Stockdale & Anor v Alesios & Ors [1999] VSCA 128

The Honourable Patrick John McNamara Secondnamed Appellant

Sofa Fisheries Ltd (ACN 009 557 984) Eleventhnamed Respondent

Syford Pty Ltd (ACN 070 003 119) Seventeenthnamed Respondent

Blue Beard's Seafoods Pty Ltd Nineteenthnamed Respondent

Friend Fishing Pty Ltd. (ACN 005 739 506) Twenty-Fourthnamed Respondent

Christopher W. Newman Thirty-Seventhnamed Respondent

Grace 1 Fishing Co Pty Ltd (ACN 009 561 255) Fourtiethnamed Respondent

2. I am in agreement with what Phillips, J.A. has written, but wish to add some remarks of my own.

5. What is an eligible person entitled to be paid by force of s.153B of the Fisheries Act 1995? Sub-section (1) speaks only of an amount determined by the two Ministers. Some implication must be made, since we should accept as correct their concession that the sub-section does not confer on them an unfettered discretion. The predicate of the sub-section is incomplete, it being necessary to add to the complement ("entitled to be paid an amount determined by the Treasurer and the Minister") some phrase qualifying "determined" and beginning with "as". The phrase to be supplied by implication is "as the value of the licence". The licence is what is being cancelled (the heading to the section uses the word "acquisition") and prima facie one would expect the Act to give compensation for the loss of the licence - by requiring its value to be assessed.

8. Sub-section (2) confirms that this is the intention. It should be viewed, not simply as laying it down that apart from the entitlement under sub-section (1) there is to be no right to payment from the State of Victoria in respect of the cancellation of a licence, but also as delimiting, or recognising, the scope of the entitlement under sub-section (1), that is, as laying it down, or acknowledging, that all that is to be determined under sub-section (1) is the value of the licence - for I can think of nothing else to insert here - as opposed to consequential loss (which is the concern of the words in sub-section (2) commencing "in any other way").

11. The extrinsic materials put the matter beyond doubt.

14. Let me add a few words about unsolicited written submissions. Nowadays they are often delivered as if as of right. It is time for us to dispel this view. By way of reinforcing what Phillips, J.A. says about the general rule I refer to what Mason, J. said in Carr v. Finance Corporation of Australia Ltd. [No. 1] [1981] HCA 20; (1981) 147 C.L.R. 246 at 258:

"The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions."

20. By means of the Fisheries Act 1968 a general system was established for licensing of the commercial fishing industry. Among the activities controlled was the dredging for or taking of scallops for sale. By s.14(1)(b), the Director of Fisheries and Wildlife was empowered to licence for that purpose "any registered fishing boat", though by s.14(3), the licence could be issued "only to the person for the time being registered as the owner of the boat". The licence entitled the owner to dredge in the waters specified in the licence and there were three categories of licence: for the waters of Port Phillip Bay only, for Victorian waters east of longitude 146° east ("Victorian ocean waters") and for all Victorian waters. At the relevant time there were 18 licences in the first category, 28 in the second and 66 in the third. The amount of the fee payable for a licence varied according to the category: s.15(h). By s.16, licences were annual, though renewable unless, inter alia, "the licence has been cancelled or is suspended". Cancellation or suspension were dealt with in ss.76 to 77.

23. On 5 December 1995, the Fisheries Act 1995 was given the Royal Assent. It came into operation in dribs and drabs over a period of time and it was not until 1 April 1998 that s.154 came into operation, by which the Fisheries Act 1968 was repealed. We are concerned with events before then and in particular the cancellation on 31 March 1997 of all licences issued under s.14 of the 1968 Act for dredging for or taking scallops for sale in the waters of Port Phillip Bay. This cancellation was achieved by s.153A(2) of the 1995 Act, which was inserted by the Fisheries (Amendment) Act 1996 the declared purpose of which, according to s.1, was "to close the Port Phillip Bay scallop dredge fishery". The 1996 amending Act came into force by proclamation on 31 March 1997.

26. I have described s.153A as cancelling licences for the waters of Port Phillip Bay. In fact, s.153A(2) cancelled also scallop licences issued in respect of "all Victorian waters", but that was because the waters of Port Phillip Bay were thereby included. Where sub-s.(2) cancelled a licence which included an entitlement to dredge outside the waters of Port Phillip Bay, sub-s.(3) directed that a new licence issue immediately for dredging in those other waters. Commercial scallop fishing in the waters of Port Phillip Bay thus came to an end. No further licences for the purpose were to be issued and s.14(1)(b) of the 1968 Act was amended accordingly: s.153A(1).

29. Some 84 licences were directly affected by the cancellation effected by s.153A. According to the agreed summary provided to us on this appeal, this litigation was commenced by some 40 persons each of whom, either alone or jointly with another plaintiff, was the registered owner of a scallop fishing boat which had a licence to dredge for or take scallops for sale either in the waters of Port Phillip Bay or in all Victorian waters. Some 22 boats were involved. Most of the plaintiffs, it appears, held licences for all Victorian waters, but two of the boats were licensed for the waters of Port Phillip Bay only. All the plaintiffs suffered directly from the licence cancellation that I have described and if, as the summary asserted, each was the registered owner of a scallop fishing boat, each was entitled to a payment under s.153B in respect of that cancellation.

