FEDERAL COURT OF AUSTRALIA

Kennedy v Australian Fisheries Management Authority [2009] FCA 1485

ADMINISTRATIVE LAW – appeal from a decision of the Australian Fisheries Management Authority to grant certain statutory fishing rights – granting certain statutory fishing rights pursuant to s 26 of the Western Tuna Billfish Fishery Management Plan 2005 – whether notice of appeal contained pure questions of law – whether the Court may frame its own questions of law based on notice of appeal – whether reasons given by the Statutory Fishing Rights Allocation Review Panel (SFRARP) were adequate – whether the SFRARP complied with its statutory obligation to give reasons – whether a failure to give reasons for an administrative decision vitiates the making of that decision – whether a failure to give reasons for an administrative decision can constitute an error of law

Acts Interpretation Act 1901 (Cth) ss 15AA, 25D

Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2), 44, 44(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Fisheries Management Act 2001 (Cth) ss 4, 21(1)(a), 21(1)(b), 21(1)(c), 21(1)(d), 21(2)(a), 21(5)(b), 23(3)(b), 42, 95, 124, 142, 144, 144(3), 150(2), 160(1)(b), 161, 161(4)

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 430, 501G, 501G(4)

Western Tuna and Billfish Fishery Management Plan 2005 ss 11, 15, 20, 20A, 24, 26, 27, 27(1)(a), 27(1)(b), 27(1)(c), 27(1)(d)

Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290, cited

Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, cited

Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 411, referred to

Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321, applied

Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 108 ALD 329, referred to

Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137, applied

Comcare v Etheridge (2006) 149 FCR 522, cited

Comcare v Lees (1997) 151 ALR 647, considered

Commissioner of Taxation v Dixon (2006) 155 FCR 101, cited

Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297, referred to

Director-General of Social Services v Chaney (1980) 47 FLR 80, cited

Dornan v Riordan (1990) 24 FCR 564, considered

Finance Facilities Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia (1971) 127 CLR 106, referred to

Hill v Repatriation Commission (2004) 207 ALR 470, cited

Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, cited

Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, considered

K. & S. Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309, referred to

Leach v The Queen  (2007) 230 CLR 1, cited

Metropolitan Coal Company of Sydney Limited, The v The Australian Coal and Shale Employees’ Federation (1917) 24 CLR 85, cited

Mills v Meeking (1990) 169 CLR 214, referred to

Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, referred to

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, considered

Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Palme, Re (2003) 216 CLR 212, applied

Mountview Court Properties Ltd v Devlin (1970) 21 P & CR 689, referred to

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, referred to

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, referred to

Pettitt v Dunkley [1971] 1 NSWLR 376, referred to

Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177, referred to

Repatriation Commission v O’Brien (1985) 155 CLR 422, considered

State Electricity Commission v Commissioner for Equal Opportunity [1992] 1 VR 79, cited

Stuart v Kirland-Veenstra (2009) 254 ALR 432, referred to

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, cited

United Firefighters Union, Re (1969) 129 CAR 43, referred to

Wentworth Securities Ltd v Jones [1980] AC 74, referred to

GARY J KENNEDY v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

VID 1088 of 2008
VID 1089 of 2008
VID 1090 of 2008

TRACEY J

21 DECEMBER 2009

MELBOURNE

ON APPEAL FROM STATUTORY FISHING RIGHTS ALLOCATION REVIEW PANEL

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The applicant pay the first respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

ON APPEAL FROM STATUTORY FISHING RIGHTS ALLOCATION REVIEW PANEL

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The applicant pay the first respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

ON APPEAL FROM STATUTORY FISHING RIGHTS ALLOCATION REVIEW PANEL

THE COURT ORDERS THAT:

1.         The appeal be dismissed

2.         The applicant pay the first respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

ON APPEAL FROM STATUTORY FISHING RIGHTS ALLOCATION REVIEW PANEL

REASONS FOR JUDGMENT

1                          Mr Gary Kennedy has worked as a commercial fisherman since 1978.  He has previously held permits to take various species of fish in the Western Tuna and Billfish Fishery (“the WTBF”).  At various times in 1998, 1999 and 2000, Mr Kennedy suffered from illnesses which prevented him from fishing.  In 2005 he applied for a new fishing concession.  These concessions were known as Statutory Fishing Rights (“SFRs”).  They were allocated by the Australian Fisheries Management Authority (“AFMA”).  In determining quota allocations for each permit-holder AFMA applied a formula which was stipulated by the Western Tuna and Billfish Fishery Management Plan 2005 (“the Management Plan”).  This plan was made under the Fisheries Management Act 1991 (Cth) (“the Act”).  The formula took account of the weight of the catch taken by Mr Kennedy under the permits he held between 1997 and 2001.  The more he caught during that period, the greater was his potential entitlement under the new SFRs for which he applied.  The Management Plan took account of the possibility that former permit-holders might, like Mr Kennedy, have been prevented, by illness or other causes, from catching as many fish as they might otherwise have done but for the relevant disability.  Mr Kennedy contends that, in applying this ameliorative provision to him, both AFMA and an appellate panel misconstrued it and did not apply it to the entire period during which he was entitled to its benefit.

2                          Mr Kennedy has exercised a right of statutory appeal from the panel’s decision.  I have concluded that the panel did not misconstrue the ameliorative provision and that, as a result, Mr Kennedy’s quota SFRs have been calculated as required by the Management Plan.  I have also concluded that Mr Kennedy has failed to establish error on the part of the panel in relation to its determination of the period during which he was prevented by illness from fishing.  In my view, the reasons provided by the panel were, in certain respects, inadequate.  That inadequacy does not, however, have implications for the validity of the panel’s decision. 

FACTUAL AND LEGISLATIVE BACKGROUND 

3                          AFMA is the regulator and manager of the WTBF and has the power to grant fishing concessions.  Under s 95 of the Act, it is an offence to engage in commercial fishing in the Australian Fishing Zone, including the WTBF, without a fishing concession. SFRs and fishing permits are types of fishing concessions: see s 4 of the Act.  In 2005 AFMA introduced the Management Plan which fundamentally changed the way the WTBF was managed.  Prior to the introduction of the Management Plan, what is now the WTBF was regulated by fishing permits which were granted on the basis of “input controls” which included restrictions on equipment and access to fisheries.  The Management Plan provided for the grant of SFRs which regulated the WTBF through “output controls” which imposed limits on the amounts of fish an operator could take in a fishing season.  Each of the right to take a particular quantity of fish; the right to a particular proportion of the fishing capacity; the right to engage in fishing in a managed fishery at particular times; and the right to use a boat in a managed fishery is a separate SFR (s 21(1)(a), (b), (c) and (d) of the Act).

4                          The Management Plan provides for the grant of boat SFRs and quota SFRs, both of which are required in order to fish commercially in the WTBF (s 15 of the Management Plan).  Boat SFRs permit the holder to have access to and operate in the WTBF.  Quota SFRs authorise the holder to take a certain volume of a particular species of fish that is subject to a quota.  Relevantly, those species are striped marlin, bigeye tuna, broadbill swordfish, and yellowfin tuna.  The quota is the volume, calculated by weight, of a particular species that may be taken under an SFR in a fishing season.  Before the start of each fishing season, AFMA determines the total weight of each species that can be taken in that season (s 11 of the Management Plan).  The total weight for each species is then divided by the total number of SFRs for that species.  A particular weight is thereby allocated to each SFR for the species.  This weight is subject to change each fishing season. 

5                          On 31 October 2005 AFMA published a notice in the Commonwealth of Australia Special Gazette No. S182 which invited interested persons to register as eligible for a grant of SFRs under the Management Plan.  Mr Kennedy held an old longline permit (within the meaning of that term as defined in s 20 of the Management Plan) and was, therefore, an eligible person for the grant of SFRs.  The allocation of boat SFRs is relatively straightforward.  Each old longline permit entitled the holder to one boat SFR (s 24 of the Management Plan).  As the holder of one old longline permit Mr Kennedy was granted one boat SFR.  The allocation of quota SFRs involves a more complex calculation.  AFMA determined on 2 May 2007 that 67 persons, including Mr Kennedy, were eligible for a grant of SFRs. The total number of quota SFRs that were available for each of the relevant species were:    

·          striped marlin – 112,716;

·          bigeye tuna – 1,077,438;

·          broadbill swordfish – 1,075,175; and

·          yellowfin tuna – 1,069,431.

