FEDERAL COURT OF AUSTRALIA

Latitude Fisheries Pty Ltd v Australian Fisheries Management Authority [2002] FCA 416

FISHERIES – grant of fishing permit – tuna fishing in S/WTBF – Tribunal affirming decision not to grant permit – whether Tribunal in error of law – effect of promise made on sale of Northern Prawn Fishery permits under voluntary adjustment scheme – contracting powers of the Commonwealth – changes to legislation and the Australian Fisheries Management Authority policies between making of promise and application for permit – whether Tribunal in error of law in construing promise due to failure to take into account relevant circumstances – whether Tribunal erred in law in misconstruing promise – whether Tribunal erred in law in holding evidence of financial detriment not relevant – whether Tribunal erred in law in drawing inference of fact in relation to whether or not the sale of the units would have gone ahead without the promise – whether Tribunal in error of law in concluding not reasonable for it to be assumed promise would be unaffected by intervening changes in legislation and policy, due to failure to take into account certain relevant considerations – whether Tribunal in error of law applied incorrect test concerning public interest – whether Tribunal erred in law in failing to take into account relevant considerations in concluding the application for the fishing permit was “too late” – whether Tribunal erred in law in rejecting contentions for application of doctrine of estoppel – whether Tribunal in error of law in failing to take into account certain relevant considerations generally – whether Tribunal in error of law in misconstruing statute

Administrative Appeals Tribunal Act 1975 (Cth) ss  33(1)(c), 44

Fisheries Administration Act 1991 (Cth) ss 3, 5, 6, 7, 10, 12(1), 13(1), 13(2), 13(3), 15,18, 21, 22, 25, 73, 74, 75, 80, 81, 83, 84, 87, 91

Fisheries Legislation (Consequential Provisions) Act 1991 (Cth) s 12

Fisheries Management Act 1991 (Cth) ss 3, 3(a), 4, 4(1), 6(a), 10, 16, 17, 17(10), 18, 18(1), 20, 32, 32(1), 32(2), 165

National Environment Protection Council Act 1994 (Cth)

Fisheries Act 1952 (Cth)

Hogg et al Liability of the Crown 3^rd ed. 2000 at pp 220, 335, 340 - 342

Freeman v Secretary, Department of Social Security (1988) 87 ALR 506 referred to

Husband v Repatriation Commission (2000) 171 ALR 69 referred to

Brown v Repatriation Commission (1985) 7 FCR 302 referred to

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred to

ABC v Minister for Immigration & Multicultural Affairs [2001] FCA 955 referred to

Minister for Immigration & Multicultural Affairs v Tedella [2001] FCA 832 referred to

Dang v Minister for Immigration & Multicultural Affairs [1999] FCA 38 referred to

Walsh v Department of Employment, Education, Training & Youth Affairs, 51 ALD 690 referred to

Li Shi Ping & Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 395 referred to

Rau v Liquor Licensing Commission and North Melbourne Football Club Social Club [1999] VFC 19, 15 February 1999, per Hampel J referred to

Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736 referred to

Jones v Dunkel (1959) 101 CLR 298 referred to

Bahamas International Trust Co Ltd v Threadgold [1974] 3 All ER 881; [1974] 1 WLR 1514 referred to

Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724 referred to

Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 applied

Trawl Industries of Australia Pty Ltd v EFFEM Foods Pty Ltd trading as “Uncles Ben’s of Australia” (1992) 27 NSWLR 326 referred to

B & B Constructions (Aus) Pty Ltd v Brian A Cheeseman & Associates Pty Ltd (1994) 35 NSWLR 227 referred to

Bushell v Repatriation Commission (1992)175 CLR 408 applied

Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 considered

Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 considered

Commissioner of Taxation (Cth) v McCabe (1990) 26 FCR 431 referred to

Chief Executive Officer of Customs v AMI Toyota Ltd (2000) 102 FCR 578 referred to

Family Services v Edwards (2000) 105 FCR 220 referred to

The State of New South Wales v Bardolph (1934) 52 CLR 455 followed

Bradken Consolidated Limited v The Broken Hill Proprietary Company Limited (1979) 145 CLR 107 distinguished

Bass v Perpetual Trustee Company Ltd (1999) 198 CLR 334 referred to

Davis v Bunn (1936) 56 CLR 246 referred to

Holloway v McFeeters (1956) 94 CLR 470 referred to

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied

Minister for Immigration & Multicultural Affairs v Perera (2001) 183 ALR 204 applied

Turner v Minister for Immigration & Ethnic Affairs (1981) 35 ALR 388 referred to

Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 referred to

Azevedo v Secretary, Department of Primary Industries and Energy (1992) 106 ALR 683 referred to

Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Service (1992) 111 ALR 1 referred to

Nikac v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 65 referred to

Bropho v Western Australia (1990) 21 ALD 730 referred to

R v Liverpool Corporation; ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 considered

BHP Direct Reduced Iron Pty Ltd v Chief Executive Officer, Australian Customs Service (1998) 55 ALD 665 distinguished

Nicholas v Western Australia (1972) WAR 168 at 174 referred to

Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 followed

Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 referred to

Southend-On-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416 distinguished

Rubrico v Minister for Immigration & Ethnic Affairs (1989) 23 FCR 208 referred to

Laker Airways v Department of Trade [1977] QB 643 referred to

Attorney-General (NSW) v Quin (1990) 170 CLR 1 referred to

Adams & Anor v Executive Director, Fisheries WA (2000) WASC 34 approved

Century Metals & Mining NL v Yeomans (1989) 100 ALR 383 referred to

Enoka v Shire of Northampton (1996) 15 WAR 483 distinguished

Minister for Immigration & Ethnic Affairs v Petrovski (1997) 154 ALR 606 referred to

Lu v Minister for Immigration & Multicultural Affairs (2000) 176 ALR 79 referred to

Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648 followed

Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1977) 139 CLR 54 referred to

Thompson v Palmer (1933) 49 CLR 507 considered

Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 considered

Waltons Stones (Interstate) Limited v Maher (1988) 164 CLR 387 applied

Legione v Hateley (1983) 152 CLR 406 applied

Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1 referred to

ACI Operations Pty Ltd v Chief Executive Officer of Customs (1998) 53 ALD 86 referred to

Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314 followed

Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 77 FCR 503 followed

LATITUDE FISHERIES PTY LTD and WILLOWOOD HOLDINGS PTY LTD v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

W225 of 2000

RD NICHOLSON J

10 APRIL 2002

PERTH

THE COURT ORDERS THAT:

1.                  The “appeal” be dismissed.

2.                  The applicants pay the respondent’s costs of the “appeal”.

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

REASONS FOR JUDGMENT

1                     This is an “appeal” from a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 November 2000.  The Tribunal decision affirmed the decision of a delegate of the respondent made on 31 March 1999 affirming a decision made on 7 January 1999 not to grant to the first applicant (“Latitude”) a fishing permit to take tuna in Australian fishing zone areas identified as the Southern and Western Tuna and Billfish Fisheries (“S/WTBF”).  The application to the Tribunal had been made in accord with the provisions of s 165 of the Fisheries Management Act 1991 (Cth) (“the Management Act”) and s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

2                     The application for the fishing permit had been made by Latitude on 4 November 1998.  The foundation of the application purported to be an undertaking given by the predecessor Commonwealth department, the Australian Fishing Service (“the AFS”), in 1989 that Latitude was entitled to a Commonwealth Fishing Boat Licence (“the CFBL”) a kind which had since ceased to be issued due to change in legislation).  Much of the reasoning of the Tribunal and the focus of the grounds of appeal is on what should be made, if anything, of what was said to be the previous undertaking. 

3                     It is convenient to refer only to Latitude rather than to both applicants.

Background circumstances

4                     In its application on 4 November 1998 the solicitors for Latitude sought “a fishing permit to take tuna with rights equivalent to that of an unrestricted Commonwealth Fishing Boat Licence”.  The relevant facts set out in support of the application were as follows:

(1)               Latitude by letter to the AFS dated 14 December 1988 requested that:

(a)                the AFS issue Latitude with an unconditional CFBL to take tuna, apart from southern bluefin tuna; and

(b)               the AFS provide a letter to Latitude confirming that the CFBL conditions could be altered at Latitude’s request.

(2)               The AFS responded by letter dated 16 January 1989 and advised that should Latitude sell two Class B and 535 Class A Northern Prawn Fishery (“NPF”) units (“the Units”) under the NPF voluntary adjustment scheme (“the Scheme”) it would allow Latitude to retain the right to the CFBL (“the Undertaking”).

(3)               In reliance upon the Undertaking, Latitude finalised the sale of the Units under the Scheme in or about August 1989 (“the Sale”).  The Sale was evidenced by an undated Deed of Discharge (“the Deed”).