32. Section 153B (which was inserted in the 1995 Act at the same time as s.153A) reads as follows:-

(1) The registered owner of a boat that has its licence cancelled under section 153A is entitled to be paid an amount determined by the Treasurer and the Minister.

(2) Despite any Act or law to the contrary, the State of Victoria is not liable in any other way for any loss, damage or injury whatsoever resulting from the cancellation of a licence under section 153A.

(3) Any amount determined by the Treasurer and the Minister under this section must be paid out of the Consolidated Fund (which is, by this sub-section, appropriated to the necessary extent)."

39. According to the plaintiffs' statement of claim, on 25 March 1997 the Treasurer and the Minister mentioned in s.153B determined that an amount of $120,000 be paid to the registered owner or owners of each fishing boat that had had its licence cancelled under s.153A. The plaintiffs (now the respondents on this appeal) commenced this proceeding to challenge that determination, claiming that the determination was void and of no effect, principally because (they said) the Treasurer and the Minister had not attempted to provide for all loss, damage or injury resulting from the cancellation of the scallop licences under s.153A, but had improperly confined attention to the value of the licences themselves. The plaintiffs claimed that in each case the relevant loss went well beyond the value of the licence and included inter alia diminution in the value of the fishing boat and the on-board scallop-dredging equipment, loss of profits from the business being carried on and the expense of re-locating their fishing operations. They claimed that they were entitled to a payment under s.153B which recognised those losses and they sought to have the Treasurer and the Minister re-determine accordingly the amount to be paid to them under s.153B. The plaintiffs sought also damages for what they claimed were breaches of statutory duty and negligence in the making of the determination on 25 March 1997.

42. For their part the Treasurer and the Minister identified in s.153B denied that they had acted otherwise than according to law. They contended that the 1996 Act entitled the fishing boat owners to be paid an amount for the fair value of the licences that were cancelled, but not for losses that were consequential on that cancellation. The sum of $120,000 was a determination, they claimed, of the fair value of the licences cancelled (to the extent that scallop dredging was no longer permitted in the waters of Port Phillip Bay) and that therefore nothing more was due to the plaintiffs under s.153B(1). The determination, they pleaded, was perfectly sound.

45. The proceeding came on for trial before a judge in the Trial Division on 5 March 1998 when his Honour ordered that seven preliminary questions be tried first. Evidence and argument were heard and the judge gave judgment on 15 April 1998, answering the first six questions in favour of the plaintiffs. It is not necessary for present purposes to canvass all of the matters determined by his Honour at that point, but I mention two of them.

48. In the first place his Honour said in his reasons for judgment (at p.9):-

"It is clear that, if all the defendants were required to do pursuant to s.153B was fairly to value the Port Phillip Bay licences as licences and pay that amount, the defendants would have satisfied the legal requirements. The licence as licence was a standard item with a value, as indeed the plaintiffs themselves have pleaded. The amount of $120,000 was at the low end of the range but on its face not unreasonable."

It is not irrelevant on this appeal that the plaintiffs themselves asserted in their pleading that the licences which were cancelled (or to the extent that they were cancelled, if cancelled and renewed in diminished form) had a value; for that fact underlies the judge's finding that, if the obligation cast by s.153B on the two ministers was merely to value the cancelled licences fairly, then the determination of $120,000 "satisfied the legal requirements". That is a critical finding and in view of the evidence before his Honour I do not think that it can be challenged, so far as it goes. The Government set up a Working Party, the Working Party took formal advice on value from experts and received submissions from those in the industry, and made a report; the ministers' determination of $120,000 for each licence was the result.

53. None the less - and this is the second point I take from his Honour's reasons for judgment - the trial judge held that the two defendants had erred in making their determination because, upon the proper construction of the section, the purpose of the payment to be made under s.153B(1) was "to make full and proper compensation for the cancellation of the scallop licence and the losses flowing therefrom to the licence holder". His Honour said that s.153B(1) intended that the payment to be made should reflect all losses flowing to the licence holder including, not just the value of the licence, but also losses in respect of the boat, the equipment, and indeed the very business of dredging for or taking and selling scallops under the scallop licence. This was reflected in the answers given by his Honour on 15 April to questions 1 and 2. At the same time, his Honour answered questions 3 to 6 adversely to the defendants and ordered that "the matter of each individual Plaintiff's compensation for his or her or its true loss [be] remitted" to the two ministers "to be determined in accordance with law".

56. On 15 April, the judge adjourned the remaining question, question 7, for further hearing. On 30 September 1998, after further argument, the judge answered question 7 (by then reformulated as questions 7 and 8) adversely to the plaintiffs. His Honour rejected their argument that they could properly mount a claim for damages for breach of statutory duty or negligence in relation to the making of the determination on 25 March 1997. On 7 October 1998, the judge ordered the defendants to pay the costs of the proceeding, without reduction for the plaintiffs' loss on question 7. Pursuant to leave given by the trial judge himself, the Treasurer and the Minister appealed from the orders made on 15 April and 7 October 1998, contending in their notice that, in lieu of the answers given and the orders made, the plaintiffs' proceeding should have been dismissed, with costs. The plaintiffs' cross-appealed in respect of the judge's rejection, in effect, of their claim for damages for breach of statutory duty or negligence.

