Ag " TAKEN DIRECTLY FROM TRANSCRIPT. NO FURTHER CIRCULATION NECESSARY. (JUDGMENT CIRCULATED TO PARTIES AND FRANKI J. ONLY) |" IN THE FEDEPAL COURT OF AUSTPALIA ) QUEENSLAND DISTPICT PEGISTFY ) QLD G134 of 1984 SENEPAL DIVISION } BETWEEN : EDENMEAD PTY LTD, MAPF ALAN ANDEPSON and AUDREY ELIZABETH ANLERSCGN Applicarts AND: THE COMMONWEALTH GF AUSTRALIA and MICHAEL JOHN BROADSMITH Ressondents DATE OF HEARING: 22-23 NOVEMBER 1984 DATE JUDGMENT DELIVERED: 22 NOVEMBER 1984 COUNSEL: for the applicants Mr F.L. Harrison Q.C. with him Mes M.J. White instructed by Anderssen and Company for the respondents Me H.G. Fryberg with nur Mc R.N. Wensley instructed by Australiar Government Solicitor tof 23 NOVEMBER 1984 S. KIFT ASSOCIATE T0 SPENDER J. AW le, Vou te a "4 48% IN THE FEDERAL COUPT OF AUSTRALIA \ QUEENSLAND DISTRICT REGISTRY ) QLD G134 of 1984 ) GENERAL DIVISION BETWEEN : AND: EDENMEAD PTY LTD, MARK ALAN ANDEPSGN and AUDREY ELIZARET!Y ANDERSON Apolicants THE COMMONWEALTH OF AUSTPALIA ani MICHAEL JOHN BROADSMITH Pespondents JUDGE MAKING ORDER: SPENDEP J. DATE _OF ORDER: WHERE MADE: 23 NOVEMBER 1984 BRISBANE THE COURT OPDERS THAT: i. w Adjourn trial of relzref sought in claims 1 and 2 of Application for hearing to 2.15pm on 3 December 1984. Grant interlocutory injunction in terms sought until determination of trial in this matter or further earlier order. Arfidavits and other material on which applicants prcpose to rely be filed and served on or before 28 November 1984. Affidavits and other material on which respondents propose to rely be filed and served on or before 12 noon on 3 December 1984. Costs reserved. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G134 of 1984 GENERAL DIVISION H BETAEEN : EDENMEAD PTY LTD, MARK ALAN ANDEPSON and AUDPEY ELIZABETH ANDERSON Applicants AND: THE COMMONWEALTH CF AUSTPALIA and MICHAEL JOHN BPOADSMITH Respondents SPENDEP J. 23 NOVEMBER 1984 EXTEMPOPE REASONS FOR JUDGMENT This 1s an application for an interlocutory injunction seeking, until the determination of this application, to restrain the defendants and each of them from seizing, removing or selling any scallops taken ry the applicants or any of them in an area which, essentially, is off the Capricorn coast of Queensland; and further restraining the defendants and each of them from bringing or requiring the master of the applicants' vessels or either of them to bring such vessels or either of them to a place in Australia if found in such area with scalleps on beard or causing the same to be done. The application seeks to review, pursuant to the tu provisions of the Administrative Decisions (Judicial Peview) Act 1977, what 15 said to be the decision of each of the respondents to seize, remove and sell any scallops taken by the applicants or any of them in an area ot proclaimed waters under the Fisheries Act 1952 ("the Act"), described ain Garerte No. S$ 272 dated 4 November 19983, and to bring or require the masters of tne The arplicants assert they are aggrieved because the respondents "have prevented and will cortinue to pr oD ve the a t applicants from lawfully conducting their business as fishermen". The grounds of the application are: the decisions ar= not autheriged by the enactment in pursuance of which they are Purported te be made, namely the Fisheries Act; and, secondly, the decisions involved an error of law, namely, that the taking of such scallops in such area was prohibited by a notice for the time beirg in ferce under s.8 and, accordingly, contravened sub-s.13(1)(1) of the Act. The applicant, Edenmead Pry Ltd 1s the owner of a 26.82 metre steel prawn trawler named "Barameda". That vessel has a fishing boat licence, s0 the affidavit material shows, issued in Pursuance of sub-s. 9(2) of the Act authorising the use of the boat in proclaimed waters under the Act, and the licence extends to authorise the use of the boat in the area of waters of the Northern Prawn Fishery. The vessel has been used for prawning in the Gulf of Carpentaria and for scallop fishing off the Capricorn coast of Queensland. The skipper of that vessel 1s the male personal applicant, Mark Alan Anderson, and he, in partnership with his wife, the other personal applicant, own a prawn trawler named the "Pacific Venture", which apparently has similar licences to