Westhaven Shellfish Limited v Chief Executive of Ministry of Fisheries CA52/03

[2003] NZCA 454

IN THE COURT OF APPEAL OF NEW ZEALAND

CA52/03

BETWEEN

WESTHAVEN SHELLFISH LIMITED

Appellant

AND

CHIEF EXECUTIVE OF MINISTRY OF FISHERIES AND ANOR

Respondents

Hearing:        28 March 2003

Coram:Gault P Keith J McGrath J

Appearances: F M R Cooke for Appellant

P A McCarthy and U R Jagose for Respondent Judgment:      28 March 2003

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1]        We have this morning heard as a matter of urgency an appeal from the judgment of the High Court delivered by France J yesterday. The appeal is against the refusal by the Judge to make an interim declaration under s8 of the Judicature Amendment Act 1972 to protect the position of the plaintiff, Westhaven Shellfish Ltd, in respect of a proposal by the Ministry of Fisheries to give notice under s18 of the Fisheries Act 1996 as the initiating step to the introduction of two additional species into the Quota Management System.

[2]        The interim order is sought in effect to delay the issue of the notice to provide time to receive a judgment presently reserved in the High Court in judicial review proceedings relating to attempts by Westhaven to secure fishing permits for the

WESTHAVEN SHELLFISH LIMITED V CHIEF EXECUTIVE OF MINISTRY OF FISHERIES AND ANOR CA CA52/03 [28 March 2003]

species concerned and pending the outcome of the substantive proceeding in which the present application is made.

[3]The background is set out helpfully in the judgment of France J under appeal.

[4]        After hearing counsel we are satisfied that there is a position to be preserved so as to qualify under s8. It is perhaps best characterised as an opportunity, if successful in the High Court proceedings, to pursue the permit application or applications with a view to obtaining permits that would give rise to eligibility for quota under the Quota Management System when introduced. It is, at present, no more than an opportunity, but because of the provision in s31 of the Act, that opportunity could be lost if the notice were issued before the permit considerations are completed.

[5]        Accordingly, the matter comes down to a balancing of the relevant considerations with a view to determining whether, in the circumstances, it is necessary to make a declaration as sought. In this respect the factors advanced on each side are not strong. On the one hand the appellant advances the potential loss of opportunity which must be seen as some considerable distance from the actual achievement of eligibility for quota. On the other hand the Ministry say, that the relief sought would delay an already prolonged process in accordance with the statutory scheme to bring species within the Quota Management System and would introduce administrative complications.

[6]        It is apparent that with these particular fisheries there are no competitive fishers, indeed there has been no fishing since 1992, and no conservation issues. The argument for urgency in proceeding with the notice is unimpressive. We have reached the view that a short delay in that process will not be seriously prejudicial to the Ministry and should be tolerated to accommodate the opportunity to complete pending litigation with a view to settling any eligibility the appellant may have for quota under the QMS regime.

[7]        Accordingly, having regard to the particular circumstances of this fishery and of the status of the proceedings between the parties, we allow the appeal and make

an interim declaration in the terms sought. There will be an order declaring that the respondents ought not take any further action that is consequential on the exercise of the Minister’s decision to introduce Geoducs and Whelks in the QMS under s18 of the Fisheries Act 1996 until further order of the High Court.

[8]        We add that this should not preclude the parties coming to some arrangement which might enable the notice to be given yet protect the position of the appellant, and in that event, pursuant to the terms of the order, it will be simply a matter of referring back to the High Court.

[9]        The order for costs in the High Court is reversed and stands now in favour of the present appellant. There will be an order in favour of the appellant in the sum of

$3,000 together with disbursements in respect of this appeal.

Solicitors:

M S Sullivan, Nelson, for Appellant Crown Law Office, Wellington