Administrative Law - Judicial review - Grounds of review - Observance of procedures - Procedural fairness - Exclusion of procedural fairness - Particular cases - Whether procedural fairness impliedly excluded by terms of statute.

Living Marine Resources Management Act 1995 (Tas).

Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596; Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383; Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648, applied.

First Respondent: Director of Public Prosecutions

Second Respondent: Director of Public Prosecutions

Judgment Number: [2005] TASSC 30

ADELAIDE BAY SEAFOODS PTY LTD AND LORRAINE KOSSMAN

v CHIEF MAGISTRATE A G SHOTT, MICHELLE MOSELEY,

1 The Living Marine Resources Management Act 1995 ("the Act"), s90(1), provides:

"(1) The Secretary may apply to a magistrate for an order to suspend or cancel a licence for any period on the grounds that -

(a) the holder of the licence has been convicted of an offence against this Act or the Fisheries Act 1959 subsequent to the grant of that licence; or

(b) the holder of the licence has been convicted under a corresponding law or under legislation of New Zealand of an offence substantially the same as an offence against this Act; or

(c) the licensee has contravened or failed to comply with any condition of the licence; or

(d) the holder of the licence has failed to submit any records under this Act; or

(e) any fee or charge or other money payable in respect of the licence has not been paid by the due date."

2 By an application dated 28 October 2004, the second respondent, who is the Deputy Secretary - Corporate Management of the Department of Primary Industries, Water and Environment, acting as the Secretary's delegate under the Act, s20(2), made application to a magistrate for an order that fishing licence (abalone dive) Entitlement No 106, be cancelled upon the grounds set out in the application.

3 The hearing commenced on 15 November 2004 before the learned Chief Magistrate and resumed on 19 November 2004. Fishing licence (abalone dive) Entitlement No 106, was issued to Mr Murray Young, the third respondent. He appeared by counsel before the learned Chief Magistrate but did not oppose the application for an order that the licence be cancelled. Adelaide Bay Seafoods Pty Ltd ("the applicant") appeared by counsel, Mr Ayliffe, before the learned Chief Magistrate and sought either a right, or leave, to be heard upon the application to cancel Mr Young's licence. After hearing submissions, the learned Chief Magistrate reserved his decision on this issue. On 21 December 2004, he ruled that the applicant had no right to be heard, and would not be given leave to be heard upon the application to cancel the fishing licence. Mr Ayliffe then sought leave for Lorraine Kossman to be heard. Leave for her to be heard was also refused and the hearing proceeded, unopposed, to a conclusion. Forthwith, the learned Chief Magistrate made an order cancelling fishing licence (abalone dive) Entitlement No 106.

4 Pursuant to the Judicial Review Act 2000 ("the Review Act"), s17(1), the applicant now seeks a review of the learned Chief Magistrate's decision to cancel the licence. Mrs Kossman is also an applicant for a review of that decision, but upon the hearing before me, Mr Ayliffe abandoned her claim to a review and an order will be made that her application be dismissed. The learned Chief Magistrate filed a notice of submission to any order that might be made upon the application for a review. The second respondent ("the respondent") appeared by her counsel, Mr Turner, but Mr Young did not seek to take any part in the hearing of this application.

5 The application for review contains four grounds. One of them was abandoned and one of them relates only to Mrs Kossman's application. The remaining two grounds assert, in substance, that the applicant was denied procedural fairness when the learned Chief Magistrate refused to hear it upon the application to cancel the licence and that consequentially, the proceedings were a nullity and/or the learned Chief Magistrate thereby lacked jurisdiction to cancel the licence so his order to that effect should be quashed.

The applicant's interest in the fishing licence

6 It appears that upon the hearing of the application before the learned Chief Magistrate, evidentiary material relied upon by the applicant was confined to two documents that were handed up without the benefit of accompanying oral evidence and a letter from Mr Young's solicitor.

7 It is not easy to ascertain from that material what was the applicant's interest in the fishing licence. The first document, dated 9 March 1998, was a deed made between Allan Barnett Fishing Co Pty Ltd, described as the licensor, and Murray Grant Young, described as the licensee. The deed recites that the licensor is "the beneficial owner" of Commercial Abalone Diver's Entitlement No 106, and the licensee is "a licensed commercial abalone diver or entitled so to be on the transfer of the Diving Entitlement to him". The operative part of the deed provides that the licensor grants to the licensee "the licence and privilege to use and enjoy the Diving Entitlement" on the terms set forth in the deed. The following clause stipulates that the rights conferred by the deed shall rest in contract only and not confer any estate or interest in the Diving Entitlement. The licensee's basic obligation is to pay the licensor a specified sum for each kilogram of abalone caught by him.

