Rouse v Minister of Fisheries

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30049 of 2003 John Ballantyne Rouse v Minister of Fisheries

JUDGMENT 1 MASTER: The plaintiff is a commercial fisherman. He acquired his present boat (the Sue Maree) in 1994. It came with Queensland fishing licences. He subsequently acquired New South Wales fishing licences (licences for both himself and a boat). This allowed him to fish for 365 days a year in New South Wales waters. He is the owner of fishing business No. 183 and his licensed fishing boat is 11598. 2 His New South Wales licences were subject to certain endorsements (ocean prawn trawl inshore and offshore endorsements). 3 He decided to participate in the "Queensland East Coast Trawl Fishery - Structural Adjustment Scheme - 2000" (the scheme). It enabled licence holders to be voluntarily bought out of their licence entitlements. The licences were transferred back to the Government under the scheme. 4 He had received a communication from New South Wales Fisheries (addressed to "All NSW Licensed Queensland Ocean Prawn Trawl Fishery concessional endorsement holders") concerning the scheme shortly before applications for it closed (the closure date was 10 November 2000). It contained inter alia the following:- "If, as a result of taking part in the proposed adjustment scheme, an operator disposes of the Queensland component of their fishing business (as defined by NSW) then NSW Fisheries will revoke the associated NSW endorsements. If as a result of trading quota allocated for fishing days, the holder of a quota allocation disposes of a significant part of their quota allocation, then NSW Fisheries will revoke the associated NSW endorsements. At this stage the figure of 50% of quota has been discussed as being significant but no final level will be set without further consultation with the Management Advisory Committee. This approach is consistent with the national licence splitting policy that seeks to ensure that licence packages cannot be split with the potential for effort to transfer from one fishery or one jurisdiction, to another. It is also consistent with the approach taken during the South East Fishery adjustment process where the Commonwealth acquired a number of permits and where NSW cancelled a number of associated endorsements." 5 He received a letter from the Director of Fisheries dated 23 July 2001, which invited him to show cause by 31 August 2001 as to why his New South Wales fishing endorsements should not be revoked. It contained inter alia the following:- "I am advised that you have been successful with your tender under the QLD East Coast Trawl Structural Adjustment Scheme - 2000, and that your QLD fishing entitlements have been transferred to the Queensland Government. In accordance with the NSW Fisheries Licensing Policy November 1996 and the warning issued with regard to participation in the Structural Adjustment Scheme prior to tenders being submitted, I now intend to revoke the NSW fishing endorsements associated with your fishing business. I invite you to show cause why your NSW fishing endorsements should not be revoked, and why licence conditions enabling fishing in NSW waters relevant to your business should not be revoked." 6 Further correspondence took place between the parties including submissions made by his solicitor (Mr James Fuggle) in a letter dated 4 September 2001. 7 The matter was considered by Mr Steve Dunn (Director, NSW Fisheries) as the delegate of the Minister of Fisheries. He had before him, for the purposes of making his decision, the documents which are referred to and exhibited to an affidavit sworn by Darren Michael Hale on 1 July 2003. Decisions were made and by letter dated 29 November 2001, the Director notified the plaintiff that the endorsements had been revoked pursuant to the Fisheries Management Act 1994 (the Act). 8 It contained the following:- "………………………….. Having carefully considered all the matters raised, I intend to prevent your further participation in the NSW commercial fishing industry under entitlements associated with fishing business 183. To do otherwise would be inconsistent with the NSW policy on licence splitting and the objects of the Fisheries Management Act 1994. As a delegate of the Minister, I now revoke the endorsements allocated to you, being ocean prawn trawl (Offshore and Inshore) endorsements pursuant to section 104(6) of the Fisheries Management Act 1994. I also revoke the Offshore Prawn Trawl OP1 (P1) boat licence condition of LFB 11598, not being a condition prescribed by the regulations, pursuant to section 108(6) of the Fisheries Management Act 1994. From the date of this letter, you can no longer take fish for sale or otherwise operate the entitlements associated with fishing business 183 in the NSW commercial fishing industry. …………………………….." 9 A Statement of Reasons for Decision pursuant to s 49 of the Administrative Decisions Tribunal Act 1997 was prepared. A copy of that document is Exhibit B. 10 After the parties had pursued certain avenues of appeal, the plaintiff brought proceedings in this Court. The proceedings were commenced by Summons filed on 28 May 2003. Relief is sought pursuant to s 69 of the Supreme Court Act 1970. The plaintiff seeks judicial review on the basis of error of law that appears on the face of the record. 11 After expending considerable time on the question of admissibility of evidence the hearing proceeded largely on the material that was before the Director. Certain documents tendered by the plaintiff were received on a subject to relevance basis. 12 For present purposes, the relevant statutory provisions are those that were in force during the period 16 November 2001 to 13 December 2001. 13 The objects of the Act are set forth in s 3 (Part 1). The definitions are to be found in s 4. The licensing provisions are in Pt 4 of the Act (which is headed "Licensing and other commercial fisheries management" ). 