Howard v Australian Fisheries Management Authority [2006] FMCA 975

(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

(b) the proceeding or claim for relief is frivolous or vexatious;or

(c) the proceeding or claim for relief is an abuse of the process of the Court.

The Application simply seeks the following order:

"That the respondent do review its decision of the 1 June 2005 (made by way of its letter of that date to Downs Lawyers) concerning the Applicant's Permit No 27008."

The affidavit of the applicant's solicitor filed on the same date gives some clue as to the nature of the Application. It refers to a decision of the Administrative Appeals Tribunal of 22 April 2005 remitting to the respondent the allocation of Individual Transfer Quota ("ITQ") appearing as a condition on his Southern Shark Fishery Permit No 27008 (the "SFF Permit") and to the respondent making a decision pursuant to that remit on 1 June 2005. The letter goes on to say that the applicant sought a review of that decision pursuant to s.165(2) of the Fisheries Management Act 1991 by way of letter dated 3 June 2005. It says that the respondent claimed it was not required to review the decision of 1 June 2005 and seeks relief pursuant to s.7 of the Administrative Decisions (Judicial Review) Act 1977.

I have received for the purposes of this hearing three affidavits of a Ms Ann Dornau, solicitor for the respondent, dated 8 September 2005, 16 September 2005 and 10 October 2005.

I have also received Contentions of Fact and Law from both the applicant and the respondent.

I heard oral submissions in respect of the Application on 11 October 2005 and 1 November 2005.

I was assured repeatedly during the course of those submissions by counsel for each of the parties that a detailed acquaintance with the fishery management plan governing the SSF and the implementation of various changes to that plan and of various determinations of the Administrative Appeals Tribunal and the Federal Court in relation to that plan and those changes was unnecessary for me to be able to properly determine this application. As set out hereunder, I am very far from being convinced that such is the case. The delay in the provision of these reasons is to a very large extent the function of the need for me to attempt to understand those very matters.

Section 7 of the Administrative Decisions (Judicial Review) Act 1977 provides as follows:

(a)

a person has a duty to make a decision to which this Act applies;

(b)

there is no law that prescribed a period within which the person is required to make that decision; and

(c)

the person has failed to make that decision;

a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.

(a)

a person has a duty to make a decision to which this Act applies;

(b)

a law prescribes a period within which the person is required to make that decision; and

(c)

the person failed to make that decision before the expiration of that period;

a person who is aggrieved by the failure of the first-mentioned person to make the decision within that period may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the failure to make the decision within that period on the ground that the first-mentioned person has a duty to make the decision notwithstanding the expiration of that period.

The applicant's contention is that the respondent "has a duty to make a decision to which (the Act) applies" under s.165(5) of the Fisheries Management Act.

Section 165 of the Fisheries Management Act provides as follows:

(1) In this section, unless the contrary intention appears:

"decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975.

"relevant decision" means a decision of AFMA under subsection 4(2), 4(3), 22(5) or 26(c), section 31(F)(7), section 32 or 33, subsection 34(9), 38(1), (2) or (3), section 39, subsection 40(5) or (8) or section 49 or 91.

"reviewable decision" means a decision of AFMA under subsection (5).

(1A) The first decision made by AFMA to register persons under subsection 26(2) in connection with the first plan of management determined by AFMA for the fishery known as the Northern Prawn Fishery or for the fishery known as the Southern Bluefin Tuna Fishery is not a relevant decision for the purposes of this section.

(2) A person affected by a relevant decision who is dissatisfied with the decision may:

ii)

within 21 days after being notified of the decision; or

iii)

within such further period (if any) as AFMA, upon application made under subsection (3), by written notice to the person allows;

request AFMA, in writing, to reconsider the decision.

(1) A person, before the end of the period mentioned in paragraph (2)(a), may apply to AFMA for an extension of time within which to request a reconsideration of the decision.

(2) The request must set out the reasons for making the request.

(3) AFMA must, within 45 days after receiving the request, reconsider the relevant decision and may make a decision:

iv)

in substitution for the relevant decision whether in the same terms as the relevant decision or not; or

v)

revoking the relevant decision.

(1) Where, as a result of a reconsideration under subsection (5), AFMA makes a decision in substitution for or revoking the relevant decision, AFMA must, by written notice given to the person who made the request under subsection (2) for the reconsideration:

(a)

inform the person of the result of the reconsideration; and

(b)

give the reasons for the decision.