6                          The number of quota SFRs that were to be allocated to each eligible person who held an old longline permit was determined according to the formula set out in s 26 of the Management Plan:   

“26      Availability of grants of SFRs to old longline permit holders (Act s 23)

(1)        For each old longline permit that an eligible person held at the end of the   notice period, grants of the following SFRs are available to the person:

            (a)        the number of striped marlin SFRs calculated in accordance with                         subsection (2);

(b)        the number of bigeye SFRs calculated in accordance with            subsection (3);

            (c)        the number of broadbill SFRs calculated in accordance with                                 subsection (4);

            (d)        the number of yellowfin SFRs calculated in accordance with                                subsection (5).

(2)        For paragraph (1) (a), the number of striped marlin SFRs is:

(3)        For paragraph (1) (b), the number of bigeye SFRs is:

where:

            CH (or catch history) is:

            L:F (or longline – fishery ratio) is:

            RPV (or relative permit value) is:

            (a)        0.013164; or

            (b)        if the sequence of old longline permits applied only to the old                                Southern Tuna and Billfish Fishery or only to the old Western Tuna                        and Billfish Fishery — 0.008101.

            SH (or set history) is calculated as follows:

            Step 1.   Determine the 2 years, within the relevant period, during which a           longline was set under the sequence of old longline permits the greatest    number of times.

            Step 2.   Count, from logbook records held by AFMA, the total number of           times a longline was set under the sequence in the 2 years determined in Step             1, giving the best 2 years’ sets for the sequence.

            Step 3.   Calculate the total number of best 2 years’ sets for all sequences of       old longline permits.

            Step 4.   Divide the best 2 years’ sets for the sequence of old longline permits      by the result of Step 3, giving the set history for the sequence of permits.

(4)        For paragraph (1) (c), the number of broadbill SFRs is:

                        where:

            CH is:

            L:F has the meaning given in subsection (3).

            RPV has the meaning given in subsection (3).

            SH has the meaning given in subsection (3).

(5)        For paragraph (1) (d), the number of yellowfin SFRs is:

where:

            CH is:

            L:F has the meaning given in subsection (3).

            RPV has the meaning given in subsection (3).

            SH has the meaning given in subsection (3).

Note 1   If under subsection 29 (4) of the Act, SFRs are made available to a person, AFMA must notify the person (and each other person who registered under section 26 of the Act) about that fact and give a statement of reasons.

Note 2   Section 30 of the Act provides that, within 30 days of SFRs being available to a person, the person must pay the amount of any charge due and payable under the Statutory Fishing Rights Charge Act 1991. For this Management Plan, there is no charge.

Note 3   The last in a sequence of old minor line permits or old longline permits is held by an eligible person at the end of the notice period: see section 20A”.

7                          The formula treated all holders of the same permit class equally and recognised the asset value of a fishing permit.  The number of quota SFRs each eligible person was allocated was determined on the basis of their catch history for each species and their shot history.  A shot is throwing a line or a net out in an attempt to catch fish.  The catch history and shot history were ascertained by reference to the person’s AFMA Daily Fishing Logbook.  Each permit-holder was required to maintain a logbook pursuant to determinations made under s 42 of the Act.  Importantly, the formula allowed a fisherman to rely on his or her best two years’ catches between 1997 and 2001 (inclusive), which s 20 of the Management Plan defined as the relevant period.  Section 20B of the Management Plan explained how the best two years’ catches was to be determined:  

“For this Division, the best 2 years’ catches for a species of fish and a sequence of old longline permits …  is determined as follows:

Step 1.   Determine the 2 years, within the relevant period, during which the greatest calculated weight of fish of the species was taken under the sequence of permits.

Step 2.   The best 2 years’ catches is the total calculated weight of that species taken under the sequence in the 2 years”.

8                          The definition of sequence of permits is contained in s 20A of the Management Plan:   

“20A    Sequence of permits

(1)        For this Division, a sequence of old longline permits means a number of   those permits:

            (a)        each of which is connected to another of them; and

            (b)        the earliest of which was in force during the relevant period and the                     latest of which was held by an eligible person at the end of the notice                    period.

…

(3)        For subsections (1) and (2), two permits are connected if:

            (a)        each entitled the holder to fish in the same area of the fishery using                      the same fishing method; and

            (b)        one permit commenced after the other ceased to have effect; and

            (c)        the later permit was granted to the person that:

(i)         was the holder of the earlier permit when it ceased to have effect; and

                                    (ii)        applied to AFMA for the grant; and

            (d)        the later permit was granted because the person held the earlier                           permit.

(4)        In this Division, a reference to fish taken or caught, or longlines set, under a        sequence of permits is a reference to fish taken or caught, or longlines set,     under a permit or permits that form part of the sequence”.

9                          In order to determine the calculated weight, AFMA was required first to determine the total weight of fish by referring to an applicant’s catch history for the period as recorded in the AFMA Daily Fishing Logbook: see s 21(2)(a) of the Management Plan.  It was then obliged to give a notice of this weight to the eligible person.  The eligible person was entitled to notify AFMA that he or she disagreed with the calculated weight.  If this occurred, AFMA could seek various documents from the eligible person and determine the calculated weight using those documents (s 21(5)(b)). 

10                        By letter dated 16 December 2005 AFMA confirmed that Mr Kennedy had been registered as an eligible person for the grant of SFRs.  AFMA also informed Mr Kennedy of its determination of the calculated weight of yellowfin tuna, bigeye tuna and broadbill swordfish taken under his permit during the 1997-2001 period.  Mr Kennedy advised AFMA that he disagreed with its assessment.  Subsequently, Mr Kennedy claimed that he had suffered serious misfortune from February 1998 to May 2001 within the meaning of s 27 of the Management Plan.  In letters to AFMA dated 13 January 2006 and 9 April 2007, Mr Kennedy claimed serious misfortune because:

·          Of various illnesses between February 1998 to May 2000;  

·          For an unspecified period, he suffered chronic sinusitis and repetitive headaches;

·          From 2 July to 22 July 1997, he had travelled to Cairns to learn how to pack and grade tuna and to look at boats and fishing equipment;

·          In November 1997 he purchased his first longline reel and fishing gear.  It took six weeks to receive and fit this gear to the vessel Flying Fish IV;

·          From 15 January 1998 to 26 March 1998, he fished out of Albany WA.  There were no packing facilities in Albany and, as a result, he had to drive the fish to Perth himself; 

·          From February 1998 to November 1998, he suffered a severe bout of shingles and was unable to work during that time;

·          From June 1998  to August 1998, he suffered from bilateral carpel tunnel syndrome;

·          In June and July 1998, he travelled to Port Lincoln, Portland, Geelong, Hobart, Lakes Entrance and Melbourne to attempt to purchase a fishing vessel;

·          From May 1999 to June 1999, he suffered from right hand repetitive strain injury and tendonitis; 

·          From July 1999 to May 2000, he suffered severe gastritis;

·          In July 1999, he travelled to New Zealand and purchased the Mandy J.  That vessel could not be relocated to Australia and was sold in November 1999.  The sale was not completed until May 2000; and  

·          In April 2000, he travelled to Japan to inspect fishing vessels but did not find one.  He returned to Japan shortly after and bought the vessel True Blue IV.  He again travelled to Japan in June 2000 to prepare True Blue IV for sea.  It took two months to arrange a crew and organise appropriate paperwork with customs, deregister the boat in Japan and register it in Australia.  True Blue IV left Japan on 23 August 2000 and arrived in Brisbane on 13 September 2000.  It was then refitted.  Trial runs began in May 2001 and fishing began in June 2001. 

