Findings of the Tribunal
11 The reasons of the Tribunal are extensive, extending to approximately 75 pages. A significant part of the reasons sets out matters which were re-argued on this appeal or referred to evidence to which it may be necessary to make reference later. It is sufficient for present purposes to set out the findings of fact made by the Tribunal. These were as follows:
(1) par [110]…Mr and Mrs Boschetti, (the corporate mind of the applicants), believed that when the applicants sold their 2 Class B and 535 Class A units in the NPF to the Commonwealth in 1989, that they would be granted, in future, a concession to fish for tuna in the S/WTBF. They believed at the time that concession would be an unrestricted CFBL. This belief was founded in the correspondence exchanged between the parties.
(2) par [111]…The then manager of the Northern Prawn Fishery and Adjustment Program Section, Mr Meany, agreed that Latitude, as a condition of selling its Class B unit and its 353 Class A units, as part of the contract mentioned in the previous paragraph, was permitted "to retain the right to one unrestricted CFBL". None of Mr Meany, Mr Wesney or Mr Gorrie, officers of the respondent who were then involved in the purchase of the units in the NPF, were called to give evidence.
(3) par [112]…[and compare pars [163] and [165] of the Tribunal's reasons]
(a) The respondent intended that the applicants retain one of their CFBLs as a split from the NPF units and hold it as a "licence in abeyance" or some other reserved right.
(b) Latitude at the time did not have a CFBL, so in this sense Mr Meany's undertaking was meaningless.
(c) There was a commonly shared intention to permit Latitude to fish for tuna in the S/WTBF in future.
(d) Having sent its letter in reply of 16 January 1989, the respondent (or its predecessor the AFS) believed that it was under no obligation specifically to follow-up or to place a time limit on the undertaking. If, as has been concluded, the respondent understood that the promise was to keep an unrestricted CFBL which, at the time, would have been subject to the "abeyance policy" then there was no need to monitor that promise, since licences held in abeyance were held for a discrete duration (up to two years) before being reactivated by the holder or cancelled.
(4) par [113]…Notwithstanding the previous finding of fact, the Tribunal concludes on the evidence of the Boschettis and Mr Stewart that in June 1989, when the signed deed of discharge was conveyed to Mr Keating, manager of the Northern Prawn Fishery and Adjustment Scheme, Mr Boschetti in particular, believed that the AFS had promised to issue him with an unrestricted CFBL to fish for tuna in the S/WTBF.
(5) par [114]… Mr Boschetti and to a lesser extent, Mrs Boschetti, were informed by various means, from 1985 through to 1995 and beyond, about the changing policies of the respondent (and its predecessor) in relation to the NPF "licence freeze", "licence in abeyance", "licence splitting" and also the "limited entry" policy particularly in relation to the S/WTBP. The Tribunal finds that they were on notice about the particular policy changes that impacted on licensees' rights to fish for tuna in the ETBF, the STBF and the WTBF. Further the Tribunal finds that Mr Boschetti was aware of the phasing-out of CFBLs after the introduction of the replacement legislation, the [Management] Act and the new scheme of licensing with fishery specific FPs.
(6) par [115]… Mr Boschetti believed that as he did not have the licence in question (not having applied for it) he was not affected by any of the relevant policy changes in relation to that expectation.
(7) However, … it is not reasonable for Mr Boschetti to have assumed, in 1995, that a "promise" made ancillary to a contract negotiated in 1988 and settled in 1989, would be unaffected by intervening changes, in both governing Commonwealth legislation and related policies, directed at the very substance of the "promise" as he understood it - the issue of a CFBL.
(8) par [116]… The sale of the 2 Class B and 535 Class A units in the NPF in 1989 was primarily motivated by what the Boschettis believed to be a sound management decision at the time.
(9) par [117]… At that time Mr Boschetti (an experienced hands-on fisherman) had formed an opinion that tuna in the S/WTBF should be exploited by Australian fishermen and not left to the Japanese. The Tribunal finds that the Boschettis' businesses, in the early 1990s, outlaid several hundred thousand dollars to prove the viability of those tuna fisheries in the Indian Ocean AFZ.