(4)               Latitude by letter to the Australian Fisheries Management Authority (“AFMA”) dated 26 May 1995 enquired whether the Undertaking would be honoured.

(5)               The AFS responded by letter dated 28 June 1995 and neither refused nor declined to honour the Undertaking (In fact the letter denied the Undertaking included an entitlement to revival at a later date).

(6)               The solicitor’s firm representing Latitude by letter to the AFS dated 18 August 1995 requested that AFMA honour the Undertaking and provide Latitude with a “licence”.  As explained in this letter, Latitude did not apply for a licence until 1995 as it did not have the necessary resources to fish for tuna.

(7)               By letter from the AFS to the solicitors for Latitude dated 29 February 1996, the AFS invited Latitude to apply for a fishing permit (“FP”) to operate in the Western Tuna Billfish Fishery (The letter reasserted the position taken in the letter of 28 June 1995 and suggested “to progress the matter” an application be made for a FP.  It was further suggested that any documentary evidence of the Undertaking being incorporated in the Sale be provided).

5                     The letter referred to in point 2 above and dated 16 January 1989 read as follows:

“Mr JA Boschetti

 Director

 Latitude Fisheries Pty Ltd

 PO Box 77

 GERALDTON  WA  6530

Dear Mr Boschetti

I refer to your letter of 14 December 1988 seeking to retain the right to a Commonwealth Fishing Boat Licence to take tuna in waters off Western Australia following the sale by you of 2 Class B units and 535 Class A units under the Northern Prawn Fishery Voluntary Adjustment Scheme.

I am pleased to advise that should you sell these units under the Voluntary Adjustment Scheme it has been decided to allow you to retain the right to an unrestricted Commonwealth Fishing Boat Licence.

I apologise for any inconvenience caused by the delay in replying to your request and take this opportunity to wish you every success in your tuna fishing venture.

Yours sincerely

TF Meany

Manager

Northern Prawn Fishery and

Adjustment Program Section

Australian Fisheries Service”

It is this letter which Latitude’s case says is of critical significance. 

Relevant statutory provisions

6                     The other significant circumstance to the setting of the appeal is that the relevant legislation affecting the grant of the permit applied for by Latitude changed after the date on which the letter of 16 January 1989 was written.  The Management Act replaced the Fisheries Act 1952 (Cth).  Under the 1952 legislation the Commonwealth issued CFBLs.  Under the substituted 1991 legislation, the Commonwealth is empowered to issue FPs. 

Such permits are issued pursuant to s 32 of the Management Act and it was under that section that the respondent’s delegate acted in making the decision affirmed by the Tribunal.  Section 32 reads:

“32(1)AFMA may, upon application made in the approved form, grant to a person a fishing permit authorising, subject to subsections (1A), (1B) and (1C), the use by that person, or by a person acting on that person’s behalf, of an Australian boat for fishing in a specific area of the AFZ or a specified fishery.

 (1A)    Subject to subsection (1C), if an Australian boat is specified in the permit, the permit authorises the use as mentioned in subsection (1) of:

(a)               subject to paragraph (b) – that boat; or

(b)               if the person to whom the permit it granted, from time to time, by written notice given to AFMA, nominates for the purposes of the permit another Australian boat in lieu of that boat – the boat so nominated.

 (1B)    Subject to subsection (1C), if no Australian boat is specified in the permit, the permit authorises the use as mentioned in subsection (1) of such Australian boat (if any) as the person to whom the permit is granted, from time to time, by written notice given to AFMA, nominates for the purposes of the permit.

 (1C)    The permit does not authorise the use of an Australian boat unless the boat complies with any conditions to which the permit is subject.

(2)             An application made for the grant of fishing permit must provide AFMA with such information as it reasonably requires for a proper consideration of the application.

(3)             Without limiting the operation of subsection (1), AFMA may refuse to grant a fishing permit if it has reason to believe that a requirement of a law of the Commonwealth, or of a State or Territory, has not been complied with in relation to the boat.

(4)             A fishing permit may authorise the use of a boat:

(a)               for commercial fishing generally; or

(b)               for recreational fishing generally; or

(c)                as a charter boat; or

(d)               for specified fishing activities, including:

(i)                 the carrying of fish; or

(ii)               the processing of fish; or

(iii)             the testing of fishing equipment.

(5)             A fishing permit is granted subject to the following conditions:

(a)               if the fishing permit authorises fishing in a specified managed fishery – the holder of the permit must comply with any obligations imposed by, or imposed by AFMA under, the relevant plan of management on the holder of such a fishing permit;

(b)               if the fishing permit authorise fishing in a specified managed fishery – the permit will cease to have effect if the plan of management for the fishery is revoked under subsection 20(3);

(c)                the fishing permit may, under subsection 75(7), cease to have effect or, under subsection 79(3), cease to apply to a fishery;

(d)               the fishing permit may be cancelled under section 39:

(e)                no compensation is payable because the fishing permit is cancelled, ceases to have effect or ceases to apply to a fisher.

(6)             A fishing permit:

(a)               is subject to such other conditions as are:

(i)                 specified  in the permit; or

(ii)               prescribed in relation to permits granted under this section; and

(b)               comes into force on the day specified for the purpose in the permit or, if no day is so specified, on the day on which it was granted; and

(c)                subject to this Act, remains in force until the day specified for the purposed in the permit, being a day not later than 5 years after the day on which it came into force.

(7)             Without limiting the operation of paragraph (6)(a), the conditions that may be specified in a permit include conditions relating to:

(a)               the fish that may be taken; or

(b)               the quantity of fish that may be taken; or

(c)                the rate at which the fish may be taken; or

(d)               the methods or equipment that may be used to take fish; or

(e)                the methods or equipment that may be used to process or carry fish.

(8)             AFMA may, by written notice given to the holder of a permit, whether or not at the request of the holder, vary or revoke a condition of the permit (not being a condition mentioned in subsection (5)) or specify a condition or a further condition to which the permit is to be subject.

(9)             A permit ceases to be in force if the holder of the permit surrenders the permit by written notice given to the AFMA.

(10)         Except where a fishing permit is stated to be non-transferable, AFMA may, on the application of the holder of the permit and of another person as proposed transferee, transfer the permit to that other person.

(11)         A fishing permit is to be in the approved form.”

The “AFZ” referred to in s 32(1) is the Australian Fishing Zone being an area of sea over which Australia has exclusive rights by reason of international convention.  Relevant definitions appear in s 4 of the Management Act.

7                     The Management Act in which s 32 appears provides in s 3 that the following objectives must be pursued by the Minister in the administration of the Management Act and by the AFMA in the performance of its functions: 

“3(a)   implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and

    (b)    ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment; and

    (c)    maximising economic efficiency in the exploitation of fisheries resources; and

    (d)    ensuring accountability to the fishing industry and to the Australian community in AFMA’s management of fisheries resources; and

    (e)    achieving government targets in relation to the recovery of the costs of AFMA.”

Section 4(1) of the Management Act defines, subject to contrary intention, the “precautionary principle”, giving it the same meaning as in cl 3.5.1 of the Intergovernmental Agreement on the Environment set out in the Schedule to the National Environment Protection Council Act 1994 (Cth).  In that clause the principle is defined to the effect that lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation where there are threats of serious or irreversible environmental damage. 

8                     Section 16 of the Management Act provides that the AFMA in performing its functions under the relevant part of the Management Act must pursue its objective and, in addition, act in accordance with its corporate plan and current annual operational plan.  In particular nothing in that provision is to be taken to limit the operation of subs 17(10) which provides:

“while a plan of management is in force for a fishery, AFMA must perform its functions, and exercise its powers, under the Act in relation to the fishery in accordance with the plan of management.” 

9                     The responsible Minister’s role is provided for in s 18 as follows:

“18(1)When the AFMA has determined a plan of management for a fishery, it must:

(a)               submit the plan to the Minister; and

(b)               inform the Minister of the nature of any representations it received, and the consultations it conducted, before determining the plan.

(2)         The Minister must accept the plan if it appears to the Minister that:

(a)               AFMA gave due consideration to any representations it received, and conducted adequate consultations, before determining the plan; and

(b)               the plan is consistent with AFMA’s corporate plan and current annual operational plan.

(3)         If the Minister does not accept the plan, the Minister must refer it to AFMA and inform AFMA why it is not accepted.

(4)         When the plan has been so referred to AFMA, AFMA must, as soon as practicable after receipt of the plan, take such steps as appear to it to be necessary to ensure acceptance of the plan by the Minister and again submit the plan to the Minister.

(5)         If the Minister again does not accept the plan, the procedures mentioned in subsections (3) and (4) continue to apply in relation to the plan until it is accepted by the Minister or withdrawn by AFMA.”