11                        Mr Kennedy claimed that, as a result of his serious misfortune, his SFRs should be calculated in accordance with s 27(1) of the Management Plan.  Section 27 modified the formula in s 26 by providing an alternative to actual catch and set history if a person’s fishing activity was reduced because of serious misfortune during the period between 1997 and 2001 (inclusive).  It provided that:

“27      Serious misfortune affecting availability of SFRs

(1)        If:

            (a)        an eligible person holds a sequence of permits; and

            (b)        but for this section, fewer SFRs would be available to the eligible                         person under section … 26 because of a serious misfortune                                suffered, during the relevant period, by the eligible person or a                                  previous holder of a fishing permit in the sequence;

            AFMA may:

            (c)        in calculating the number of SFRs to be available to the eligible    person under section 25 or 26, as the case requires, calculate the best 2 years’         catches of a species of fish under the sequence of permits by using, for the             period of the serious misfortune, the average catch of the species in the             fishery under all sequences of that kind (old longline or old minor line, as the         case may be) during that period; and

            (d)        in calculating the number of SFRs to be available to the eligible    person under section 26, calculate the best 2 years’ sets for the relevant   sequence of permits for Step 1 of the definition of SH in subsection 26 (3),          by using, for the period of the serious misfortune, the average number of times a longline was set in the fishery under all sequences of old longline permits during that period.

(2)        For subsection (1), serious misfortune, for the holder of an old longline    permit or old minor line permit, means a misfortune that, for more than    3 months, prevented the holder:

            (a)        obtaining income from fishing under the holder’s permit; and

            (b)        arranging another way for fishing to be carried out under the permit;

            for example, the loss of, or serious damage to, the boat that was nominated           for the permit, or a serious illness of, or injury to, the holder.

Note   If the holder of an old longline permit or old minor line permit suffered a serious misfortune that affected the holder’s ability to fish under more than 1 permit, the total time of the misfortune is taken into account”.

12                        AFMA determined that Mr Kennedy had not suffered “serious misfortune” within the terms of s 27 of the Management Plan.  It made a provisional determination that Mr Kennedy should be granted the following SFRs:  

·          striped marlin SFRs – 909;

·          bigeye tuna SFRs – 11137;    

·          broadbill swordfish SFRs – 10527;  

·          yellowfin tuna SFRs – 8591; and  

·          boat SFRs – 1.  

13                        Dissatisfied, Mr Kennedy applied to the Statutory Fishing Rights Allocation Review Panel (“the Panel”) for a review of AFMA’s decision.  No SFRs could be granted to any eligible person until the Panel had dealt with Mr Kennedy’s application (s 23(3)(b) of the Act).  By s 144 of the Act, each other person who was registered under s 26 in relation to the grant of a fishing right was deemed to be a party to the proceeding before the Panel.   

THE PANEL’S DECISION

14                        The Panel is a specialist body, established under s 124 of the Act, which is charged with conducting a merits review of certain decisions made by AFMA (s 142 of the Act).  Mr Kennedy’s application was heard on 12 and 13 December 2007 by Mr Baston (Principal Member), Mr Lister and Ms Yeoh (Members).  Sometime after the hearing, but before a determination was made, Ms Yeoh’s term expired and she left the Panel. She was later reappointed but was not a member when the Panel made its decision.  As a result, only Mr Baston and Mr Lister made the decision and gave the reasons for decision which were delivered on 1 December 2008.  The decision of the Panel, constituted by Mr Baston and Mr Lister, was recorded as follows:

“1.       The claim of Gary J Kennedy of serious misfortune under section 27 of the [Management] Plan is upheld for the periods from February 1998 to November 1998 and from July 1999 to April 2000.

2.         [AFMA] is to recalculate [Mr Kennedy’s] SFRs based on the total average catch which should be assessed by reference to all permit holders.

…”.  

Claim for serious misfortune and period of serious misfortune

15                        The Panel noted that the word “misfortune” is not defined in the Management Plan and considered that it must “be interpreted in accordance with its ordinary and natural meaning”.  The Panel rejected AFMA’s submission that serious misfortune was limited to “bad luck or unforseen circumstances outside of the control of the permit holder; not lack of planning or result of unfortunate or ill advised investment decisions”.  It adopted the definition contained in the Macquarie Dictionary (4^th Ed): “ill or adverse fortune, ill luck” and that contained in the Concise Oxford English Dictionary: “bad luck” and “an unfortunate event”.  The Panel then asked itself three questions:

(i)         Did the “misfortune” relied on by Mr Kennedy prevent him from obtaining income from fishing under the holder’s permit?

(ii)        Did the misfortune prevent Mr Kennedy from arranging another way for fishing to be     carried out under the permit?

(iii)       Did the misfortune prevent Mr Kennedy from fishing under the holder’s permit and        arranging another way for fishing to be carried out under the permit for more than three months?

16                        In dealing with the first question, the Panel rejected AFMA’s contention that, in order to establish serious misfortune, a person must not have earned any income from his fishing permit during the period of claimed misfortune.  This “arbitrary” gloss was said to place “an unwarranted and unnecessary constraint upon the decision maker”.  It then turned its attention to Mr Kennedy’s claimed misfortune.

17                        The principal witnesses who were called in support of Mr Kennedy’s claim were the applicant himself and his general practitioner Dr Mark Zafir.  Their evidence was critical in relation to the issues raised by the first question.  The Panel was impressed by both witnesses.  The Panel found that Mr Kennedy was an “honest and reliable witness”, who gave a “full, frank and truthful account” of the facts.  In relation to Mr Kennedy’s general practitioner the Panel said:

“58.      Dr Zafir was and still is Kennedy’s local GP. There is no doubt that treating         health professionals such as Dr. Zafir, when expressing opinion[s] before       tribunals such as the Panel often take on the role of an advocate for their     patient. The Panel observed Dr. Zafir to take on such a role for Kennedy. The             Panel however is satisfied that Dr. Zafir’s evidence is reliable and supportive       of a finding of serious misfortune based upon illness alone”.  

It continued:   

“62.      The Authority submits that the illnesses were in two distinct periods, February to November 1998 and July 1999 to April 2000 and that Kennedy’s “fishing operations did not get up and running till May 2001”. There is considerable merit in such an analysis. Depending on the Panel’s view of the evidence of Kennedy and his witnesses it may be a determinative factor” (citations omitted).     

18                        In his submissions to the Panel Mr Kennedy claimed that he was prevented by misfortune from fishing between February 1998 and May 2001.  AFMA contended that, while Mr Kennedy’s health affected his ability to fish, it did not prevent him from fishing altogether and that there were a number of causes of Mr Kennedy’s inability to fish “between 1997 and May 2001” which could not be characterised as serious misfortune.  The reasons put forward by AFMA for Mr Kennedy’s inability to fish included:  

·          Mr Kennedy was not interested in undertaking other fishing;

·          Mr Kennedy’s general practitioner said that Mr Kennedy was better by November 1998; 

·          Initially, Mr Kennedy had not claimed to be ill between January and July 1999; and    

·          From January 1999 the reason Mr Kennedy was not fishing was the result of a lack of planning or a result of unfortunate or ill advised investment decisions.  He had entered into a trial partnership which dissolved, for reasons unrelated to his health, leaving him with no boat from January 1999 – July 1999.  The reason he had nil returns during this period was that he was looking for a new boat.  In July 1999 he purchased a boat which he resold a short time later at a significant loss.    

19                        The Panel considered that it was necessary to assess Mr Kennedy’s claim for serious misfortune having regard to the whole of the relevant circumstances, as part of an ongoing chain of events between 1997 and 2001, and that AFMA had failed to do this.

20                        In relation to the second question, the Panel rejected AFMA’s submission that the definition of serious misfortune meant that Mr Kennedy must establish that he could not get someone else to use or operate the permit as too restrictive and unreasonable in the circumstances.  It accepted the submission, advanced by Mr Kennedy, that the assessment of his actions should take into account the uncertainty surrounding his illness and his genuine desire to return to fishing. 

21                        In answer to the third question, the Panel said: 

“81.      Kennedy claims to have suffered a serious misfortune from February 1998 to May 2001.

82.       [AFMA] claims that there were discrete periods of illness, being February to November 1998 and July 1999 to April 2000. There is much in this submission.

83.       The Panel finds that, on the whole of the evidence, Kennedy has established a serious misfortune claim for [the] period from February 1998 to November 1998 and from July 1999 to April 2000”.           

22                        The Panel’s reasons do not summarise “the whole of the evidence” and, in particular, they fail to refer to any medical evidence that supported its findings that there were two discrete periods of illness between February and November 1998 and July 1999 and April 2000.  The Tribunal had before it a series of reports from Dr Zafir.  The findings in paragraph 82 of the Panel’s reasons appear to be based on a report Dr Zafir gave dated 10 January 2006.  In that report he records that Mr Kennedy was diagnosed with a severe bout of shingles on 11 February 1998 and had suffered “continuing pain and blisters in the right thoracic region for about nine months”.  Later in the report Dr Zafir recorded that, in July 1999, Mr Kennedy developed a severe bout of gastritis with diarrhoea, vomiting and persisting headaches which affected him “through until the boat was sold in approximately May 2000”.

