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[2003] SASC 277
defendant. The Court held the plaintiff's cause of action was not reasonably arguable and dismissed the summons (strike-out). The Court ordered further submissions on appropriate orders and costs; leave was...
Besanko J struck out Mr Altamura's claim for compensation under the Land Acquisition Act. The Court held that the Fisheries Act operates as a regulatory statute and does not constitute a 'special Act' authorising compulsory acquisition under the Land Acquisition Act; moreover the commercial fishing licence was a statutory entitlement to exploit marine resources rather than an 'interest in land'. While questions about whether an 'acquisition' in a technical sense occurred were left open as factual matters, the plaintiff's pleaded case was not reasonably arguable and could not proceed.
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Sergio Altamura commenced proceedings in the Land and Valuation Division of the Supreme Court of South Australia seeking declarations and compensation under the Land Acquisition Act 1969 (SA) for the loss of his right to fish blue crabs. He alleged that regulatory changes and ministerial action under the Fisheries Act 1982 (SA) in and after 1996 removed his effective ability to fish for blue crabs and that this constituted an acquisition of an interest for which compensation should be payable under the Land Acquisition Act (paras 1–4, 8).
4 cited instruments linked from this judgment.
The defendants (the Director of Fisheries Policy and the Minister for Agriculture, Food and Fisheries) applied to strike out the proceedings on the grounds that the Court lacked jurisdiction and/or the affidavit evidence disclosed no cause of action (paras 7, 11). The defendants relied on statutory construction and the absence of any provision in the Fisheries Act referring to the Land Acquisition Act and also on the contention that the plaintiff’s licence did not amount to an interest in land (paras 12, 14, 31–36).
Besanko J heard argument and evidence on affidavits (noting Donlan and Crosthwaite) on 24 July 2003. The judge considered the summary-dismissal principles (General Steel), the definitions in the Land Acquisition Act (ss 6 and 7), the Fisheries Act powers (ss 43, 59, 46) and the authorities concerning when the extinguishment or modification of rights amounts to an 'acquisition' (Mutual Pools, Georgiadis, Bienke). The judge concluded the plaintiff’s cause of action was not reasonably arguable and dismissed the claim, reserving questions as to orders and costs (paras 11, 15–23, 25–30, 38–39).
Three linked legal findings underpin the decision.
The Land Acquisition Act’s application is confined to acquisitions authorised by a 'special Act' within the meaning of s 7. Besanko J emphasised the Act supplies a machinery for acquisition and compensation (notice of intention (s 10), acquisition by agreement (s 15), vesting on gazettal (s 16), offer and payment of compensation (s 23A), reference to Court if no agreement (s 23C)) (paras 15–18). The decisive question was whether the Fisheries Act should be characterised as a 'special Act' that authorises compulsory acquisition and therefore incorporates the Land Acquisition Act.
The Fisheries Act’s provisions relied on by the plaintiff (s 43 ministerial power to declare fishing unlawful; s 59 power to exempt; s 46 power to make regulations including schemes of management) are part of a regulatory regime for conservation and management of fisheries. They do not refer to or incorporate the Land Acquisition Act, nor do they appear to authorise compulsory acquisition in the sense required by s 7. Consequently Besanko J concluded the Fisheries Act was not a 'special Act' to which the Land Acquisition Act applied (paras 19–22).
Even on the narrower point of whether the plaintiff’s fishing entitlement was an 'interest in land' (s 6 definition), the judge found that a commercial fishery licence is a statutory entitlement to exploit living resources of the waters and is not an estate or easement in a specific parcel of land. The licence lacks the necessary connection to particular land that would bring it within the Land Acquisition Act’s concept of 'interest' (paras 31–36). The judge drew on authorities recognising fishing licences as statutory entitlements analogous to profit à prendre, but crucially grounded in statute, not in antecedent common-law property rights (Harper; Bienke; Emerald Quarry discussed and evaluated at para 35).
Because the statutory nexus required to trigger the Land Acquisition Act was absent and because the licence did not reasonably amount to an 'interest in land', the plaintiff’s claim failed the threshold test for a reasonably arguable cause of action and so could be struck out (paras 22–23, 38).
Before this decision practitioners could sensibly debate whether regulatory removal or modification of access to a fishery might attract acquisition/compensation principles. The decision clarifies two points in South Australian context (and more broadly as persuasive reasoning):
The Land Acquisition Act will not be read into or applied to a separate regulatory Act unless that Act itself authorises acquisition or expressly incorporates the Land Acquisition Act machinery. The mere fact that a statutory right has value is not enough to engage the Land Acquisition Act if the enabling statute does not create or authorise compulsory acquisition under that Act (paras 15–23).