(2) An application may be made to the Administrative Appeals Tribunal for a review of a reviewable decision.

(3) An application made by a person to the Administrative Appeals Tribunal for a review of a reviewable decision where the primary decision was under subsection 26(2) must be lodged with that Tribunal within 14 days of giving the notice mentioned in subsection (6).

(4) Section 37 of the Administrative Appeals Tribunal Act 1975 applies in respect of an application mentioned in subsection (8) as if references in that section to 28 days were references to 14 days.

(5) The Administrative Appeals Tribunal must, as soon as practicable after the lodging of documents with that Tribunal under section 37 of the Administrative Appeals Tribunal Act 1975, in relation to an application mentioned in subsection (8) convene a directions hearing to determine a timetable for disposing of the matter.

(6) Where a relevant decision is made and the person who made the relevant decision gives to a person whose interests are affected by the decision written notice of the making of the decision, that notice must include a statement to the effect that a person affected by the decision:

vi)

May, if the person is dissatisfied with the decision, seek a reconsideration of the decision by AFMA under subsection (2); and

vii)

May, subject to the Administrative Appeals Tribunal Act 1975, if the person is dissatisfied with a decision of AFMA upon that reconsideration, make application to the Administrative Appeals Tribunal for review of that decision.

(1) Where AFMA makes a reviewable decision and gives to a person whose interests are affected by the decision written notice of the making of the decision, that notice must include a statement to that effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates by or on behalf of a person whose interests are affected by the decision.

(2) Any failure to comply with the requirements of subsection (11) or (12) in relation to a decision does not affect the validity of the decision.

The decision of the respondent about which the applicant seeks a reconsideration is set out in a letter from the respondent to the applicant's solicitor of 1 June 2005. I set out the text of that letter in full:

Downs Lawyers

38 Bay Road

PO Box 944

Mount Gambier 5290

Attention: Mr Phillip Smith

By Facsimile: (08) 8725 0943

Dear Sirs,

Re: Gregory Howard - Administrative Appeals Tribunal Decision dated 22.4.05

I refer to your letters of 12 and 17 May 2005.

Pursuant to the decision of the AAT, AFMA has assessed your client's allocation of Individual Transferable Quota appearing as a condition on his Southern Shark Fishery Permit No. 27008 and has determined that the allocation is not varied by consideration of the value of that permit.

This decision is consistent with the recommendation on page 30 and 32 of the Independent Allocation Review Panel's report of October 2003 indicating that Offshore Constitution Settlement (OCS) permits do not receive quota based on the value of their permit and that quota allocation for OCS permits be based on catch history for the best three years of the years 1994 - 1997.

A copy of that report can be downloaded at

http://www.afma.gov.au/fisheries/gillnet/notices/2003php

A copy of pages 30 and 32 of the report are enclosed for your reference.

Consistent with this assessment and direction 2(2) of the Tribunal's decision of 22 April 2005, your client has been allocated an Individual Transferable Quota appearing as a condition on his Southern Shark Fishery Permit No. 27008 of 444.00 kilogrammes (sic) of gummy shark and 0 kilogrammes (sic) of school shark for the 2001 fishing season.

Due to variations in the Total Allowable Catch (TAC) and other AAT decisions this equates to an allocation of 355.43 kilogrammes (sic) of gummy shark and 0 kilogrammes (sic) of school shark for the 2005 fishing season.

A copy of the 2001 and 2005 permits are enclosed for your reference.

Should you have any additional questions please contact Trent Timmiss A/g Manager of the Gillnet Hook and Trap Fishery on (02) 62723367.

Yours sincerely

Geoff Richardson

A/g General Manager Fisheries."

I also set out a copy of the letter from the applicant's solicitor to the respondent of 3 June 2005 requesting the review of the decision.

Australian Fisheries Management Authority,

PO Box 7051

Canberra Business Centre

CANBERRA ACT 2610

Attention: Mr Geoff Richardson

Dear Sirs,

Re: Gregory Howard

This letter is Mr. Howard's written request pursuant to section 165(2) of the Fisheries Management Act for a review of AFMA's decision under section 32 of the Act.

The reasons for making the request are:

1. That AAT ordered AFMA to assess whether Mr. Howard's allocation of Individual Transferable Quota should be varied by considerations of the value of that permit

2. Considerations of value have not been looked at, rather the policy which was in existence at the time of the AAT decision has simply been adopted.