10                  The AFMA was established by complementary legislation also passed in 1991, namely the Fisheries Administration Act 1991 (Cth) (“the Administration Act”).  Section 5 established the AFMA.  Section 6 enacted its objectives which included implementing effective cost-effective fisheries management “on behalf of the Commonwealth”.  By s 7 its functions included, as provided by an associated law, undertaking “on behalf of the Commonwealth” management responsibilities in relation to fisheries management arrangements entered into with the States and Territories and collecting community returns payable.  By s 10 the AFMA is established as a body corporate with perpetual succession, capable of suing and being sued in its own name.

Findings of the Tribunal

11                  The reasons of the Tribunal are extensive, extending to approximately 75 pages.  A significant part of the reasons sets out matters which were re-argued on this appeal or referred to evidence to which it may be necessary to make reference later.  It is sufficient for present purposes to set out the findings of fact made by the Tribunal.  These were as follows:

(1)               par [110]…Mr and Mrs Boschetti, (the corporate mind of the applicants), believed that when the applicants sold their 2 Class B and 535 Class A units in the NPF to the Commonwealth in 1989, that they would be granted, in future, a concession to fish for tuna in the S/WTBF.  They believed at the time that concession would be an unrestricted CFBL.  This belief was founded in the correspondence exchanged between the parties.

(2)               par [111]…The then manager of the Northern Prawn Fishery and Adjustment Program Section, Mr Meany, agreed that Latitude, as a condition of selling its Class B unit and its 353 Class A units, as part of the contract mentioned in the previous paragraph, was permitted “to retain the right to one unrestricted CFBL”.  None of Mr Meany, Mr Wesney or Mr Gorrie, officers of the respondent who were then involved in the purchase of the units in the NPF, were called to give evidence.

(3)               par [112]…[and compare pars [163] and [165] of the Tribunal’s reasons]

(a)        The respondent intended that the applicants retain one of their CFBLs as a split from the NPF units and hold it as a “licence in abeyance” or some other reserved right.

(b)               Latitude at the time did not have a CFBL, so in this sense Mr Meany’s undertaking was meaningless.

(c)               There was a commonly shared intention to permit Latitude to fish for tuna in the S/WTBF in future.

(d)               Having sent its letter in reply of 16 January 1989, the respondent (or its predecessor the AFS) believed that it was under no obligation specifically to follow-up or to place a time limit on the undertaking.  If, as has been concluded, the respondent understood that the promise was to keep an unrestricted CFBL which, at the time, would have been subject to the “abeyance policy” then there was no need to monitor that promise, since licences held in abeyance were held for a discrete duration (up to two years) before being reactivated by the holder or cancelled.

(4)               par [113]…Notwithstanding the previous finding of fact, the Tribunal concludes on the evidence of the Boschettis and Mr Stewart that in June 1989, when the signed deed of discharge was conveyed to Mr Keating, manager of the Northern Prawn Fishery and Adjustment Scheme, Mr Boschetti in particular, believed that the AFS had promised to issue him with an unrestricted CFBL to fish for tuna in the S/WTBF.

(5)               par [114]… Mr Boschetti and to a lesser extent, Mrs Boschetti, were informed by various means, from 1985 through to 1995 and beyond, about the changing policies of the respondent (and its predecessor) in relation to the NPF “licence freeze”, “licence in abeyance”, “licence splitting” and also the “limited entry” policy particularly in relation to the S/WTBP.  The Tribunal finds that they were on notice about the particular policy changes that impacted on licensees’ rights to fish for tuna in the ETBF, the STBF and the WTBF.  Further the Tribunal finds that Mr Boschetti was aware of the phasing-out of CFBLs after the introduction of the replacement legislation, the [Management] Act and the new scheme of licensing with fishery specific FPs.

(6)               par [115]… Mr Boschetti believed that as he did not have the licence in question (not having applied for it) he was not affected by any of the relevant policy changes in relation to that expectation.

(7)               However, … it is not reasonable for Mr Boschetti to have assumed, in 1995, that a “promise” made ancillary to a contract negotiated in 1988 and settled in 1989, would be unaffected by intervening changes, in both governing Commonwealth legislation and related policies, directed at the very substance of the “promise” as he understood it – the issue of a CFBL.

(8)               par [116]… The sale of the 2 Class B and 535 Class A units in the NPF in 1989 was primarily motivated by what the Boschettis believed to be a sound management decision at the time.

(9)               par [117]… At that time Mr Boschetti (an experienced hands-on fisherman) had formed an opinion that tuna in the S/WTBF should be exploited by Australian fishermen and not left to the Japanese.  The Tribunal finds that the Boschettis’ businesses, in the early 1990s, outlaid several hundred thousand dollars to prove the viability of those tuna fisheries in the Indian Ocean AFZ. 

(10)           par [118]… Some time between about 1992 and 1995 Mr Boschetti made a conscious decision to invest large amounts of capital as and when it became available, to fish for tuna in the AFZ’s S/WTBF.  Also, those plans were never abandoned even though during the time other related fishing business exigencies were engaging the Boschettis’ time, resources and attention so that their plan to exploit the S/WTBF was suspended, but never abandoned.  The Tribunal accepts that it was primarily for those reasons that the Boschettis made no attempt to apply to the respondent until 1995, for what they then believed, justifiably or otherwise, to be their right to a tuna fishing concession in the S/WTBF.  And further, the Tribunal finds as fact that the Boschettis’ failure to follow-up with the respondent or its predecessor, to affirm the right, which they understood to exist, was a consequence of the circumstances of their businesses during the interregnum from 1989 to 1995.

(11)           par [119]… Insofar as the Boschettis understood that they had a right to either retain or to be issued with a CFBL in 1989, that because of the effluxion of time, material changes in the law (different legislation and different fishing rights) and policies of the respondent (formerly the AFS and now AFMA), that specific right (if it existed as a matter of law) did not survive those changes.

(12)           par [120]… The Boschettis made discrete business decisions without regard to their then understanding that they had the right mentioned above. 

(13)           par [121]… The existing limited entry policy of the respondent, coupled with its proposal to introduce a comprehensive Management Plan for the S/WTBF, in the interests of consistent decision making ordinarily would preclude the issue of any newly applied for FP.

(14)           (a)        The respondent does not believe there is currently over-exploitation of Bigeye and Yellowfin tuna species within the S/WTBF.

(b)               The long-line method of taking tuna proposed to be used by Latitude in the S/WTBF does not, of itself, pose a serious threat to the sustainability of the tuna species in question.

(c)                The current input controls introduced by the respondent were a cautious and responsible approach.

(d)               At present there are no threats of serious or irreversible environmental damage.

(15)           par [152].  In the present case the Tribunal is dealing with an application for a fishing permit pursuant to s 32 of the [Management] Act….  However, to now grant the application would clearly be contrary to the presently prevailing policies of the respondent.  In the context of reaching the preferable or correct decision in this matter on the basis of Freeman v Secretary, Department of Social Security (1988) 87 ALR 506 and other cases cited, that factor is one of the relevant considerations to which the Tribunal, as part of the administrative continuum, must give proper weight in reaching its decision.

(16)           par [154]… In the Tribunal’s opinion the respondent may only grant FPS pursuant to s 32.  There is nothing in the [Management] Act or its regulations which empowers the respondent (and therefore the Tribunal) to grant a FP on the basis alone of a promise or agreement entered into at an earlier time than the date of the relevant application.  In the opinion of the Tribunal, the decision to grant a FP pursuant to s 32 is discretionary and must be made having regard to relevant policies authorised by s 32 of the [Management] Act.

(17)           par [160]… In the Tribunal’s opinion, but for the promise referred to above and encapsulated in the evidence generally and in particular (in two respects), no FP to catch the three species in question, Bigeye and Yellowfin tuna and Broadbill swordfish, in the S/WTBF, would be granted.  This obtains because of the respondent’s then policy of limited entry to those fisheries, policies forming part of the decision-making matrix established by ss 32 and 3 of the [Management] Act. 

(18)           par [161]… Therefore, the question before the Tribunal is whether the preferred or correct decision is now to grant the FP.  In the opinion of the Tribunal that decision cannot be made, in keeping with the duties and responsibilities of the respondent (as provided by legislation) without due regard to the following factors:

q       The rights of the applicants, if any, stemming from the promise.

q       Whether those rights include a right to be granted a FP.

q       Whether the respondent is estopped from denying its obligation (if any) to grant the FP.

q       Whether the applicants have a legitimate expectation that the (first) applicant has right to be granted a FP.

q       Whether the grant of a FP now, to the (first) applicant would be contrary to the public interest or affect the rights of others not party to this application.

(19)           The rights of the applicants, if any, stemming from the promise

par [164].  In the Tribunal’s opinion the promise or agreement at the time was intended by the AFS to be limited to the retention of an unrestricted CFBL which might be subject to the abeyance policy if not then otherwise active.  In the opinion of the Tribunal the evidence supports the conclusion that it was intended by the AFS that once the NPF units were sold any remaining CFBL (which was required for operations in the NPF at the time) would go into abeyance and be subject to that policy.  It was further intended by the respondent that Latitude or possibly the second applicant could activate that CFBL to fish for tuna in the S/WTBF, but subject to the then “licence in abeyance” policy.