8 At the date of the deed, the only authorisation for taking abalone in commercial quantities was a fishing licence (abalone dive) issued pursuant to the Fisheries (Abalone) Rules (Statutory Rule 184/1997). The licensor, a body corporate, could not have been the holder of such a licence, so it is difficult to understand how it could "licence" Mr Young to use the entitlement. The relevant legislation provided that it was unlawful for any person to take abalone in commercial quantities unless he or she was the holder of a fishing licence (abalone dive). As the deed required the licensee to pay the licensor a specified sum of money for every kilogram of abalone caught, one might presume that the licensee was the holder of the diving entitlement. If that is right, it is difficult to see how Allan Barnett Fishing Co Pty Ltd could grant Mr Young "the licence and privilege to use and enjoy the diving [licence]".

9 Upon the hearing of the application for review, Mr Ayliffe was unable to explain these difficulties that appear to me to arise out of the terms of the deed.

10 The second document before the learned Chief Magistrate was entitled an agreement for sale. It was neither dated (apart from the year, 1999) nor signed, but in his reasons for refusing to hear the applicant upon the application to cancel the licence, the learned Chief Magistrate said that it was common ground that this agreement was completed. It was made between Allan Barnett Fishing Co Pty Ltd, described as the vendor, and the applicant. The agreement recites that the vendor is the "beneficial owner of Commercial Abalone Diving Entitlement Number 106, Fishing Licence Number T100854 ... which is presently held under licence by Murray Grant Young ...". The operative provisions of the deed provide that the vendor agrees to sell and assign to the applicant and the applicant agrees to purchase free from encumbrances "the Diving Entitlement Number 106, Fishing Licence Number T100854". The purchase price is expressed to be $200,000.

11 I do not understand how the vendor could have been the holder of the licence, nor how it could have agreed to sell it. At the material time, the Act and Rules provided that fishing licences could only be held by natural persons and could only be transferred to another natural person by the Minister. Mr Ayliffe asserted that Mr Young held the licence as trustee for the applicant and that the applicant had paid $200,000 for a beneficial interest in that licence. Mr Ayliffe did not spell out the terms of the trust, but I assume he would have asserted that one of them was an obligation to pay the applicant the sum specified in the deed for each kilogram of abalone caught, pursuant to the entitlement conferred by the fishing licence (abalone dive).

12 In his reasons, the learned Chief Magistrate set out parts of the two documents, but made no finding with respect to the nature and extent, if any, of the applicant's interest in the fishing licence. Indeed, upon the documentary material alone, it seems to me it would have been impossible for the learned Chief Magistrate to have determined whether the applicant had any interest in this fishing licence at all. Mr Turner made no submissions about this aspect of the application for a review of the order of cancellation. Although neither counsel referred to it, I note that the file from the learned Chief Magistrate contains a letter dated 3 November from Mr Young's solicitor and addressed to the applicant. The letter advises that Mr Young does not propose to oppose the application to cancel the licence, and states, "he acknowledges that you are the equitable owner of that endorsement" [sic].

13 I heard argument upon the assumption that Mr Ayliffe's assertion was correct and that the applicant did have some kind of beneficial proprietary interest in the fishing licence and that it had paid $200,000 to acquire that interest. This is not a satisfactory situation, but having regard to the conclusion I have reached, I will proceed to deal with the application on that basis.

14 In his lengthy and very detailed reasons, the learned Chief Magistrate, correctly, in my respectful view, accepted that the common law required that the applicant be given an opportunity to be heard. At par35, he referred to what he described as the "now well established principle that is encapsulated in the following passage from the judgment of Mason J (as he then was) in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582:

'It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it (Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, at p 109; Salemi (No 2), at p 419; Ratu, at p 476; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, at pp 498-499; FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, at pp 360, 376-377; Annamunthodo v Oilfields Workers' Trade Union [1961] AC 945). The reference to "right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.'

See also: J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, Quirindi Shire Council v Gigli (1985) 3 NSWLR 178 at 190, Lisafa Holdings Pty Ltd v Commissioner of Police (1989) 15 NSWLR 1 and Balmain Association Inc v Planning Administrator for Leichhardt Council (1991) 25 NSWLR 615."