the vessel "Barameda". Because cf the closure to fishing of the Northern Prawn Fishery at least to the middle of February 1985 so as to allow stocks of prawns to build up, the two vessels were brought to the Capricorn coast to fish for scallops. The applicants assert that the Minister for Primary Industries has not validly prohibited the takina of scallops off the Capricorn coast of Queensland. On Sunday, 11 November 1984, the two vessels commenced fashing for scallops off Yeppoon. On Monday afternoon, 12 November this year, a Queensland water police vessel came to the vessel, the "Barameda", and the respondent, Mr Broadsmith, accompanied by other officers of the Fisheries Department and two police officers came on board that vessel. On that afternoon Mr Broadsmith first siqned a declaration which 1s before me as Exhibit C to the affidavit of Mr Shapowloff which was headed "Declaration by officer exercising powers under section 10(1)(c) of Fisheries Act 1952" and recited that Mr Broadsmith was an officer within the meaning of s.4 of the Act, being an officer/employee of the State of Queensland who was authorised in sepey OF writing by the Secretary to the Commonwealth Department of Primary Industry to perform duties under the Act 1n pursuance of an arrangement between the Commonwealtn and the State of Queensland. The Declaration continued that Mr Broadsmitn had reason to belreve the scallops on boara the vessel "Harameda" had heen taken in contravention of the Act, and accordingly, in performance of his duties as an officer under 'that Act he & ct < 1D a ie fu) ran detained the scallops on board th uncil further notice. He also issued a second declaration indicating that he detained the vessel, the "Barameda", and ordered the immediate return of that vessel to Rosslyn Bay on the basis that he had reason to believe that some trawl nets on board the vessel had been used in contravention of the Act. On the same day he directed Mark Anderson, the master af the vessel "Barameda", which vessel he had reason to believe had been used in contravention of the Act, £9 remain in control of the vessel at the port of Yeppoon until an officer "permits the master to depart". Finally. on 14 November 1984, Mr Broadsmith issued a declaration under which he seized the scallops on board the vessel "Barameda". Mr Broadsmith, as Exhibit 2 tendered before me indicates, is a person permanently employed in the Public Service of Queensland and was authorised by the Secretary of the Department of Primary Industry by authcrisation dated 13 April 1981 in pursuance of an arrangement between Australia and the ww State of Queensland to perform duties under, amongst other acts, fhe Act. He therefore comes within one of the categories of officer" in the definition section, 3.4, of the Act. Before me I heard detailed argument as ta, and directed essentially toa the question of whether there exists, a valid prohibition concerning "tne taking of scallons from the area which unciudes the Capricorn coast of Queenslana. For reasons I canvassed in more detail with counsei this morning, it seems tc be inapgropriate to determine the merits of that matrer once I am satisfied that there 15 a serious question to pe tried and that the proper approach for me to adopt is as indicated by the Full Court of the Federal Court in Epitoma Pty Ltd v. Australasian Meat Industry Employees' Union (No. 2) (1984) 54 A.L.R. 730 at p.734. There the Full Court consisting of Sheppard, Morling and Beaumont JJ., in their jozrt judgment said:- "In an application for an interlocutory znyunction, the court must inquire first whether there 18 a serious question to be tried (see Australian Coarse Grain Pool Pty Ltd v. Barley Marketirg Board of Queensland (1982) 46 ALR 398; 57 ALJk 425; Tableland Peanuts Pty Lra v. Peanut Marketing Board (19384) 52 ALP 951; 58 ALGR 283, per Brennan J. at 264). In the Barley case, Gibbs TJ. said (57 ALUR at 425) that he imclined to the view taken by the House of Lords in American Cyanamid v. Ethicon Ltd (1975) AC 396 rather than to some of those expressed oabiter in Beecham Group Ltd v. Bristoi Laboratories Pty Ltd (1968) 118 CLR 618; (1968) ALR 469. It would seem that the Chief Justice had in mind the following statement of principle in the Opinion of Lord