14 Section 102 provides inter alia that a person must not take fish for sale from waters to which the Act applies unless the person is authorised to do so by a Commercial Fishing Licence. Section 104 (which is in Division 1) contains provisions relating to the licensing of commercial fishers. Section 108 (which is in Division 2) contains provisions relevant to the licensing of a commercial fishing boat. 15 Section 104 contains inter alia the following provisions:- " (4) A commercial fishing licence: ……………………………………. (e) may be cancelled or suspended by the Minister in the circumstances authorised by the regulations. ……………………………………. (6) The Minister may, at any time by notice in writing to the holder of a commercial fishing licence, revoke or vary the conditions of or endorsements on the licence or add new conditions or endorsements. This subsection does not apply to conditions prescribed by the regulations. ……………………………………." 16 Section 108 contains similar provisions. It is common ground that the court is not presently concerned with conditions which are prescribed by the Regulations. 17 The Statement of Reasons is divided into various segments. (A) deals with the findings on material questions of fact. (B) deals with the Administrator's understanding of the applicable law. It sets out inter alia what was regarded to be "Relevant Policy". (C) sets out the reasoning processes that led the Administrator to the conclusions the Administrator made. (C) is as follows:- "(i) The Minister, in making his decision to revoke, under section 104(6) and 108(6) of the Fisheries Management Act 1994 , the endorsements associated with the applicants (sic) commercial fishing business no. 183 and the boat licence conditions of LFB 11598 considered that the applicant breached the NSW Fisheries Licensing Policy by transferring the Queensland boat licence separately from the NSW boat licence held for the vessel, LFB 11598. (ii) The Minister considered the merits of the case and grounds submitted by the applicant's solicitor as to why the fishing endorsements and boat licence conditions associated with fishing business No. 183 should not be revoked. (iii) The Minister considered that the relevant policies have been in place for a number of years and have received wide circulation in the industry. (iii)(sic)The Minister determined that the applicant had been issued appropriate warning that if he transferred the Queensland boat licence held by LFB 11598 under the Queensland Structural Adjustment Scheme 2000 separately from the NSW licence held by this vessel the NSW boat licence and conditions would be revoked. (iv) The Minister determined it was appropriate to adopt the same comparison period as Queensland and that there was significant potential for fishing effort to be transferred from Queensland to NSW waters following the disposal of the Queensland boat licence of LFB 11598. This was based on the participation of LFB 11598 in the Queensland East Coast Trawl Fishery between 1988 to 1998 and the fact that NSW does not have a management regime to cap applicants fishing effort in NSW at historical levels. (v) The Minister considered that due to the objects of the Fisheries Management Act 1994 to conserve, develop and share a common property resource the 'NSW licence splitting policy' was not contrary to law or unjust and it should be applied. It was determined that any assertion by the Applicant concerning restrictive trade practices or constitutional rights was unfounded or not established. (vi) The Minister determined in the circumstances there were no grounds to justify providing a variation to the NSW Licensing Policy of November 1996 or to permit the applicant to retain the NSW boat licence conditions of LFB 11598 and endorsements allocated to fishing business no. 183 following the transfer of the Queensland boat licence for the vessel." 18 The plaintiff was required to give particulars of the grounds upon which the decision was being attacked. Counsel for the plaintiff has prepared written submissions. The challenge is founded on five grounds. These are set forth in paragraph 3 of the written submissions. It is in the following terms:- "3. The plaintiff challenges the decision on the following grounds:- (a) that the decision is unreasonable; (b) that the decision maker has failed to take into account relevant considerations; (c) that the decision maker has taken taking (sic) into account irrelevant considerations; (d) that the decision maker has improperly exercised his powers under the Fisheries Management Act 1994 (FMA), in that the powers relied upon do not permit the decision taken; (e) that there has been an inflexible application of policy, a policy which in any event the plaintiff submits the defendant has failed to understand." 19 Counsel for the defendant has responded with a written outline of submissions. 20 It is said that the submissions for the plaintiff are neither co-extensive nor consistent with the particulars. For the moment, I shall put that consideration aside. 21 There is a substantial volume of written submissions and lengthy oral submissions were made. It would be a formidable task to endeavour to deal with all of the matters that have been ventilated. Accordingly, I propose to largely address only those matters which are determinative of these proceedings. 22 The Statement of Reasons contain a finding that the plaintiff had received appropriate written advice prior to transferring his Queensland licences and that any transfer thereof separately from his New South Wales endorsements would result in the surrender of the latter. This finding has been challenged by the plaintiff. 23 In submissions, this "appropriate written advice" has been referred to as a warning. The plaintiff contends that the document was not received by him until shortly before the closing date of the scheme. It was addressed to concessional endorsement holders (which he says he was not). He says that he did not regard it as being relevant to him. 24 Normally, in a case such as this, the absence of any such warning may be of no consequence. However, the show cause letter did recite the November 1996 licensing policy and the warning issued as being matters which led the Department to intending to revoke the New South Wales endorsements. 25 There are unsatisfactory aspects to the purported warning. However, I am not satisfied that this finding of itself would justify the disturbing of the decision. 26 The plaintiff has spent considerable time developing an argument that in purporting to act upon its policy the Director misconceived and misapplied it. The source of these arguments were certain of the documents to be found in the bundle of documents tendered as Exhibit A. Many of these documents were received subject to relevance. The argument explored a history of licence splitting policy. It embraced the New South Wales Fisheries Licensing Policy 9 June 1994. It did not embrace the New South Wales Fishing Licensing Policy November 1996. The Statement of Reasons contains a finding that such a document was distributed to licensed commercial fishers in 1996 (when the plaintiff held his fishing boat licence). 