Ipsofactoj.com: International Cases [2001] Part 5 Case 11 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

United Fisheries Ltd

- vs -

Chief Executive of the Ministry of Fisheries

McGRATH J

ELLIS J

McGECHAN J

2 APRIL 2001


Judgment

McGrath J

(delivered the judgment of the Court)

INTRODUCTION

  1. This is an appeal against a judgment delivered by Heron J in the High Court (CP194/99, Wellington, 24 March 2000), striking out a judicial review proceeding. That proceeding had been brought by the appellant, United Fisheries Ltd, in relation to decisions said to have been made under the Fisheries Act 1983 ("the 1983 Act"), during 1993, by an official of the then Ministry of Agriculture and Fisheries.

  2. The appellant is a commercial fishing company. In August 1999 it issued proceedings seeking judicial review of decisions in relation to its attempts during 1992 and 1993 to secure permits or an amendment to an existing permit that would entitle the appellant to catch scampi. The first and second defendants are the chief executive of the Ministry of Fisheries ("the Ministry") and the Minister of Fisheries. Other defendants are permit holders who are sued as persons who would be affected if the appellant’s proceeding were successful.

  3. Heron J decided the proceeding should be struck out because the decisions for which judicial review was sought, in his view, had been validated by statute. The appeal is against that finding.

    THE PLEADINGS

  4. In its second amended statement of claim, dated 22 November 1999, the appellant says that from 1986, at various times, it has held fishing permits and, in particular, special permits for catching of scampi in specified areas under the provisions of the 1983 Act. It also says it has invested substantially in equipment required and intended for catching the scampi. Scampi are prawn like crustaceans living at depths of around 400 metres off the New Zealand coast where they can be caught by pot or trawl.

  5. By late 1992 the appellant’s rights to catch scampi had lapsed as it had been unable to have the relevant permits renewed. The appellant claims that in November 1992 it took steps seeking to re-establish those rights. It made separate applications to the first respondent for review of its current fishing permit and for a fresh permit enabling it to target scampi in its fishing operations. The application for a fresh permit was declined on either 6 or 15 January 1993, as was a request for a review of that decision on 26 February 1993. The application for a review of the terms of the fishing permit was declined on 26 February 1993.

  6. On 13 October 1993 the appellant wrote to the first respondent concerning these decisions asking that they be reconsidered and access granted to the appellant over the nominated quota management areas for commercial scampi fishing for the 1993/1994 fishing year. This request is said in the amended statement of claim to be a request for a review of the earlier decision. The letter of 13 October 1993 also enclosed a form of application for a permit covering that year.

  7. On 26 October 1993 the application for a permit for scampi was rejected in a letter signed by an official in the Ministry having the title ‘Deputy Group Director MAF Fisheries’. The reason given was that the issue of commercial fishing permits for new species was not permitted by the Act. The letter added that the background to the appellant’s earlier requests for scampi permits was being investigated. On 22 November 1993 the Deputy Group Director wrote again stating that he saw no basis to the appellant’s claim in the letter of 13 October 1993 that it had been unfairly denied a permit. In its pleadings the appellant characterises this letter as the decision of the Deputy Group Director on its application for review of 13 October 1993. It also says that official did not have delegated or other authority to determine the appellant’s application for review under the Act.

  8. It might be said in passing that it is not immediately apparent from the text of the letter requesting reconsideration, and the two responses from the Ministry, that they are requests for review under s 63 of the Act. That is the basis, however, on which the claim was pleaded and indeed had to be pleaded for the appellant to be able to make the submissions it has in this appeal. As this is an appeal against a decision to strike out proceeding we proceed on the assumption that at trial the appellant would be able to establish there had been requests for review falling within s 63 and a decision on it by an official who lacked delegated authority.

  9. In the first cause of action the appellant claims that a valid review decision was not made on the 13 October 1993 applications because the official making it was not designated by the first respondent under s 63(11) to do so. The appellant claims its right to an administrative review decision was denied.

  10. The second cause of action pleads failure to take into account the history of the appellant’s involvement in the fishing industry generally and the scampi fishing in particular in determination of the reviews. In the third cause of action the appellant makes the same complaints under the head of legitimate expectation. The fourth cause of action contends the decisions reached were unreasonable and unfair. Overall the appellant seeks to invalidate the review decisions reached and to have them made afresh and lawfully.

    STATUTORY PROVISIONS

  11. Under s 63 of the 1983 Act the Director-General (who is the first respondent) has power to grant fishing permits allowing the holder to take fish for purposes of sale using a fishing vessel. There is power for the Director-General to impose conditions on permits by notice and to amend, revoke and add new conditions from time to time.

  12. Section 63(11) makes provision for an administrative review of decisions in relation to permits. It provides as follows:

    63.