(10) par [118]… Some time between about 1992 and 1995 Mr Boschetti made a conscious decision to invest large amounts of capital as and when it became available, to fish for tuna in the AFZ's S/WTBF. Also, those plans were never abandoned even though during the time other related fishing business exigencies were engaging the Boschettis' time, resources and attention so that their plan to exploit the S/WTBF was suspended, but never abandoned. The Tribunal accepts that it was primarily for those reasons that the Boschettis made no attempt to apply to the respondent until 1995, for what they then believed, justifiably or otherwise, to be their right to a tuna fishing concession in the S/WTBF. And further, the Tribunal finds as fact that the Boschettis' failure to follow-up with the respondent or its predecessor, to affirm the right, which they understood to exist, was a consequence of the circumstances of their businesses during the interregnum from 1989 to 1995.
(11) par [119]… Insofar as the Boschettis understood that they had a right to either retain or to be issued with a CFBL in 1989, that because of the effluxion of time, material changes in the law (different legislation and different fishing rights) and policies of the respondent (formerly the AFS and now AFMA), that specific right (if it existed as a matter of law) did not survive those changes.
(12) par [120]… The Boschettis made discrete business decisions without regard to their then understanding that they had the right mentioned above.
(13) par [121]… The existing limited entry policy of the respondent, coupled with its proposal to introduce a comprehensive Management Plan for the S/WTBF, in the interests of consistent decision making ordinarily would preclude the issue of any newly applied for FP.
(14) (a) The respondent does not believe there is currently over-exploitation of Bigeye and Yellowfin tuna species within the S/WTBF.
(b) The long-line method of taking tuna proposed to be used by Latitude in the S/WTBF does not, of itself, pose a serious threat to the sustainability of the tuna species in question.
(c) The current input controls introduced by the respondent were a cautious and responsible approach.
(d) At present there are no threats of serious or irreversible environmental damage.
(15) par [152]. In the present case the Tribunal is dealing with an application for a fishing permit pursuant to s 32 of the [Management] Act…. However, to now grant the application would clearly be contrary to the presently prevailing policies of the respondent. In the context of reaching the preferable or correct decision in this matter on the basis of Freeman v Secretary, Department of Social Security (1988) 87 ALR 506 and other cases cited, that factor is one of the relevant considerations to which the Tribunal, as part of the administrative continuum, must give proper weight in reaching its decision.
(16) par [154]… In the Tribunal's opinion the respondent may only grant FPS pursuant to s 32. There is nothing in the [Management] Act or its regulations which empowers the respondent (and therefore the Tribunal) to grant a FP on the basis alone of a promise or agreement entered into at an earlier time than the date of the relevant application. In the opinion of the Tribunal, the decision to grant a FP pursuant to s 32 is discretionary and must be made having regard to relevant policies authorised by s 32 of the [Management] Act.
(17) par [160]… In the Tribunal's opinion, but for the promise referred to above and encapsulated in the evidence generally and in particular (in two respects), no FP to catch the three species in question, Bigeye and Yellowfin tuna and Broadbill swordfish, in the S/WTBF, would be granted. This obtains because of the respondent's then policy of limited entry to those fisheries, policies forming part of the decision-making matrix established by ss 32 and 3 of the [Management] Act.
(18) par [161]… Therefore, the question before the Tribunal is whether the preferred or correct decision is now to grant the FP. In the opinion of the Tribunal that decision cannot be made, in keeping with the duties and responsibilities of the respondent (as provided by legislation) without due regard to the following factors:
q The rights of the applicants, if any, stemming from the promise.
q Whether those rights include a right to be granted a FP.
q Whether the respondent is estopped from denying its obligation (if any) to grant the FP.
q Whether the applicants have a legitimate expectation that the (first) applicant has right to be granted a FP.
q Whether the grant of a FP now, to the (first) applicant would be contrary to the public interest or affect the rights of others not party to this application.
(19) The rights of the applicants, if any, stemming from the promise
par [164]. In the Tribunal's opinion the promise or agreement at the time was intended by the AFS to be limited to the retention of an unrestricted CFBL which might be subject to the abeyance policy if not then otherwise active. In the opinion of the Tribunal the evidence supports the conclusion that it was intended by the AFS that once the NPF units were sold any remaining CFBL (which was required for operations in the NPF at the time) would go into abeyance and be subject to that policy. It was further intended by the respondent that Latitude or possibly the second applicant could activate that CFBL to fish for tuna in the S/WTBF, but subject to the then "licence in abeyance" policy.