Statutory fishery licences, being entitlements created by statute to exploit public resources, are not readily characterised as 'interests in land' for compulsory-acquisition purposes unless there is a specific, factual connection to a parcel of land or the enabling statute creates a proprietary-type interest (paras 31–36).
The decision thus reinforces the distinction between statutory regulatory entitlements and proprietary interests in land for acquisition/compensation law.
"I would not characterise the relevant provisions of the Fisheries Act as provisions authorising the compulsory acquisition of land. Rather, they are provisions which form part of the scheme of legislative provisions enacted to regulate fishing activity for the purpose of trade or business." (para 22)
"In my opinion, the plaintiff's alleged cause of action is not reasonably arguable." (para 23)
"The plaintiff had a statutory entitlement or privilege to exploit for commercial purposes the living resources of the waters ... He had no rights in relation to a specific piece of land." (para 36)
"It is not reasonably arguable that the Fisheries Act is a special Act which authorises the acquisition of land ... Even if this is wrong ... it is not reasonably arguable that ... there has been an acquisition of land..." (para 38)
This decision will be particularly relevant where:
If the enabling statute expressly authorises compulsory acquisition under the land-acquisition statute, or if the statutory entitlement is closely bound to a specific parcel of land (e.g., exclusive rights over a defined seabed parcel akin to a proprietary right), the outcome could differ.
This deep dive is constrained to the material before the Court in this judgment. Besanko J cited and applied broader High Court and Federal Court authorities (Mutual Pools; Georgiadis; Bienke; Harper) and state authorities (Emerald Quarry). The judgment accepts established principles that (a) extinguishment alone does not necessarily equal acquisition unless another obtains an identifiable countervailing benefit and (b) statutory rights may be susceptible to modification without attracting acquisition principles (paras 25–30). The decision stands as an application of those authorities to the facts of a fishery regulation: it will serve as persuasive South Australian authority on strike-out where the Land Acquisition Act is invoked against an Act that is regulatory rather than an authorising 'special Act'.
Practitioners should note the Court’s caution about factual questions: Besanko J did not foreclose the acquisition argument as a factual matter where evidence might show a countervailing benefit to the State or another, he found simply that on the pleadings and material the statutory pathway to compensation under the Land Acquisition Act was absent (paras 28–30).
Acquisition as countervailing benefit: Besanko J left open whether, in other circumstances, the extinguishment of a statutory entitlement might amount to an acquisition if the State or another person obtained an identifiable and measurable countervailing benefit. The Court noted this remains a question requiring close statutory and factual analysis (paras 25–30). A claimant with detailed evidence of a benefit received by the State or a transferee might pursue that route.
Statutory design and express incorporation: If a regulatory Act expressly incorporated the Land Acquisition Act or contained express compensation provisions modelled on it, the outcome would likely differ. The decision turns on absence of such express statutory language in the Fisheries Act (paras 19–23).
Licences tied to physical parcels: Where a statutory licence confers rights tied to a specific area of seabed or foreshore, or creates exclusive rights akin to a proprietary estate, the characterisation as an 'interest in land' might succeed. Besanko J emphasised the licence here lacked that nexus (paras 31–36).
Transfer and timing: Factual questions about who held the licence or entitlement at the time of the regulatory change remain material. The Court allowed joinder of the prior holder to address a factual dispute about interest ownership at the relevant time (para 12).
For practitioners advising clients, the judgment emphasises careful factual and statutory mapping: to succeed in a Land Acquisition Act claim based on regulatory modification of a statutory entitlement it is necessary to identify (a) express statutory authority making the relevant Act a 'special Act' or to show an identifiable acquisition countervailing benefit, and (b) a connection between the entitlement and a recognisable 'interest in land' as defined in s 6.
SERGIO ALTAMURA v THE DIRECTOR OF FISHERIES POLICY SOUTH AUSTRALIA AND THE MINISTER FOR AGRICULTURE, FOOD AND FISHERIES SOUTH AUSTRALIA
1 BESANKO J: By summons dated 2 May 2003, Mr Sergio Altamura instituted an action in the Land and Valuation Division of this Court against the Director of Fisheries Policy, South Australia and the Minister for Agriculture, Food and Fisheries, South Australia. The orders sought by the plaintiff are as follows:
"1. That the plaintiff's commercial fishing licence was an interest within the meaning of the Land Acquisition Act 1969 (SA) and the Acts Interpretation Act 1915 (SA).