Daipluck, concurred in by the other members of the House, in American Cyanamid (at p407): 'The use of such ie) expressions as a probanility,"' ""'a prima facie case,"' or ""'a strong prima facie case"' in the context of the exercise of a discretionary power to grant an interlocutory injunction leads te contusion as toa the object sought to be achieved by this form of temporary rei1ref. The court no doubt must be satisfied that the claim is not frivolous or vexatious; im other words " that there is 4 serious question to be tried" .' Lord Diplock went on (at p407) to explain tne oractical considerations underlying this appreach: 'It as no part of the court function at this stage of the litigation try to resolve corflicts of evidence affidavit as to facts on which the claims either party may ultimately deperd, nor decide difficult questions of law which call oir own ames] Ooms for detarled argument and mature considerations. These are matters to oe dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon tne grant of an interlocutocy injunction was thac "'at aided the esurt in doing that which was its grear obvect, vit abstaining from expressing any opinion upon the merits of the case until tne hearing"': Wakefield v. Duke of Puccier.grh (1865) 12 LT 52a at 629. So unless the material available to the court at the hearing of the application for an interliocutcry ainjurction fails to disclose that the plaintiff nas any reali prospect of succeeding in his claim for a permanent injunction at the trial, the court snould go on ta consider whether the balance of convenience ilies in favour of granting or refusing the interlocutory relief that 1s sought' (cf Dimbleby & Sons Ltd v. National Union of Journalists (19847 1 WLR 427; Appleton Papers Inc. v. Tomasetti Paper Pty Ltd (19832) 50 ALR 428; C1982] 3 NSWLP 208 at 214-5:," And further at p.735, line 45, their Honours said:- "Accepting, as we do, the decision and the reasoning in 'Cooper Brookes, we are not persuaded that the construction contended for by the appellant 1s capricious and irrational, quite apart from the impact of 3.45D(6). At all events, if ais both unnecessary and inappropriate that we express any concluded view on this question in an intericcutory appeal. Unce 1t is conceded that 1t was, at the very least, arguable that a literal construction should prevail 16 inevitably follows that there 1s a serious question to be tried on this issue. To borrow the language of Lord Diplock in Dimbleby, supra, 1t 1s 'no part of the court's function on an application for an unterlocutory injunction co decide difficult questions of law which call fcr detailed arqument and Mature consideration' (at p436:," Notwithstanding tne view which I indicated to the parties. that I have formed ona tentative basis. as to whether there existed a valid prohibition concerning scaliops, it seems to me that that 1s mot the question whicn ought to determine whether an aunterlecutory injunction should issue. I accept that whether there 15 a serious question to he tried may be a question which involves extensive argument and, while it is in a completely different context, 1t 12 aporopriate to refer to the observations of Sir Garfield Barwick in General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 C.L.R. 125 at p.130 where, in respect of the application with which he was then dealing, which was an application to terminate an action summarily for want of a cause of action in the pleadings, he said: - ++. 1n my opinion great care must be exercised to ensure that unler the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. Qn the other hand, i do not think that the exercise of the jurisdiction should be reserved for those cases where argument 15 unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly unterable that it cannot possibly ucceed." rvs] Now, I am not te be taken as having the view that merely because argumert., ¢ven or an extensive kind, is necessary that concludes the proper oasis on which the question of whether a serlous question to ne tried exists. If, after argument, a judye on an application for ar interlocutory injunction 1s of the view that the question of law involved 1s so clearly untenable that it cannot wvossibly succee [on , then, of course, no sé@rious question remains to be