(20)           Whether those rights included a right to be granted a FP

par [166].  In the opinion of the Tribunal it is not an issue as to whether pursuant to the promise discussed above a CFBL or a substitute concession is retained and activated.  In the opinion of the Tribunal the applicants’ rights did not extend, in the circumstances, to the grant of a FP on the basis of the promise or agreement alone.  If the applicants are to succeed in this matter then it must be for other reasons.

(21)           Whether the respondent is estopped from denying its obligation (if any) to grant the FP and whether the applicants had a legitimate expectation that a FP ought to be granted upon application

par [170].  In this case the applicants argue that the respondent is now prevented by the doctrine of estoppel from relying on an argument that legislative and policy changes in the interim prevent the grant of the FP pursuant to that promise.  This, they argue, obtains because the respondent made a previous commitment in circumstances where that was the result of protracted negotiations at the time and crucial to the actual commercial agreement then reached.  However, if only for the effluxion of time, some ten years since the promise, the Tribunal cannot accept that argument because its effect would be to grant a FP contrary to policy existing at this time and therefore ultra vires the statute.  Further reasons are that to adopt the doctrine of estoppel in favour of the applicants would require action by the respondent beyond its powers as circumscribed by the [Management] Act and the matrix of the policies pursuant to that Act.

(22)           Whether applicants had legitimate expectation of grant

par [171].  In the opinion of the Tribunal the applicants did not have, in 1999 at least, a legitimate expectation to be issued with (or granted) a FP.  Whilst the applicants may have had a legitimate expectation to retain an unrestricted CFBL in 1989, pursuant to the licence abeyance policy, that expectation did not survive (see findings of fact points (5) and (6) above).  In the Tribunal’s opinion, that expectation ceased to have legitimacy well before Latitude made its application pursuant to s 32 of the [Management] Act which gave rise to these proceedings.

(23)           par [172].  The Tribunal is also influenced by its previous finding of fact in relation to the alleged detriment suffered by the applicants as a result of entering into the agreement in question.  In the opinion of the Tribunal even if there was a detriment suffered, for the reasons already expressed, it could not be as a result of having sold the NPF units.  Any alleged detriment, in the Tribunal’s opinion, is not something to which it should have regard in reaching its decision in this matter.

(24)           Whether the grant of a FP now, to the (first) applicant would be contrary to the public interest or affect the rights of others not party to the application

par [173]… In the opinion of the Tribunal there is no legal obligation for the respondent to grant the FP sought.  To do so would be contrary to existing policy and indeed contrary to policy in place since 1994 when the licence freeze in the S/WTBF commenced.  At best there may be a case for a moral obligation to grant the FP, but that, in the Tribunal’s opinion is not something on which it can decide in the absence of compelling other supporting reasons.

(25)           par [174]… On the other hand, in the opinion of the Tribunal, the evidence before it does not support a conclusion that to grant one further FP as sought would offend against the “precautionary principle” since there is not before the Tribunal sufficient scientific evidence of a serious threat to ecological sustainability of the three species in question using the long-line method as proposed by the applicants.

(26)           par [175]… The measure of the adverse effect on current FP licence holders of a fresh FP cannot be meaningfully quantified on the evidence before the Tribunal.

(27)           par [176].  On balance, the Tribunal concludes that to now grant the FP, the subject of this application would not have any significant effect on the interests of the other FP holders generally, other interested persons (who have not been identified) or the public generally. …  Notwithstanding, after having heard the evidence and submissions and having given them the most serious consideration (see Lord Denning in Liverpool), the Tribunal is of the opinion that this is an instance where the public interest would not be served, nor confidence in consistent application of established government policy upheld, by departing from the practice and policy of the respondent and granting a FP contrary to those policies.

(28)           par [177].  Finally, in the opinion of the Tribunal the evidence is that the application is too late.  The Tribunal cannot simply ignore the relevant intervening events between 1989 and 1999, referred to above.  In the Tribunal’s opinion, as mentioned, if the applicants had a contractual right to be granted a CFBL in 1989, then by their very inaction and passive reliance on what they understood to be their rights in the interim, that right has been jeopardised by supervening events which run to the very core of the right in question and of which the applicants were fully apprised.

12                  Accordingly, the Tribunal reached the view that the correct or preferable decision in the matter was to affirm the decision of the respondent under review. 

Grounds relied upon

13                  There are ten grounds of “appeal”, namely:

(1)               Misconstruction of the promise evidenced by the letter dated 16 January 1989 due to failure to take into account certain background circumstances.

(2)               Misconstruction of the promise in any event.

(3)               Error of law in relation to evidence relating to financial detriment. 

(4)               Error of law in relation to drawing an inference of fact.

(5)               Error of law in concluding the promise would be unaffected by intervening changes in legislation and policy in failing to take into account certain relevant considerations.

(6)               Error of law in applying the wrong test in relation to the public interest.

(7)               Error of law in relation to the issue of delay arising from failure to take into account certain relevant considerations.

(8)               Error of law in relation to the doctrine of estoppel.

(9)               Error of law in failure to take into account certain other relevant considerations.

(10)           Error of law in misconstruction of s 32(1) of the Management Act.

Objection to some grounds

14                  The respondent has filed a notice of objection in respect of the qualification of grounds of appeal 1, 2, 4, 5, 7 and 9.  Generally in support it is submitted that these grounds, as pressed for Latitude in written and oral submissions do not adequately recognise the demarcation between the jurisdiction of the Tribunal on the one hand, and the jurisdiction of the Court on the other.  Specifically, the jurisdiction of the Court is limited to “a question of law”:  s 44 of the AAT Act.  It is said that the grounds objected to fail to recognise that it is the policy of the AAT Act to make the decision of the Tribunal final on questions of fact:  cf Husband v Repatriation Commission (2000) 171 ALR 69; Brown v Repatriation Commission (1985) 7 FCR 302.  Further, it is said that the submissions and the grounds fail to respect that the reasons of the Tribunal should be construed in accordance with the judicial restraints emphasised by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 – 2.  The effect of the dicta there is that the reasons of the tribunal are meant to inform and should be beneficially construed, rather than examined with an eye keenly focussed on the perception of error or looseness in language or unhappy phrasing.

15                  In relation to grounds 1, 5, 7 and 9 and the plea of failure by the Tribunal to take into account relevant evidence or considerations, it is submitted for the respondent that these failed to recognise the distinction between a relevant consideration and a piece or pieces of evidence.  It is accepted for the respondent that a failure to take into account a relevant consideration can involve an error of law.  This will occur when the consideration which the Tribunal failed to take into account was a consideration it was bound to take into account:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 – 41 per Mason J; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1.  The considerations which the Tribunal must take into account are determined by a consideration of the statutory questions to be decided and the powers and the responsibilities of the primary decision-maker:  Peko-Wallsend Ltd at 39 – 41; ABC v Minister for Immigration & Multicultural Affairs [2001] FCA 955; Minister for Immigration & Multicultural Affairs v Tedella [2001] FCA 832 at [23].  The distinction between relevant considerations determined in accordance with those principles and pieces of evidence is widely recognised:  Dang v Minister for Immigration & Multicultural Affairs [1999] FCA 38; Walsh v Department of Employment, Education, Training & Youth Affairs, 51 ALD 690; Li Shi Ping & Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 395; Rau v Liquor Licensing Commission and North Melbourne Football Club Social Club [1999] VFC 19, 15 February 1999, per Hampel J at [31], Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736 at [15].

16                  Specifically, in relation to Latitude’s arguments in relation to grounds 1, 5, 7 and 9, it is submitted for the respondent that the complaint is about the weight the Tribunal gave to pieces of evidence and how the Tribunal determined the merits of the application, rather than, that it failed to take into account relevant considerations as properly determined.  It should be seen, in the submission of the respondent that it was up to the Tribunal to decide what weight it placed on particular pieces of evidence.

17                  In my opinion the submissions for the respondent are correct in law.  Whether they are correct in relation to the grounds to which the notice of objection is directed is best addressed in dealing with each of those grounds when Latitude’s submissions are examined.

Ground 1:  Construction of promise without regard to certain background circumstances

18                  The background circumstances particularised in support of this ground are listed in the following table taken from the written submissions for the respondent which also identifies the portion of the Tribunal’s reasons in which the background circumstances are referred to.  The table reads:

“

˝

19                  I agree with the submission for the respondent that not only did the Tribunal refer to the background circumstances particularised but, as a matter of inference, took them into account in its reasoning.  This was not an instance of a tribunal referring to material without taking it into account.

