Talley's Fisheries Limited v Westhaven Shellfish Limited

[2002] NZCA 310

IN THE COURT OF APPEAL OF NEW ZEALAND CA202/02

BETWEEN	TALLEY’S FISHERIES LIMITED
First Appellant

AND	WESTHAVEN SHELLFISH LIMITED
Second Appellant

AND	CHIEF EXECUTIVE MINISTRY OF FISHERIES
First Respondent

AND	MINISTER OF FISHERIES
Second Respondent

AND	TE RUNANGA O NGAI TAHU
Third Respondent

AND	SOUTHERN CLAMS LIMITED
Fourth Respondent

Hearing:	9 December 2002
Coram:	Keith J Tipping J Glazebrook J
Appearances:	J M Fitchett for 1st Appellant F M R Cooke and M S Sullivan for 2nd Appellant P A McCarthy and A Puata for 1st and 2nd Respondents R J B Fowler for 3rd Respondent B A Scott and A J Casey for 4th Respondent
Judgment:	9 December 2002

JUDGMENT OF THE COURT

1. Westhaven Shellfish Limited brought proceedings in the High Court challenging decisions and actions of the Chief Executive of the Ministry of Fisheries and the Minister of Fisheries relating to the cockle fisheries in quota management area 3.  Durie J, in a judgment of 30 August 2002, ruled in Westhaven’s favour.  The Judge, among other things, made an order setting aside that part of a Ministerial Gazette Notice that was to introduce cockles in area 3 into the quota management system with effect from 1 October 2002.

2. The Crown has appealed against that judgment and its appeal is to be heard later in the week.  The appeal before us today concerns a later judgment.  The Crown applied to Durie J for directions about the application of the judgment, in particular in area 7.  Notice of the application was also served on Talley’s Fisheries Ltd which had not otherwise been involved in the proceedings. Both it and Westhaven have cockle fisheries in area 7.  Following a telephone conference with counsel who included counsel for Te Runanga O Ngai Tahu and Southern Clams Ltd (who have a cockle fishery in area 3) as well as those for Westhaven, Talley’s and the Crown, Durie J on the following day issued a judgment which concluded as follows:

   [11]     In reliance upon rules 5 and 540 the judgment is recalled for the purpose of adding an order as follows.  That part of the Gazette Notice as introduces cockles in QMA 7 into the quota management system is also set aside;  and the second defendant [the Minister of Fisheries] is not to further proceed with the introduction of cockles in area 7 until 30 days after Westhaven’s application in area 3 has been disposed of.

3. Talley’s and Westhaven have appealed against that judgment contending that the order made was more in the nature of the grant of interim relief rather than a recall judgment, that the Court had no jurisdiction to make the order, that the order was in conflict with the Fisheries Act 1996 and that it was obtained in breach of natural justice.  We have heard argument on that appeal today.

4. Area 7 was not properly before the High Court in these proceedings. The High Court accordingly had no jurisdiction to deal with that area.  For that and other reasons, particularly breach of natural justice, the appeals against the recall judgment are allowed and the recall judgment is set aside.

5. We do not now rule on any consequences arising from that decision, but, if any matters do arise that are properly before us, we will hear submissions on them in the course of hearing the substantive appeal.

6. Talley’s are entitled to a costs order against the Crown of $5,000 plus reasonable disbursements, including travel and accommodation, to be fixed by the Registrar in the absence of agreement.  Westhaven’s application for costs is reserved.

Solicitors

Rout Milner & Fitchett, Nelson for Talley’s Fisheries Ltd
Oceanlaw New Zealand, Nelson for Westhaven Shellfish Ltd

Crown Law Office for Ministry of Fisheries and Minister of Fisheries

Phillips Fox, Wellington for Te Runanga O Ngai Tahu
Chapman Tripp Sheffield Young, Wellington for Southern Clams Ltd