2. That the said interest of the plaintiff amounted to a right to hunt and to take blue crabs and to sell the catch commercially.
3. That the Minister for Agriculture and Fisheries and/or the Director of Fisheries Policy acquired the plaintiff's said right.
4. That the Minister for Agriculture and Fisheries and/or the Director of Fisheries Policy do pay compensation to the plaintiff in the sum set by the Court.
5. Such further or other orders as the Court may deem to be just in the circumstances of the case."
2 The plaintiff identifies the following provisions as the provisions under which the application is brought, namely, ss 6, 7, 10, 23, 23A and 23C of the Land Acquisition Act 1969 (SA), the Fisheries Act 1982 (SA) and s 4 of the Acts Interpretation Act 1915 (SA).
3 The summons sets out the grounds upon which the application is made. The plaintiff alleges that he is the holder of a licence in respect of a marine scalefish fishery which permits him to fish for commercial purposes. It is alleged that the said licence permitted the licensee (ie, the plaintiff) to fish for blue crabs. It is alleged that in July 1996 the plaintiff's right to fish for blue crabs was removed. It is alleged that the right to fish for blue crabs was granted to six other fishers who were permitted to use crab pots and 37 other fishers on a commercial basis. It is alleged that the plaintiff's right to fish for blue crabs was acquired by the first defendant, or in the alternative, by the second defendant. It is alleged that the right to fish for blue crabs pursuant to the commercial fishing licence was a legal or equitable estate or interest in land or a privilege in, under or over, affecting, or in connection with the land within the meaning of s 6 of the Land Acquisition Act and that pursuant to s 4 of the Acts Interpretation Act land includes waters and airspace over land and the bed of any body of waters. It is alleged that the object of the Land Acquisition Act is to provide for the acquisition of land, including the said interests in, under, over, affecting or in connection with the land or waters and airspace over land and, pursuant to s 7 of the Land Acquisition Act, the Act applies to, and with respect to, every such acquisition authorised by a special Act. It is alleged that the Fisheries Act is a special Act to which the applies and that the authorises the compulsory acquisition of the interest of the plaintiff and that such an acquisition is subject to the provisions of the . It is alleged that the defendant did not give notice of his intention to acquire the interest of the plaintiff pursuant to of the . It is alleged that there has been no agreement as to whether the plaintiff has had an interest within the meaning of of the within two months or at all.
4 On 22 May 2003 the plaintiff gave a notice to the Registrar of the Land and Valuation Court as required by the Land and Valuation Rules. In that notice the plaintiff identifies the relevant statutory provisions in the same way as he had in the summons. He describes the nature of the appeal, reference or other initiating proceeding in the following way:
"Appeal against lack of compensation from acquisition of plaintiff's proprietary right in land, based upon the acquisition of his rights to fish blue crabs in accordance with his marine scalefish fishery licence."
5 The summons is supported by an affidavit of a law clerk employed by the plaintiff's solicitors. It is the affidavit of Mr Timothy Robert Donlan sworn on 29 May 2003. Mr Donlan deposes to the various matters set out in the grounds upon which the application is based. He also deposes to correspondence which passed between the parties in March and April 2003. On 11 March 2003 the plaintiff's solicitors wrote two letters, one to the Director of Fisheries, and the other to the Minister for Agriculture, Food and Fisheries ("the Minister"). The letters are in identical terms. In those letters the plaintiff sought an exemption to fish for 750 kilograms of blue crab in the area in which he has traditionally fished, namely from Port Adelaide as far north as the government proof range abutting Port Parham. He also alleged that the new regulatory provisions whereby he lost his right to fish for blue crabs were discriminatory.
6 The Minister wrote to the plaintiff's solicitors in early April 2003 advising them that a full response would be provided by the Director of Fisheries. The Director of Fisheries wrote to the plaintiff's solicitors on 23 April 2003 advising them that the application for an exemption was refused. The Director also said that the Fisheries Act did not provide for the Director of Fisheries to make decisions or determinations in relation to compensation.
7 The defendants to the action have issued an application seeking an order that the action be struck out on the ground that the Court has no jurisdiction to hear and determine it and/or that the affidavit discloses no cause of action. The defendants' application came on for hearing before me on 24 July 2003. Before that date the plaintiff filed a further affidavit. It is a second affidavit of Mr Donlan. Mr Donlan deposes to his understanding of the history of fishing for blue crabs. The following is a summary of the facts asserted in Mr Donlan's affidavit.