59. At our suggestion, this Court has thus far heard argument on the appeals only on what was called the main issue: that is, whether his Honour was correct in so construing s.153B(1) as to require a determination by the defendants (as I shall continue to designate them) of an amount "which will fully and properly compensate [each] Plaintiff for the cancellation of their scallop licence and the losses flowing therefrom" (to quote from paragraph 3 of the authenticated judgment given on 7 October 1998). It was his Honour's conclusion in that regard that led him to set aside the determination made in March 1997 and whether that was correct was the question on which we now have heard argument. With great respect, I find myself at the end of the day unable, for the reasons that follow, to agree with his Honour. In my view, on its proper construction s.153B authorised the two ministers to determine an amount to recompense the plaintiffs for the loss of the licences (thus entitling them to an amount reflecting the fair value of the licences cancelled), but not for those losses which were in each case consequential upon the loss of the licence itself. If that is correct, the ministers did not fall into error in making their determination of 25 March 1997 and the judge's own finding establishes as much. All the plaintiffs' claims then fall to the ground and their proceeding should have been dismissed as the defendants contended.

62. The linchpin of the argument put on behalf of the plaintiffs (as respondents on the appeal) was the close connection between the licence and the business operated in reliance upon the licence. Such a connection was, of course, to be expected given the nature of the licence, and the connection could in fact be discerned in the legislation itself; for instance, as plaintiffs' counsel pointed out, s.16(2A) of the 1968 Act enabled a show-cause notice to be given to the holder of a licence who "has ceased to be actively, regularly, and substantially engaged in commercial fishing under the licence" and, if cause was not shown, renewal of the licence might then be refused. All of the plaintiffs, it was represented to us, were in the business of scallop fishing from which they were deriving significant incomes. Their boats were particularly fitted for the businesses being operated; there was equipment on board specially suited to scallop fishing; and, at least in some instances, there were associated activities such as refrigeration and marketing. Although two of the boats in question were licensed only for waters in Port Phillip Bay, the rest were licensed for all Victorian waters. Most of the plaintiffs also held permits under Commonwealth legislation to take scallops for sale from Bass Strait, beyond the waters controlled by State legislation. The cancellation of licences to fish in Port Phillip Bay meant that the plaintiffs had to look further afield, if they could; and in some instances at least their boats and equipment were ill-suited to go further afield.

65. The defendants, however, did not dispute the connection between the licence and the business conducted in reliance upon the licence. On this appeal, their counsel took us to the evidence to demonstrate that none the less the link between the plaintiffs, or some of them, and the businesses being conducted in reliance upon the licences might be questioned because, in most if not all instances as I followed it, the relevant businesses were being conducted by a company, by a trust or series of trusts or by a partnership. Whether it could be said, in those circumstances, that the holder of the licence, being the individual in whose name the boat was registered as owner, was conducting the business upon which reliance was now placed was a matter still to be explored; for I note that, while the point was certainly exposed in some of the evidence below, it was not a point mentioned by the judge in his reasons for judgment.

68. For the present there is no need to pursue the point any further; I simply assume for the sake of the argument that some at least of the plaintiffs could prove losses in business. The more important aspect is that on this examination of the facts it became apparent that if the plaintiffs are to be compensated for their business losses extending beyond the value of the licence itself which was cancelled, the results will be very disparate, depending upon such adventitious things as the arrangements in place for the time being through which each plaintiff has been concerned in the commercial aspects of the fishing. Such arrangements doubtless varied according to personal finances and family circumstances and, while it may not be decisive, that consideration does at least tend against the construction of s.153B for which the plaintiffs contend, yielding, as it must, compensation for one which would be denied to another. Moreover, if all business losses are to be compensated for under s.153B, how far must the relevant business interests of each plaintiff be recognised? Do such interests extend beyond the harvesting of the scallops in Port Phillip Bay to associated businesses such as refrigeration and, say, exporting? That may be another uncertainty inherent in the construction of s.153B for which the plaintiffs are contending.

71. Be that as it may, such losses over and above the value of the licence itself and for which in this proceeding the plaintiffs are seeking compensation in the form of the payment authorised by s.153B are, I think, conveniently called "consequential", to distinguish them from the value of the licence itself which was cancelled and which the defendants have accepted - and contend - should inform their determination of the amount to be paid under s.153B. On this appeal plaintiffs' counsel resisted the characterisation of the further losses relied upon as "consequential", arguing that the plaintiffs were relying only upon loss of the licence itself, albeit that they were claiming compensation not only for the value of the licence which was cancelled but also for the diminution in the value of the boat which was the necessary and direct result of that cancellation. Certainly, as part of a study commissioned by the industry, there was material put before the government's Working Party which contrasted what was said to be the value of the boat with the licence attached and the value of the boat after the licence was cancelled. Yet this is only part of the losses now claimed, as I follow it, and, like loss of profits, it seems to me neither more nor less than a loss suffered, if at all, in consequence of the cancellation of the licence. They are all fairly called consequential losses.

