Plaintiff v Defendant

1 In April 2013, the Department of Agriculture ('the Department') proposed the establishment of a Commercial Scallop Dive Fishery ('fishery') in Port Phillip Bay and invited public comment. The submissions received were collated and were used to inform the establishment of the fishery. Baseline Management Arrangements ('BMA') were then published prior to a public auction of the access licence for the fishery which was conducted in February 2014. The Department indicated that the management of fishing would occur according to the BMA. The BMA detailed that the fishery is conducted by a Total Allowable Catch ('TAC'), with the access licence to be held by a single entity. The development of the fishery was primarily through changes to catch limits which would be reviewed annually. The BMA established that the fishery would be managed through a TAC administered by a Quota Management System. The fishery would be operational between 1 April to 31 March.

2 That the BMA provided the basis for operation of the fishery could not be doubted. The BMA document stated, in part:

The purposes of the document are: to specify the Baseline Management Arrangements that will apply to the proposed Commercial Scallop Dive Fishery at the commencement of fishing; and to outline the process for potentially developing the Fishery.

3 Prior to the public auction, an Initial Quota Order under s 64 of the Fisheries Act 1995 (Vic) ('the Act') was made by the defendant ('the Minister'), after consultation in accordance with s 3A of the Act, and published in the Victorian Government Gazette on 19 December 2013. A Further Quota Order under s 64A of the Act was made by the Minister and published in the Victorian Government Gazette on the same day, specifying 12 tonnes of scallops as the TAC for the first fishing season (2000 kilograms for each of six commercial fishing zones). The Further Quota Order, made pursuant to s 64A, remained in force until 31 March 2015.

4 Documents provided by the Department prior to auction stated that a precautionary and low TAC was set for the initial period; a reason for the low initial TAC was to encourage the entitlement holder to gather the information required to further develop the fishery. In this context, 'develop' means increase the annual TAC. BMA arrangements set out guidelines for developing the fishery - the licence holder, to increase the initial TAC, was required to undertake the collection and assessment of fishing information in accordance with Departmental specifications and standards. The licence holder was required to bear the costs associated with the collection and analysis of this fishery information.

5 A document was prepared by the Department titled 'Total Allowable Commercial Catch Setting Process for the Scallop Dive (Port Phillip Bay) fishery'. A flow chart was contained in that document, indicating the steps and processes for a licence holder to increase the TAC. The flow chart specifically identified the steps involved in setting the new TAC: the licence holder to inform Fisheries Victoria of the desired increase in TAC, Fisheries Victoria to then prepare a recommendation to its Executive Director (as a delegate of the Minister), who subsequently releases the proposed Further Quota Order for written comment from persons and organisations with a relevant interest. Such submissions are then considered by the Executive Director. The Executive Director then declares a Further Quota Order, the decision is published in the Victorian Government Gazette and relevant persons informed.

6 The plaintiff acquired the licence at public auction on 20 February 2014 for $180,000.

7 Mr Bruce Collis, sole director of the plaintiff, deposed in his affidavit sworn 20 April 2015 that following the auction he had discussions with Mr Mark Edwards, Director - Policy and Licensing of the Department, Mr Bill Lussier, Manager Marine and Estuary Fishing - Scallop Dive Fishery Manager, and Mr James Andrews, Leading Scientist - Fisheries Victoria, concerning the independent survey and assessment of fishing information to be carried out as required by the BMA. The plaintiff retained the Department through Fisheries Victoria to carry out the investigations, analysis and assessment of the fishery to support the application by the plaintiff to increase the TAC.

8 The plaintiff paid $68,765.45 to Fisheries Victoria to conduct the 2014 survey. The survey report was produced by Fisheries Victoria in November 2014. The report provided a conservative estimate of the bio mass of scallops within certain zones of the fishery. The survey estimated 3,629 tonnes of scallops are available to be fished within the four zones surveyed and that 'this information will be used as the basis for setting Total Allowable Commercial Catch for each of these zones'.

9 Ms Belinda Wilson, CEO and Corporate Counsel for the plaintiff, deposed in her affidavit sworn 22 April 2015 that she attended a meeting at the Queenscliff offices of the Department with Mr Andrews, Mr Harry Gorfine, Senior Marine Research Scientist - Fisheries Victoria, and Mr Colliss for the purpose of discussing the findings of the survey. Mr Andrews and Mr Gorfine stated the figures (concerning scallop numbers) were strong. Ms Wilson stated she understood from previous meetings that a strong figure would support an increase in TAC to 20% of bio mass.