8 Prior to 1983, fishing for blue crabs was conducted by the use of hoop nets, haul nets and gill nets by licensed marine scale fishermen. Such fishermen fished seasonally for blue crabs to complement their other fishing exploits. The plaintiff fished seasonally for blue crabs and he also fished for other species. In 1983, an experimental pot fishery was established which allowed for certain holders of marine scale fishing licences to apply for ministerial exemptions so as to be able to fish for blue crabs using crab pots. It is said by Mr Donlan that such exemptions were granted by the Minister under s 59 of the Fisheries Act 1982. Six exemptions were granted in 1983, and a further six were granted in 1985. Some years later there was a review of the experimental pot fishery. After the review, the first and second defendants announced that a separate blue crab pot fishery within Scheme of Management Regulations made under s 46 of the Fisheries Act would be established. Under the new proposal, the holders of marine scale fishing licences including the plaintiff would not be permitted to have access to the blue crab fishery. In 1996 the Minister acting under the power given to him closed the blue crab fishery. Later in the same year, the Minister granted 37 exemptions under s 59 of the Fisheries Act to certain holders of marine scalefish fishery licences enabling them to fish for blue crabs. Of the 37 exemptions granted, six of those were granted to fishers who had previously been exempted to use experimental crab pots. The exemptions to fish for blue crabs were based on "certain catch history criteria". The criteria for granting the exemptions were that the marine scalefish fishery licence holders must have had a recorded blue crab catch history of at least one tonne in any one year for the six qualifying years between 1988 and 1994. Those marine scalefish fishery licence holders who did not meet the relevant catch history criteria were unable to participate in the blue crab fishery. The plaintiff did not meet the criteria. The plaintiff asserts that his right to fish for blue crabs was acquired. The plaintiff alleges that his right to fish for blue crabs pursuant to his marine scalefish fishery licence was of value. It was transferable within the 1991.
9 The defendants filed an affidavit before the hearing on 24 July 2003. It is the affidavit of Ms Kelly Crosthwaite sworn on 18 July 2003. Ms Crosthwaite is employed within the Department of Primary Industries and Resources as manager, legislation and legal support. Ms Crosthwaite deposes to the fact that on 9 July 2001 Marine Scalefish Fisheries Licence number M004 was transferred from Mr Mauro Altamura to the plaintiff. Ms Crosthwaite deposes to the fact that the commercial fishing of blue crabs in South Australian coastal waters east of 135o00'E was temporarily prohibited from 1 July 1996 until 30 June 1997 by ministerial notices given under s 43 of the Fisheries Act. Ms Crosthwaite deposes to the fact that exemptions were granted by the Minister to individual fishers under s 59 of the Fisheries Act to permit them to continue to fish for blue crabs during periods when fishing by other licence holders was prohibited. The exemptions were granted to persons who could demonstrate a specified level of economic reliance upon the species as evidenced by recorded catch history. Ms Crosthwaite deposes to the fact that regulation 5(3) of the Scheme of Management (Marine Scalefish Fishery) Regulations 1991 effectively prohibits the holder of a licence in respect of a Marine Scalefish Fishery from taking blue crabs for commercial purposes in specified waters unless the licence is endorsed with a condition fixing a blue crab quota on the licence in respect of that zone. The plaintiff's licence has no such condition endorsed on it.
10 When the application came on for hearing before me on 24 July 2003, each party agreed that I could rely upon the two affidavits of Mr Donlan and the affidavit of Ms Crosthwaite for the purposes of determining the application.
11 The question raised by the defendants' application is whether it is reasonably arguable that the plaintiff has a right to compensation pursuant to the Land Acquisition Act. If the answer to that question is no, then the summons and the affidavits do not disclose a reasonable cause of action. The question is not so much one of jurisdiction, but rather, whether it is reasonably arguable that the plaintiff has a right to compensation recognised and enforceable by this Court. It was not suggested by the plaintiff that I did not have jurisdiction to dismiss the action if I reached the conclusion that the action disclosed no cause of action known to the law. The test of when there might be a summary dismissal of proceedings is well known. In General Steel Industries Inc v Commissioner of Railways (NSW) and Ors [1964] HCA 69; (1964) 112 CLR 125, Barwick CJ said (at 129 - 130):
"As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners where he says: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.' Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possible succeed."