20                  In relation to background circumstance (i), the rule in Jones v Dunkel (1959) 101 CLR 298 did not bind the Tribunal:  see s 33(1)(c) of the AAT Act.  However, that did not preclude the Tribunal from having regard to the fact that the officers concerned were not called, as it did.

21                  Latitude’s reliance on a failure to take into account is not made out.  I agree with the submissions for the respondent made by way of the notice of objection that what Latitude seeks to do is in reality contend that the background circumstances take into account should have been dealt with in a different way or given different weight by the Tribunal.  That is, of course, not open to this Court. 

Ground 2:  Misconstruction of promise

22                  The ground particularised this in four ways, namely:

(a)                such promise referred to the right to the issue of a new licence and not the right to retain an existing licence;

(b)               the right to the issue of a new licence was never a “licence in abeyance”;

(c)                upon the sale of the units neither of the applicants had or retained an existing CFBL and therefore there was never a “licence in abeyance”; and

(d)               accordingly and in any event, the policies relied upon by the respondent did not apply to the right granted to the applicants.

23                  In the written submissions an additional matter is contended, namely:

(e)                The Tribunal’s construction of the letter dated 16 January 1989 was absurd in that the Tribunal attributed to Mr Meany an intention to make a promise which was “meaningless”.

24                  In support of this ground, senior counsel for Latitude contended that an error of law should be seen to be involved in the construction arrived at by the Tribunal and he sought to arrive at that point in the following way.  The starting point is that the construction of a written document involves a question of law and it is for the judge to decide what the law is:  Bahamas International Trust Co Ltd v Threadgold [1974] 3 All ER 881; [1974] 1 WLR 1514 at 1525; Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724 at 736.  The normal rule of construction of a contract is as stated by Mason J in Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352 where he said:

“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning.  But it is not admissible to contradict the language of the contract when it has a plain meaning.  Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.”

25                  The scope of the concept of “ambiguity” and what the exception in relation to it permits has been accepted in liberal terms in Trawl Industries of Australia Pty Ltd v EFFEM Foods Pty Ltd trading as “Uncles Ben’s of Australia” (1992) 27 NSWLR 326 at 358.  This was recognised as such in B & B Constructions (Aus) Pty Ltd v Brian A Cheeseman & Associates Pty Ltd (1994) 35 NSWLR 227 at 235 – 236 by Kirby P.  Here it is contended the Tribunal erred in construing the contract divorced from the normal rules of construction and so was in error of law.

26                  However, the function of the Tribunal is different from that of a court of law; it is to conduct an inquisitorial inquiry under a duty to arrive at the correct or preferable decision in the case before it according to the material before it: Bushell v Repatriation Commission (1992)175 CLR 408 at 424 – 425 per Brennan J.  In Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484, Davies J said of an appeal from a decision of the Tribunal:

“The words “question of law” in s 44 encompass matters concerning not only the interpretation of a federal enactment or the enunciation of the principle of the common law or equity, but also the breach of any duty which the Tribunal was bound by law to perform and the failure of which to perform may lead to the setting aside of the decision.  The words “question of law” encompass grounds enunciated in s 5 of the ADJR Act such as the failure to take into account a material consideration, the taking into account of an irrelevant consideration, the making of a decision that no reasonable decision-maker would have made, the exercise of a decision-making power for a purpose other than for the purpose for which the power was conferred and the failure to provide natural justice.”

This general position was recognised by Davies and Beazley JJ in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12 where they added that examples where courts have inquired under these principles into the facts found by administrative decision-makers appear in Commissioner of Taxation (Cth) v McCabe (1990) 26 FCR 431 and Bushell.  See also Chief Executive Officer of Customs v AMI Toyota Ltd (2000) 102 FCR 578 at 592 – 3 and Family Services v Edwards (2000) 105 FCR 220 at 230 per Drummond J. 

27                  In reaching its finding (2) above the Tribunal did so on the basis of all of the evidence and in particular the actual words used in the letter of 16 January 1989.  These were also the foundations of its conclusion in finding (3)(a) that the licence was one in abeyance.  Other relevant findings appear at (4) – (7) above, the latter being a key factual finding.  It is to be read with finding (11).

28                  The ultimate conclusion of the Tribunal – made at par [177] set out in finding (28) above – approached the position of Latitude as if it had a contractual right to be granted a CFBL in 1989.  Nevertheless, the Tribunal concluded that this still did not mean, as a matter of discretion, and considering all of the facts, that the correct or preferable decision was to grant the permit. 

29                  In my opinion the case for Latitude has not made out the existence of an error of law in any of the permitted senses in the course of the Tribunal’s reasoning.  The ground in substance seeks to contest the findings of fact made by the Tribunal. 

30                  The case for Latitude made reference to a letter dated 30 June 1989 from the Principal Representative (Mr Stewart) of the NPF Trading Corporation Pty Ltd to the AFS in the course of which it was stated “as part of the Sale of the two Class B units to NPVAS it was agreed that one Commonwealth Fishing Boat Licence would be issued to Latitude …”.  I agree with the submissions for the respondent that this statement was from an entity different from the respondent and cannot constitute an admission on the respondent’s behalf.  I also agree with the submission for Latitude that the statement was a relevant consideration for the Tribunal but I do not consider any case is established that there was a failure by the Tribunal to take it into account.  The same holds true of Mr Stewart’s memorandum of 22 June 1989.

31                  The contention of absurdity was not supported by additional argument.  The relevant finding appears at (3)(b) of the summary of findings of the Tribunal.  Reference to that as it appears in par [112] of the Tribunal’s reasons shows the importance of the words used.  It was not a finding that Mr Meany’s undertaking was meaningless.  Rather, it was a finding that “in this sense” the undertaking was meaningless.  That was a reference to the fact that Latitude at the time did not have a CFBL.  In the letter from Mr Meany as set out above it will be observed that he there referred to a decision to allow Latitude “to retain” the right to an unrestricted CFBL.  In that sense the Tribunal was correct in saying that the statement was meaningless because there was not a right to a CFBL to be retained.  It was in that limited sense that the Tribunal made that finding and no inconsistency arises between that finding and its construction of the letter dated 16 January 1989. 

32                  I do not consider this ground is made out. 

33                  In view of that conclusion it is not strictly necessary to deal with the contention made for Latitude in the course of oral reply, namely that if there was a “contract” entered into between the AFS and Latitude in 1989, the respondent, as an emanation of the Commonwealth, is bound by the obligations of the Commonwealth and so by the alleged contract.  Support for that contention is sought in the provisions of ss 6 and 7 of the Administration Act and s 3 of the Management Act where words “on behalf of the Commonwealth” are used.  Likewise the nature and extent of executive control is said to be apparent from ss 12(1), 13(1), (2) and (3), 15, 18, 21, 22, 25, 73, 74, 75, 80, 81, 83, 84, 87 and 91 of the Administration Act and ss 18 and 20 of the Management Act.  Reliance is placed also on Hogg et al Liability of the Crown 3^rd ed. at p 335; pp 340 – 342.

34                  Aside from the absence of a finding of the existence of a contract in the terms contended for, there are other reasons why this submission could not succeed.  The effect of ss 3, 5 and 10 of the Administration Act is that the respondent is constituted as a separate legal entity, namely a body corporate.  Section 12 of the Fisheries Legislation (Consequential Provisions) Act 1991 (Cth) provides that the Minister may declare an agreement to which the Commonwealth or the Commonwealth Government is a party, and which immediately before the Administration Act related to fisheries, has effect, after the commencement, as if the respondent were substituted for the Commonwealth or the Commonwealth Government, as the case may be, as a party to the agreement.  I agree with the submission for the respondent that the existence of this provision is inconsistent with any assumption of such obligations at common law (if that be possible in the circumstances).

35                  The Management Act and the Administration Act on their face regulate, impliedly if not expressly, any power of the Commonwealth to issue fishing entitlements so that there must be compliance with the statutory requirements.  No contract can require non-observance of statutory conditions:  The State of New South Wales v Bardolph (1934) 52 CLR 455 at 496; Hogg at p 220, Fn 39.

36                  The fact that the respondent is established to carry out its objects or functions in certain respects “on behalf of the Commonwealth” does not mean that, if there were a contract entered into by the AFS in 1989, it carries over and binds the respondent.  That is a different issue to whether a public corporation being an emanation of the Crown can be liable in tort or contract.  The decision in Bradken Consolidated Ltd v Broken Hill Pty Ltd (1979) 145 CLR 107, upon which the submissions for the applicant placed reliance, is therefore to be distinguished here.  Cf Bass v Perpetual Trustee Company Ltd (1999) 198 CLR 334 at 345 – 346.