3. The permit is transferable and does have value.

4. AFMA submitted to the AAT that the relevant policy did not apply to permits in State waters but now says it does.

Yours faithfully,

DOWNS Lawyers

Per:

Philip Smith."

That in turn led to a letter from the respondent's solicitors to the applicant's solicitors dated 24 June 21005. I set out the text of that letter in full.

We refer to your letter of 3 June 2005 and your request for a review of AFMA's decision under section 32 of the Fisheries Management Act 1991.

You have not identified the decision which you seek to have reviewed pursuant to section 165(2) of the Act, although for the purposes of this response it is presumed that you refer to AFMA's letter of the 1 June 2005.

AFMA's letter of 1 June 2005 is not a relevant decision within the meaning of s 165(1) of the Act and no decision has been made under s 32 of the Act as alleged with respect to your client's 2005 permit. Accordingly no review rights have arisen under s 165(2).

The Tribunal's decision of the 22 April 2005 was in relation to your client's 2001 permit. That permit expired on 31 December 2001. AFMA allowed that application to proceed on the basis that if your client's cogent reasons argument had been successful then AFMA would have re-calculated your client's verified catch history in accordance with the Tribunal's direction. The Tribunal held at paragraph 105 that there should be no charge to the verified catch history on which your client's ITQ was based.

The relevant permit, with respect to the assessment of value and allocation of quota, is the permit that your client held prior to 2001 which enable him to qualify for the expanded SSF, namely his Tasmanian Shark Gillnet Licence (TSGL). This is the permit which generated your client's catch history and this is the permit relevant to the assessment of value for the purposes of allocation of ITQs. The question of value of your client's TSGL was not before the Tribunal and no findings were made in that regard.

You are incorrect in stating that considerations of value have not been looked at with respect to this permit. Following the decision of the Federal Court in Graham v AFMA in which the Federal Court upheld the Tribunal's decision that Commonwealth SSF permits prior to 2001 were transferable, AFMA established the Independent Allocation Review Panel (IARP) to review the allocation of school and gummy shark ITQ in the fishery. The IARP reviewed the allocation of quota in light of the decision in Graham to both Commonwealth SSF permits and State SSF permits, that is permits that were granted to the expanded SSF on the basis of a previous qualifying State concession in 2001.

The IARP report, which was subsequently adopted by AFMA, recommended a change to the allocation only for Commonwealth SSF permits on the basis that Commonwealth SSF permits did have a value prior to 2001, the value of that permit in addition to how the permit was used. The IARP report did not recommend a change to the allocation method for State SSF permits.

In late 2003 AFMA advised permit holders of any changes to their ITQ allocation as a result of the adoption of the IARP report. All State SSF permit holders, including your client, were advised of the fact that their school and gummy shark quota holdings would not be changed in accordance with the recommendations of the IARP report. A copy of the AFMA's letter to your client dated 13 November 2003 indicating your client's interim quota allocation for the 2004 fishing season is enclosed. These changes, if any, were then reflected on fishing permits granted by AFMA for the 2004 fishing season.

Accordingly the value of your client's TSGL permit was considered by AFMA in 2003 and the effects of that consideration reflected in the amount of quota units allocated to your client from the 2004 fishing season.

Consistent with this assessment and direction 2(2) of the Tribunal's decision of 22 April 2005 your client was allocated 444 kg of gummy shark and 0 kg school shark for the 2001fishing season. As explained in our earlier correspondence this translates to 355 kg of gummy shark and 0kg school shark for the 2005 fishing season.

Your client had the opportunity to review the allocation of quota on his 2004 and 2005 permits following receipt of notice of the grant of those permits. He did not do so. The period for such a review has now expired with respect to those permits.

Accordingly AFMA considers it has fully complied with the decision of the Tribunal with respect to the 2001 permit.

That in turn led to a further letter from the applicant's solicitor to the respondent's solicitors dated 28 June 2005:

Australian Fisheries Management Authority,

22 Brisbane Avenue,

BARTON ACT 2600

Attention: Mr Geoff Richardson

Dear Sirs,

Re: Gregory Howard - Administrative Appeals Tribunal Decision dated 22.4.05

Thank you for your letter dated 24th June, 2005.

You are correct in concluding the decision Mr. Howard seeks to have reviewed is the decision made by way of your letter dated 1st June, 2005.