12 The defendants made four submissions. First, they submitted that the Land Acquisition Act did not apply to decisions and acts under the Fisheries Act. This argument had two limbs. It was said that according to its terms, the Land Acquisition Act did not apply to decisions and acts under the Fisheries Act. In the alternative, it was said that the defendants had not purported to act under the Land Acquisition Act, and in those circumstances, it was not possible for the plaintiff to claim compensation under that Act. Secondly, the defendants submitted that in 1996 the plaintiff had no interest in the licence in respect of the Marine Scalefish Fishery and therefore had no right to claim compensation. That submission appeared to be correct on the material before me on 24 July 2003. However, the plaintiff has since put further material before me relevant to that issue, and on 5 August 2003 I gave the plaintiff leave to join Mr Mauro Altumara as a plaintiff to the action pursuant to r 27 of the Supreme Court Rules. It seems to me that there is now an issue of fact on the matter raised by the defendants' second submission, and the defendants' application cannot succeed by reference to that submission. In those circumstances it is unnecessary to consider the submission any further.
13 Thirdly, the defendants submitted that there was no acquisition of any right of the plaintiff, and that in those circumstances, the Land Acquisition Act did not apply. Fourthly, the defendants submitted that even if there was an acquisition, it was not an acquisition of land.
14 I turn now to consider the defendants' first, third and fourth submissions.
Does the Land Acquisition Act apply to the Fisheries Act?
15 It is convenient to start by examining the relevant provisions of the Land Acquisition Act. Section 3 of the Act provides that the object of the Act is to provide for the acquisition of land on just terms. Section 7 provides:
"(1) This Act applies to and in relation to every acquisition of land authorised by a special Act.
(1a) A special Act that authorises the compulsory acquisition of land will be taken to authorise the acquisition of land as defined by this Act.
(2) This Act is (except to the extent to which any Act may declare that a provision of this Act is inapplicable to the acquisition of land under that Act) hereby incorporated with every special Act authorising the acquisition of land, and shall be read with any such Act as one Act."
16 Section 6 contains definitions of "land", "subject land" and "special Act" as follows:
" 'land' includes an interest in land;
'interest' in land means -
(a) a legal or equitable estate or interest in the land; or
(b) an easement, right, power, or privilege in, under, over, affecting, or in connection with, the land; or
(c) native title in the land;
'special Act' means the Act authorising the compulsory acquisition of land;
'subject land' means land acquired or subject to acquisition under this Act."
17 It is plain from reading the Land Acquisition Act as a whole that it provides the machinery whereby an acquisition is effected and that it confers an entitlement to compensation. As to the first proposition, I refer to s 10 which provides that an "Authority" must, if it proposes to acquire land, serve on interested persons a notice of intention to acquire the land. The word "Authority" is defined in s 6 as "the person authorised by the special Act to acquire land". Interested persons have certain rights including a right to be provided with an explanation of the acquisition scheme (s 11) and a right to object to the acquisition (s 12). After a notice of intention to acquire has been served, an Authority may acquire the subject land by agreement (s 15). Failing acquisition by agreement, the Authority may publish a notice of acquisition in the Gazette and upon publication of the notice of acquisition:
"(a) the land vests in the Authority to the extent of the interest specified in the Notice; and
(b) a mortgage, charge, encumbrance, trust or other interest affecting the land (except native title) is, to the extent it affects the land subject to the acquisition, discharged; and
(c) if a residual interest remains after the acquisition, the interest is modified to the extent required by the acquisition (s 16(2))."
18 As to the second proposition, s 23A provides that when the Authority gives notice of the acquisition of land it must make an offer of compensation to the person or persons whom it believes to be entitled to compensation for the acquisition. The amount offered must be paid into Court within seven days. If agreement as to the amount of compensation is not reached, the question of the amount of compensation is referred into Court (s 23C). Section 25 sets out the principles whereby the amount of compensation is determined. I should also mention s 23 which places an obligation on the Authority to negotiate in good faith with interested persons about the compensation payable for the acquisition of land under the Act.
19 I turn now to consider the relevant provisions of the Fisheries Act. Section 43 relevantly provides:
"(1) The Minister may, by notice published in the Gazette -
(a) declare that it is unlawful for a person to engage in a fishing activity of a specified class during a specified period; and
(b) vary or revoke such a declaration;
...
(6) A person must not engage in a fishing activity in contravention of a declaration or direction under this section.
Penalty: For a first offence - division 7 fine; for a second offence - division 6 fine; for a subsequent offence - division 5 fine."