tried. If, after extensive argument, he is of the view, as i am here, that there 1s a serious question to be tried, and even if having heard that argument he himself has a view as to now he wourd resolve that question, nonetheless the threshold question for determination of whether an interlocutory injunction should issue, has been made cut. In those circumstances I am satisfied that here thers i a serious question to be tried. In the circumstances, however, it is a pure question of law, and one which can be resolved at a trial quickly and, in the light of the argument that has been addressed to me, can be determined by me more expeditiously than perhaps any other. Tr those cirenmstances, one nas ta turn to the question of wnere the balance of convenience lies. One aspect of that decision which 13 relevant, is the length of time before which a final determination of the legal question can be made. IT have indicated that I propose to hear the trial of this application in respecr of the relief sought in paragraphs 1 and 2 of the application, at 2.15 9.m. on Monday, 3 December, and if my commitments on that day do not enable me to hear it at that time er that day, then I w21ll hear it some time on the following day. The time between the hearing for ainteriocutory relief and the triai, 1s obvicusly one factor which determines whether an interlocutery injunction ought to issue, and I indicate that for reasors which I tnink are very presesirg, these matters involving, as they do, pure questions of law, ought to be resolved finaily as quickly as possible, 1* is possibie so to do as IT indicated on the afternoon of 3 December, and farling that, the following day. That being the case J have to determine whether the balance of convenience favours fhe gramn of the anterlocutory anjuncticn until that time. In that regard we are looking at the vericd of some ten days. The apolicants are fishermen, and in paragraph 23 of the affidavit of Mr Shapowloff it 12s asserted that unless they are able to find alternative fishing grounds to the Gulf of Carpentaria, loan repayments due on beth boats will be unable to be made, and further, that unless the buats are able to fish for scallops there will be difficuities encountered in retaining On the other hand, a number of matters are urged on the respondents' behalf and, without being exhaustive, the two matters wnich seem to me to ke most relevant, are these: first, 19. that if the question of the validity of the prohibition on the fishing of scallops ig resolved in favour of that prohibition, then, the effect of any interlocutory injunction 16 to, ina sense, candone or permit a breach of the 'criminal law of the Commonwealth. That, however, 18 a matter which really awaits the determination af the question of the validity Coupled with That 1s the submission that if the validity cf the prohibitior be determind in a way that makes the fishing for scallops permissibie, then the fact that tne appiicants have been as] 1% wo ¢ 1Dct ib rey my nN oem fishing during that period can sound in damages. There 13 some difficulty in relatior to the second of those considerations as there 1s no undertaking by tne Commonwealth to pay damages should it come about that the criminal law not be as is contended for by the Commonwealth here, and, in any event, the difficulties that will be experienced by the applicants should the prohibition not be a valid one, is one which 1s not readily compensatable by damages only. That certainly is the case in relation to the retention of crew. When one has regard to the realities that there are some 20) vessels at the moment which, ain fact, at some tine or other, engage in che taking of scallops lawfully, and that there are potentially another 700 such vessels which again lawfully cculd, if they choose, take scallops off the Capricorn coast, allowing the applicants to take scallops in the period pending the final determination of the matter does not seem to me to be such as should, on a balance of convenience test, be prevented. ll. I provose to grant an interlocutory injunction in the terms sought until the determination of the trial of this matter, or further earlier creer. I will reserve the question of costs. yinetinis archi /O nrocading uUoeege Tapco cre 270 8.7 S.0r oss pie 1? at