    Fishing Permits ....

    ....

    (11)

     

    Where any decision is made under this section by any officer acting under the delegated authority of the Director-General, the applicant for the permit or permit holder, as the case may be, shall be entitled to have the decision reviewed by the Director-General or by an officer designated by the Director-General who was not involved in the making of the original decision.

  13. Section 329 of the 1996 Act came into force on 1 October 1996. It provides:

    329.

    VALIDATION OF CERTAIN DECISIONS RELATING TO PERMITS—

    (1)

    Every decision and every purported decision of the Director-General of Agriculture and Fisheries—

    (a)

    Made in respect of the issue, variation, refusal, revocation, or cancellation of any fishing permit under section 63 or any special permit under section 64 of the Fisheries Act 1983; and

    (b)

    Made before the 1st day of October 1992—

    is hereby declared to be and always to have been valid.

    (2)

    Every decision and every purported decision of the chief executive (whether made by the chief executive or the Director-General of Agriculture and Fisheries)—

    (a)

    Made in respect of the issue, variation, refusal, revocation, or cancellation of any fishing permit under section 63 or special permit under section 64 of the Fisheries Act 1983; and

    (b)

    Made on or after the 1st day of October 1992 but before the commencement of this section—

    is hereby declared to be and always to have been valid.

    (3)

    Subsection (1) of this section does not apply to a decision or purported decision referred to in that subsection if the decision or purported decision is being challenged in or is otherwise subject to any court proceedings commenced before the date of commencement of this section.

    (4)

    Subsection (2) of this section does not apply to a decision or purported decision referred to in that subsection if—

    (a)

    The decision or purported decision is being challenged in or is otherwise subject to any court proceedings commenced before the date of commencement of this section; or

    (b)  

    The applicant for the permit which was the subject of a decision or purported decision referred to in that subsection—

    (i)  

    Has, before the commencement of this section, lodged with the chief executive; or

    (ii)

    Within 12 months after the commencement of this section, lodges with the chief executive a notice requesting the chief executive to review that decision or purported decision.

  14. The purpose of s 329(1) and (2) is to validate decisions and purported decisions of the Director-General in relation to fishing permits issued under s 63 or s 64 of the 1983 Act. The first category of the decisions or purported decisions which are validated on those made before 1 October 1992 and the second category, those made on or after that date made but prior to 1 October 1996 which is the date of commencement of s 329.

  15. However s 329(3) and (4) except from the validation provisions "every decision and every purported decision" which was the subject of court proceedings commenced prior to the date of commencement of the section. Section 329(4) further excepts from validation by s 329(2) situations where the applicant had sought administrative review of the decision or purported decision either before s 329 commenced or within twelve months after that date, that is by 1 October 1997.

    THE HIGH COURT DECISION

  16. The first, second and third respondents, with the support of the fourth respondent, applied to have the proceeding struck out principally on the basis that it was barred by validation provisions in s 329 of the Fisheries Act 1996 (the 1996 Act) but also on the basis of delay in bringing the proceeding. In resisting the application the appellant argued that while the Act validated "every decision and every purported decision of the Director-General" that language did not cover the actions of the allegedly undesignated official reflected in his letters of 26 October 1993 and 22 November 1993. Heron J disagreed and held the term "purported decision" covered the acts of the official concerned, even if unauthorised, validating them. The appellant also argued that the decision of 22 November on the request for a review, was not made, as s 329(2) of the 1996 Act required, "in respect of the issue, variation, refusal, revocation, or cancellation" of any fishing permit under s 63 of the 1983 Act. Heron J held that as the outcome of a review application under s 63(11) would fall within the statutory phrase so should the decision itself on such an application. There was accordingly no basis in law for challenging the application of the validation provisions of s 329(2) to the review decision of 22 November 1993, assuming that was its character. Accordingly Heron J granted the application for strike out. He indicated he would not have upheld the ground based on delay.

    SUBMISSIONS ON APPEAL

  17. In this Court Mr Matthews, counsel for the appellant, submitted Heron J was wrong on both points. He argued that assuming, as we have already said we must, that the application for a review had been refused by an official who had not been designated to undertake it under s 63(11), no decision had been made which could be validated by s 329(2) of the 1983 Act. Nor could it be said there was a purported decision which might be validated by s 329(2) for two alternative reasons. First, it was necessary there be actual albeit misapplied authority in the form of a designation of or delegation to the officer under the Act before it could be said the officer was purporting to decide. Alternatively, an officer lacking authority to decide on a review application was required at least, to have a genuine belief in the existence of an authority to decide before the officer could be said to be purporting to make a review decision. Whether that was such a genuine belief was a question of fact which could not be determined other than in the course of a trial.

