be reviewed. The decision Petromont says it wants reviewed, and attempts to bring within the pre 1 October 1992 class of decisions, no longer exists. It is overtaken by time, court proceedings and the replacement 1993 decision.
[86] The answer to this ground of judicial review is the same as the “straightforward answer” given by the Court of Appeal to a similar ground in Sealord Group v Chief Executive of Ministry of Fisheries:40
A request to the Ministry for a review … does not extend to pre-1 October 1992 decisions. However the Ministry’s actions before that date are characterised and whatever may be their possible relevance to discretionary decisions … those actions cannot be reviewed under s 329.
[87] The respondent did not err in limiting the administrative review to decisions made between 1 October 1992 and 1 October 1996. The respondent was correct to accept for review only the decisions made by the Ministry of Fisheries not to allocate catch limits for QMAs 3 and 6B in the 1992-93 fishing year.
[88]This ground of review must fail.
39 United Fisheries Ltd v Ministry of Fisheries [2001] NZAR 707 at [31]; Jenssen v Attorney- General, above n 36, at [46].
40 Sealord Group v Chief Executive of Ministry of Fisheries, above n 38, at [54].
Second ground: does s 308 bar compensation or damages?
Applicant’s position
[89] Petromont challenges the respondent’s “view” that the combined effect of ss 329 and 308 means no damages or compensation is payable for anything “effected or authorised” by s 329. That includes reviews under s 329(4) and decisions validated under s 329(1) or (2).
[90] Petromont argues that s 329 does not “effect” or “authorise” anything. The review is effected and authorised by s 63(ll). Section 308 can only apply if s 329 applied in the first place. Where s 329 does not apply neither can s 308. Mr Grove submitted the respondent misunderstands the law as set out in Minister of Fisheries v Pranfield Holdings Ltd at [169]:41
[169] It is accepted by the parties that neither ss 329 or 308 applies to Pranfield’s case. That is because s 329 does not apply to proceedings filed before the commencement of s 329, as Pranfield’s claim was. While the argument could be made that this decision is “effected” by s 329, it would be an odd result if proceedings were saved by s 329 but litigations were deprived of the fruits of litigation by s 308. That might be the case if it was envisaged that only administrative law remedies should be preserved but we do not consider that is so.
[91] Mr Grove argued that it would be illogical if a right to review was granted, but no remedy was available. He submitted this is a case where Parliament intended a breach of statutory duty to be actionable.
[92] Finally, Mr Grove submitted that it was for the decision-maker, not the respondent, to decide what relief should be available.
Respondent’s position
[93] Mr Anderson submitted it is simply not the case (as Petromont asserts) that without damages or compensation no relief is available following a review. A remedy, in the form of a different decision, may follow a review. Additionally, Government policy in the area has been to award ex-gratia payments where justified. Petromont
41 Minister of Fisheries v Pranfield Holdings Ltd, above n 35.
was not identified by the 2003 Primary Production Committee inquiry as having a justified grievance warranting an ex-gratia payment. The Ministry’s position is that the correct legal position has been conveyed to Petromont.
Decision
[94] As Mr Anderson points out the respondent has made no substantive decision regarding the availability of relief. That of course raises the issue of the amenability of the respondent’s “decision” to review. I set out below the respondent’s most recent formulation of its “decision” on the issue of relief and the application of s 308. It is contained in a letter from Ms Cook to Mr Grove dated 1 July 2016. The letter is written in the interests of “moving the review forward” and addresses five matters including the issue of compensation:
… s 329(4)(b) of the Fisheries Act 1996 … creates the right of review and is silent as to the scope of available relief.
However, s 308(2)(c) of the Act applies and confirms that nothing effected or authorised by s 329 shall be regarded as making the Crown liable to pay compensation or damages. (See also [164]–[168] Minister of Fisheries and Ors v Pranfield Holdings Ltd … Likewise a review decision to that effect does not have to lead to compensation as well.)
[95] I can see no basis for concluding the views set out by Ms Cook are amenable to judicial review.