10 On 11 November 2014, the plaintiff submitted an application to increase the TAC to 725 tonnes. At a meeting on 3 December 2014 Ms Wilson was informed by Mr Lussier that he would recommend to Mr Ross McGowan, then Executive Director of Fisheries Victoria, a TAC of 585 tonnes. Ms Wilson states that she was informed at the meeting by Mr Lussier that he proposed a two to four week consultation period which he anticipated would be completed by Christmas. She was informed there would then be a one week period to review written submissions and a new TAC would be set.

11 On 5 December 2014, the plaintiff confirmed it was agreeable to the Department's proposal of a TAC of 585 tonnes.

12 In short, the evidence in this matter discloses despite:

(a) since January 2015 continual expressions of concern and urgency by the plaintiff to the Minister concerning delay; and

(b) since December 2014, seven meetings between representatives of the plaintiff and senior personnel of the Department in which at least at meetings in January and February 2015, the plaintiff was assured of progress towards the setting of a TAC by Further Quota Order prior to expiry of the Initial Quota Order;

no Further Quota Order has been made and no TAC has been set by the Minister.

13 On 23 February 2015, Ms Wilson emailed the Department. The email summarises the predicament that the plaintiff still finds itself in over two months later:

I am writing to you to seek an urgent appointment to discuss the following issues that the company is experiencing with the Department of Environment, Land, Water and Planning ('the Department') in regards to the Access Licence, Commercial Scallops Dive (Port Phillip Bay):

(1) Failure of the Department to deal with the company's application to increase the TACC[1] in a timely fashion, which application was submitted on 11 November 2014.

(2) Lack of communication from Departmental officials in relation to our application, or the status of the application.

(3) The Department's non-observance of its own tender documents, including the following:

(a) proposal to establish a commercial dive fishery for scallops in Port Phillip Bay April 2013

(b) Total Allowable Commercial Catch Setting Process for the Scallop Dive (Port Phillip Bay) Fishery Statutory Consultation Plan 2014

(c) Commercial Scallop Dive Fishery (Port Phillip Bay) Baseline Management Arrangements.

As a result of the above, the business is experiencing financial hardship and the company requires a decision to be made without further delay to ensure the development of this new fishery.

Recently the company, at the company's request, has been meeting with the Acting Executive Director of Fisheries Victoria, Mark Edwards, to seek clarification on the above matters. Unfortunately, the company is yet to receive any satisfactory answers, nor a commitment to:

• Who is responsible for making the ultimate decision on the TACC increase
• The process that will be adopted
• The timeframe for such process
• The suggested increase in the TACC that the Department will adopt and the basis upon which the decision will be arrived at

...

As a result of the representations made by the Department the company has:

• Employed key personnel
• Entered into agreements regarding the sale of scallops based on the anticipated increase in the TACC
• Entered into arrangements regarding the employment of numerous divers and contractors regarding equipment for diving services
• Commenced water quality testing across the bay harvest zones

In summary to date, the company has made a significant investment in developing the fishery but have yet to receive the appropriate quota (based on scientific data) allowed for under this licence.

As you will be able to appreciate, not only has the company spent a considerable amount of money, but it has also based its business structure and development around a positive outcome to this process.

The company has complied with all requirements of the Baseline Management Arrangements and it is unsure as to why the Department is now not complying with its obligations in a timely manner.

14 The s 64A order published in the Victorian Government Gazette on 19 December 2013 expired on 1 April 2015. Thus, since 1 April, the plaintiff has been unable to conduct dive scallop fishing in the fishery. The fishery is effectively closed.

15 Ms Wilson deposed that the plaintiff has spent $685,000 towards the cost of establishing the new fishery. Further, she deposed the plaintiff is unable to fulfil orders to customers and holds the concern its customers will enter long-term supply arrangements with the plaintiff's commercial competitors. She also stated the concern of the plaintiff that divers trained by the plaintiff to harvest scallops will obtain other diving work and will not be available to the plaintiff, and that the plaintiff will be unable to harvest its full quota by the expiry date, 31 March 2016. The plaintiff finds itself in this position after having complied with all the requirements of the access licence advised to it prior to purchase of the licence at auction. No satisfactory explanation for the inaction has been provided by the Minister to the plaintiff.