That is clearly a relevant decision within the meaning of Section 165 of the Act. It was not asserted by us that your decision related to the 2005 quota and we agree the AAT decision related to the 2001 permit.

By remitting the matter for the consideration of AFMA the AAT has set aside the decision under review (Section 43 Administrative Appeals Tribunal Act). Your decision of 1st June, 2005 accordingly relates to the 2001 permit and is itself reviewable.

We repeat the matters set forth in our letter dated 3rd June, 2005.

We invite you again to now review your decision of 1st June, 2005 under the Act and provide immediate notification that you are in the process of doing so failing which our client will be forced to appeal seeking an extension of time based on the failure of the Authority to comply with the Act.

Please respond within seven days.

Yours faithfully,

DOWNS Lawyers

Per:

Philip Smith."

It is clear enough that the decision the subject of the application is one made pursuant to s.32 of the Fisheries Management Act. That section provides as follows:

(1) AFMA may, upon application made in the approved form, grant to a person a fishing permit authorising, subject to subsections (1A), (1B), (1C) and (1D), the use by that person, or by a person acting on that person's behalf, of an Australian boat for fishing in a specified area of the AFZ or a specified fishery.

(1A) Subject to subsections (1C) and (1D), if an Australian boat is specified in the permit, the permit authorises the use as mentioned in subsection (1) of:

(b) if the person to whom the permit is granted, from time to time, by written notice given to AFMA, nominates for the purposes of the permit another Australian boat in lieu of that boat--the boat so nominated.

(1B) Subject to subsections (1C) and (1D), if no Australian boat is specified in the permit, the permit authorises the use as mentioned in subsection (1) of such Australian boat (if any) as the person to whom the permit is granted, from time to time, by written notice given to AFMA, nominates for the purposes of the permit.

(1BA) After the commencement of this subsection, a boat may not be nominated under subsection (1A) or (1B):

(a) without AFMA's written agreement to the nomination; and

(b) for the purposes of a permit to fish in a specified fishery on the high seas--unless it is an Australian-flagged boat.

(1C) The permit does not authorise the use of an Australian boat unless the boat complies with any conditions to which the permit is subject.

(1D) If subsection 16A(1) prohibits AFMA from authorising a use of a boat for a period described in subsection 16A(2), the permit does not authorise the use of the boat during the period.

Note: Subsection 16A(1) prohibits AFMA from authorising the use of a boat to fish on the high seas for a straddling fish stock or a highly migratory fish stock if the boat has been used in the commission of certain offences and the penalties for those offences have not been complied with.

(2) An application made for the grant of a fishing permit must provide AFMA with such information as it reasonably requires for a proper consideration of the application.

(3) Without limiting the operation of subsection (1), AFMA may refuse to grant a fishing permit if it has reason to believe that a requirement of a law of the Commonwealth, or of a State or Territory, has not been complied with in relation to the boat.

(4) A fishing permit may authorise the use of a boat:

(a) for commercial fishing generally; or

(b) for recreational fishing generally (whether from a charter boat or otherwise); or

(5) A fishing permit is granted subject to the following conditions:

(a) if the fishing permit authorises fishing in a specified managed fishery--the holder of the permit must comply with any obligations imposed by, or imposed by AFMA under, the relevant plan of management on the holder of such a fishing per

(b) if the fishing permit authorises fishing in a specified managed fishery--the permit will cease to have effect if the plan of management for the fishery is revoked under subsection 20(3);

(c) the fishing permit may, under subsection 75(7), cease to have effect or, under subsection 79(3), cease to apply to a fishery;

(d) the fishing permit may be cancelled under section 39;

(e) no compensation is payable because the fishing permit is cancelled, ceases to have effect or ceases to apply to a fishery.

Note: Sections 42 and 42A also impose conditions on fishing permits.

(6) A fishing permit:

(a) is subject to such other conditions as are:

(ii) prescribed in relation to permits granted under this section; and

(b) comes into force on the day specified for the purpose in the permit or, if no day is so specified, on the day on which it is granted; and

(c) subject to this Act, remains in force until the day specified for the purpose in the permit, being a day not later than 5 years after the day on which it came into force.

(7) Without limiting the operation of paragraph (6)(a), the conditions that may be specified in a permit include conditions relating to:

(d) the methods or equipment that may be used to take fish; or

(e) the methods or equipment that may be used to process or carry fish.