37                  At the conclusion of Latitude’s supplementary submission it was stated that establishing the existence of a valid contract was not an essential element of Latitude’s claim.  It was said that even if no valid contract was formed, the course of dealings between the relevant parties (including the Commonwealth) was highly material to the exercise of any discretion in relation to the granting of a FP.  I do not understand these propositions to be contraverted for the respondent.  A number of grounds of appeal address the issue of how the Tribunal approached relevant considerations.  The estoppel ground also relies on the course of dealings.

Ground 3:  Financial detriment

38                  The alleged error of law of the Tribunal in relation to this third ground is particularised in two ways.  It is firstly said the Tribunal was in error in holding that the evidence relating to financial detriment suffered by Latitude in consequence of the sale of the Units in reliance upon the promise evidenced by the letter dated 16 January 1989 was not relevant.  Secondly, it is said the Tribunal erred in not making any findings as to whether the calculations contained in Latitude’s table of detriment were reasonable, reliable or otherwise.

39                  The relevant passages in the reasons of the Tribunal appear at pars [50] – [55], [109] and [172]. 

40                  As has been seen in finding (23) of the Tribunal above, it was of the opinion that even if there was detriment suffered, it could not be as a result of having sold the NPF Units.  It reached that view because it was the Tribunal’s opinion that Latitude was drawing a rather long bow in the “but for” calculations based on the fundamental premise attested to by Mr Boschetti that Latitude would not have sold their 2 Class B units and their 535 Class A units unless they had had a promise to be issued with a CFBL as and when they applied for it in the future.  The Tribunal goes on in that paragraph to record in par [53] that Mr Boschetti admitted that at the time of the sale, Latitude was experiencing a downturn in its NPF business and the sale was probably motivated by what was then perceived to be sound commercial judgment which included a plan to diversify in future into tuna fishing.  It declined, therefore, to draw any inference that the sale of units would not have gone ahead without the promise.

41                  The Tribunal was also of the view that one witness had no actual knowledge of the assumptions and hypotheses upon which the calculations in the table were based.  It concluded the statement of detriment could not weigh with it because it was an expression of opinion, not fact or even an inference which could be supported by positive proven facts.  It also observed that Mrs Boschetti, in her evidence, disclosed many unsatisfactory aspects to the basis of the calculations and concluded that, if they were at all relevant, they may not be reliable.

42                  It is apparent from the way in which the Tribunal considered the evidence of financial detriment showed firstly that, derivative from its own assessment of that evidence, it was entitled to conclude that it was not relevant, the reason being the detriment was not a result of the sale of the NPF units.  Further, the Tribunal was not required to consider whether the calculations were reasonable, reliable or otherwise given that it dealt with the evidence in the absence of submissions for the respondent.  It dealt with the evidence at face value and found that, even so approaching it, it was not something to which it should have regard.  In the exercise of its fact finding powers the Tribunal was entitled to take this approach and was not in error of law in either of the ways suggested in this ground. 

Ground 4:  Error of law in drawing inference of fact

43                  The inference to which this ground relates is that which appears at par [54] of the Tribunal’s reasons, namely that “in the light of other commercial considerations pertaining at the time it is not open to draw an inference of fact that the sale of the Units would not have gone ahead without the promise”.  This inference is said to involve an error of law because of the following two particularised matters:

“

(a)               the uncontroverted evidence of Mr Boschetti (which evidence was corroborated by Mr Stewart) was that the [applicants] would not have agreed to sell the units unless the Commonwealth promised to grant the right to the issue of a new licence; and

(b)               the Tribunal found that at all material times there was a commonly shared intention to permit the first [applicant] to fish for tuna in the Southern and Western Tuna and Billfish Fishery in the future.”

44                  The error of law which it is said exists in relation to the drawing of the inference is that the inference of fact was made in circumstances where there was direct evidence precluding the drawing of the inference.  The proposition relied upon is that where there is uncontroverted and corroborated direct evidence of a fact, it is not open to a tribunal to determine whether that fact exists or not by inference:  cf Davis v Bunn (1936) 56 CLR 246 at 268 and Holloway v McFeeters (1956) 94 CLR 470 at 476 – 7.  The submissions for Latitude rely in particular on Sharp at 11 – 14 and at 16.  For Latitude it is said that this Court should apply Sharp at 16, accept that the Tribunal’s own fact-finding led to but one conclusion and find that the Tribunal was in error of law in drawing its inference of fact.

45                  The case for Latitude supports the contention in the following way.  The evidence relied on was that of Mr Boschetti supported by Mr Stewart that the Units would not have been sold if Mr Boschetti had understood Latitude would not have been entitled to a CFBL (or FP as it now is) at some future time:  see Tribunal’s reasons par [53].  The Tribunal acted on this evidence in concluding that the sale of the Units in the NPF was conditional upon the said promise:  Tribunal’s reasons par [54].  However, it then went on to say that was not sufficient and had been made “in the light of other commercial considerations pertaining at the time”.  The Tribunal concluded it was not open to draw the inference the Sale would not have gone ahead without the promise.

46                  For the respondent it is submitted that it was for the Tribunal to decide whether and what inference of fact should be drawn by it.  Furthermore, it is submitted that even if a factual conclusion of the Tribunal involved illogical reasoning, that would not constitute an error of law:  Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Minister for Immigration & Multicultural Affairs v Perera (2001) 183 ALR 204.  Additionally, although a statement by a tribunal that there is no evidence to support an inference when such evidence exists may involve an error of law - see Australian Broadcasting Tribunal v Bond at 358 per Mason J – this is not what occurred here.  Rather, the Tribunal’s reference to “other commercial considerations pertaining at the time” in its par [54] makes it clear it was not prepared to draw the inference.  To that extent it did not accept in an unqualified way the evidence of Mr Boschetti to the effect that Latitude would not have sold the Units in the absence of the promise.  There was other evidence on which the Tribunal was entitled to act.

47                  In my opinion the submissions for the respondent on this ground are correct in relation to this ground.

Ground 5:  Error of law in failing to take into account relevant considerations

48                  This ground is raised in relation to the finding by the Tribunal that it was not reasonable for Mr Boschetti to have assumed, in 1995, that the promise evidenced by the letter dated 16 January 1989 would be unaffected by intervening changes in legislation and policy:  see finding (7) in the summary of the Tribunal’s reasons above.

49                  The relevant considerations which the ground particularises as those that the Tribunal was bound to take into account were the background circumstances; the proper construction of the promise evidenced by the letter of 16 January 1989 in that the agreement related to a new licence; the absence of any notice to Latitude by the Commonwealth or the respondent making time of the essence or requiring Latitude to apply for a permit within a stipulated period; and the absence of any notice by the same parties to Latitude that the Commonwealth would not honour the promise. 

50                  For Latitude it is submitted that the Tribunal’s conclusion on the nature of the promise and in particular the effect of intervening changes in legislation and policy influenced how the Tribunal dealt with all other issues before it.  It is said it was a primary finding of great influence.  It is also contended that there is no indication that the Tribunal did rely on the considerations particularised in this ground.  Further, it is submitted there is no reason for this Court to be confident that the Tribunal, in fact, took them into account.  In this latter respect it is said it is maybe not enough that a tribunal refers to material:  see Turner v Minister for Immigration & Ethnic Affairs (1981) 35 ALR 388 at 392.

51                  In relation to determining what matters the Tribunal was bound to take into account, Latitude’s case had regard to ss 3, 16, 17 and 32(1) of the Management Act and s 4.  It is submitted that s 32(1) does not say which matters should be taken into account.  The inference from ss 3 and 16 is that the objects of the Management Act must be taken into account.  Subsection 32(2) is said to confer a valuable right and therefore requires the Tribunal to look at matters relative to the particular applicant.  If there is a policy then that may be taken into account but not slavishly followed so as to disregard the circumstances of the particular applicant.  It is submitted that the AFMA is obliged to take into account any facts and circumstances which differentiate Latitude from any other applicant and to look at all the facts and circumstances that may be relevant.  It is accepted for Latitude that it would be permissible for the Tribunal to say that it has evaluated all the circumstances but is nevertheless not satisfied that it should depart from policy. 

52                  It is also submitted for Latitude that nothing turns on the difference between the change made from AFS to AFMA.  It is said that the AFMA is an agent or emanation of the Commonwealth:  see the Management Act, s 3(a), s 6(a); Bradken at 116.  It was to be seen as a body through which the Commonwealth implemented its policies.

53                  For the respondent it is submitted that regard to ss 3, 16 and 32(1) indicates that there are some express factors to be taken into account.  Nevertheless, none of the matters contended for on behalf of Latitude fall within that category.  Reliance is particularly placed on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J at par (b).

54                  Returning to the particularisations of this ground, it is apparent that the Tribunal did take into account background circumstances (see the resolution of ground (1) in particular) and its construction of the promise evidenced by the letter of 16 January 1989.  It is not contended that the absence of any notice (being the remaining two particularisations) is a matter to which the Management Act required the Tribunal to have regard.  In my view the case for Latitude does not make apparent in what way the Tribunal failed to take into account relevant considerations.  Rather, the ground as pressed seems to be inviting the Court to intrude into the sphere of merits review because of dissatisfaction with the findings of the Tribunal. 