16 The relevant sections of the Act are set out below.

Initial quota order

(1) The Minister may, by order published in the Government Gazette -

(a) declare that the whole, or a specified zone or zones, of a fishery is to be managed by the allocation of quotas;

(b) determine the method for setting the number of individual quota units for the quota fishery;

(c) determine the method for allocating individual quotas to each access licence issued in respect of the quota fishery;

(d) declare that individual quota units in the quota fishery may be transferred -

(i) permanently; or

(ii) for a quota period only;

(e) set the minimum and maximum number of individual quota units that may be acquired or held by each licence holder;

(f) determine the circumstances, if any, in which the individual quotas can be exceeded or carried over (other than by transfer).

(2) The Minister may revoke or amend an order at any time by an order published in the Government Gazette.

(3) However, if the Minister makes a declaration under subsection (1)(d)(i), the Minister may only amend that declaration or anything under subsection (1)(a), (b) or (c) if the amendment is required -

(a) to give effect to the management plan for the quota fishery declared under section 28, or to any change to that plan; or

(b) to correct -

(i) a clerical mistake; or

(ii) an error arising from an accidental slip or omission; or

(iii) a miscalculation of figures.

A Further quota order

(1) The Minister may, by further order published in the Government Gazette -

(a) set the total allowable catch (by number, volume, weight or value) for a specified period for a quota fishery;

(b) determine the quantity of fish (by number, volume, weight or value) comprising an individual quota unit in a quota fishery in a specified period.

(2) The Minister may revoke or amend an order at any time by an order published in the Government Gazette.

(3) Without intending to limit the generality of subsection (2), the Minister may reduce the total allowable catch, or reduce the quantity of fish comprising an individual quota unit before the end of the period to which the total allowable catch or unit applies.

19 The plaintiff in this application seeks by summons and originating motion dated 22 April 2015 an order in the nature of mandamus commanding the Minister to make a Further Quota Order pursuant to s 64A of the Act, specifying the TAC of 585 tonnes of scallops for the period 1 April 2015 to 31 March 2016 ('Order 1'). Alternatively, the plaintiff seeks an order in the nature of mandamus commanding the Minister to:

(a) forthwith prepare a draft Further Quota Order pursuant to s 64A of the Act specifying a TAC of 585 tonnes of scallops for the period 1 April 2015 to 31 March 2016;

(b) consult on the draft Further Quota Order for a period not exceeding 14 days; and

(c) after the conclusion of the consultation, to make a Further Quota Order for the period 1 April 2015 to 31 March 2016 ('Order 2').

20 Mr Niall QC, senior counsel for the plaintiff, submitted that indispensible to a management regime established by an Initial Quota Order made under s 64(1) is a Further Quota Order under s 64A(1)(a), such that a TAC be set for a specified period for the fishery. Both orders are necessary to manage the fishery; without a Further Quota Order made under s 64A, an Initial Quota Order under s 64(1) has no effect.

21 Upon publication of the Initial Quota Order under s 64 of the Act, in the Government Gazette of 19 December 2013, the fishery became a quota managed fishery (s 64(1)(a)); consistent with the section the Initial Quota Order stated that the fishery 'will be managed by the allocation of a quota' to the licence.

22 A Further Quota Order under s 64A was published in the Government Gazette on 19 December 2013. This order provided meaning to the Initial Quota Order by setting the TAC and the quantity of scallops comprising a quota unit. Paragraph 3 of the Further Quota Order stated:

The quantity of scallop (excluding doughboy scallop) comprising a quota unit for the quota period in each scallop commercial fishing management zone of the Scallop Dive (Port Phillip Bay) Fishery is 2000 kilograms.

23 The short point put by Mr Niall is that the Minister, having made a s 64 Initial Quota Order, is then required to make a s 64A Further Quota Order. Although the setting of the Further Quota Order is expressed as a discretion under s 64A 'the Minister may' set the TAC, the setting of a TAC becomes a requirement by virtue of s 64(1)(a), which establishes that the fishery is to be managed by the allocation of quotas. Thus, the plaintiff seeks an order by way of mandamus that the Minister manage the fishery by making a Further Quota Order. The plaintiff submits the 'duty' of the Minister to set a TAC has crystallised and that the only figure identified by the materials put forward by the officers of the Department in November 2014 is 585 tonnes and this is the appropriate TAC for the fishery.