23                        The Panel’s finding that Mr Kennedy had suffered serious misfortune meant that it was necessary to apply s 27 of the Management Plan to determine the number of SFRs that were to be granted to him.  The Panel was therefore required to determine how s 27 was to be construed and, in particular, how AFMA was to perform the calculation required by s 27.    

Construction of s 27 of the Management Plan

24                        At paragraphs 47 and 48 of its reasons, the Panel recorded the competing submissions advanced by Mr Kennedy and AFMA as to the proper construction of s 27 of the Management Plan:     

“47.      The Form of Order/Statutory Construction. Kennedy submits that he should          be heard on the matter of the method of calculation, should the Panel accept        that s 27 applies, and contended that the total average catch should be            assessed by reference to active permit holders.  

48.       [AFMA] submits that the Panel must decide to whom the grant is to be made and how many SFRs are to be granted. [AFMA] submits that, should the Panel determine that section 27 applies, Kennedy must be given the average catch of the fleet for that period or periods (that being the total take of the fleet divided by the number of licence holders)” (emphasis in original, citations omitted).

25                        The Panel dealt with the construction of s 27(1)(d) of the Management Plan in paragraphs 84 and 85 of its reasons:

“SFR Calculation Method

84.       The calculation method, to the extent it is under challenge, depends upon an interpretation of the plan:

(d)        in calculating the number of SFRs to be available to the eligible person under section 26, calculate the best 2 years’ sets for the relevant sequence of permits for Step 1 of the definition of SH in subsection 26 (3), by using, for the period of the serious misfortune, the average number of times a longline was set in the fishery under all sequences of old longline permits during that period.

85.       The Panel considers the interpretation asserted by [AFMA] to be correct. The expression “all sequences of old longline permits” to be reference (sic) to all sequences and not limited to those under which fishing activity took place in the relevant period”.

26                        The Panel did not, in the course of considering the parties’ submissions as to the construction of s 27, refer to s 27(1)(c).  Mr Kennedy and AFMA had both based parts of their submissions on that provision and, in particular, the phrase “the average catch of the species in the fishery under all sequences of that kind …”.

27                        The Panel gave the parties 7 days to consider its reasons and gave AFMA seven days to calculate the SFRs to which Mr Kennedy was entitled, based on its findings.  On 22 December 2008 the Panel set aside AFMA’s decision and substituted its decision as to the persons to whom a grant of SFRs was to be made under the Management Plan and the number of SFRs to be granted to each person. Mr Kennedy was granted the following SFRs:

·          striped marlin SFRs – 909; 

·          bigeye tuna SFRs – 11447;  

·          broadbill swordfish SFRs – 11031; and

·          boat SFRs – 1.

The substituted decision of the Panel is taken to be a decision of AFMA: see s 150(3) of the Act. 

APPEAL TO THIS COURT

28                        Mr Kennedy filed an appeal from the Panel’s decision in this Court on 24 December 2008.  This appeal was said to be brought pursuant to s 161 of the Act, s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth).  At the hearing Mr Kennedy was granted leave to file an amended notice of appeal dated 28 May 2009, subject to AFMA’s objections.  This was the tenth iteration of the notice of appeal.  This version of the notice of appeal relied only on s 161 of the Act.    

29                        AFMA has objected to the competency of the appeal on the ground that, with the exception of paragraph 2(c), no question of law was disclosed in the notice of appeal.  It is necessary, because of the jurisdictional issue raised by AFMA, to set out the questions of law and the grounds of appeal contained in Mr Kennedy’s notice of appeal:

“2.       QUESTIONS OF LAW

(a)       Whether, on its proper construction, section 27 of the [Management Plan] permits a calculation of the kind described in subsections 27(1)(c) and (d) to be assessed by reference to all permit holders, active or inactive, rather than to active permit holders who are fishing or engaged in fishing. 

(aa)      Whether, on its proper construction, the presence of the word “may” in section 27(1) of the Plan confers a discretion on [AFMA] to perform a calculation of the kind described in sub-sections 27(1)(c) and (d) or whether, on its proper construction, the presence of the word “may” therein means that once a claimant satisfies the conditions set out in sub-sections 27(1)(a) and (b), [AFMA] must perform the aforesaid calculation.

(b)        [This question was not pursued]

(c)       Whether the Panel, by reason of its “Reasons for Decision” herein, complied with the requirement cast upon it by paragraph 160(1)(b) of the Act, namely, “to prepare a written statement…(b) setting out the reasons for the decision.”

(d)     Whether it is possible to ascertain from the Panel’s “Reason’s for Decision” what the reasoning process was that led to its decision.

(e)       If No to question (c) and/or (d), whether such a defect constitutes an error of law on the face of the record.

GROUNDS

(a)       On a proper construction of section 27 of the Plan the Panel should have held that, once an eligible person meets the conditions in s. 27(1)(a) and (b) thereof, the decision-maker is not only empowered to perform the calculation set out in s. 27(1)(c) and (d) but must do so.

(b)       The Panel fell into error in pars 84 and 85 of its reasons for decision by failing to construe so much of section 27(1)(c) of the Plan as refers to “the average catch of the species in the fishery under all sequences of that kind” as requiring the decision-maker to leave out of calculation permits that have no catch history during the period under consideration.

(c)       The Panel fell into error in par 85 of its reasons for decision by failing to construe so much of section 27(1)(d) of the Plan as refers to “the average number of times a longline was set in the fishery under all sequences of old longline permits” as requiring the decision-maker to leave out of calculation permits that have no set history during the period under consideration.

(d)       The Panel fell into error by failing to show which evidence, if any, upon which it relied in arriving at the finding that [Mr Kennedy] had only established a serious misfortune claim for the “period from February 1998 to November 1998 and from July 1999 to April 200[0]” (par 83, reasons for decision).

(e)       The Panel fell into error by failing to disclose adequately or at all in par 84 or 85 or elsewhere in its reasons for decision its method of calculation.

(f)        As a consequence of the failures described in grounds (d) and/or (e), the Panel committed an error of law on the face of the record”.

30                        AFMA complains that question (a) lacks precision because it does not specify for what period a permit must be “active”.  AFMA submits there are four potential periods:  active over the whole five year qualifying period (1997 to 2001 inclusive), active over the best two years, active over one year or active over the period of serious misfortune.  As a result, an answer to that question could not assist Mr Kennedy.  Further, AFMA submits that the resolution of the question in 2(aa) would give Mr Kennedy no entitlement to relief nor would it identify an error of law: see Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 326-327.  In any event, AFMA submits that the Panel did not make a finding upon which question 2(aa) is based. AFMA also complains that questions 2(d) and 2(e) do not raise pure questions of law.   

31                        Section 161 of the Act, like s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), allows an appeal to this Court only on a question of law.  The existence of a question of law is not merely a qualifying condition to ground an appeal under s 44, but is also the subject matter of the appeal itself:  see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J.  The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal:  see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseyeat 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302; Comcare v Etheridge (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at 253-7.  In Birdseye, Branson and Stone JJ held (at 325) that:

“… O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law.  It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal” (emphasis added).

32                        I accept AFMA’s submission that, with the exception of question 2(c), the “questions of law” which are said to be raised in the present appeal are not true questions of law.  Each question lacks the necessary precision.  The questions are cast at such a level of generality that an answer would not assist in forging the necessary link between the question, the circumstances of the case and the orders being sought by Mr Kennedy.

33                        In other cases in which the Court has been confronted with this problem and in which it has determined that it might be possible to frame an appropriate question of law, it has done so itself: see, for example, Birdseye.  Under the cover of its objections to the competency of the appeal, AFMA conceded that questions of law could possibly be framed and argued on the substantive issues raised by Mr Kennedy.  In the event, AFMA will suffer no prejudice if I attempt to frame questions of law.  In my view, it is possible to identify three questions of law:

·          Whether, on the proper construction of s 27 of the Management Plan, AFMA and the Panel are bound to take into account all permits extant during the period of an eligible person’s serious misfortune when determining “the average catch of the species in the fishery under all sequences of that kind (old longline or old minor line, as the case may be)” under s 27(1)(c)?