(a)The first and fundamental point is that the review has not yet commenced much less concluded. Its very scope is to be determined in this judgment. Consequently the issue of relief is entirely theoretical at this stage.
(b)Mr Grove’s reply submissions tend to illustrate the hypothetical nature of the question of relief at this time. Mr Grove is critical of the Ministry for making “much of the review itself providing an adequate remedy” without providing any “convincing argument [as to] how the review is an adequate remedy” if compensation is not available. In the absence of findings that there has been a wrong, or error, and without any understanding of the nature of the wrong or error, arguments about
relief border on the pointless.
(c)Expressed as they are at this embryonic stage of the process the respondent’s views as to the relief available, if any, when the review is concluded do not jeopardise the review process itself. It is therefore not necessary that the High Court exercise its supervisory jurisdiction in order to avoid the review itself seriously going “off the rails” as Young J was concerned to avoid in Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries.42 As is evident from the process that has been agreed (more or less) there will be ample opportunity for Petromont to consider the draft outcome and recommendations and to make submissions.
(d)Additionally, there is a further proposed step in the process namely the Ministry’s intention to obtain legal advice from an independent, senior counsel as to the lawfulness of the Ministry’s draft proposals and recommendations. This step may be seen as one that further safeguards Petromont’s interests.
(e)Accordingly, there will be ample opportunity during the review process for the parties to turn their minds to the question of relief in circumstances when the topic is other than theoretical. At this preliminary stage, when history suggests the review may yet falter, the issue of relief is entirely speculative and hypothetical.
[96] My approach to the amenability to judicial review of the respondent’s opinions about relief has been guided by the Court of Appeal’s analysis in Singh v CE Ministry of Business.43
[97] My conclusions effectively determine this second ground of challenge. Nevertheless, I make the following observations.
42 Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries [2003] NZAR 362 (HC) at [15].
43 Singh v CE Ministry of Business [2014] NZCA 220, 3 NZLR [2014] 23.
[98] Section 308 protects the Crown from liability for compensation or awards of damages when exercising certain powers conferred by the Fisheries Act 1996. When the Bill was introduced the proposed exclusion from liability for compensation was opposed by the fishing industry as being constitutionally inappropriate and unfair. The New Zealand Law Society also submitted the clause was contrary to the Bill of Rights. In its report the Select Committee responded to the submission as follows:44
We consider this provision is necessary to enable the Crown to manage fisheries resources at sustainable levels. No compensation should be payable for any decision relating to sustainability measures, allocation of fishing rights and enforcement and administration of the Bill.
…
We, therefore recommend cl 308 which clearly sets out the provisions of the Act that the Crown is protected from liability for compensation in administering.
[99] Section 308 therefore immunises the Crown from liability for damages or compensation in respect of decisions “effected or authorised” by a number of provisions, including s 329.
[100] I have determined s 329 does not authorise internal reviews or “effect” reviews. Section 329 is a validating provision, one that extinguishes rights. Section 308 protects the Crown from liability for that extinguishment of rights. Immunisation for liability is, however, a different proposition from the freedom which chief executives and ministers have to pay (consistent with Cabinet authority) compensation or damages in settlement of claims or to make ex gratia payments.45
Third ground: Is provision of draft advice paper to decision-maker in breach of natural justice?
[101] The Ministry proposes to prepare a draft advice paper for the decision-maker. The process envisages the draft advice paper will be given to Petromont for its response. The external legal expert will review the draft, Petromont’s submissions and any other documents of relevance.46 Petromont objected to the process as being in
44 Fisheries Bill No 63-2 as reported from the Primary Production Committee, at p xxxvii.
45 See Cabinet Office Circular CO (15) 4.
46 See [38] above.
breach of its natural justice entitlements. Mr Grove’s written submissions summarised Petromont’s reasons for its concerns:
(a)The perceived impartiality of the decision-maker is crucial to the integrity of the review.
(b)The concerns about impartiality are aggravated by the relationship of the decision-maker to the respondent. The decision-maker is an employee of the respondent.