Ground 6:  Error of law by application of incorrect test

55                  This ground alleges error of law in that the Tribunal applied the test of determining whether the public interest would not be served nor confidence in consistent application of established government policy upheld by departing from the current practice and policy of the respondent in relation to granting a fishing permit.  It is contended that the correct test, which the Tribunal should have applied was whether the public interest would be served, in all the circumstances, by granting a fishing permit notwithstanding the respondent’s current practice and policy. 

56                  It is submitted for Latitude that the way in which the Tribunal formulated the test put a premium on existing government policy and established it as a benchmark.  Only the correct test, it is submitted, would enable the Tribunal to properly determine what is the correct or preferable decision having regard to the whole of the evidence before it, as it is required to do:  see Bushell at 424 – 425; Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589; Azevedo v Secretary, Department of Primary Industries and Energy (1992) 106 ALR 683 at 696; Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Service (1992) 111 ALR 1 at 11.  The correct test gives effect to the view that a policy, adopted by a bureaucrat in order to structure a broad discretionary power, is merely a relevant consideration to be taken into account by the Tribunal:  see Drake at 590; Nikac v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 65 at 77; Bropho v Western Australia (1990) 21 ALD 730. 

57                  This ground relates to the conclusion of the Tribunal reached in par [176], quoted substantially above in finding (27) of the summary of the Tribunal reasons.  As the respondent’s submission points out, reference is there made to “Lord Denning in Liverpool”.  That is a reference to R v Liverpool Corporation; ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299.  There the Court of Appeal considered the issue of prohibition against a local authority which had resolved to increase the number of hackney carriages after undertaking not to do so for a specified period without hearing from interested parties.

58                  That authority is referred to at two prior places in the reasons of the Tribunal.  The first is in par [144] where it formed part of a submission by counsel for the respondent to the effect that to now issue a new FP to Latitude would raise serious issues of fairness and should be without hearing from those affected.  It is also referred to in par [159] as having been relied upon by senior counsel for Latitude in further support of the submission that the respondent was estopped from denying its obligation to issue the FP as to do so would occasion greater harm to the public interest that any detriment to the public interest arising from the narrowing of the exercise of the respondent’s discretion. 

59                  In a passage at 308 Lord Denning referred to the principle that a corporation cannot contract itself out of its statutory duties and said:

“But that principle does not mean that a corporation can give an undertaking  and break it as they please.  So long as the performance of the undertaking is compatible with their public duty, they must honour it.  And I should have thought that this undertaking was so compatible.  At any rate they ought not to depart from it except after the most serious consideration and hearing what the other party has to say: and then only if they are satisfied that the overriding public interest requires it.  The public interest may be better served by honouring their undertaking than by breaking it.  This is such a case.  It is better to hold the corporation to their undertaking than to allow them to break it.”

60                  The reference in par [176] is therefore in response to the submission for Latitude before the Tribunal.  I agree with the submission for the respondent, it does not indicate the Tribunal applied any incorrect test based on Liverpool Corporation or otherwise.  Rather, the Tribunal had to decide whether the decision to grant the FP was the correct or preferable decision in all the circumstances.  It did so after looking at the individual facts and circumstances and found that the grant of the FP was not consistent with the then prevailing policy of the respondent.  This was not a case in which it was suggested that the Tribunal did not give consideration to whether this might be a case to which the policy should not apply:  cf BHP Direct Reduced Iron Pty Ltd v Chief Executive Officer, Australian Customs Service (1998) 55 ALD 665 at 674.  The passage in par [176] itself is evidence of that. 

Ground 7:  Error of law in failing to take into account relevant considerations concerning delay in application

61                  Seven considerations are pleaded under this ground as ones which the Tribunal was bound to take into account and failed to do so.  The first is the collection of matters raised in the first 6 grounds of appeal.  The second is the findings made by the Tribunal in par [112], aspects of which are set out in finding of fact (3) quoted above.  The third is the claim the Commonwealth ignored a letter dated 30 June 1989 in which Mr Stewart, on behalf of Latitude, requested the issue of a CFBL.  The fourth is the change in policy in relation to CFBLs as one which did not apply to the promise evidenced by the letter dated 16 January 1989 in that the promise referred to the issue of a new licence and not the retention of an existing licence.  The fifth is the allegation that even if the application had been made earlier it was plain the respondent would have erroneously refused to grant a FP.  The sixth is that the Commonwealth, the respondent and third parties did not suffer any material prejudice in consequence of the lapse of time and finally, the lapse of time was satisfactorily explained by Mr & Mrs Boschetti.  Again, for Latitude reliance is placed on Turner at 241 as supporting the need for these matters to have been truly considered and taken into account by the Tribunal. 

62                  For the respondent it is submitted that, as with ground 5, this ground attempts in an impermissible way to undermine a factual finding of the Tribunal by having the Court, itself, re-examine the merits before the Tribunal.  Additionally, it is submitted that it is far from clear that any of the seven alleged relevant considerations were not taken into account. 

63                  In my opinion the submissions for the respondent are correct. 

Ground 8:  Error of law in Tribunal’s rejection of application of estoppel

64                  This ground alleges that the Tribunal erred in law in rejecting the argument for Latitude that the respondent was prevented by the doctrine of estoppel from relying on an argument that legislative and policy changes in the interim prevented the grant of a FP pursuant to the promise evidenced by the letter dated 16 January 1989.  It is said the Tribunal was in error in relying on the view that to accept Latitude’s argument would have required the Tribunal to grant a FP contrary to current policy so that such a grant would be ultra vires the Management Act as amended.  This ground relates to pars [170] and [176] of the Tribunal’s reasons set out in finding (21) above.

65                  The estoppel was particularised as arising from Latitude’s letter dated 14 December 1988 to the AFS; the latter’s response by the letter dated 16 January 1989; the deeds of discharge dated 16 December 1988 and 30 March 1989; and Latitude’s reliance to its detriment on the statements made in the letter of 16 January 1989. 

66                  The submissions for Latitude and for the respondent address a similar body of case law but draw different contentions from it. 

Latitude’s submissions

67                  In the case for Latitude it is said:

(a)                An estoppel cannot operate to extend the power of a statutory authority beyond that given by the statute:  Nicholas v Western Australia (1972) WAR 168 at 174; Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 208; Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at 125;

(b)               Generally, an estoppel cannot operate to prevent or hinder the performance of a statutory duty or the exercise of a statutory discretion in the public interest:  Southend-On-Sea Corporation v Hodgson (Wickford)Ltd [1962] 1 QB 416 at 423, 424; Rubrico v Minister for Immigration & Ethnic Affairs (1989) 23 FCR 208 at 229; Kurtovic at 208, 211;

(c)                But the performance of a statutory duty or the exercise of a statutory discretion may be hindered where it is in the public interest to do so:  Laker Airways v Department of Trade [1977] QB 643 at 707; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 18; Southend-On-Sea at 424;

68                  The first argument for Latitude is that the respondent is estopped from denying it is obliged to issue a permit to Latitude because of the representations which it made to Latitude.  This is because it is said the representations were promissory in character and applied to an operational, as distinct from a policy, matter.

69                  Alternatively it is contended for Latitude that the respondent, in deciding whether or not to grant Latitude a permit, is estopped from denying that the representations were made and that Latitude relied upon them to its detriment.

70                  Additionally, and in support it is submitted for Latitude that to hold that there is an operative estoppel does not preclude the respondent from exercising the discretion which Parliament has vested in the respondent:  Adams & Anor v Executive Director, Fisheries WA (2000) WASC 34 at 22; Southend-On-Sea at 425.  (I do not consider these authorities as cited provide support for the preceding propositions).  The estoppel is directed to the factual basis upon which the discretion is to be, and will be, as a matter of fact, exercised.  To give effect to the estoppel would not expand the scope of the statutory power conferred by s 32 of the Management Act and bind the respondent into ultra vires administrative action.

71                  It is further contended that it is in the public interest that the respondent be estopped from withdrawing or ignoring the representations:  a refusal to hold the respondent to the representations will occasion greater harm to the public interest, by causing grave injustice to Latitude who acted on the representations, than any detriment to the public interest arising from the narrowing of the exercise of the respondent’s discretion:  Laker Airways at 707; Quin at 18; Century Metals & Mining NL v Yeomans (1989) 100 ALR 383 at 412 (an authority I do not consider apt); Liverpool at 308.  To hold the respondent to the representations is not to defeat the public interest in ensuring that a public authority does not, by its conduct, render nugatory schemes which have been gazetted in the interest of an entire community and which are required to be approved by the Minister:  Enoka v Shire of Northampton (1996) 15 WAR 483 at 493 (a citation which does not in my view lend support to the contention).