15 The learned Chief Magistrate then stated, again correctly in my view, that the common law concept of the right to be heard, expressed in Kioa v West, may be excluded by Parliament, either expressly or by necessary implication. See Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596. With respect to the issue of necessary implication, the majority joint judgment in Annetts v McCann at 598, expressed approval of:

* The view expressed by Dixon CJ and Webb J in Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 396 that an intention to exclude the right to be heard was not to be assumed or spelled out from "indirect references, uncertain inferences or equivocal considerations".

* The words of Mason J in Kioa v West (supra) at 584 that the obligation to provide procedural fairness was "subject only to the clear manifestation of a statutory contrary intention".

* The view expressed by Deane J in Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 653 that the common law requirement to afford procedural fairness will be met "in the absence of a clear contrary legislative intent" to exclude it.

16 In Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, McHugh J said at 470:

"An intention to exclude the rules of natural justice must be clearly evident in the express words of a statute. Such an intention cannot be gleaned from 'indirect references, uncertain inferences or equivocal considerations' (The Commissioner of Police v Tanos (1958) 98 CLR, at p 396)."

17 With respect to the provisions of the Act generally, the learned Chief Magistrate observed that the fishing industry is highly regulated. Indeed it is. All the living marine resources in State waters are vested in the State. The Act provides for the making and enforcement of management plans for these resources, and tightly controls the exploitation of the resources by an extremely detailed regime of licensing, imposition of quotas and a demerit points system, together with the imposition of an unwavering obligation upon licence holders to supply information to enable the authority to better manage the resources. There is a clear statutory intention to impose personal obligations and accountability on the licence holders on pain of imposition of substantial penalties for non-compliance with the regime. The learned Chief Magistrate set out many of the relevant statutory provisions in his reasons. His Worship also made reference to the Fishing (Licence Ownership and Interest) Registration Act 2001. This Act makes provision for a register of owners and persons who have an interest in an abalone quota licence, a fishing licence (giant crab) and a fishing licence (rock lobster) and any other prescribed licence. At the time of the hearing before the learned Chief Magistrate, no other licences had been prescribed for the purposes of the Act. The learned Chief magistrate concluded that a beneficial interest in a fishing licence (abalone dive) is not a registerable interest under the Act.

18 The learned Chief Magistrate drew attention to the forfeiture provisions in the Act and noted that s225(2) confers a right on "a person" to apply to the Court for an order that forfeiture is not to be carried out. Section 226(3) confers a power on the owner of anything that has been forfeited for an order for its return. There are other provisions conferring rights to apply with respect to forfeited or seized property.

19 The learned Chief Magistrate referred to all the statutory provisions which impose personal liability and accountability on licence holders in a setting of very strict statutory regulation of a precious natural resource, a setting which provides no statutory recognition by way of registration for the interest asserted by the applicant, and one which makes express provision for applications to be made in the case of forfeiture or seizure of property. He then inferred from all these provisions a statutory intention to exclude the common law right that the applicant would have otherwise had to be heard on the application to cancel the licence.

20 With great respect to the learned Chief Magistrate, I have reached a contrary view.

21 The Act, s78, empowers the Minister to grant a licence. The Act, s81, requires the Minister to renew a licence upon application by a licence holder, provided he is satisfied of the matters provided by subs(2), the last of which is "it is appropriate to do so". Clearly, it would be a denial of procedural fairness not to hear the licence holder and any person with an interest, particularly a proprietary interest in that licence, before refusing to renew a licence. There is nothing in the reasoning of the learned Chief Magistrate to suggest to the contrary.

22 The same observation can be made with respect to the Act, s82, which empowers the Minister to transfer a licence to another person, or a quota to another licensee, and the Act, s86, which confers a power to impose or delete conditions on or from a licence. There is nothing in the reasoning of the learned Chief Magistrate that suggests that this is not correct. It must not be overlooked that these provisions apply to all the licences that are described in the Act, Pt4.

23 It is also significant that the Act, s90, does not expressly confer any right to be heard. With respect to this, the learned Chief Magistrate said, at 90:

"Although the Act section 90 is deficient in express procedural detail, it is, nevertheless, relevant that it makes no provision for an accommodation of third party interests."

24 What he did not say, but appears to have been taken as given, is that although the section makes no provision for the "accommodation of [the licence holder's] interests" no one suggested, or could suggest, that the statute impliedly excluded the licence holder's right to procedural fairness. That right is conferred by the common law because an order of cancellation or suspension will deprive the licence holder of "some right or interest ..." that he or she has in the licence, per Kioa v West (supra) at 582.