74. On this appeal the principal contention of the plaintiffs rested on the common law principle said to be exemplified in Attorney-General v. De Keyser's Royal Hotel [1920] UKHL 1; [1920] A.C. 508 at 542, 579, that wherever property is taken by government it will not readily be supposed that it is being taken without compensation; and we were referred to Manitoba Fisheries Ltd. v. The Queen (1978) 88 D.L.R. (3d) 462 at 467-8, Minister of State for the Army v. Dalziel [1944] HCA 4; (1944) 68 C.L.R. 261 at 290-1 and Johnston Fear & Kingham v. Commonwealth [1943] HCA 18; (1943) 67 C.L.R. 314 at 327, 329, among others. Drawing on what was said by Rich, J. in Australian Apple and Pear Marketing Board v. Tonking [1942] HCA 37; (1942) 66 C.L.R. 77 at 104, counsel described this principle as "based on an old common law doctrine which extends back to Magna Carta" and submitted that it must guide and control the construction of s.153B(1) so that, in determining an amount to be paid under that subsection, the Treasurer and the Minister were bound to have in mind that, the licence having been taken, full compensation was due. Anything less than that, it was said, could be the product only of very clear words indeed and, so far from any such clear words being found here, there was nothing at all in the 1996 Act to tell against the construction which was being advocated. Therefore, in line with the common law, that was the construction that ought to be applied. But in my view this is to misunderstand De Keyser. In that case, property was taken in the exercise of the prerogative and so an application of the common law principle is readily understood. In this case, insofar as property was taken at all, it was taken by statute; for the licence was cancelled by s.153A. The statute effecting that result itself provided for payment to be made and all that remains is properly to construe the relevant legislative provision - that is, s.153B: contrast s.143 of the 1995 Act. In that exercise, the common law principle exemplified by De Keyser can have only limited effect; ultimately the question must turn upon the proper construction of the statute and not upon the common law. That must be so because on a proper reading the statute itself might be such as to exclude the common law principle.

77. At one point in their Outline of Argument the plaintiffs were concerned to establish that there had been an acquisition of "property" in this instance, the defendants contending to the contrary. No doubt that debate arose because the 1996 Act in terms cancelled a licence - and, I add, a licence which, as it turned out, was "cancelled" on the very day (31 March) on which, as an annual licence, it was due to expire anyway. In certain circumstances the extinguishment of a licence has been regarded rather as the withdrawal of a privilege than the acquisition of property. Perhaps it is difficult to see here what "property" in the strict sense passed from the citizen to the government, or what it was that having belonged to the individual now belonged to the public; and we were referred to cases such as Banks v. Transport Regulation Board (Vic.) [1968] HCA 23; (1968) 119 C.L.R. 222 at 232-3, Manitoba Fisheries Ltd. v. The Queen (1978) 88 D.L.R. (3d) 462 at 467-8, Trade Practices Commission v. Tooth & Co. [1979] HCA 47; (1979) 142 C.L.R. 397 at 413-4, 427-8, Springhall v. Kirner [1988] VicRp 21; [1988] V.R. 159 at 165, Harper v. Minister for Sea Fisheries [1989] HCA 47; (1989) 168 C.L.R. 314 at 325, Minister for Primary Industry v. Davey (1993) 47 F.C.R. 151 at 160, Georgiadis v. Australian and Overseas Telecommunications Corporation (1994) 179 C.L.R. 297 at 306-7 and Commonwealth of Australia v. W.M.C. Resources Ltd. [1998] HCA 8; (1998) 72 A.L.J.R. 280 Some of these cases concerned the constitutional limitation on the Commonwealth's acquiring property otherwise than on just terms and on that account may be affected by special considerations. However that may be, there is no need to consider the authorities in any detail because the defendants have acted on the footing that the licences which were cancelled had a value which was lost to the licence holders, and, as earlier mentioned, that was a basis of the plaintiffs' pleading too. As that approach is common I say no more about it, save to note that it conforms to the heading to s.153B, for what that is worth: Interpretation of Legislation Act 1985 s.36(3), cf.(4).

80. My conclusion that the only question now is one of statutory construction should not be taken to mean that under no circumstances is there any room for applying the common law principle in interpreting s.153B; I mean only that the room for its application is limited. Thus in terms subs.(1) provides for payment of "an amount to be determined" without further elaboration, and yet surely the subsection is not to be construed as authorising the Treasurer and the Minister to determine an amount wholly in the exercise of an altogether unfettered discretion. It cannot have been intended by the Parliament that under s.153B(1) the two ministers might determine an amount which was $50, or even $5,000, in an altogether arbitrary fashion. To that extent the common law principle might, perhaps, be called in aid, if it were necessary. But so far as relevant the defendants appear to have always accepted that s.153B(1) required the determination of an amount reflecting the cancellation of the licence; it was not to be a purely arbitrary amount. Although plaintiffs' counsel insisted that the common law principle could guide the construction of s.153B(1) beyond this, I do not accept the submission. A question whether the amount to be determined by the two ministers is an amount going beyond the fair value of the licence which was cancelled can be resolved otherwise and in that resolution the common law principle, so strenuously relied upon, plays no part.