20 Section 59(1) provides:
"The Minister may, by notice published in the Gazette, exempt any person or class of persons from any specified provisions of this Act."
21 Finally, s 46 of the Act gives the Governor extensive powers to make regulations.
"46. The Governor may make regulations for the conservation, enhancement and management of the living resources of the waters to which this Act applies, the regulation of fishing and the protection of certain fish, and, without limiting the generality of the foregoing, may by such regulations -
(a) declare that any prescribed class of fishing activities constitutes a fishery;
(b) prescribe a scheme of management for a fishery and for that purpose (without limiting the matters which may be provided for in the scheme) -
...
(iii) prescribe qualifications that applicants for licences in respect of the fishery must possess to be eligible to be granted the licences and any other matters to which the Director must have regard in determining eligibility for licences in respect of the fishery;
(viii) prescribe matters that may be the subject of conditions of licences in respect of the fishery;"
22 The plaintiff submitted that his privilege to fish commercially for blue crabs was acquired as a result of the action of the Minister under s 43 of the Act. I suppose that he would say in the alternative, that his privilege to fish commercially for blue crabs was acquired as a result of the enactment of regulations under s 46 of the Act. Even if it is accepted for the moment that there has been an acquisition of land, I do not think the Fisheries Act is a special Act within the terms of s 7 of the Land Acquisition Act. The Fisheries Act, or at least the relevant provisions thereof, is not appropriately characterised as an Act which authorises the compulsory acquisition of land. It does not simply authorise the compulsory acquisition of land leaving the acquisition itself to be effected under the Land Acquisition Act. There is no reference in the Fisheries Act to the Land Acquisition Act. The relevant conduct is taken and is completed under the Fisheries Act. As I understand it, the plaintiff accepts that the "acquisition" has been effected, and it seems clear that that can only have occurred under the . I would not characterise the relevant provisions of the as provisions authorising the compulsory acquisition of land. Rather, they are provisions which form part of the scheme of legislative provisions enacted to regulate fishing activity for the purpose of trade or business. These general conclusions are confirmed by a close examination of the relevant provisions of the Act. If the "acquisition" is said to arise out of the Minister's action under of the , I cannot see how the provisions of can accommodate or were intended to accommodate the machinery laid down in the . The same point can be made if the "acquisition" is said to arise out of the enactment of the regulations under s 46.
23 In my opinion, the plaintiff's alleged cause of action is not reasonably arguable. In case there is an appeal, I will consider the other submissions advanced by the defendants.
24 A submission related to the submission I have just dealt with is that the plaintiff is not entitled to compensation because any acquisition occurred under the Fisheries Act and not the Land Acquisition Act. The defendants submitted that a right to compensation only arose if land was acquired under the Land Acquisition Act. Absent a provision in the Fisheries Act dealing with compensation, that submission is correct. The obligation to offer compensation arises when the authority gives notice of the acquisition of land under s 23A of the Land Acquisition Act. As presently constituted, the plaintiff's action cannot succeed. That is not to say that if this was the only obstacle to the plaintiff's claim, he could not bring proceedings alleging that the procedure in the Land Acquisition Act should have been followed.
25 It is clear that a fishing licence granted under the Fisheries Act 1982 may constitute a form of property (Kelly v Kelly (1990) 64 ALJR 234 and (1990) 92 ALR 74; Pennington v McGovern (1987) 45 SASR 27. There are a number of cases in the context of s 51(xxxi) of the Constitution as to what constitutes an acquisition of property. In Mutual Pools and Staff Pty Ltd v The Commonwealth [1994] HCA 9; (1994) 179 CLR 155, the High Court made certain observations as to whether the extinguishment of a right can constitute an acquisition of property. Mason CJ said (at 172 - 173):
"On the other hand, the mere extinguishment by the Commonwealth of a right enjoyed by an owner in relation to his or her property does not amount to an acquisition of property; in the absence of an acquisition of a benefit or an interest in property, however slight or insubstantial it may be, the complete extinguishment of contractual rights does not constitute such an acquisition.
Although the distinction between extinguishment and acquisition of rights is clearly recognized in the law of property, it may be that in some circumstances the extinguishment of a chose in action against the Commonwealth would amount to an acquisition of property. The extinguishment of such a cause of action could have the same effect as an assignment of the chose in action to the Commonwealth. It has been said that what the Constitution forbids directly cannot be achieved indirectly or by means of some circuitous device."