25 Although the assumed interest of the applicant is different from that of the licence holder, an order of cancellation or suspension would similarly deprive it of "some right or interest". The proper inquiry is whether, by implication, the statute excludes from a hearing that the licence holder must be given, other persons who have a right or interest in the same licence. Such an exclusion would require very clear words indeed. The question is whether Parliament intended to oust the common law right to procedural fairness that the applicant would otherwise have, per Annetts v McCann (supra) at 600? It seems to be accepted that Parliament did not intend by implication, to exclude the licence holder's right to procedural fairness upon an application pursuant to the Act, s90. It seems to me quite clear that Parliament did not intend to exclude from applications to renew a licence, to transfer a licence and impose or remove conditions on a licence, licence holders and those with a sufficient interest in those licences. There is no basis for assuming a different intention with respect to an application under the Act, s90.

26 Extending the right to be heard on an application pursuant to the Act, s90, to include persons with an interest in the licence, as well as the licence holder, is not inconsistent with the proper operation of any other statutory provisions of the Act. Indeed, there is no basis to suggest that procedural fairness should be limited to the licence holder and denied to those with a propriety interest in the same licence.

27 It is unnecessary to detail the conduct which led to the learned Chief Magistrate cancelling the licence. It suffices to say that over a prolonged period Mr Young made false entries in his dive dockets to the effect that abalone he caught were caught by two other divers. Some of the quota units held by those other divers were not transferable and could only be caught if they were caught personally by those divers. It was contrary to law for Mr Young to catch those abalone and contrary to law for Mr Young to fraudulently represent in his dive dockets that they had been caught by the other divers. Mr Young did this on 31 separate occasions between March 2000 and November 2002. The wrongful conduct involved 6.936 tonnes of abalone worth $316,640. This conduct constituted breaches of the Act, s265(a) and led to Mr Young pleading guilty to two counts of conspiracy. He was sentenced to four months' imprisonment. The majority of the abalone caught by Mr Young, but attributed to other divers, was delivered to the applicant's abalone processing factory. In these circumstances it is unlikely that even had the applicant been heard, the result would have been any different. However, that is another matter.

28 The applicant seeks an order that the decision of the learned Chief Magistrate to cancel the fishing licence (abalone dive) be quashed. For the respondent, Mr Turner submitted that even if the applicant established that error vitiated the decision to quash the licence, the Court has a discretion whether or not to grant any relief pursuant to the powers conferred by the Review Act. Mr Turner further submitted that in the circumstances of this case, the Court should decline to make any order.

29 The power to make the order that the applicant seeks is enacted by the Review Act, s27(1) in discretionary terms, as being an order that the Court "may make". Prima facie, such permissive statutory expression "operates according to [its] ordinary natural meaning", per Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 at 505; see also Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 138.

30 Although the Commonwealth equivalent to the Review Act, s27, the Administrative Decisions (Judicial Review) Act 1977, s16, carries the additional permissive words "in its discretion" after the word "may", the reasoning of the Full Court of the Federal Court in Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533 at 546 - 549 is apposite to the Review Act, s27(1). This reasoning supports the proposition that the grant of relief conferred by the Review Act, s27(1), is discretionary. See also Visy Board Pty Ltd v Attorney-General (Commonwealth) [1983] FCA 350; (1983) 51 ALR 705 at 712.

31 The Review Act, s43, abolished the ancient discretionary power exercisable by this Court to grant relief by way of prerogative writ and replaced it with a modern statutory regime to the same effect. There is nothing in the provisions of the Review Act to suggest that the discretion that the Court had to grant or withhold relief by way of prerogative writ has been removed by the provisions of the Review Act so that the permissive power conferred by s27(1) should be construed as a mandatory direction.

32 Mr Turner submitted that the discretion should be exercised against granting relief because it would be "an exercise in futility". Mr Ayliffe accepted that the Court had a discretion to refuse to make an order even if error is made out, but submitted that it should not be exercised against his client in this case. Mr Turner's argument runs like this.

1 The Act, s80(1), provides that a licence is "in force for the period specified in the licence".

2 The licence, which was cancelled by the order that is the subject of this application to review specified that it was "valid from 1st January 2004 until the 31st December 2004".