83. With that said, I turn to the critical question, the proper construction of s.153B(1). There are three considerations, I think. First and foremost is the section as a whole; for it seems to me that on a fair reading of s.153B the "amount" for determination under sub-s.(1) does not go beyond the value of the licence which was cancelled. The contrast between sub-s.(1) and sub-s.(2) is plain enough. The second deals expressly with "any loss, damage or injury whatsoever resulting from the cancellation of a licence under s.153A". That expression does not appear in sub-s.(1) and yet, if the plaintiffs are correct, those words should have been used in sub-s.(1). The argument for the plaintiffs was that they were entitled to compensation, full compensation, under sub-s.(1) by virtue of the common law principle to which I have referred; and as explained to us by counsel that meant compensation for all loss, damage or injury resulting from the cancellation of the licence. If that was intended by sub-s.(1), why was it not so stated? To that no satisfactory answer was given.

86. In saying that, I do not overlook that sub-s.(2) is negative in its provision: it provides quite plainly for what is not the liability of the State of Victoria. In so providing it was doubtless important that sub-s.(2) should be ample in its expression; any and every basis of liability was to be denied, save only that for which provision was made by sub-s.(1). Nevertheless, because of the width of the submission for the plaintiffs, the contrast in wording is remarkable if, as counsel contended, the compensation for which provision is made by sub-s.(1) runs to compensation "for any loss, damage or injury ... resulting from the cancellation of a licence". Nor can the point be met by insisting that sub-s.(1) provides compensation for the licence holder only; if that was the contrast intended, sub-s.(2) should not have referred to liability "in any other way", but to liability "to any other person".

89. It is implicit in this that when s.153B(2) refers to liability "in any other way" it refers to liability other than that which is imposed on the State under sub-s.(1). So much may be accepted readily enough, for as already explained it is common ground that the provision made by that subsection flows directly from cancellation of the licence and is intended as some recompense to the individual for the loss suffered thereby. The defendants accept that it is so and the plaintiffs contend that it is so. But that leaves unanswered the question upon which this litigation depends; to the extent that s.153B(1) provides some compensation, is it compensation for the licence which has been cancelled, which is itself a loss, or compensation for all loss, damage or injury suffered thereby? And in my view the contrast between subs.(1) and subs.(2) shows it to be the former. If it matters, that again appears consistent with the heading to the section.

92. The second consideration, which is to like effect, lies in the contrast afforded when s.153B is compared with other sections of the same Act. Particular reference can be made to s.63 of the 1995 Act, which in providing for the cancellation of fishery licences in "an adjusting fishery", provides for compensation to the holder of the relevant access licence and the holder of a registered financial interest in the licence. According to subs.(4) of s.63 each is entitled to "compensation in proportion to the extent of their respective interests, for financial loss suffered as a natural direct and reasonable consequence of the cancellation of the licence". These are very different words from the bland "an amount to be determined" in s.153B; yet if the plaintiffs are right why was the formula apparent in s.63 not used in s.153B, or something like that formula? Counsel's submission that s.63 was dealing with a different type of licence structure does not meet the point. Nor does the submission made that s.63 was in the 1995 Act as first passed, while s.153B was enacted by the 1996 Act; for the amendment made in 1996 was to insert the new ss.153A and 153B in the 1995 Act where they were then all of a piece.

95. Thirdly, if there still is any doubt over what was meant by "an amount" in s.153B(1) it is quickly dispelled by the Parliamentary Debates. Unusually they are consistent on this point and speak with one voice; for the cancellation of the licences was a bi-partisan measure. In the Legislative Assembly (Hansard, 14 November 1996, vol.432 p.1252), the Minister commenced his second reading speech thus:-

"Prior to the election earlier this year, the government made a commitment to close down commercial dredging for scallops in Port Phillip Bay. The judgment made was that this was in the best interests of the bay as a whole and its varied users. Provision has therefore been made in this bill to give effect to that decision. All Port Phillip Bay scallop licences and the Port Phillip Bay component of other Victorian scallop licences will be cancelled and the fishery closed on a day to be determined but no later than 31 December 1997. Licence holders will receive a payment for the cancellation of the licence of an amount to be determined by the Treasurer and the Minister for Agriculture and Resources.

In order to ensure the smooth implementation of the government's decision and to give licensees an opportunity to raise any issues, I established a working group of government officers to make recommendations on implementation. This group has met with licence holders.

I will be consulting further with the industry on the appropriate date for the closure of the fishery. ..."

Concluding his speech with a statement under s.85(5) of the Constitution Act 1995, the Minister added:-

"Proposed section 153A cancels any right or privilege a person may have acquired or accrued against the state of Victoria in respect of a licence to dredge for scallops in Port Phillip Bay. Proposed section 153B bars a person from seeking any compensation from the state of Victoria in relation to a cancelled licence to dredge for scallops or take scallops in Port Phillip Bay additional to that provided by that section.