"Nonetheless, the fact remains that s. 51(xxxi) is directed to 'acquisition' as distinct from deprivation. The extinguishment, modification or deprivation of rights in relation to property does not of itself constitute an acquisition of property. For there to be an 'acquisition of property', there must be an obtaining of at least some identifiable benefit or advantage relating to the ownership or use of property. On the other hand, it is possible to envisage circumstances in which an extinguishment, modification or deprivation of the proprietary rights of one person would involve an acquisition of property by another by reason of some identifiable and measurable countervailing benefit or advantage accruing to that other person as a result. Indeed, the extinguishment of a chose in action could, depending upon the circumstances, assume the substance of an acquisition of the chose in action by the obligee."
27 I refer also to the discussion of this principle by the Full Court of the Federal Court in Bienke and Ors v Minister for Primary Industries and Energy and Ors (1996) 63 FCR 567 at 585-587.
28 The defendants submitted that there had been no acquisition of the plaintiff's "interest" because no person as a result obtained an identifiable and measurable countervailing benefit or advantage. The plaintiff disputed that assertion and argued that a close examination of the relevant events would lead to a contrary conclusion. I have examined the evidence put before me and I am not satisfied at this point that the plaintiff's submission is not reasonably arguable. It seems to me the issue involves a disputed issue of fact.
29 It may be that there is a wider principle to the effect that the modification under a statute of a right or privilege given by that statute can never be an acquisition of property. In Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297, Mason CJ, Deane and Gaudron JJ said (at 305 - 306):
"Accordingly, "acquisition" in s 51(xxxi) extends to the extinguishment of a vested cause of action, at least where the extinguishment results in a direct benefit or financial gain (which, of course, includes liability being brought to an end without payment or other satisfaction) and the cause of action is one that arises under the general law. The position may be different in a case involving the extinguishment or modification of a right that has no existence apart from statute. That is because, prima facie at least and in the absence of a recognized legal relationship giving rise to some like right, a right which has no existence apart from statute is one that, of its nature, is susceptible of modification or extinguishment. There is no acquisition of property involved in the modification or extinguishment of a right which has no basis in the general law and which, of its nature, is susceptible to that course. A law which effected the modification or extinguishment of a right of that kind would not have the character of a law with respect to the acquisition of property within s 51(xxxi) of the Constitution."
(See also Bienke and Ors v Minister for Primary Industries and Energy and Ors at 580-585).
30 Without being critical of the parties, it seems to me that this issue requires a closer examination of the Fisheries Act and relevant regulations and authorities than that undertaken in the submissions before me. For that reason and bearing in mind my conclusions on the other arguments advanced by the defendants, I am not prepared to hold on this ground that the plaintiff's cause of action is not reasonably arguable.
31 The defendants submitted that it was not reasonably arguable that the plaintiff's rights under his licence constitute an interest in land. The plaintiff on the other hand, referred to the very wide definitions of "land" and "interest" in land in the Land Acquisition Act. In particular, the plaintiff submitted that the rights under his licence fell within the description of a "right, power, or privilege in, under, over, affecting, or in connection with, the land". He also referred to the fact that the definition of "land" in the Acts Interpretation Act 1915 includes waters over land and the bed of any waters.
32 At common law the general public had the right to fish in tidal waters. That right could be abrogated by statute. In Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314, Mason CJ, Deane and Gaudron JJ described the privilege given to those who hold commercial licences in the following terms (at 325):
"What was formerly in the public domain is converted into the exclusive but controlled preserve of those who hold licences. The right of commercial exploitation of a public resource for personal profit has become a privilege confined to those who hold commercial licences. This privilege can be compared to a profit à prendre. In truth, however, it is an entitlement of a new kind created as part of a system for preserving a limited public natural resource in a society which is coming to recognize that, in so far as such resources are concerned, to fail to protect may destroy and to preserve the right of everyone to take what he or she will may eventually deprive that right of all content."
33 In Bienke and Ors v Minister for Primary Industries and Energy and Ors, the Full Court of the Federal Court expressed the view that a fishing boat licence did not vest in the holder a cause of action under the general law, nor did it create an interest based on antecedent rights recognised by general law. A statutory right to exploit the resources of the sea might in a sense be regarded as a right analogous to a profit à prendre. However, it is not a common law right but rather "a new species of statutory entitlement, the nature and extent of which depends entirely on the terms of the legislation" (per the Court at 585). The plaintiff had no right of property let alone an interest in land prior to obtaining a licence. On obtaining a licence he had a statutory entitlement not a common law right of profit. Although not decisive on the present point, I note that in South Australian River Fishery Association and Warrick v State of South Australia [2003] SASC 174, Doyle CJ (with whom I agreed on this point) said (at paras 73 and 74):
"From time to time the judge referred to the licences granted to licensed persons as "statutory contracts": see, for example [14], [16], [71] and [73]. The judge also described the rights of licence holders as if they were property rights under general law, or very similar to such rights: see, for example, [18], [19], [150] - [152].