·          Whether on the proper construction of s 27 of the Management Plan, AFMA and the Panel were bound to take into account all permits extant during the period of an eligible person’s serious misfortune when determining “the average number of times a longline was set in the fishery under all sequences of old longline permits” under s 27(1)(d)?

·          Whether there was any evidence before the Panel upon which it was open to it to find that the period of serious misfortune suffered by Mr Kennedy was limited to the periods from February 1998 to November 1998 and from July 1999 to April 2000?    

CONSTRUCTION OF S 27 OF THE MANAGEMENT PLAN

34                        Section 27 is an ameliorative provision which operates to the benefit of an eligible person who has suffered serious misfortune.  When a person has suffered serious misfortune, AFMA may calculate:  

·          the best two years’ catches of a species of fish under the sequence of permits by using, for the period of serious misfortune, the average catch of the species in the fishery under all sequences of that kind (old longline or old minor line, as the case may be) during that period (s 27(1)(c)); and

·          the best two years’ sets for the relevant sequence of permits for step 1 of the definition of set history in s 26(3), by using, for the period of the serious misfortune, the average number of times a longline was set in the fishery under all sequences of old longline permits during that period: s 27(1)(d) (set history was not incorporated in the formula for calculating quota SFRs for people who held old minor line permits).     

Mr Kennedy held an old longline permit.  The relevant sequences of permits are therefore sequences of old longline permits.

35                        The Panel determined that Mr Kennedy had suffered serious misfortune within the meaning of s 27.  In those circumstances, section 27(1) provides that “AFMA may” perform the calculations in s 26 by using the average catch of the relevant species under all sequences of longline permits (s 27(1)(c)) and the average number of times a longline was set under all sequences of longline permits (s 27(1)(d)) in calculating the number of SFRs to be granted to Mr Kennedy under s 26.

36                        Mr Kennedy contended that s 27 makes remedial provision for an eligible person who has been disadvantaged by having suffered a serious misfortune.  For an eligible person so disadvantaged, s 27 provides a benevolent scheme: a person who suffered serious misfortune should be no worse off than he or she might have been had the relevant period been worked. Accordingly, once an eligible person comes within the purview of ss 27(1)(a) and (b) of the Management Plan, he or she is entitled as of right to AFMA’s making the calculations prescribed by ss 27(1)(c) and (d):  see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223; The Metropolitan Coal Company of Sydney Limited v The Australian Coal and Shale Employees’ Federation (1917) 24 CLR 85 at 96-100; Re United Firefighters Union (1969) 129 CAR 43 at 52-55; Finance Facilities Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia (1971) 127 CLR 106 at 134-5; Stuart v Kirland-Veenstra (2009) 254 ALR 432 at 468.  It was submitted that the word “may” in s 27(1)(c) of the Management Plan confers a power on AFMA which is to be exercised upon its satisfaction of the matters described in ss 27(1)(a) and (b): see Leach v The Queen  (2007) 230 CLR 1 at 17-18.  

37                        AFMA maintained that the issue was not properly the subject of an appeal. It submitted that the question of whether or not it had a discretion or was obliged to make the calculations prescribed by ss 27(1)(c) and (d) was not a question that arose from the decision of the Panel.  The Panel made no finding as to whether s 27 conferred a discretion or whether AFMA was obliged to make the calculations.  The Panel exercised no discretion.  It directed that the calculations required by ss 27(1)(c) and (d) be made without making a finding on the issue.

38                        A problem for the Court is that the Panel’s reasons do not contain any analysis of s 27, or any elaboration on how the calculations were to be performed.  The Panel certainly made no express finding as to whether s 27 conferred a discretion or whether AFMA was obliged to make the calculations.  It merely directed that AFMA make the calculations required by ss 27(1)(c) and (d).  It is unclear whether the Panel considered that AFMA had a discretion and (directed AFMA to exercise that discretion) or whether it considered that AFMA was obliged to make the calculations.  Its failure to make such findings strongly suggests that it did not turn its mind to the matter.  In the present case, however, nothing turns on the point.  While it would have been preferable for the Panel to express its view on the issue, it was not necessary for the Panel to make an express finding on whether the word “may” in s 27 imposed a discretion or an obligation on AFMA for the calculations in s 27(1)(c) and (d) to be made.  The Panel directed that the calculations be made.  The calculations were made.  The failure by the Panel to deal expressly with this issue did not affect how s 27 was applied to Mr Kennedy, or prejudice his interests.      

39                        The primary issue in dispute between the parties, both before the Panel and in this Court, is what is meant by the phrase “all sequences” in s 27(1)(c) and (d) of the Management Plan. Mr Kennedy contends that the phrase should be limited to the old longline permits that were in use or “active” during “the period”.  AFMA, on the other hand, maintains that the phrase includes all of the old longline permits, whether those permits were “active” or “inactive”.  AFMA also complained that Mr Kennedy had not identified the period that was to be considered when assessing whether a permit was active or inactive: the entire relevant period, annually, or for each period of serious misfortune. Inactive permits have a catch history and a set history of zero for the period they are inactive.  The total catch and the total number of sets for any defined period are, therefore, constant, whether one includes all permits or includes only active permits.  What is in issue is the numeral by which these totals should be divided to produce the relevant average.  If all sequences of old longline permits include only active permits, the averages will be higher than if one divides the total catch history and the total set history by all old longline permits, active and inactive.  Because s 27 requires the averages to be fed into the formula in s 26, the number of permits that are included under “all sequences” of old longline permits directly affects the number of quota SFRs Mr Kennedy was entitled to receive.

40                        Mr Kennedy complained that, while the Panel directed AFMA to recalculate his SFRs “based on the total average catch which should be assessed by reference to all permit holders”, it failed to specify what it meant by “average catch”.  He submitted that the Panel failed to construe so much of s 27(1)(c) of the Management Plan as refers to “the average catch of the species in the fishery under all sequences of that kind”.  The construction favoured by Mr Kennedy would require that the decision-maker leave out of the calculation permits that had no catch history during the period under consideration.  The same complaint was made in relation to s 27(1)(d) with respect to permits that had no set history during the period under consideration.  He submitted that the Panel should have construed (but failed to construe) s 27(1) as requiring AFMA to recalculate his quota SFRs based on the total average catch and/or sets assessed by reference only to active permit-holders rather than all permit-holders.  

41                        Mr Kennedy contended that it was not appropriate to fasten upon the word “all” in s 27(1)(c) and 27(1)(d) and treat it as though it governed the construction of s 27 as a whole.  The construction advanced by Mr Kennedy was that the references to “all” were to “all sequences of a particular kind”, old longline or old minor line, during the period under examination.  The use of the words “catch” in “the average catch of the species in the fishery” in s 27(1)(c) and “set” in “the average number of times a longline was set in the fishery” in s 27(1)(d) were said to speak of active fishing rather than “non-fishing”.  The argument ran that, to make a catch or set, it was necessary to put to sea to fish.  Only permits that were active during the period of serious misfortune should thus be included in the calculation. The inclusion of inactive permit-holders in the calculations would erode the value of the SFRs held by an eligible person who has suffered a serious misfortune.  It was submitted that, having regard to the Act as a whole, its objectives, and the Management Plan as a whole, such a construction could not be supported.

42                        AFMA submitted that the construction of s 27 of the Management Plan must be undertaken by reference to the language used, read in the legislative context, including the objects which the Act was intended to achieve: see Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 304-5 ands 15AA ofthe Acts Interpretation Act 1901 (Cth).  The starting point must be the ordinary and grammatical meaning of the words of s 27 construed in the context in which they appear, including the Act and the Management Plan as a whole:  see K. & S. Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309 at 315 (per Mason J); Mills v Meeking (1990) 169 CLR 214 at 235 and 242-243.  