(a) AFMA has granted a fishing permit under this section in respect of a particular fishery; and

(b) that fishery is a fishery to which subsection 41A(1) applies; and

(c) AFMA subsequently, under section 41A, gives a direction in respect of that fishery to the effect that fishing is not to be engaged in in any part of the fishery, or in a particular area of the fishery, during a period or periods specified in the direction;

it is a condition of the permit that the holder of the permit comply with the terms of the direction.

(8) AFMA may, by written notice given to the holder of a permit, whether or not at the request of the holder, vary or revoke a condition of the permit (not being a condition mentioned in subsection (5) or (7A)) or specify a condition or a further condition to which the permit is to be subject.

(9) A permit ceases to be in force if the holder of the permit surrenders the permit by written notice given to AFMA.

(9A) The holder of a permit must, at the time of giving the written notice referred to in subsection (9) or as soon as practicable after that time, return the original permit to AFMA.

(10) Except where a fishing permit is stated to be non-transferable, AFMA may, on the application of the holder of the permit and of another person as proposed transferee, transfer the permit to that other person.

(11) A fishing permit is to be in the approved form.

On 24 March 2003 Ryan J delivered judgment in Australian Fisheries Management Authority v Graham and Australian Fisheries Management Authority v Fischer [2003] FCA 231. These decisions do not appear in the respondent's Contentions. It appears that the parties proceeded upon the basis that the Court would acquaint itself with the significance of the decision. These decisions were appeals from determinations from the Administrative Appeals Tribunal allocating quota pursuant to permits to fish in the SSF. The quota was calculated by reference to a total allowable catch (TAC) for the SSF as a whole and individual transferable quotas ("ITQ's") for each permit holder. ITQ's were calculated by reference to the ratio between the aggregate of the best three annual catches pursuant to each permit and the aggregate of the best three annual catches for the species taken in the fishery in the period ending when the allocation was made (see paragraph 2 of the Reasons for Judgment in these cases).

The Administrative Appeals Tribunal had disagreed with the decision of the respondent to calculate ITQ's upon the basis that the fishery was one in which permits were not transferable. Much of the evidence before the Tribunal related to the contention of the permit holders that a market existed for the permits. Ultimately the Tribunal found that the quota allocations should be remitted for reconsideration so as the market value of the permits should be taken into account. Ryan J upheld that determination. As his Honour expressed the issue in paragraph 38 of his judgment:

"Their argument has been, rather, that the Tribunal concluded that AFMA's decision in each case to allocate ITQ's on the basis of catch history alone was not the correct and preferable decision, as it failed to take into account that each permit had value as a transferable asset and thus failed to preserve the relative economic possession of permit holders. This was a conclusion open to the Tribunal standing in the shoes of a decision-maker within the executive arm of government."

Mr Fischer's allocation of quota for the 2004 year was allocated in accordance with the decision of the Administrative Appeals Tribunal referred to above. That allocation was the subject of a further application by Mr Fischer to the Administrative Appeals Tribunal (see Fischer v Australian Fisheries Management Authority [2005] AATA 936.

This hearing before the Administrative Appeals Tribunal commenced six months after the expiry of the 2004 licence. Notwithstanding that circumstance AFMA did not seek to have the proceedings dismissed for want of utility. In the words of the Tribunal at [24]:

"It recognises that nothing can be done about the actual quotas for 2004, or for that matter 2003, 2002 and 2001. I have been informed that it will act on my decision for 2005, but that, of course, is subject to any appeal. This is a proper approach for AFMA to take and one for which it deserves credit from the industry. However the difficulties which are thrown up should not be ignored."

The proceedings involved a detailed challenge to the calculation of the quota. Ultimately the Tribunal found at [107]:

".... that the quote system under review by which quota calculations are based partly upon equality between permits, representing the right to fish, or access entitlement, and partly upon catch history, is the preferable way to allocate quota. I have also found that the way the two have been integrated are the appropriate and preferable methods."

22.

Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3 was handed down on 10 February 2006. It was brought to my attention after I had reserved my decision by the respondent's solicitors and notice given to the applicant's solicitors of it. In these proceedings the Administrative Appeals Tribunal dismissed an application for review of the allocation of shark quota in the SSF for the 2001 year. It did so because it found that the applicant was not "a person affected by a relevant decision" in terms of s.165(2) of the Fisheries Management Act in that the applicant had transferred the quota attached to his permits by the time the application came before the Tribunal. Whilst the applicant had standing at the time of the institution of the proceedings the disposal of his underlying interest meant that a continuation of the application must be regarded as frivolous and vexatious.

