White v Australian Fisheries Management Authority [2006] FCA 429

FEDERAL COURT OF AUSTRALIA White v Australian Fisheries Management Authority [2006] FCA 429 RONALD MICHAEL WHITE v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY NO TAD 1 OF 2006 HEEREY J 15 MARCH 2006 HOBART

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY TAD 1 OF 2006

BETWEEN: RONALD MICHAEL WHITE

APPLICANT

AND: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 15 MARCH 2006

WHERE MADE: HOBART

THE COURT ORDERS THAT:

The application is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY TAD 1 OF 2006

BETWEEN: RONALD MICHAEL WHITE

APPLICANT

AND: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

RESPONDENT

JUDGE: HEEREY J

DATE: 15 MARCH 2006

PLACE: HOBART

REASONS FOR JUDGMENT 1 The respondent Australian Fisheries Management Authority (AFMA) which, as a result of an order I made earlier today, has been substituted as respondent in this proceeding, seeks summary dismissal under O 21 r 2 or O 9 r 7 of the Federal Court Rules. 2 The application is brought by a professional fisherman Mr Ronald Michael White. In his application he seeks compliance with an order of the Administrative Appeals Tribunal (AAT) that quota be allocated for the 2001 year by reference to the average catch of the best three years in the period 1990 to 1993 inclusive. 3 In essence, AFMA submits that the order sought would be futile because it relates to a permit which expired on 31 December 2001. 4 In order to understand this argument it is necessary to look firstly at the structure of the Fisheries Management Act 1991 (Cth) (the Act) and then the history of Mr White's dealings with AFMA, including his appeal to the AAT. 5 Section 95 of the Act makes it an offence to, amongst other things, contravene a condition of a fishing concession permit or licence. The present case is concerned with a fishing permit granted under s 32. Section 32 confers on AFMA a discretion to grant a fishing permit subject to various conditions. One of those conditions, under subs (6), is that the permit comes into force on the day specified and remains in force until the day specified in the permit. The conditions can also specify the quantity of fish that may be taken: subs (7)(b). 6 The permit authorises a particular activity so long as that activity does not result in taking a quantity of fish of a particular species greater than that specified by AFMA. The term "quota" has come into use generally in the industry, and indeed in some documents issued by AFMA, but it is not a concept to be found in the Act itself. 7 Mr White was granted a permit for a period starting on 1 January 2001 and expiring on 31 December 2001 for a named vessel to fish in a particular area with a particular form of fishing and subject to various conditions. These conditions included that the permit only allowed the fishing for a specific quota of fish, 2,324 kg of gummy shark and 16,578 kg of school shark. 8 In May 2002 Mr White filed an application with the AAT for review of the decision made by a delegate to impose the conditions relating to the quantity of fish described above. The hearing and determination of this application was considerably delayed because of other litigation. Finally, on 28 February 2005 the AAT made a determination in favour of Mr White. In substance the AAT decided that in calculating Mr White's quota entitlements there were cogent reasons to select different years for his catch-history, the reason being that illness of Mr White made it unreasonable to use the years chosen by AFMA (1993 to 1997). 9 The AAT determined that a more fair and reasonable selection was the years 1990 to 1993 inclusive. The Tribunal's determination was as follows: "The decision under review will be satisfied and in substitution it is decided: (1) That the application should be remitted to the respondent with the direction of quota being allocated for the 2001 by reference to the average catch of the best three years in the period 1990 to 1993 inclusive; and (2) That there be an apportionment in quota when allocated between school and gummy shark by reference to the evidence heard in these proceedings." 10 Subsequently, there was a modification of that decision in terms which are not relevant for present purposes. By this time, whilst the 2001 year had long since passed, AFMA proceeded to apply the substance of the AAT's decision to the then current year. By a letter dated 23 April 2005 AFMA wrote to Mr White stating how it would calculate his 2001 units and how those units would be converted to the year 2005. This was quite a complex formula and the details need not be mentioned for the moment. 11 Following that, on 30 September 2005 AFMA wrote again setting out detailed calculations following the formula set out in the earlier letter, to convert the verified catch-history of 2001 units into 2005 units. There was further correspondence with Mr White's solicitors, then on 23 December 2005 AFMA made a decision as to the appropriate catchment quota for the 2006 year. There is a right of review of that decision, the time limit expires on 23 March 2006. 12 The submission of senior counsel for AFMA seems to me unanswerable. Assuming that this Court has jurisdiction to issue mandamus to AFMA, it would be futile and lacking in practical utility to direct that Mr White be given a permit to fish up to a certain quantity of fish in the year ending 31 December 2001. 13 Counsel for Mr White argued that the year 2001 requirement was the "building block" of any determination and the relief sought was for the purpose of ascertaining what ought to have been a condition for Mr White in 2001. But it seems to me that that detail was provided in the two letters mentioned above. In any event, whether there ought to have been the condition amount for Mr White in the year 2001 can be a matter of evidence and argument before the Tribunal. 14 I will therefore accede to AFMAs application and order that the application be dismissed and that the applicant pay the respondent's costs of the proceeding and of the motion. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.