43                        AFMA contended that the plain language of s 27 requires the average of “all sequences of permits to be used”.  It submitted that the word “all” is to be given work to do and the language does not allow or permit a construction that means less than the total number of permits.  The ordinary meaning of the word “all” is “the whole amount, quantity or extent of”.  It does not mean less than the total.  It does not admit of the construction advanced by Mr Kennedy that only a subset of the permits, those that were “active” in a certain period, should be used to calculate the average.  Mr Kennedy had invited the Court to read words into s 27 such that only “active” permits were to be taken into consideration.  In such circumstances, it must be possible for the Court to state with certainty what the additional words were that would have been inserted by the draftsman and approved by Parliament, had their attention been drawn to the omission before the Bill passed into law: see Wentworth Securities Ltd v Jones [1980] AC 74 at 105.  To seek to qualify the word “all” by the word “active” introduces ambiguity.  The word “active” is not defined in the Management Plan.  AFMA submitted that Mr Kennedy proceeded on an assumption that the Management Plan evinces an intention to maximise the allocation for those who consider themselves active fishers. Such an assumption is inconsistent with the language of the provisions, the portion of the formula which is based on permit value and with a choice of a particular qualifying period. AFMA rejected the significance which Mr Kennedy attached to the words “catch” and “set”.  Catch describes the product of fishing, rather than the activity of fishing.  The words “catch” and “set” do not assist in limiting the class of permit-holders in “all sequences of that kind”.  The construction advanced by Mr Kennedy also ignored the definitions of “old longline permit” in s 20 of the Management Plan, which does not focus on activity under the permits, but the instrument which authorises fishing.  

44                        The context and purpose of s 27 favour the construction advanced by AFMA which was accepted, without elaboration, by the Panel. Section 27 must be read in the context of the Management Plan as a whole.  The Management Plan reflects policy choices on the allocation of commercial fishing rights, in relation to a finite resource.  These choices are embodied in the formula in s 26.  The phrase “all sequences of that kind” must be construed in this context. 

45                        In Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 a Full Court was called on to construe various provisions of the Migration Act 1958 (Cth) and the Migration Regulations 1989 (Cth).  Itsaid (at 206):

“The construction of the regulations is to be approached by looking first to the statutory power in exercise of which they were made. As we have indicated, that is found in s 33 of the Act.  This provides that the regulations may make provision that a person is entitled to be granted an entry permit of a particular class if the person satisfies all the prescribed criteria in relation to that class (s 33 (2)(b)).  The power is expressed as being "subject to sections 40 and 45".  Section 40 empowers the Minister to determine that the processing of entry permit applications of a specified class which have been made by persons who have entered and remained in Australia is to stop until a day specified in the notice given by him.  Section 45 provides that an entry permit shall not be granted to certain deportees where an amount is still payable by them to the Commonwealth under s 65 or s 66.  Section 65 deals with the costs of deportation, and s 66 with the costs of keeping deportees in custody. 

Further, s 34 imposes upon the Minister an obligation, where the relevant jurisdictional pre-condition is established, either to grant or refuse an entry permit.  Judicial review of decisions of the Tribunal is confined by s 138 to an "appeal" which is "on a question of law".

The result, if the statute and the regulations are taken as a whole, is to disclose a compromise which represents a balance between various competing interests which are involved.  The particular pattern which is set in this way is not to be distorted by treating one element in it other than in accordance with the fair meaning allowed by the language which has been used.  There is no reason to give a "broad and generous construction" to reg 131A.  To do so may detract from the force given in the balance of the legislative scheme to the other interests which are involved.  These include the view taken by other branches of government and reflected in the legislative text, being the statute and the regulations, of the social and material interests of the country as a whole in relation to the entry and settlement of aliens, and of the conditions which should be attached to permission to enter and stay in Australia: Robtelmes v Brenan (1906) 4 CLR 395 at 400; Pochi v MacPhee (1982) 151 CLR 101 at 106” (emphasis added).

46                        It may be accepted that a purpose of s 27 is to ameliorate the effect of serious misfortune on past catch and activity rates.  Section 26 allows an eligible person to rely on his or her best 2 years’ catches between 1997 and 2001 (inclusive).  Section 27 must, therefore, seek to compensate for more than the vicissitudes of commercial fishing which are acknowledged by this part of the formula.  The purpose of s 27 is not to maximise the possible benefit for an individual operator.  Nor is it to put the operator in the position he or she would have been in but for the serious misfortune.  That is simply not possible.   The objects of ss 26 and 27 are advanced on the construction contended for by AFMA, notwithstanding that it is not the construction most advantageous to Mr Kennedy’s financial interests.

47                        In my view, there is nothing in s 27 that supports Mr Kennedy’s submission that the phrase “all sequences” in ss 27(1)(c) and (d) should be read as excluding inactive permits.  It is true that s 27(1)(c) refers to “all sequences of that kind (old longline or old minor line, as the case may be)” which requires the person performing the calculation to limit the sequences to either old longline sequences or old minor line sequences.  There is, however, nothing in s 27 which justifies further limiting “all sequences of that kind” to old longline sequences that were active during the period of serious misfortune.  Sections 26 and 27, prescribe, with a high degree of specificity, how the grants of quota SFRs are to be calculated when a person has suffered serious misfortune.  Section 27 could expressly have limited the permits that were to be included in the “average catch” and the “average number of times a longline was set” to those permits that had been used during the applicant’s period of serious misfortune. It did not do so.     

PERIOD OF SERIOUS MISFORTUNE 

48                        Mr Kennedy complained that the Panel erred by failing to identify the evidence, if any, it relied on to arrive at the finding that the period of Mr Kennedy’s serious misfortune was limited to the periods between February to November 1998 and from July 1999 to April 2000.  It was submitted that, had it done so, it may have been possible to discern why it considered that Mr Kennedy had not established his claim for the longer period during which he said he had suffered such misfortune:  see Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 411 at 422.   In this Court he tacitly accepted the Panel’s finding that the relevant period concluded in May 2000 and confined himself to arguing that the Panel should have found that he was incapacitated continuously from February 1998 to May 2000.

49                        To establish an error of law, Mr Kennedy must show that there was no evidence that was accepted by the Panel which supported its finding that the period of serious misfortune suffered by him was limited to February 1998 to November 1998 and from July 1999 to April 2000.  The Panel dealt with the period of Mr Kennedy’s serious misfortune in paragraphs 62 and 81-3 of its reasons: see at [21] above.  In paragraph 83, the Panel found that “on the whole of the evidence” Mr Kennedy suffered serious misfortune for these two periods.  Implicitly, it did not accept that Mr Kennedy suffered serious misfortune from December 1998 to June 1999 or from May 2000 to May 2001.

50                        In the course of its reasons the Panel referred to various parts of the evidence, including: 

·          Mr Kennedy’s claim for serious misfortune dated 13 January 2006;

·          Mr Kennedy’s further submissions in support of his case for serious misfortune dated 9 April 2007;

·          the “exhibits and materials provided to the Panel during the hearing on 12-13 December 2007”; and

·          the oral evidence given by Mr Kennedy’s general practitioner, Dr Zafir.

51                        The Panel accepted that the evidence of Dr Zafir was reliable and was “supportive of a finding of serious misfortune based upon illness alone”.  It is tolerably clear that the Panel was prepared to accept Mr Kennedy’s claim for serious misfortune only for the periods that he was ill.  What is not clear is why the Panel accepted that Mr Kennedy was ill only from February 1998 to November 1998 and from July 1999 to April 2000.  Mr Kennedy claimed that he was ill continuously from February 1998 to April 2000.  In oral evidence, Dr Zafir said that Mr Kennedy suffered from “a combination of debilitating symptoms”.  As to the period of Mr Kennedy’s illness, Dr Zafir said “the times when his shingles gave him major dramas which is in February 1998 and when the pressure came off him in 2000, in that sort of time”.  Dr Zafir had also prepared three written reports for Mr Kennedy in support of his claim for serious misfortune.  Reference has already been made above at [22] to Dr Zafir’s report dated 10 January 2006.  In his third report dated 30 July 2007, Dr Zafir also said that “the 7^th February 1998 to approximately to (sic) the 7^th November 1998 would have been the approximate period during which Mr Gary Kennedy would not have been able to attend to his business in the fishing industry, due to his serious medical illness”.  Dr Zafir further recorded that Mr Kennedy had suffered a right hand repetitive strain injury on 26 May 1999, which persisted for six weeks, and suffered from severe gastritis which persisted from 30 July 1999 to May 2000.  