The appeal to the Full Court of the Federal Court from the Tribunal's decision to dismiss the application was dismissed.

It should be noted that all of the decisions referred to above constitute a detailed and wide ranging analysis of circumstances within the SSF and of permit holders within that fishery. The decisions relate to periods of time in which much attention was given to the management of that fishery and the calculation of total catch and individual quota. The decisions are made against a highly complex factual background.

Notwithstanding these matters, the Court was repeatedly assured by both counsel that a detailed knowledge of such factual circumstances within the industry and the fishery was unnecessary for a determination of the issue before the Court.

The determination of the Administrative Appeals Tribunal which gave rise to the application for review was that reported as Howard v Australian Fisheries Management Authority [2005] AATA 360.

That decision related to his SSF permit in the period July to December 2001. It allocated a quota for the catch of gummy shark. The applicant contended before the Tribunal that the allocation of quota should have been increased to take account of his inability to fish for shark in Tasmanian waters on account of his having to care for an ill wife. He asked for regard to be had to the catch history for a permit he had held for the SSF prior to 1996. As the Tribunal expressed the matter at paragraph 2 of its decision:

"The primary issue in this case is whether the ITQ attached as a condition to Mr Howard's SSF permit should be varied in light of the aggregation of his catch histories on his Commonwealth licence, in the SSF and State licence, in Tasmanian coastal waters between 1994 and 1997."

The argument put by the applicant before the Tribunal was expressed in this way in paragraph 79 of the decision:

"Mr Howard considered that his ITQ should be assessed on the basis of his catch history from 1997 until the commencement of ITQ's, i.e. the end of 2000. That was on the basis that he could not fish before that period because of his personal circumstances."

Once again, the decision contains a highly detailed analysis of circumstances within the SSF and of the inter-relationship between Commonwealth licenses and State licences and a highly detailed analysis of the particular fishing vessels utilised by the applicant in furtherance of the permission to fish granted by each such licence. Once again, it was contended by both parties that it was unnecessary for the Court to have a detailed grasp of these complex factual issues to determine the application before it.

I was asked to deal with this application without having any affidavit material whatsoever or oral evidence from the applicant or from any representative of the respondent. The affidavit material I did have was limited to affidavits of the legal representatives of the parties most of which went to matters of argument and not of fact. It is a highly unsatisfactory way for the application to have proceeded.

The decision of the Tribunal was that there should be no change to the verified catch history on which Mr Howard's ITQ issued for the second half of 2001 was based, but that consideration should be given to any value that his SSF permit may have had in accordance with the decision of Ryan J in AFMA v Graham, referred to above. The matter was remitted to AFMA for that purpose because the Tribunal had no evidence as to the value of the permit.

As noted above, AFMA's decision of 1 June 2005 determined that the allocation of quota was not varied by consideration of the value of the permit. It is that determination Mr Howard wants AFMA to review and it is their refusal to review it that he says entitles him to seek an order requiring that the decision be reviewed. It is that application which the respondent seeks to summarily dismiss.

The exercise of the power to summarily dismiss granted by Rule 13.10 was discussed by McInnis FM in Bride & Anor v Campbell-Smith & Ors [2004] FMCA 848 at [19 - 22], where reference is made to the decision of Dixon J in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62:

"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 a 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."

Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 at [8 - 10] had this to say in relation to the exercise of a power to summarily dismiss:

"8. The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counter part rules to Order 26, r.18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - it clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense' ".

9. At the times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'.

10. 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 [1949] HCA 1; (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 9: '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 CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, 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, m ay be necessary to demonstrate that the case of the plaintiff is not so clearly untenable that it cannot possibly succeed."