The reason for preventing the Supreme Court from entertaining such actions is as follows: the Crown intends to legislate to close the scallop dredge fishery in Port Phillip Bay and therefore to cancel all licences authorising the taking of scallops by dredge in Port Phillip Bay. It is the intention of the Crown as provided for in this bill to pay an appropriate amount to licence holders for those licence entitlements which have been granted by the Crown and which the Crown now intends to cancel.

Actions based on other claims could delay implementation of a measure designed to promote the objectives of the Fisheries Act and the effective management of fisheries for the benefit of all Victorians. Delay in implementation could cause hardship to persons awaiting the payment of the amount to be paid following cancellation of the licences." [emphasis added]

In responding to this the Opposition spokesman said (Hansard, 5 December 1996, vol.433 p.1689):-

"A number of issues arise out of this proposal. As I said, the opposition has no problem with the decision to close the bay to scallop fishing. However, it would like to raise some concerns about the way licences are cancelled and licence valuations determined because the industry has some concerns about the payment arrangements for licence cancellations. It is important to acknowledge that they are payments for licence cancellations rather than compensation arrangements, which gives a much broader interpretation of what should be paid. These are not payments in compensation for potential loss of earnings or similar matters; they are payments for value of licence, which is a little different." [emphasis added]

107. This seems to make it perfectly plain that both sides of the House intended that the legislation should provide for payment for loss of the licence but not compensation, in any broader sense, for loss, damage and injury suffered in consequence of the loss of licence. It was to that end that the Government had set up its working party to inquire into and report on the value of the licences which were to be no longer renewed for the waters of Port Phillip Bay and consistently with what was later said in Parliament nothing was said in the Terms of Reference about consequential losses. The plaintiffs submitted on this appeal that the measure for appropriation which is found in s.153B(3) itself showed that Parliament had in mind different amounts for different boat owners, which meant that losses beyond the common loss of licence were intended to be covered by the payment for which subs.(1) provided. Counsel relied too upon the introductory words in subs.(3), "any amount", but neither these words nor the purely mechanical provision for appropriation support the argument he put.

110. For these reasons, I consider that the meaning of s.153B(1) was that ascribed to it by the defendants, the two ministers, and that in their making their determination accordingly no error has been established. After the argument on the appeal was concluded counsel for the plaintiffs sent to the Court, in augmentation of the written Outline earlier supplied for the hearing and his oral argument, a further written submission. This document was delivered without any invitation from the Court and on one view it behoved us not to consider it, at least without inviting the defendants to respond. Not only, however, did the defendants respond of their own accord, but the plaintiffs rejoined with yet a further written submission. This is quite unsatisfactory. Unless the court gives leave or otherwise invites the making of further submissions the conclusion of oral argument should be taken to be the end of the matter, save for judgment. Of course that can be no more than a general precept; there will always be exceptions, such as an unexpected change in the position of the parties which bears upon the disposition of the appeal or the discovery after argument concludes of relevant legislation or some further decision of authority to which the court should be referred. But there was nothing like that here. Counsel for the defendants can scarcely be blamed for responding, but the plaintiffs should not have acted so independently without leave of the court. That is only emphasised when I add that the point which the plaintiffs were seeking to develop by their further submission was already within the plaintiffs' earlier Outline of Argument and that, when developed, the point revealed a significant difference between the parties over how the case had been presented at trial - a difference which, had it mattered, could scarcely have been resolved without further trouble. Fortunately it does not matter in the end; for, having read the further submissions, I am not at all persuaded that there is anything in the point that the plaintiffs were seeking to make. I shall deal only briefly with it.

113. The point was this: that, whatever the proper construction of s.153B, the plaintiffs were denied the opportunity to which they were entitled at common law to make submissions to the ministers about the amount to be determined under s.153B(1). This, it was said, was only procedural fairness. The difficulty is that, so far as I can tell, the plaintiffs, either individually or together or through their industry, participated in the consideration given the matter by the Government working party. That working party was set up specifically to inquire into the fair value of the licences and it seems to have been a very full inquiry, with much outside participation. Among the submissions received was a detailed paper prepared for the scallop fishing industry by Ernst & Young (and to which I have already made passing reference). One of the questions considered by the working party was whether the amount to be determined under s.153B should be the same for all licence holders or should distinguish between those who held licences for Port Phillip Bay waters only (who might be expected to lose all scallop fishing rights) and those holding licences for all Victorian waters (from which the waters of Port Phillip Bay were merely being excluded). The working party recommended that it be the same payment for all on the ground that the licence value was a constant, and that was the view apparently adopted by the two ministers in making their determination. I see no basis then for a contention that the plaintiffs were denied the opportunity of making submissions on the issues which were under consideration by the working party. There is nothing in the claim that they were denied procedural fairness.

116. For these reasons I would allow the appeal, set aside the answers given by the trial judge to questions 1 to 6 and the orders made in consequence and, subject to any submissions of counsel, order in lieu that the plaintiffs' proceeding be dismissed. The cross-appeal should be dismissed.

121. Until recently the principal commercial scallop fisheries in Victorian bays and coastal waters were situated in Port Phillip Bay, off Lakes Entrance and in Bass Strait. Scallop fishing in Port Phillip Bay commenced in the early 1960s. Scallops, which live on the surface of the seabed, are gathered by dredging from boats.