(20) Whether those rights included a right to be granted a FP
par [166]. In the opinion of the Tribunal it is not an issue as to whether pursuant to the promise discussed above a CFBL or a substitute concession is retained and activated. In the opinion of the Tribunal the applicants' rights did not extend, in the circumstances, to the grant of a FP on the basis of the promise or agreement alone. If the applicants are to succeed in this matter then it must be for other reasons.
(21) Whether the respondent is estopped from denying its obligation (if any) to grant the FP and whether the applicants had a legitimate expectation that a FP ought to be granted upon application
par [170]. In this case the applicants argue that the respondent is now prevented by the doctrine of estoppel from relying on an argument that legislative and policy changes in the interim prevent the grant of the FP pursuant to that promise. This, they argue, obtains because the respondent made a previous commitment in circumstances where that was the result of protracted negotiations at the time and crucial to the actual commercial agreement then reached. However, if only for the effluxion of time, some ten years since the promise, the Tribunal cannot accept that argument because its effect would be to grant a FP contrary to policy existing at this time and therefore ultra vires the statute. Further reasons are that to adopt the doctrine of estoppel in favour of the applicants would require action by the respondent beyond its powers as circumscribed by the [Management] Act and the matrix of the policies pursuant to that Act.
(22) Whether applicants had legitimate expectation of grant
par [171]. In the opinion of the Tribunal the applicants did not have, in 1999 at least, a legitimate expectation to be issued with (or granted) a FP. Whilst the applicants may have had a legitimate expectation to retain an unrestricted CFBL in 1989, pursuant to the licence abeyance policy, that expectation did not survive (see findings of fact points (5) and (6) above). In the Tribunal's opinion, that expectation ceased to have legitimacy well before Latitude made its application pursuant to s 32 of the [Management] Act which gave rise to these proceedings.
(23) par [172]. The Tribunal is also influenced by its previous finding of fact in relation to the alleged detriment suffered by the applicants as a result of entering into the agreement in question. In the opinion of the Tribunal even if there was a detriment suffered, for the reasons already expressed, it could not be as a result of having sold the NPF units. Any alleged detriment, in the Tribunal's opinion, is not something to which it should have regard in reaching its decision in this matter.
(24) Whether the grant of a FP now, to the (first) applicant would be contrary to the public interest or affect the rights of others not party to the application
par [173]… In the opinion of the Tribunal there is no legal obligation for the respondent to grant the FP sought. To do so would be contrary to existing policy and indeed contrary to policy in place since 1994 when the licence freeze in the S/WTBF commenced. At best there may be a case for a moral obligation to grant the FP, but that, in the Tribunal's opinion is not something on which it can decide in the absence of compelling other supporting reasons.
(25) par [174]… On the other hand, in the opinion of the Tribunal, the evidence before it does not support a conclusion that to grant one further FP as sought would offend against the "precautionary principle" since there is not before the Tribunal sufficient scientific evidence of a serious threat to ecological sustainability of the three species in question using the long-line method as proposed by the applicants.
(26) par [175]… The measure of the adverse effect on current FP licence holders of a fresh FP cannot be meaningfully quantified on the evidence before the Tribunal.
(27) par [176]. On balance, the Tribunal concludes that to now grant the FP, the subject of this application would not have any significant effect on the interests of the other FP holders generally, other interested persons (who have not been identified) or the public generally. … Notwithstanding, after having heard the evidence and submissions and having given them the most serious consideration (see Lord Denning in Liverpool), the Tribunal is of the opinion that this is an instance where the public interest would not be served, nor confidence in consistent application of established government policy upheld, by departing from the practice and policy of the respondent and granting a FP contrary to those policies.
(28) par [177]. Finally, in the opinion of the Tribunal the evidence is that the application is too late. The Tribunal cannot simply ignore the relevant intervening events between 1989 and 1999, referred to above. In the Tribunal's opinion, as mentioned, if the applicants had a contractual right to be granted a CFBL in 1989, then by their very inaction and passive reliance on what they understood to be their rights in the interim, that right has been jeopardised by supervening events which run to the very core of the right in question and of which the applicants were fully apprised.
12 Accordingly, the Tribunal reached the view that the correct or preferable decision in the matter was to affirm the decision of the respondent under review.