3 Assuming that this Court makes an order quashing the learned Chief Magistrate's decision, and assuming that the Court exercises the power it has pursuant to the Review Act, s26(1)(a)(ii), to make that order effective from the day the licence was cancelled, those orders will have no effect because the licence expired by efluxion of time on 31 December 2004.

4 Quashing the order of the learned Chief Magistrate cannot alter that state of affairs.

5 The Act, s81(2), directs the Minister to renew the licence if the applicant satisfies the conditions set out in the subsection, but subs(1) confines the right to apply for renewal to "the holder of a licence". Mr Young ceased to be such a person after 31 December 2004.

6 Even if the decision of the learned Chief Magistrate was wrong and is quashed as from the moment he handed it down, no benefit from that can flow to the applicant because the licence ceased to exist after 31 December 2004.

7 Of course, the Minister may grant a new licence pursuant to his discretionary power to do so conferred by the Act, s78(1), but the exercise of that power is not conditioned by, nor dependent upon, the order of cancellation of the licence that Mr Young held being quashed.

33 I have reached the conclusion that Mr Turner's argument on this point is correct. Quashing the order of cancellation could not lead to the licence being restored to the licence holder. Nor could it lead to the restoration of any beneficial interest that the applicant might have had in it. Mr Young could apply to the Minister for another licence to replace the one that expired, but that application would no doubt be refused as the material before the learned Chief Magistrate showed that Mr Young could not satisfy the requirements specified by the Act, s78(1).

34 More than a century ago, Lush J said in R v Lord Newborough (1869) Law Rep 4 QB 585 at 589:

"It is in the discretion of the Court to grant or to refuse a certiorari, and it is not a matter of right. As the order has been acted on, the money paid, and the account allowed, we think we ought not to do anything to re-open these proceedings. If Mr Poland's argument is right, and the whole proceedings are void, we do not affect the matter by our decision."

35 The correctness of that principle was confirmed by Bray CJ in R v The Corporation of the Town of Glenelg [1968] SASR 246 at 250 - 251. In R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389, the court said, at 400:

"The writ of mandamus is not a writ of right nor is it issued as of course. There are well recognized grounds upon which the court may, in its discretion, withhold the remedy.

For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld." [emphasis added]

36 This statement of principle was applied by the Full Court of Queensland in R v Williams, ex parte Lewis [1992] 1 Qd R 643 and has been confirmed in many cases. Some of them are gathered together in Judicial Review of Administrative Action, Aronson and Dyer, 2nd ed at 581.

37 I should mention two matters in case it may be thought that I have overlooked them. The first is the decision of Hayward & Anor v Forest Practices Tribunal & Anor (No 2) [2003] TASSC 102. In that case it was submitted that no relief under the Review Act should be granted because to do so would be an exercise in futility. In that case the event that gave rise to that submission was a declaration made by the Governor upon a recommendation of the Forest Practices Board. That state of affairs was capable of reversal and was reversed by the court backdating an order quashing the impugned decision and declaring void the subsequent recommendation to the Governor by the Forest Practices Board. This case is quite different. In this case there is no order that this Court can now make, even with a power to backdate that order, to prevent the operation of the Act, s81, by virtue of which the licence ceased to exist after 31 December 2004.

38 The other matter concerns the Review Act, s26, which provides that the making of an application for a review of a decision does not "affect the operation of the decision or prevent the taking of action to implement the decision". However, subs(2) gives the Court or a judge power to "by order, suspend the operation of the decision; and ... order a stay of proceedings under the decision".

39 Had those provisions been successfully invoked, Mr Young could have applied to the Minister for a renewal of his licence. On that application, the applicant could have sought to be heard. In the event of the Minister refusing to hear the applicant and refusing to renew the licence, or hearing the applicant and refusing to renew the licence, an application akin to this application could be made seeking a review of the Minister's decision. Of course, I express no view as to the likely outcome of those events had they taken place.

40 This is not a case where it is appropriate to grant an order quashing the decision to declare the law for future applications. Firstly, because what is a sufficient interest to give rise to a right to be heard will depend upon the facts of every case and those facts are far from clear in this case. Secondly, an order for a rehearing should not be made because it would be an exercise in futility, but at the same time Mr Young's misconduct was so serious, it would not be right to leave the matter simply with the decision to cancel the licence quashed.

41 Accordingly, the appropriate order is to dismiss the application by Adelaide Bay Seafoods Pty Ltd and Lorraine Kossman for a review of the order of the learned Chief Magistrate made on 21 December 2004 cancelling fishing licence (abalone dive) Entitlement No 106.