124. Scallop fishing, as well as the commercial harvesting of other marine life which required conservation, was regulated by a licensing system. Section 14(1)(a) of the Fisheries Act 1968 empowered the Minister to licence any registered fishing boat to dredge for or take scallops for sale. It was an offence to dredge for or take scallops for sale without a licence: s.17(1). A scallop licence could be issued only to the person for the time being registered as owner of the boat used to dredge for or take scallops, and entitled him to take scallops in the waters specified in the licence: s.14(3). A matter to be taken into account in granting a licence was the welfare of the fishery concerned: s.14(8). In fact no new scallop licences have been issued since 1970. Licences could be transferred with the approval of the Director-General of Conservation, Forests and Lands: s.14(11). In the absence of the specification of another period, a licence remained in force for 12 months (s.16(1)), and was renewable: s.16(2).

127. On 11 March 1996 the Premier announced that the Government "has pledged to end scallop dredging in the Bay by repurchasing all existing licences by the end of next year at an estimated cost of $10 million." The Fisheries (Amendment) Act 1996 received the Royal Assent on 17 December 1996. Its purpose was "to close the Port Phillip Bay scallop dredge fishery": s.1. The Act inserted ss.153A and 153B in the Fisheries Act 1995. Section 153A(2) cancelled all licences to dredge for or take scallops for sale in all Victorian waters or in Port Phillip Bay. If a cancelled licence included an entitlement to dredge for or take scallops in waters other than Port Phillip Bay, a new licence was to be issued to dredge for or take scallops in those waters. Section 153B, which is headed "Acquisition of scallop licences", provided:

"(1) The registered owner of a boat that has its licence cancelled under section 153A is entitled to be paid an amount determined by the Treasurer and the Minister.

(2) Despite any Act or law to the contrary, the State of Victoria is not liable in any other way for any loss, damage or injury whatsoever resulting from the cancellation of a licence under section 153A.

(3) Any amount determined by the Treasurer and the Minister under this section must be paid out of the Consolidated Fund (which is, by this sub-section, appropriated to the necessary extent)."

Sections 153A and 153B came into force on 31 March 1997.

134. On 25 March 1997 the Minister and the Treasurer determined that each registered owner of a boat whose licence was cancelled was entitled to be paid the sum of $120,000. That amount was fixed after a report by a body appointed by the Government called "The Port Phillip Bay Scallop Dredge Licence Buy-Back Working Group", and which valued each Port Phillip Bay scallop licence at $90,000.

137. The respondents, who held nearly half of the 84 licences to dredge for or take scallops for sale in Port Phillip Bay or in other waters and Port Phillip Bay, brought these proceedings against the appellants, the Minister and the Treasurer, to set aside their determination, alleging that s.153B required the appellants to compensate the respondents for all loss resulting from the cancellation of the licences, such as diminution in the value of boats and scallop-dredging equipment, loss of profits and the costs of relocating businesses. The respondents sought an order that the appellants make a new determination. They also sought damages for breach of statutory duty and negligence in making the determination.

140. When the proceeding came on for trial, a number of preliminary questions were formulated and determined. Although the trial judge rejected the claims for damages, and found that the determination could be sustained as a valuation of the Port Phillip Bay scallop licences, his Honour held that the determination was invalid. He held that s.153B(1) required a payment to encompass not merely the value of the licences, but all losses sustained by the respondents as a consequence of the cancellation of the licences. His Honour held that as the licences were a species of property, s.135B was to be construed in accordance with the "common law principle" that "the statute will not be construed to take away property without compensation unless the statute says so unequivocally", citing Attorney-General v. De Keyser's Royal Hotel [1920] UKHL 1; [1920] A.C. 508 at 542, Minister of State for the Army v. Dalziel [1944] HCA 4; (1944) 68 C.L.R. 261 at 290-1, and Belfast Corporation v. O.D. Cars Ltd. [1960] A.C. 490 at 523. Later his Honour described the principle as "the basal common law principle of full compensation".

143. In Attorney-General v. De Keyser's Royal Hotel the House of Lords held that the Crown was not entitled to take possession of an hotel as the headquarters of the Royal Flying Corps without paying compensation either in the exercise of its prerogative or under a statute and regulations made in 1914. The statute and regulations provided that the Naval and Military Authority might take possession of and use land or other property. They did not mention compensation. The House of Lords held that the provisions of the Defence Act 1842 as to payment of compensation upon the acquisition of land continued to apply and thus the owner of the hotel was entitled to compensation to be assessed by a jury pursuant to the Act. In Minister of State for the Army v. Dalziel the High Court was concerned with the question whether taking possession of land from a tenant constituted the acquisition of property within the meaning of s.51(xxxi) of the Constitution. Citing De Keyser, Starke, J. said at 290-1:

"It does not follow that an acquisition under the regulation is ineffective because no terms are provided, for in such a case the Commonwealth would nevertheless, I think, be liable to pay such compensation as was reasonable and just."