  18. On the second point he argued that s 329(2) of the 1996 Act, which validates certain decisions made after 1 October 1992, did not apply to a review decision made under s 63(11) of the 1983 Act because it was not one "made in respect of the issue, variation, refusal, revocation, or cancellation of any fishing permit under s 63 ....", as required by s 329(2).

  19. Ms Anderson, on behalf of the first and second respondents, argued that Heron J had correctly decided that profession of authority by the Deputy Group Director to make the decisions concerned was implicit in the letters of 26 October and 22 November 1993. This of itself was sufficient to constitute a purported decision. Any lack of actual authority was not in point as that was both anticipated and addressed by validation provision. On the second point Ms Anderson argued that the broad validating purpose of s 329 was inconsistent with reading down the provision to exclude application to review of decisions made under s 63. Part of that purpose was to clear away old complaints in order to move ahead with the new regime. These submissions were supported by counsel for the third and fourth respondents.

    DECISION

  20. As this Court said in Southern Ocean Trawlers Ltd v Director-General of Agriculture & Fisheries [1993] 2 NZLR 53, 63:

    Only in a clear case should an applicant be precluded from advancing the case in the normal way, employing the available interlocutory procedures. But in what is demonstrated to be a clearly hopeless case, the sooner it is brought to an end the better.

    The respondents argue that in face of statutory validation of the decisions the subject of this proceeding this is such a case.

  21. The internet version of the Oxford English Dictionary’s relevant meaning of "purport" is: "to profess or claim by its tenor. (Said without pronouncing as to the truth or validity of the claim.) The New Collins Concise English Dictionary (NZ ed), 1982 gives the definition:

    [Verb] 1. To claim to be (true, official, etc) by manner or appearance, esp. falsely. 2. To signify or imply. [Noun] 3. Meaning; significance. 4. Object; intention.

    In s 329(1) and (2) the phrase "every decision and every purported decision" states what is validated by the two subsections. In that context the ordinary meaning of "purported" contemplates that in addition to acts exercising actual authority to decide, the same acts taken where the power of decision, in reality, is not exercisable will be covered. The ordinary meaning of the words in their context accordingly does not support the contention that only misapplication of actual power is covered. It extends to mistaken exercise of power.

  22. To support his argument for a different approach Mr Matthews relied on Webster v Taiaroa [1987] 7 NZAR 1, Tompkins J. He contended the case decided that the mere use by the Director-General of Agriculture & Fisheries’ title in a notice, which was in fact signed by an Assistant Director-General, did not make the notice one "purporting" to be given by the Director-General when there was no delegation in place. That case was concerned with a notice specifying requirements of all persons taking shellfish from a controlled fishery which, under the Order in Council concerned, had to be given by the Director-General. The notice was expressed in its preamble as having been so given, but in fact it was signed by the Assistant Director-General. Section 10 of the Ministry of Agriculture & Fisheries Act 1953 conferred a power of delegation and s10(3) provided:

    Every person purporting to act pursuant to any delegation under this section shall be presumed to be acting in accordance with the terms of the delegation in the absence of proof to the contrary.

    There being evidence from the Director-General under subpoena that there was no delegation, the presumption was displaced.

  23. In our opinion Webster v Taiaroa does not support the proposition for which Mr Matthews cited it. We agree with Heron J that the decision on this point goes no further than to conclude that the presumption in subs (3) did not apply because evidence had been given which established there was no act of delegation. It sheds no light on whether the Assistant Deputy-General who signed the notice was or was not a person "purporting to act" for the Director-General.

  24. Mr Matthews was also critical of the Judge’s reliance on Dicker v Angerstein (1874) 3 Ch.D 600 and Phonogram v Lane [1981] 3 All ER 182. In our view the Judge referred to those authorities only as examples of the meaning of the verb "purport" in the sense that he attributed to it. We accept that neither case gives particular assistance in ascertaining the meaning of "purported" in the context of s 329. However for the reasons we have given we do not regard the use of "purported" in the present context of s 329 as requiring that a person making a purported decision had actual power to decide.

  25. The argument that a purported decision had to be one made under the genuine belief there was authority to make it is based on a dictum of Hardie Boys J in Simpson v A-G [Baigent’s case] [1994] 3 NZLR 667, 696.

    Hardie Boys J said:

    It will be apparent from what I have already written that in my opinion if the search were unreasonable, or if there were an absence of good faith, it could not be said that the police were discharging their responsibilities in connection with the execution of the warrant. On that basis, the real issue is whether it can be said that they were purporting to do so.