52                        AFMA submitted that the Panel’s findings (which were not conceded by AFMA to be correct) were founded on the reports and clinical notes of Dr Zafir.  In its submissions before the Panel, AFMA highlighted the discrepancies between Dr Zafir’s reports and his oral testimony, which tended to expand the periods of illness into a single overarching period.  AFMA submitted that the Panel plainly preferred Dr Zafir’s written reports, over parts of his oral evidence, particularly as it had determined that Dr Zafir had sought to take on the role of advocate for Mr Kennedy (see [17] above).  AFMA submitted that, given this express reservation, and its express acceptance of AFMA’s submissions, it was tolerably clear that the reason for the findings of two discrete periods of serious misfortune were made because the Panel had accepted the documentary evidence of Dr Zafir to that effect and had declined to accept his oral evidence that extended the period.

53                        In addition, AFMA sought to rely on the fact that, as parties to the appeal, all eligible persons would have been entitled to a copy of the reasons.  For that reason alone, AFMA submitted, the Panel was entitled to be circumspect in the detail it gave in its reasons about Mr Kennedy’s health issues.

54                        In my view there was evidence on which it was open to the Panel to conclude, as it did, that Mr Kennedy suffered serious misfortune by reason of illness in the two periods which it identified.  That evidence is to be found in the two reports of Dr Zafir to which reference is made above at [50].

ADEQUACY OF REASONS

55                        Question 2(c) in the notice of appeal asks whether the Panel had complied with the obligation imposed upon it by s 160(1)(b) of the Act. Section 160(1)(b) requires the Panel to prepare a written statement setting out the reasons for its decisions.  Mr Kennedy complains that first, the Panel made a bald finding on his claim for serious misfortune; second that it did not provide reasons for preferring AFMA’s construction of s 27 to that advanced by him; and third that the Panel did not provide reasons as to how it reached its conclusion that he suffered serious misfortune only during the February - November 1998 and July 1999 - April 2000 periods.  Mr Kennedy submits that a party is entitled to know why he won or lost.   A reading of the Panel’s reasons would, it was submitted, leave the fair-minded reader none the wiser as to why he was only partially successful.  He relied on the decision of Gobbo J in State Electricity Commission v Commissioner for Equal Opportunity [1992] 1 VR 79 in which his Honour held (at 88) that reasons for decision which fail to disclose the process of reasoning of the decision maker are “defective and show error of law on the face of the record”.

56                        There can, in my view, be no doubt that the Panel has failed to comply with the requirements of s 160(1)(b) that it “prepare a written statement … setting out the reasons for [its] decision”.  Were it not for another statutory provision, to which I will shortly refer, it might readily be argued that the Panel has complied with this obligation.  It has produced a document of some 20 pages which contains 86 paragraphs which it has published as its reasons for its decision on Mr Kennedy’s appeal.  The question remains, however, whether the published reasons are sufficiently detailed to meet the obligation imposed by s 160(1)(b).

57                        Section 25D of the Acts Interpretation Act 1901 (Cth) provides that, where another Act requires that a Tribunal give written reasons for its decisions “the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based”.

58                        When tested against this standard the Panel’s reasons, in my opinion, are plainly deficient.  In dealing with the construction of s 27, the Tribunal deals only with s 27(1)(d) and then makes the conclusionary statement that the interpretation of s 27, advanced by AFMA, is correct.  No attempt is made to explain why it is that AFMA’s construction is to be preferred to that contended for by Mr Kennedy.

59                        The Panel’s reasons for fixing on the two periods of illness as being the periods during which Mr Kennedy suffered serious misfortune are equally terse and uninformative.  The Panel does no more than record Mr Kennedy’s claim, record AFMA’s submission relating to the periods of illness, note that there was “much in this submission” and then proceed to its finding.  No attempt was made to identify the facts or to explain the process of reasoning which led the Tribunal to reject Mr Kennedy’s claim to have suffered serious misfortune continuously from February 1998 to May 2000 or to explain why the Panel was minded to fix on the two periods within the timeframe claimed by Mr Kennedy, as being the relevant periods for the purposes of s 27 of the Management Plan.

60                        The critical question is, however, whether the Panel’s failure to provide adequate reasons for its decision can give rise to an error of law which would justify a reviewing Court setting aside the Panel’s decision.

61                        As already noted there is authority to support an affirmative answer to this question.  It is to be found in the Victorian Supreme Court’s decision in the State Electricity Commission case.  Authority is also to be found in decisions of this Court.  In Dornan v Riordan (1990) 24 FCR 564, a Full Court held that a failure to give adequate reasons constitutes an error of law justifying the setting aside of an administrative decision.  See also Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402; Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177 at 184; Hill v Repatriation Commission (2004) 207 ALR 470 at 474; and, most recently, Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137.  These were cases in which the tribunal concerned had produced cryptic and uninformative reasons such that the reviewing court could not discern why it was that the tribunal had reached the impugned decision.  In particular it was not possible to determine whether the correct legal principles had been applied.  In Dornan, the Full Court drew on authorities such as Pettitt v Dunkley [1971] 1 NSWLR 376 in which appellate courts had found that trial judges erred in law if they failed to provide reasons or sufficient reasons thereby depriving the appeal court of the capacity to determine whether a verdict had been reached in accordance with law.

62                        This approach did not enjoy universal acceptance.  In Comcare v Lees (1997) 151 ALR 647 at 656-9, Finkelstein J reviewed the authorities which commenced with Dornan and concluded that, were he not bound by these decisions, he would not follow them.  He drew attention to conflicting decisions, including that of Brennan J in Repatriation Commission v O’Brien (1985) 155 CLR 422 at 445-6 and the English Divisional Court in Mountview Court Properties Ltd v Devlin (1970) 21 P & CR 689.  He considered it to be inappropriate to draw on cases in which appellate courts found reasons to be inadequate because, in such cases, no remedies such as a statutory order in the nature of mandamus were available to require the relevant trial judges to rectify the deficiencies in their reasons.  His Honour also noted that, in the appellate context, the appellable error was founded on common law doctrine rather than on the construction of a statutory obligation to provide reasons.  One might add that there is no compelling reason for treating a decision as errant solely because no reasons or no adequate reasons have been advanced to support it, unless one was attracted to Lord Denning’s notion that, if a decision-maker fails to give reasons for a decision, a reviewing court could infer that he did not have any good reasons:  see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1007.

63                        In Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 108 ALD 329 at 337 Perram J, without expressing a concluded view, said that there was “much to be said” for the views of Finkelstein J in Lees.  His Honour suggested two additional considerations which supported Finkelstein J’s reasons for doubting the correctness of the decision in Dornan.  These additional considerations were:

“First, the reasons which attend an administrative decision are conceptually distinct from that decision and it is the decision, and not the reasons which accompany it, which is the subject of judicial review or, as here, appeal under s 44.  The reasons have no legal consequences in themselves.  Rather, they provide material from which arguments about the correctness of the decision may be crafted.  Their legal relevance is, therefore, derivative from the decision to which they are appurtenant. …

…

Second, once the derivative nature is understood it must follow that the legal requirements attending the production of reasons need have no necessary connexion with the legal requirements attending the decision.  A decision accompanied by perfectly adequate reasons may be riddled with legal errors just as a decision which is accompanied by inadequate reasons may be legal impeccable.  The fallacy in the view that the provision of inadequate reasons is an error of law in the decision springs from the conflation of rules concerned with the making of the decision itself with rules concerned with the provision of reasons, a conflation which is, in my opinion, wholly without warrant.  This is not to say that questions of law do not arise from the operation of rules about the provision of reasons.  It is only to say that such questions arise dehors the decision and cannot be errors in the decision itself”: at 337-8.

64                        The issue was considered by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.  In that case the Court dealt with a submission that a decision of the Refugee Review Tribunal should be set aside because the Tribunal had failed to comply with its obligations under s 430 of the Migration Act 1958 (Cth) to provide adequate reasons for coming to the decision.  The argument was that the failure of the Tribunal to have regard to certain matters which had been pressed before it rendered its reasons inadequate with the consequence that, on this ground, its decision was a nullity.  The Court rejected this argument.  Gleeson CJ (at 330) was prepared to accept that, if a decision maker fails to make a finding on some question of fact in the course of giving reasons “that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material”.  The absence of findings on a particular matter may be indicative of error but the failure to refer, in the course of giving reasons, to findings which were not made does not itself constitute reviewable error:

“It is impossible to read the expression “the findings” as meaning anything other than the findings which the Tribunal has made.  By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error … or may provide some other ground for judicial review…But all the tribunal is obliged to set out is such findings as it has made…”:  at 331-2 (emphasis added).