24 Mr G. Hill, counsel for the Minister, submitted s 64A cannot impose any duty on the Minister to make a second or Further Quota Order. He submitted the terms of the section were permissive. He submitted it was the Minister's primary submission that the orders sought by the plaintiff cannot be made because mandamus cannot be used to require a decision maker exercising a discretionary power to exercise that power in a particular way, that is, to set a TAC at 585 tonnes. He submitted:

Whether or not there is a duty, mandamus can't compel that the TAC be set at any particular level.

25 During the course of submissions, Mr Hill stated he had instructions in relation to timing for the setting of a future TAC:

(a) a consultation paper will be issued by Friday 1 May 2015;

(b) consultation is proposed to take four weeks; and

(c) after proper consideration of the submissions received, the delegate (for the Minister) would make a decision as soon as possible after that.

I indicated to Mr Hill that the open-ended nature of a decision to set a TAC 'as soon as possible' was entirely unsatisfactory, particularly in circumstances where the licence has expired and the plaintiff is unable to operate the fishery.

26 In considering whether there is a 'duty' on the Minister to set a s 64A Further Quota Order by setting a TAC, the nature of the licence purchased by the plaintiff at auction is relevant. The plaintiff purchased 'Scallop Dive (Port Phillip Bay) Fishery Access Licence'. Section 38 of the Act concerns classes of access licences and fishing activities that by regulation the holder of an access licence may undertake. Section 38(5) of the Act states:

An access licence may not be cancelled by the Secretary except in accordance with section 58, 61(1)(c) or 148(9).

Subject to this section, the Secretary must renew the licence for a further period if the licence holder has a record of compliance with this Act.

27 Thus, on the proviso the licence holder complies with conditions of the access licence, as is the position of the plaintiff in this matter, the licence is a protected entitlement, it is renewable and it cannot be amended.

28 Whilst s 64A(1) is cast in discretionary terms, the Minister 'may' (a) 'set the Total Allowable Catch' and (b) 'quantity of fish comprising an individual quota unit', in my opinion, upon proper consideration of s 64 and s 64A, the management of the fishery does not include as an option for the Minister not making a Further Quota Order. Once it is determined to manage the fishery by Initial Quota Order and the allocation of quotas, there is a requirement for a Further Quota Order pursuant to s 64A by the setting of a TAC. The TAC may, in theory, be set at zero, it may be revoked or amended at any time (s 64A(2)), but the fishery must be 'managed' by the setting of a TAC and the allocation of quotas. The 'statutory context' is such that it founds the duty to make the Further Quota Order.[2]

29 Whilst s 64A(1) is cast in discretionary terms, the Minister 'may' (a) 'set the Total Allowable Catch' in circumstances where I have determined that the statutory regime does not contemplate management of the fishery by not making a further quota order, the Minister is required to make such an order, is under a 'duty' to make such an order.

30 The delay in making a Further Quota Order is such that it can be said there has been an abdication or abandonment of the statutory function to proceed in this matter.[3] The uncontradicted evidence in this application demonstrates the delay in making a Further Quota Order is unreasonable. Further, on the timeline, Mr Hill was instructed to provide to the Court the period of delay remains indefinite. The delay remains unexplained. Mr Hill tendered an email dated 18 February 2015 from Mr Mark Edwards, Acting Executive Director - Fisheries Victoria, to Ms Wilson. In that email, Mr Edwards referred to previous discussions concerning a TAC of 585 tonnes and completing stakeholder consultations by Christmas 2014 as 'officer level discussions that should not be seen as reflecting the position of the Department or decisions that could be made'. Mr Edwards further stated:

At the meeting today I confirmed that the Department is working on an approach and process and we are very aware of the urgency and commercial imperatives. I will let you know as soon as we can communicate a process and timing.

31 In Mr Edwards' letter no explanation for the delay was appropriately articulated, nor has a proper explanation been provided since that email. The 'urgent need to have clarity about process and timelines, given the scallops are expected to be in marketable condition from early April' was recognised in the email by Mr Edwards in February this year. It can only be said that by today, 1 May 2015, the urgency is more extreme, the 'commercial imperatives' even more imperative. The promise to 'communicate a process and timing as soon as we can' effectively remains unfulfilled.