I would not, with all respect to the judge, analyse the situation in this manner. My view is that Mr Warrick's rights are to be found in the Act and in the Regulations. Nothing is gained for present purposes by describing these rights as contractual (which I consider they are not) or as property rights or as analogous to property rights. The fact is that Mr Warrick held a licence that was renewable, that he could expect to be renewed indefinitely in the ordinary course, that was transferable, that gave him the exclusive right to exploit his reach or reaches for commercial purposes, and which entitled him to use certain fishing devices and to take Murray cod and callop and other fish. In all respects his rights were subject to certain powers conferred on the Director of Fisheries by the Act, and subject to other statutory provisions. I see no need to go beyond that."
34 By reference to the definition of "interest" in the Land Acquisition Act, it is clear enough that the plaintiff's rights under the licence did not constitute a legal or equitable estate or interest in land or an easement.
35 The plaintiff relied on the decision of the Full Court of this Court in Emerald Quarry Industries Pty Ltd v Commissioner of Highways (1976) 14 SASR 486 to support his argument that his rights under the licence constituted a right, power, or privilege in, under, over, affecting, or in connection with land. Bray CJ, with whom the other members of the Court agreed on this point, considered whether a lessee who had rights to quarry land under a lease and whose rights were affected by the enactment of the Mining Act 1971 (and, in particular s 19(12) thereof), had an interest in land under the Land Acquisition Act. Bray CJ said (at 494):
"But whether, as I think, the right of the claimant under a declaration of private mine would be a new statutory right modelled in many respects, but not in all, on the terms of the lease, or whether it remained the right under the lease varied as affected by the Act is, as I see it, immaterial. We are not concerned with the source of the right but with its nature. Let us grant Mr. Legoe's argument that the right is a new right sui generis to the minerals after extraction and not an interest in land. Nevertheless, as I see it, it must be a right, power or privilege over, affecting or in connection with land, because it can only be exercised by going on to the land and digging into it. Its physical connection with the land is enough, in my view, to bring it within the definition of 'interest' in the Land Acquisition Act."
36 The wide definition of "interest" in land may be acknowledged. However, I do not think it is reasonably arguable that the plaintiff's rights under his licence constituted a privilege in, under or over land or affecting or in connection with land. The plaintiff had a statutory entitlement or privilege to exploit for commercial purposes the living resources of the waters to which the Fisheries Act applies. He shared that right with others. The plaintiff had no rights in relation to a specific piece of land.
37 There is force in a further argument advanced by the defendants that the Director of Fisheries who granted the licence to the plaintiff had no interest in land (see s 15 of the Harbors and Navigation Act 1993) and there is no provision in the Fisheries Act empowering the Director to grant an interest in land to fishers including the plaintiff. However, I would not be prepared to hold that by reason of this submission alone, the plaintiff's cause of action is not reasonably arguable.
38 In my opinion, the plaintiff does not have a cause of action which is reasonably arguable. It is not reasonably arguable that the Fisheries Act is a special Act which authorises the acquisition of land and therefore one to which the Land Acquisition Act applies (s 7 of the Land Acquisition Act). Even if this is wrong, in my opinion it is not reasonably arguable that as far as the plaintiff is concerned there has been an acquisition of land by reason of the action taken under the Fisheries Act.
39 I will hear the parties as to the appropriate orders including orders as to costs in light of these conclusions.
ALTAMURA
DIRECTOR OF FISHERIES POLICY, SOUTH AUSTRALIA & ANOR No. SCCIV-03-647 [2003] SASC 277
(1964) 112 CLR 125
(1990) 64 ALJR 234
(1990) 92 ALR 74
(1987) 45 SASR 27
(1994) 179 CLR 155
(1996) 63 FCR 567
(1994) 179 CLR 297
(1989) 168 CLR 314
(1976) 14 SASR 486
The Court held the plaintiff's cause of action was not reasonably arguable and dismissed the summons (strike-out). The Court ordered further submissions on appropriate orders and costs; leave was earlier given to join Mauro Altamura as a plaintiff (paras 38-39, 12).