Respondent’s submissions

72                  For the respondent it is submitted the law does not recognise an estoppel sourced in a representation that may interfere with the exercise of a statutory power, or the performance of a statutory duty, by an executive body:  see Kurtovic at 211; Minister for Immigration & Ethnic Affairs v Petrovski (1997) 154 ALR 606;  Lu v Minister for Immigration & Multicultural Affairs (2000) 176 ALR 79; Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648 at 678.  It is said the basis for this rule is that a public authority cannot preclude itself from exercising important discretionary powers or performing public duties by incompatible contractual or other undertakings:  see Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1977) 139 CLR 54 at 74; Kurtovic at 215.  As stated by Lord Green MR in the unreported decision of  Minister for Agriculture & Fisheries v Hulken, quoted in Kurtovic at 210, the power given to an authority under a statute is limited to the four corners of the power given.

73                  Therefore it is submitted the decision pursuant to s 32 of the Management Act as to whether a fishing permit ought to be granted is the exercise of executive power and not an operational matter and cannot be subject to estoppel:  see Kurtovic at 215 - 216; Adams per McKechnie J at [57] – [80], [92] – [93].

74                  Additionally, the submissions for the respondent state that the estoppel argument of Latitude is quite remarkable in that it urges the Court to accept the respondent was bound to issue a FP under s 32 of the Management Act on the basis of a promise made by a different entity (the AFS), about a different right (a CFBL, not a fishing permit), when a different legislative scheme applied, at a time when CFBLs were not area, species and method specific, and prior to the S/WTBF becoming, as a matter of policy, a limited entry fishery.

Reasoning

75                  The estoppel which the Tribunal was asked to uphold may be analysed against the essential components requisite for an estoppel (whether or not applicable in the circumstances here pertaining:  cf Kurtovic at 216 per Gummow J).  An estoppel may arise in circumstances where it is necessary to “prevent an unjust departure by the representor from an assumption adopted or relied upon by the representee as the basis of some act or omission or other change of position which, if the assumption is not adhered to, they would operate to the detriment of the representee”:  Thompson v Palmer (1933) 49 CLR 507 at 547 per Dixon J; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674 – 675 per Dixon J cited by Gummow J in Kurtovic at 217.  Turning for convenience to the analysis of elements made by Brennan J in Waltons Stones (Interstate)Limited v Maher (1988) 164 CLR 387 at 428 – 429, it is apparent that Latitude could argue:  (1) it assumed the expected legal relationship between it and the respondent constituted by the grant of a CFBL would exist between them; (2) the respondent, by its letter of 16 January 1989, induced Latitude to adopt that expectation; (3) Latitude acted (by selling its units) in reliance on the expectation; (4) the respondent intended Latitude to do so; (5) Latitude’s action will occasion detriment if the expectation is not fulfilled; and (6) the respondent has failed to act to avoid the detriment by fulfilling the expectation, that is, by not granting the CFBL.  So formulated, it does not appear that this is a case where it could be found that any argument for the estoppel against the respondent in the exercise of its power under s 32 of the Management Act must fail at the threshold for want of sufficient clarity:  Legione v Hateley (1983) 152 CLR 406 at 435 – 437; Kurtovic at 207.

76                  However, that formulation makes apparent that the estoppel was sought against the exercise by the respondent of its discretionary power arising under s 32 of the Management Act.  The estoppel (if it were such) in its terms relates to a CFBL.  There is no power in the respondent to exercise the discretion in s 32 or under the Management Act to issue a CFBL.  The estoppel is therefore in the class of estoppel which would, if allowed, produce a result which would be ultra vires the powers of the respondent under the Management Act.  “Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying”:  Kurtovic at 208 per Gummow J; see also at 210 in the citation from Minister of Agriculture and Fisheries v Hulkin.

77                  Even if there were no ultra vires element present, the effect of the estoppel would be to bind the exercise of the statutory discretion in an impermissible way: 

“… a Minister invested with a statutory discretion cannot impair the exercise of the discretion by a representation that he or she will or will not exercise the discretion in a particular way or at a particular time”:  Southend-on-Sea at 424; Brickworks Ltd v Warringal Corporation (1963) 108 CLR 568 at 577; and Rootkin v Kent County Council [1981] 1 WLR 1186 at 1195 – 1196.”

Haoucher at 678 - 670 per McHugh J.

78                  Here the discretion to grant a FP pursuant to s 32 of the Management Act resides in the respondent.  However, s 17(10) provides that while a plan of management is in force for a fishery, the respondent must perform its functions, and exercise its power, under the Management Act in relation to the fisher in accordance with the plan of management.  Section 18(1) requires that when the respondent has formulated such a plan, it must submit it to the Minister for acceptance.  There was here no such plan in force at the relevant time.  However, had there been so, it may be open to argument that an estoppel against the respondent in the exercise of its powers under s 32 would arguably be an estoppel against the implementation of the plan accepted by the Minister and so operative against the Minister without his being a representor party.

79                  The circumstances in the present case fall for resolution on the issue of estoppel in a similar way as those in Adams.  Representations made in 1989 before the enactment of the Management Act by an officer of the AFS as to the manner in which the respondent would exercise a discretion to grant an instrument (a CFBL) which the AFMA has no power to issue, cannot give rise to an estoppel to constrain the exercise of that discretion.

80                  In my view the Tribunal was correct to conclude no estoppel arose.  Accordingly, this ground of appeal cannot succeed.

Ground 9:  Error of law in failure to take into account relevant considerations

81                  The relevant considerations relied upon here are fourfold.  The first are the considerations referred to in pars 1 - 8 in the earlier grounds of appeal.  I accept the submission for the respondent that to the extent that this aspect of the ground has meaning, it is answered or not by the submissions earlier made and the resolution of those grounds. 

82                  The second is that there is not presently and never has been a plan of management for the purposes of s 17 of the Management Act in respect of the S/WTBF.  However, the Tribunal was obviously aware of and had regard to the fact that there was no such plan of management:  see its reasons, pars [74], [81] – [83], [101] – [102], [121], [127] – [128] and [148]. 

83                  The third pleaded relevant consideration is that if the FP had been granted, Latitude intended to maximise use of that permit and Latitude’s existing permits.  I accept the submission for the respondent that this is not a relevant consideration as a matter of law but rather a piece of evidence.  Further, the real complaint is that Latitude is unhappy with the weight which the Tribunal gave to the piece of evidence and submits the Court should factually come to a different conclusion.

84                  The fourth consideration is that if the FP had been granted, then Latitude intended to construct as many purpose-built vessels as it had subsisting permits so that the permits would be fully utilised.  Again, the reasons of the Tribunal show that this evidence was taken into account:  see Tribunal reasons pars [23], [38], [41], [117], [118] and [120]. 

85                  By “taking into account” Latitude contends for the absence of these considerations being taken into account “in any real sense” [cf Turner at 241].   In my view, reference to the paragraphs cited shows that the considerations there referred to were properly taken into account.

Ground 10:  Error of law in construction of statute

86                  The construction given to s 32 of the Management Act appears in finding (16) and (24).

87                  The particularisation of this ground claims, firstly, that s 32(1) does not enumerate the considerations which are to be taken into account in determining whether or not to grant a FP.  It asserts, secondly, that the objectives set out in s 3 of the Management Act, no doubt, must be taken into account but those objectives are not an exhaustive statement of the relevant considerations.  Thirdly, it is particularised that the discretion conferred on the respondent under s 32(1) of the Management Act is wide enough to embrace every consideration reflecting advantage or disadvantage, benefit or prejudice, to Australia, flowing from the grant or refusal of a permit:  compare Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1 at 14; ACI Operations Pty Ltd v Chief Executive Officer of Customs (1998) 53 ALD 86 per Burchett J at 91.

88                  I agree with the submission for the respondent that, examining the references made by the Tribunal to ss 3 and 32 of the Management Act, it did not refer to either of those sections in an erroneous way.  Specifically, it is the case that the objectives of the respondent set out in s 3 are open to be given varying degrees of weight or emphasis.  The weight to be assigned to a particular factor is a matter for the decision-maker and not for this Court to substitute its view in relation to it:  Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314 at 332, 335.

89                  A prima facie reliance upon a policy that there are to be no more S/WTBF fishing permits did not involve a failure to act in accordance with any of the objectives of the respondent.  The decision made by the respondent, as affirmed by the Tribunal, is consistent with objectives (b) and (c) of s 3, given that objective (c) requires a focus on long-term economic efficiency as a whole, not on maximising returns for individual operators:  Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 77 FCR 503 at 515. 

Conclusion

90                  For the above reasons I consider that the “appeal” should be dismissed.

Associate:

Dated:              10 April 2002