32 The evidence demonstrates a complete disregard by the Minister of the complainant's legitimate interests.

33 Mandamus will compel the performance of a legal duty which the person subject to the duty has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy.[4] As stated above, it is my opinion the proper construction of the Act requires the Minister to make a Further Quota Order by setting a TAC and determining the content of an individual quota unit in the quota fishery for period 1 April 2015 to 31 March 2016. That Further Quota Order should have been made by the Minister prior to 31 March 2015. It was not put in the course of submissions and I am satisfied that the plaintiff has no recourse to any other adequate legal remedy.

34 The next question for consideration concerns the nature of relief sought by the plaintiff. The plaintiff has put alternative positions in the relief it seeks in this application. The plaintiff's first position is that the Minister be directed to make and publish a Further Quota Order specifying a TAC of 585 tonnes for period 1 April 2015 to 31 March 2016. The alternative position of the plaintiff is that the Minister prepare a draft Further Quota Order specifying a TAC of 585 tonnes and there be a period not exceeding 14 days for consultation after which the Minister publish a Further Quota Order for period 1 April 2015 to 31 March 2016.

35 The figure of 585 tonnes as the TAC for 1 April 2015 to 31 March 2016 was put forward by Mr Lussier of the Department and agreed to by the plaintiff on 5 December 2014. Mr Niall agreed during the course of submissions that the negotiations that settled upon 585 tonnes 'probably doesn't get us to a binding agreement'. In her affidavit, Ms Wilson stated she was informed by Mr Lussier that the figure of 585 tonnes would be recommended to the Executive Director of Fisheries Victoria as the appropriate TAC. She was informed that the Executive Director was comfortable with the figure provided it could be managed with stakeholders. Mr Niall agreed with my proposition that the Executive Director was not bound to accept the recommendation of 585 tonnes.

36 Whilst there is no material to suggest the Executive Director or the Department do not consider the figure of 585 tonnes as the TAC is anything but appropriate, I do not consider that the evidence is such that I could find that the Minister is bound by the figures discussed at the meeting in December 2014. The Minister was not bound to accept the recommendation of officers of the Department.

37 Further, it has long been recognised that while courts may order a public officer to exercise a discretionary power, courts will not direct how that power is to be discharged.[5]

38 Mr Hill, as stated above, informed the Court that a consultation paper will be issued by the Minister today, Friday 1 May. As referred to earlier in these reasons, the flow chart of consultation concerning the setting of the TAC proposed that such paper would contain the proposed Further Quota Order.

39 Mr Hill outlined four weeks for consultation. Mr Niall referred to the principles for consultations set out in s 3A of the Act and noted the section allows for consultation, using the words of s 3A(1), 'to the extent that it is practicable'. Mr Niall contended it would not be practicable to consult for this duration, given that it prolongs the breach of the Minister's duty to make a Further Quota Order.

40 Whilst I understand the plaintiff's justified acute frustration at the time that has elapsed, I note the alternative order sought by the plaintiff in the originating motion allows for a consultation period of 14 days. I would think 14 days represents a period that is, in the circumstances of this application, practicable for consultation.

41 Mr Hill submitted there is no utility in making the orders suggested by the plaintiff because the Minister has stated a Further Quota Order will be made. As I have previously stated in these reasons an undertaking to make a Further Quota Order as soon as possible after four weeks of consultation is an entirely unsatisfactory commitment.

42 I do not consider it appropriate to direct the Minister as to specific dates, times or procedures for consultations or consideration of submissions. The Minister may invoke the consultation principles as set out in s 3A of the Act to the extent that the Minister considers it is practicable in the context of what the Acting Executive Director of the Department recognised over two months ago was the necessity of urgently undertaking the process of making a Further Quota Order.

43 I will make an order in the nature of mandamus commanding the Minister to make and publish a Further Quota Order for the Scallop Dive (Port Phillip Bay) fishery for the period 1 April 2015 to 31 March 2016 on or before 25 May 2015.

[1] For the purposes of these reasons, the TACC and TAC are the same.

[2] Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61; (1994) 182 CLR 51 at 85 (Brennan J).

[3] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 at [41] (Gummow J).

[4] Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vic) [1938] HCA 53; (1938) 60 CLR 741 at 749 (Latham CJ).

[5] Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vic) [1938] HCA 53; (1938) 60 CLR 741 at 749 (Latham CJ); Weaven v The Secretary, Department of Justice [2012] VSC 582 at [8] - [11] (Macaulay J).