The place of the statute providing for the payment of compensation in De Keyser was taken by a requirement of the Constitution. Belfast Corporation v. O.D. Cars Ltd. was also concerned with a general limitation upon Parliament, in this case the Parliament of Northern Ireland, prohibiting it from taking any property without compensation. The House of Lords held that a planning statute which limited the use to which property could be put did not amount to taking property. At 523 Lord Radcliffe spoke of the principle, accepted by the legislature and defended by the courts, "that title to property or the enjoyment of its possession was not to be compulsorily acquired from the subject unless full compensation was afforded in its place" and the contemporaneous movement for the regulation of life in cities and towns in the interest of public health and amenity.

148. The cases relied upon by the trial judge were concerned with the question whether a requirement to pay compensation for compulsory acquisition stemming from an earlier statute or a constitution had been excluded or breached. They do not provide any assistance in determining the nature of the compensation for compulsory acquisition which a statute does provide. No case was cited to us which supports the proposition that statutes providing compensation for compulsory acquisition of property are presumed to require payment extending beyond the value of the property so as to cover all losses resulting from the acquisition, and my own researches have disclosed none.

151. The respondents referred to the decision of the Supreme Court of Canada in Manitoba Fisheries Ltd. v. The Queen (1978) 88 D.L.R. (3d) 462. In that case it was held that a statute which gave to a statutory corporation the exclusive right to export fish for sale amounted to an acquisition of the goodwill of the plaintiff's fish exporting business which was ended by the creation of the statutory monopoly. The Court held that in the absence of clear statutory language it was to be presumed that compensation was to be paid. The decision went further than those referred to above in that it did not involve an earlier statute or constitution conferring a right to compensation. However, the compensation was limited to the value of the property acquired, namely the goodwill, and did not extend to any consequential losses. It would seem that in Canada the common law presumption of no expropriation without compensation only applies when property rights are transferred from an individual to the government. See A. & L. Investments Ltd. v. Ontario (1997) 152 D.L.R. (4th) 692.

154. The primary issue raised by the appeal, to which argument before us was confined, concerned the construction of s.153B(1): was the trial judge correct in construing it as requiring the determination of an amount which compensated the respondents for all losses which resulted from the cancellation of their licences?

157. The appellants did not contend s.153B(1) conferred upon them an unfettered discretion to fix an amount akin to an ex gratia payment. Rather, they contended that the sub-section required them to determine and pay the value of each cancelled licence, but no more than that. For their part the respondents, like the trial judge, relied on the common law principle referred to in the cases cited by his Honour. The principle, it was said, required a determination and payment of full compensation for all losses unless there were clear words in the statute which produced a different result. As there were no such words in this statute, the respondents contended that they were entitled to be compensated for all their losses caused by the cancellation of the licences. As I have said, in my view there is no principle or rule of construction such as that for which the respondents contend. The question is not whether the statute expressly or by necessary implication excludes a particular type of compensation, but rather what is the nature of the compensation which the statute contemplates.

160. Section 153B, as its heading states, is concerned with the acquisition of scallop licences. The heading may be considered in interpreting the Act. See s.36(4) of the Interpretation of Legislation Act 1984. While sub-s.(1) of s.153B does not state what the amount to be determined represents, when it is read with sub-s.(2) in my opinion it is clear that the amount to be determined is the value of the cancelled licence. The logical candidate for the "other way" referred to in sub-s.(2), that is, other than "any loss, damage or injury whatsoever resulting from the cancellation of a licence", is the amount representing the value of the licence. Sub-section (1) deals with the direct loss of that which is cancelled; sub-s.(2) deals with losses consequential upon the cancellation.

163. Where the Act provides for compensation beyond the value of cancelled licences, it says so. Section 63(2) of the Fisheries Act 1995 provides for the compensation to be paid to a person whose access licence is cancelled in the following terms:

"(2) The person who held the licence, and any person who held a registered financial interest in the licence at the time it was cancelled, are each entitled to compensation for the financial loss suffered as a natural, direct and reasonable consequence of the cancellation of the licence, in proportion to the extent of their respective interests."

The contrast between s.63(2) and s.153B(1) is readily apparent. Apart from expressly dealing with consequential loss, s.63(2) provides criteria for determining the extent of the loss. If the respondents' interpretation of s.153B(1) is correct, the nature and scope of the losses the subject matter of the determination is uncertain. Are the losses limited to the property and business of scallop fishing itself, or do they extend to other losses such as those relating to wholesale and refrigeration businesses carried on by licence holders? Does the section embrace all losses in respect of which the cancellation of the licences was a necessary or sufficient cause? Do concepts such as foreseeability or proximity play any part in limiting the losses? In my view the uncertainty attendant upon the respondents' construction tells against its acceptance.

168. The terms of the Parliamentary debate set out in the judgment of Phillips, J.A. are unequivocal. The Minister in his second reading speech and the opposition spokesman in his response clearly stated that the compensation provided by the Act was limited to the value of the licences.

171. I agree with the comments made by Brooking, J.A. and Phillips, JJ.A. as to the making of further submissions without leave after the conclusion of the hearing of an appeal, and I agree with the reasons given by Phillips, J.A. for concluding that the respondents were not denied procedural fairness.

174. For the foregoing reasons I agree with the other members of the Court that the appeal should be allowed.