These proceedings were commenced in August 2005. The application to summarily dismiss is contained in a Response filed on 8 September 2005. On 1 December 2005 a new s.17A was inserted in the Federal Magistrates Court Act and consequent amendments were made to Rule 13 of the Rules of this Court relating to summary dismissal. The effect of the amendments is to move away from the rigour of the approach taken by the Courts to summary dismissal as outlined above. An application need not be hopeless or bound to fail for it to have no reasonable prospect of success. Heerey J, in interpreting the like amendment to the Federal Court of Australia Act 1976 (s.31A) in Duncan v Lipscombe Child Care Services Inc [2006] FCA 458, considered the amendments to be procedural rather than substantive and therefore to apply in relation to proceedings commenced before the amendments. However, as Kenny J pointed out in Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2006] FCA 743, item 44 of Part 2 of Schedule 1 of the Migration Litigation Reform Act 2005 provides that the amendments contained in items 5, 7, 8 and 9 of Schedule 1 are to apply from the commencement day of the legislation. The new s.17A of the Federal Magistrates Court Act is contained in item 8. Therefore the amendments are to have a prospective operation only and do not apply to these proceedings which were commenced before these changes were introduced. In any event, and on account of the matters set forth hereunder, even were I to apply the less stringent test in relation to summary dismissal, I would be unable to make such an order in these proceedings.

The respondent contends that the application is futile. It says that decisions have already been made with respect to the applicant's 2004 and 2005 permits. It says that in any event the decision of 1 June 2005 is capable of being reviewed by the Administrative Appeals Tribunal pursuant to s.3(3) of the Administrative Appeals Tribunal Act. The respondent says that it accepts that the power to dismiss summarily must be exercised carefully and cautiously but that the power should be exercised in this case because a determination of the application cannot achieve any result of benefit to the applicant. The fishing permits granted by the respondent are annual permits. Any decision reviewing the permit applicable for the second half of 2001 would have no practical effect. Reference is made to decisions of the Administrative Appeals Tribunal instancing occasions on which proceedings had been struck out as being devoid of any practical effect (see Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467 and McWilliam and Civil Aviation Authority [2004] AATA 908).

The applicant says that the Fisheries Management Act provides no authority to AFMA to refuse a reconsideration on the grounds of futility. The applicant points to the Administrative Appeal Tribunal's own determination in relation to the 2001 permit in 2005 and says that the Tribunal did not perceive the proceedings to be lacking utility in those circumstances. The applicant contends that in any event a reconsideration under s.165 would enable the applicant to apply for a variation of his current permit to "incorporate such increase".

Having given anxious consideration to these submissions and having attempted to acquire an understanding of circumstances within the SSF and the industry and Mr Howard's own circumstances on the basis of the decisions referred to above, I am unable to come to a conclusion as to whether or not the proceedings have any utility. I simply do not have a sufficient understanding of the factual issues involved to comprehend adequately the submission as to futility. It will be borne in mind that such knowledge as the Court has of these circumstances, has been gleaned by its consideration of determinations of other Courts and Tribunals and especially of the decision of the Administrative Appeals Tribunal in the instant case. Fearnley's case (supra) is of little assistance, turning as it does on the loss of standing consequent upon a disposal of the licence.

It is self evident that the Court should not act so as to summarily terminate an action if it is in such a state of uncertainty. Insufficient factual material was put to me to enable me to comprehend the complex issues associated with the management of the fishery and Mr Howard's utilisation of permits to fish within it over the last 10 years. I am very far from being able to reach the "definite and certain conclusion" referred to by Barwick CJ in General Steel Industries (above). I do not have the "requisite material and the necessary assistance from the parties" to do so. I have not been presented with any factual basis on which I can predict the impact or lack of it on Mr Howard's circumstances of a refusal to reconsider the decision of 1 June 2005. To enable me to evaluate whether such a decision would have any material impact upon Mr Howard's circumstances I would either have to have an agreed set of facts put before me (which was not the case), or evidence presented to me from which such an inference could be safely drawn. I was not provided with evidence of any description, but instead invited by counsel to proceed upon the basis of such information as may be gleaned about the fishery and Mr Howard's circumstances from the decisions referred to above. That has proved to be most unsatisfactory.

I am not expressing any view as to the likely outcome of the application of the applicant for orders pursuant to s.7 of the Administrative Decisions (Judicial Review) Act. It is not clear at this stage what the "order for review" contemplated by the section will entail. There may be a submission pursued by the respondent that no decision capable of review has been made. That proposition appears to have been advanced in the letter of 24 June 2005 (see above). I am simply proposing that such application be allowed to take its course and I will expect the applicant to provide to me either an agreed set of facts or satisfactory evidence upon which I can make my own findings as to facts such as will enable me to properly determine the application.

For the foregoing reasons the application to summarily dismiss the application filed on 19 August 2005 is refused.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Lindsay FM