    The Oxford Dictionary (2nd ed, 1989) gives the relevant meaning of the verb "purport" as "to profess or claim by its tenor". The concept in s 6(5) is therefore one of a claim, explicit or implicit from conduct, to authority under the warrant. However, the mere fact that a warrant was obtained and was relied on for the police action is not sufficient. The profession of or claim to authority under it must have been genuine. What was done need not have been reasonable in manner or scope, for the subsection clearly contemplates unauthorised action. What is necessary is that the action was carried out in good faith, in the honest belief that it was justified by the warrant.

  26. In passing we note that in the same case Casey J doubted that the word "purporting" in the phrase "discharging or purporting to discharge" would cover the consequence of only honest mistakes. In Casey J’s view there were no grounds for reading down the plain meaning of the phrase "which conveys the meaning of actually discharging the responsibilities; or of intending or professing to do so." (P 690). Earlier in Hill v A-G (CP288/91, Wellington, 29 April 1993) at p 21, McGechan expressed a similar view.

  27. It is however unnecessary in the present case to decide whether a purported decision is confined to one which is made with the genuine belief there is authority. The second amended statement of claim does not plead that what was done in relation by the Deputy Group Director on 26 October and 22 November 1993 was done other than genuinely and in good faith. What the appellant here is seeking is that, despite the absence of a pleading of bad faith, it should have the opportunity through discovery, interrogatories and perhaps cross-examination to test the genuineness of the Deputy Group Director’s decision. However, as Mr Matthews properly acknowledged, there was no basis for a pleading that the letters of 26 October and 22 November 1993 were other than a genuine attempt to exercise such powers as were involved in the decisions recorded in them. In those circumstances, if in all other respects they are hopeless, the proceedings should be not be allowed to continue simply because of a speculation that in the course of a trial something might be discovered that would support an amended pleading.

  28. For these reasons the first ground of appeal fails.

  29. The second argument is that even if the Court found that a decision on an administrative review under s 63(11) by an official not designated by the Director-General under s 63(11) was a "purported decision", it was still not one covered by s 329(2)(a). That was because a review decision was not as s 329(2) requires "made in respect of the issue, variation, refusal, revocation or cancellation of any fishing permit under s 63 ...." Heron J in the High Court held that the necessary connection under s 392(2) was made.

    He observed that (para 31):

    .... the only outcome of a review would be the issue, variation, refusal, revocation or cancellation of any fishing permits .... and accordingly such a decision on review would be as the words of s 329 require "be made in respect of such matters.

    He also added that it was the subject matter or outcome of the decision which was the focus of the statutory validation provision rather than the process.

  30. Mr Matthews pointed to the different character of a review decision from the generality of decisions in relation to permits provided for under s 63. He also pointed out that there was a specific provision in s 329(4) in relation to requests for review which, would refer to a notice requesting a review of a review if s 329(2) encompassed a review.

  31. Arguments based on absolute internal consistency have their limits in as complex a part of the statute book as fisheries legislation. A better guide to what was meant by Parliament in the language used in s 329(2) is the overall purpose of that section. In Jenssen v A-G (CA273/98, 25 May 1999) this Court held that the validating purpose expressed in s 329(1) was not to be read narrowly as "such construction would defy the will of Parliament which the history makes plain" (P 18). That proposition applies equally, of course, to the validating purpose of s 329(2) and of itself is sufficient to support the outcome focussed approach to s 329(2)(a) taken by Heron J. We are satisfied that s 329(4) does not exclude from the validating provision in s 329(2) those review decisions which if successful will lead to the issue or variation of a permit under s 63. This ground of appeal accordingly also fails. It follows that s 329(2) validates the review decisions taken on 26 October and 22 November 1993 under s 63. No other basis for escaping the validation provisions was suggested and we are satisfied the attempts to do so in this proceeding are hopeless.

  32. The appeal is accordingly dismissed. The appellant must pay costs to the first and second respondents of $3500 and to each of the third and fourth respondents $1000, together with all disbursements including travel and accommodation expenses to be fixed by the Registrar if necessary.


Cases

Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53; Webster v Taiaroa [1987] 7 NZAR 1; Dicker v Angerstein (1874) 3 Ch.D 600; Phonogram v Lane [1981] 3 All ER 182; Simpson v A-G [Baigent’s case] [1994] 3 NZLR 667; Hill v A-G (CP288/91, Wellington, 29 April 1993); Jenssen v A-G (CA273/98, 25 May 1999)

Legislations

Fisheries Act 1983, s.63(11), s.329

Authors and other references

Oxford English Dictionary (web ver)

Representations

J G Matthews for the Appellant (instructed by White Fox & Jones, Christchurch).
K Anderson and P A McCarthy for First and Second Respondents (instructed by Crown Law Office, Wellington).
A Ivory for the Third Respondent (instructed by Craig Griffin & Lord, Auckland).
C R Jurgeleit for the Fourth Respondent (instructed by Brandons, Wellington)


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