Howard v Australian Fisheries Management Authority [2006] FMCA 975

Howard v Australian Fisheries Management Authority [2006] FMCA 975 - FMCA 2006 case summary — Zoe

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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:

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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:

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"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."

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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.

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