27 It seems to me, for a variety of reasons, that the argument founded on these documents has its problems. But for present purposes, I need not further pursue this matter. 28 The material before the court demonstrates that the November 1996 policy document contained the policy of the Department at the relevant time. It was the document placed before the decision maker. For present purposes, I need not make any further findings concerning it or its application. It suffices if I assume that the Director purported to apply that policy and that the plaintiff had engaged in licence splitting in the relevant sense. 29 The policy is not an instrument of legislation. It seemed to be common ground, that a breach of the policy left the defendant with a range of alternatives as to what it should do (if anything). The Licensing Policy November 1996 merely says that the licence splitting policy will strictly apply to fishing business and that proposals regarded as licence splitting or contrary to the intention of the policy will not be approved. 30 The plaintiff has put various arguments concerning the use of the power of revocation. The plaintiff has argued inter alia that what he purported to do was to cancel the licence. It was common ground that the power of cancellation could not have been exercised in this case. Regulation 148 of the Fisheries Management (General) Regulation 1995 sets out the grounds on which the power may be exercised and none of them were available to the defendant. 31 The act of revocation did not cancel the licences. The licences remained extant and had a potential for use. However, the effect of the revocation has been to see him presently unable to fish in NSW waters. 32 The power of revocation is expressed in the widest of terms. It is exercisable having regard to the legislative intention (to be discerned having regard to inter alia the objects of the Act and the other provisions of it). It is a power which is conferred to enable the Minister to give effect to the purposes of the Act. In my view, the cancellation provisions do not imply some restriction on the exercise of the power. 33 There has been much argument directed to the question of unreasonableness. The relevant test is that enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 ("Wednesbury unreasonableness"). The court has been referred to many authorities including Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36 - 37; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290 and Nardell Colliery Pty Ltd v New South Wales Coal Compensation Review Tribunal & Anor [2003] NSWSC 462. 34 In Attorney-General (NSW) v Quin (1990) 170 CLR 1, Brennan J said (at 36-37), shortly after the passage quoted in Wu Shan Liang: "There is one limitation, 'Wednesbury unreasonableness' (the nomenclature comes from Associated Provincial Picture Houses Ld. v. Wednesbury Corporation [1948] 1 KB 223), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v. Secretary of State for the Environment [1986] AC 240, at p 249. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined. As Professor Wade explains (Administrative Law, 6th ed (1988), p 407) in a passage cited with approval in Reg. v. Boundary Commission; Ex parte Foot [1983] QB 600, at p 626: 'The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended.' " 35 There is issue between the parties as to whether or not the revocation of endorsement was a disproportionate response to the plaintiff's participation in the scheme. In my view, this is the determinative issue in the case. 36 The defendant submits:- "A clear and long-standing policy required packages of fishing entitlements to travel together so as to protect individual jurisdictions from increased fishing effort. The decision was a proportionate response to the risk that the plaintiff might fish much more frequently in NSW in the future" 37 The Director made findings that New South Wales does not have a management regime to cap his fishing effort in New South Wales at historical levels and found that there was significant potential for fishing effort to be transferred from Queensland to New South Wales following the disposal of the Queensland licences. These findings were presented also as reasons that led to the decision. 38 The plaintiff had transferred his Queensland licenses in effect to the Queensland Government for compensation. This was done pursuant to a scheme which had as its objective the achievement of a 15% upfront reduction in total fishing effort. He was not transferring the licences to another fisherman. 39 The plaintiff had not fished in Queensland waters for nearly two years. During that time, he was fishing solely in New South Wales waters. Although, his licenses theoretically entitled him to fish for 365 days a year it was not in dispute that as a general rule many factors (including weather, participation in other fisheries and maintenance) saw a reduction in the days a vessel will in fact operate in the New South Wales ocean trawl fishery. It was said that during the last two years he had fished in the order of 200 days per year. 40 The effect of the revocation was that he lost the fishing entitlements that he then had. He retained his licence with a potential inter alia for other fishing. Apart from what that potential had in the future (a matter that is unknown), he was left with his boat and no business. 41 I accept the submission of the plaintiff on the issue. I consider that the revocation was manifestly disproportionate. In my view, what was done in this case was so devoid of plausible justification that no reasonable person could have taken that course (Teoh). It amounted to an abuse of power. 42 I am satisfied that the plaintiff has discharged the onus of demonstrating an entitlement to relief. The decisions made and described in the letter dated 29 November 2001 from Steve Dunn (Director, NSW Fisheries) are set aside. The defendant is to pay the costs of the proceedings. The Exhibits may be returned.

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