(c)Petromont is concerned that by providing an “advice paper” or “recommendation” to the decision-maker the respondent will lend improper weight to its arguments or prejudice a fair review process.
(d)The description “advice paper” implies collegiality between the respondent and decision-maker.
[102] In reply, however, Mr Grove submitted that providing the advice paper is disclosed to Petromont prior to the review being decided, and Petromont is given an opportunity to respond, Petromont is willing to accept the provision of an advice paper to the decision-maker. Petromont prefers the advice paper to be termed “submissions” to maintain, as far as possible, the appearance of impartiality.
[103] Petromont contends that it would be procedurally unfair if the decision-maker receives independent legal advice when that independent legal advice has not been provided to Petromont and it has no opportunity to respond to it.
Decision
[104] Mr Grove’s concession, that provision of a draft advice paper will not breach Petromont’s fair hearing rights, is properly made. In my view affording Petromont an opportunity to respond to the draft advice paper before the paper is provided to the decision-maker meets Petromont’s natural justice entitlements and expectations of fairness.
[105] I see no issue arising from the fact that the paper may be written up as “draft advice” or “draft decision”. Such a description would accurately reflect its content and purpose. The decision-maker remains free to adopt a different path from that which is recommended in the paper. It is not for the Court to direct the Ministry as to how it should compose or characterise its internal advice.
[106] I do not agree that Petromont is entitled to see the legal advice which the Ministry proposes to obtain. Presumably legal advice about the lawfulness of the draft recommendations would be obtained prior to Petromont seeing the draft. It would hardly be sensible to do otherwise. In this way the legal advice would tend to be reflected in a draft, or proposed, outcome that will have been in a sense, certified in terms of its lawfulness. It would be a potential waste of time for Petromont to be invited to comment on a draft, prior to legal input, and which therefore may be vulnerable to change because of issues as to lawfulness of the recommendations.
[107] No authority was cited to me in support of the proposition that the failure to provide a copy of legal advice to a third party — even a third party who may be impacted by that advice — is a breach of natural justice. I have no doubt that Petromont is not entitled to the legal advice itself. It will be for the respondent to decide whether it wishes to waive privilege in the legal advice but that is not a matter which concerns this Court at this stage.
Summary
[108] When Petromont wrote on 1 October 1997 to put the Ministry on notice of its request for a review of the Director-General’s permitting decisions it was exercising the right to a review conferred by s 63(11) of the Fisheries Act 1983. Despite the repeal of the 1983 Act, s 63 remained in force until its repeal on 1 October 2001. Section 329 confers no right of review, limited or otherwise. The purpose of s 329 (1) and (2) is to validate decisions and purported decisions in relation to fishing permits under the 1983 Act. Those decisions became unassailable by operation of s 329.
[109] Section 18 of the Interpretation Act 1999 applies. Subject to the decisions being reviewable the review Petromont commenced in 1997 is to be completed despite the repeal of s 63(11).
[110] Decisions prior to 1 October 1992 are validated by s 329 and therefore not able to be reviewed. Petromont is unable to rely on its 1993 High Court judicial review proceeding as exempting the decisions from validation. Its position in that respect is untenable.
[111] The Ministry’s views as to the availability of relief following the review are not amenable to judicial review. The views are expressed at such an embryonic stage of the process the issue of relief is theoretical.
[112] Petromont is not entitled to the external legal advice which the Ministry proposes to obtain as to the lawfulness of proposals to be included in a draft decision paper.
Result
[113] Petromont has not established its entitlement to the declarations it seeks. The application for judicial review is dismissed.
[114] The respondent is entitled to costs. If the parties are unable to agree costs they may file written submissions not exceeding six pages. I make this final observation bearing on costs. Although the applicant has not succeeded in any of its grounds of review that part of the respondent’s case which relied on s 329 as the source of the power to conduct an internal review was found to be flawed.
Karen Clark J
Solicitors:
Foy & Halse, Auckland for Plaintiff
Crown Law, Wellington for Defendant
3
1
1