Link v The Minister for Primary Industries [2007] NSWSC 1011

New South Wales Supreme Court

CITATION : Link v The Minister for Primary Industries [2007] NSWSC 1011

HEARING DATE(S) : 05/09/2007

JUDGMENT DATE : 11 September 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons.

CATCHWORDS : Abalone fishery - validity of management charges - statutory construction and jurisdictional error - discretionary defences

LEGISLATION CITED : Fisheries Management Act 1994 (NSW) Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW)

CASES CITED : Project Blue Sky (1998) 194 CLR 355 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162

PARTIES : Siegfried Link (Pl) The Minister for Primary Industries (Def)

FILE NUMBER(S) : SC 30079/06

COUNSEL : Mr R. M. Niall (Pl) Mr M. J. Leeming SC / Ms .A. M. Mtchelmore (Def)

SOLICITORS : Fitzpatrick Teale (Pl) Crown Solicitor (Def)

- 12 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

11 SEPTEMBER 2007

30079/06 Sigfried Link v The Minister for Primary Industries

JUDGMENT 1 HIS HONOUR: The plaintiff is a fisherman and the holder of seventy shares in the Abalone Fishery (the fishery). The fishery is a share management fishery specified in Schedule 1 to the Fisheries Management Act 1994 (NSW) (the Act). 2 Since July 2004, the New South Wales Department of Primary Industries (the Department) has had responsibility for New South Wales Fisheries. It took over this role from NSW Fisheries. 3 The Act regulates fishing in the waters of New South Wales. It provides for the making of Share Management Plans. The relevant Share Management Plan is the Abalone Share Management Plan (the plan). 4 The Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) (the Regulation) gives effect to the plan. The plan is an appendix to the Regulation. 5 I shall briefly mention certain of the contents of the plan. Part 1 is headed "Preliminary" and contains definitions. Part 2 is headed "Objectives of Plan" and contains a table with columns dealing with objectives, performance indicators and triggers for review. Part 7 is headed "General" and contains provisions dealing with share forfeiture and "management charge" (clause 36).