Other members of the Court made similar observations:  see per McHugh, Gummow and Hayne JJ at 346, 349 and 351.

65                        The issue was further considered by the High Court in Re Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212.  In Palme the Court held that a failure to discharge the statutory obligation imposed by s 501G of the Migration Act 1958 (Cth),to give reasons for a decision to cancel a visa, did not mean that the decision could be set aside because it was tainted with jurisdictional error.  Four aspects of the reasoning in Palme are of present relevance.  First, it is necessary to recognise that a distinction is to be drawn between the decision and the reasons for that decision: see Palme at 225.  An attack on the reasons which seeks to have the decision set aside fails to appreciate this distinction.  This is a different attack from one which focuses on a jurisdictional error arising from the failure of the reasons to refer to, for example, a relevant consideration:  cf Yusuf at 351-2.

66                        Secondly, it is important to identify precisely what act is being impugned:  Palme at 225.  In Palme there was an attack by Constitutional writ on the exercise of the power to cancel a visa.  In this case, there is an appeal from the Panel’s decision to set aside AFMA’s decision and substitute one more favourable to Mr Kennedy because it was not sufficiently favourable to his interests.  The word “decision” in this context means the final and operative decision of the Panel as provided for in s 150(3) of the Act:  Director-General of Social Services v Chaney (1980) 47 FLR 80.  Section 161 fixes on the decision as the subject matter of the appeal, not on the reasons.

67                        Thirdly, the question of whether a failure to comply with a statutory requirement to provide adequate reasons can affect the exercise of power is one of statutory construction:  Palme at 225.  There is nothing in the scheme of the legislation which suggests that the provision of inadequate reasons could vitiate a decision of the Panel.  On the contrary, given the nature of the Panel’s task, the requirement that all operators be parties to the appeal to the Panel (s 144(3) of the Act) and the fact that the allocation of SFRs cannot be implemented until after any application to the Panel is dealt with (s 23(3) of the Act), it could not readily be inferred that the Act intended that a failure to give reasons should invalidate the decision.

68                        Finally, it was held in Palme that the appropriate remedy, in the event that a tribunal fails to satisfy a statutory obligation to provide adequate reasons for a decision, is an order in the nature of mandamus:  at 224.  That remedy can, and should, be sought independently of any rights of appeal such as those provided for in s 161 of the Act.  The right of appeal, given by s 161, is confined by the requirement that the appeal be on a question of law from the decision of the Panel.  The question must, therefore, be one which arises from the decision and not from any failure, on the part of the Panel, to satisfy its statutory obligations under s 160(1) of the Act.  Such a failure, in my view, does not give rise to a question of law relating to the decision itself.  Question of law 2(c) asked whether the Panel had complied with the obligations imposed on it by s 160(1)(b) of the Act.  A negative answer to that question would not, however, have revealed any error affecting the Panel’s decision:  cf Birdseye at 326 (per Branson and Stone JJ).  It could not, therefore, have assisted Mr Kennedy.

69                        Mr Kennedy submitted that Palme may be distinguished on the basis that there is no equivalent of s 501G(4) of the Migration Act in the Act.  Where a decision has been made to refuse to grant a visa to a person or to cancel a visa, s 501G of the Migration Act requires the Minister to give the person a written notice which sets out the decision and the reasons for the decision. Section 501G(4) provides:

“A failure to comply with this section in relation to a decision does not affect the validity of the decision”.

The relevant parts of the reasoning in Palme do not, however, depend on s 501G(4).  As already noted, the Court emphasised the need to distinguish between a decision which is sought to be challenged and the reasons for that decision when determining whether the decision can be impeached for jurisdictional error.  In their joint judgment (at 221) Gleeson CJ, Gummow and Heydon JJ said:

“The visa cancellation decision may be reviewed in this court for jurisdictional error.  Such error may be found from what is disclosed by reasons provided under s 501G(1)(e).  Failure to provide reasons may also be reviewed in this Court and compliance by the Minister with the statutory duty may be ordered.  The reasons then provided may furnish grounds for prohibition under s 75(v) [of the Constitution] in respect of the visa cancellation decision.  But what is not provided for is for a prosecutor, as in this case, to bypass that earlier step utilising mandamus, and to impeach the visa cancellation decision itself for want of discharge of the duty to provide reasons.  There is, as was pointed out in argument, a critical distinction between failure to comply with s 501G(1)(e) and using that failure to conclude that the visa cancellation decision is flawed by jurisdictional error”.

See also at 227-228 (per McHugh J).

70                        It was open to Mr Kennedy to seek an order of mandamus to compel the Panel to comply with its obligations under s 160(1) of the Act.  He did not do so.  Instead, he has proceeded to prosecute his appeal to this Court on the basis of the reasons which he, rightly, submits are inadequate.  His failure to seek a mandatory order may have been the result of a forensic decision (cf Palme at 224) or for some other reason.  Whatever the reason, the inadequacy of the Panel’s reasons cannot, consistently with the decision in Palme, be relied on to impeach the Panel’s decision.

71                        In Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137, the Full Court was concerned with an appeal, under s 44 of the AAT Act, from a decision of the Tribunal to set aside a decision of the Authority to cancel a certificate of approval.  Both parties to the appeal accepted that the Tribunal had failed to satisfy the obligation, imposed on it, by s 43(2) of the AAT Act, to provide adequate reasons for its decision.  It was common ground that such a failure constituted a “question of law” for the purposes of s 44(1) of the AAT Act.  The Full Court said (at [42] - [43]) that:

“In circumstances such as the present, where it is common ground that there is a statutory entitlement to reasons and where such reasons have not been provided and cannot now be provided by the Tribunal member who made the decision, it is inevitable that the decision itself must be set aside. 

The primary judge correctly concluded that there had been non-compliance with s 43(2) and ordered that reasons now be provided by the original decision-maker.  Compliance with that order is no longer possible.  Because of the accepted failure to comply with s 43(2), the Tribunal decision must be set aside and the matter remitted for a new hearing in the Tribunal”.

72                        The Full Court referred to Dornan and noted that, in Lees, Finkelstein J had acknowledged that he was bound to follow Dornan.  It referred to Preston and Hill as authority for the proposition that a “failure to state reasons for a decision – at least in those circumstances where a statement of reasons is a requirement of the exercise of the decision-making process – constitutes an error of law”:  at [49].

73                        There is no reference, in the Full Court’s reasons, to either of the High Court’s decisions in Yusuf and Palme.  Given that it was common ground that, in giving inadequate reasons, the Tribunal had committed a jurisdictional error of law, I assume that the Court’s attention was not drawn to these decisions although I note that, in the primary judge’s reasons, His Honour observed, referring to Yusuf, that “it is unlikely that the error of law constituted by inadequate reasons could be jurisdictional”:  see Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 108 ALD 329 at 345.  Whilst it may be accepted that the failure, on the part of a decision maker, to comply with a statutory obligation to provide reasons might constitute an error of law it does not follow that such an error is jurisdictional in nature such as to justify the setting aside of the impugned decision.  That position does not change simply because the decision-maker is no longer available to provide further and better reasons.  That circumstance does not, in my respectful opinion, render it inevitable that the decision under review should be set aside. 

74                        In my opinion, I am bound by Palme to hold that the Panel’s failure to comply with its obligations under s 160(1)(b) of the Act does not constitute a jurisdictional error which would warrant the setting aside of the Panel’s decision. 

75                        No order was sought by Mr Kennedy, in the course of the present appeal, requiring the Panel to provide reasons which satisfied its statutory obligations.  This decision was, no doubt, influenced, in part at least, by the fact that one of the two members of the Panel who made the decision (Mr Baston) is no longer a Panel member.  Had a mandatory order been made, the Panel probably could not have complied with it because the reasons given must be those of the decision-makers and not their successors:  cf State Electricity Commission at 86.

CONCLUSION

76                        The questions of law posed above at [33] should each be answered:  Yes.

77                        The appeal must be dismissed.  The applicant should pay the first respondent’s costs of the application.

Associate:

Dated:         21 December 2009