Case: Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78
Outcome: discussed
v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 1220 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) Last Updated: 11 September 2006 FEDERAL COURT OF AUSTRALIA Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 ADMINISTRATIVE LAW review of decision of AAT which affirmed decision of Australian Fisheries Management Authority to cancel fishing permit relating to Southern Shark Fishery in Bass Strait region interpretation of 2003 Southern and Eastern Scalefish and Shark Fishery Management Plan and Offshore Constitutional Settlement to extent either imposed 'limited entry' or 'no new permits' policy whether Tribunal erred in finding as relevant to refusal to grant fishing permit enforcement of AFMA's cost recovery procedures claim of denial of natural justice in relation to processes implemented by Australian Fisheries Management Authority up to time of cancellation of applicant's fishing permit Fisheries Management Act 1991 (Cth) ss 17 , 32 , 38 , 39 Administrative Appeals Tribunal Act 1975 (Cth) Offshore Constitutional Settlement Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 discussed Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 discussed Re Green and Australian Fisheries Management Authority [2004] AATA 426 ; (2004) 81 ALD 194 referred to Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 discussed Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 discussed National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29 ; (1984) 156 CLR 296 referred to R v Small Claims Tribunal and Homewood; Ex parte Cameron [1976] VR 427 referred to Cameron v Cole [1944] HCA 5 ; (1943) 68 CLR 571 referred to Hoskins v Van Den-Braak (1998) 43 NSWLR 290 referred to Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 referred to Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 discussed DAVID JOHN RHODES v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY TAD 31 OF 2005 CONTI J 8 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY TAD 31 OF 2005 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY ASSOCIATE PROFESSOR DAVIS BETWEEN: DAVID JOHN RHODES Applicant AND: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Respondent JUDGE: CONTI J DATE OF ORDER: 8 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The application for review by way of appeal from the decision of the Administrative Appeals Tribunal made on 27 July 2005 be dismissed. It was next contended by Mr Rhodes that '[a]n important factor relevant to the scope of natural justice is the consequence of the decision'. In Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 at 117, Weinberg J enunciated the following principle: is well established that the seriousness of a decision for an affected individual is one of the main considerations determining the application of procedural fairness. Generally speaking, the requirements of procedural fairness will be heightened in proportion to the gravity of the consequences involved.' It was said in that context that if AFMA was right to refuse Mr Rhodes a new permit on 'no new permits' or 'cost recovery' grounds, the consequence of cancellation of his permit would be his effective expulsion from the fishery, that being described as 'a very serious consequence to Mr Rhodes'. Apart from the particular elements of the statutory scheme here relevantly required to be adjectivally observed, there was here involved an absence of response on his part over an extended period of time involving what the Tribunal characterised in terms of inevitable consequences 'obvious to him' . The reality of Mr Rhodes' circumstances of default was such as to render attenuated his invocation of the scope of natural justice inherent in the submission. A further matter submitted by Mr Rhodes not to have been considered by the AAT, but nevertheless said to have been relevant to the circumstances in which he found himself to be placed, was that his long involvement in the industry, and the potential effects on him of any decision to cancel the permit, gave rise inherently to a legitimate expectation of procedural fairness. The submission begged the question at least as to what was inherently unfair procedurally in the nature and extent of the steps taken and processes implemented by AFMA which merely conformed to the steps and processes required to be put in train in relation to any industry participant who was placed in the same vulnerable position as Mr Rhodes. A yet further factor said here to have prevailed in Mr Rhodes' favour against any cancellation of his permit was a lack of urgency in relation to the making by AFMA of its cancellation decision. It was submitted by Mr Rhodes that there was no good reason for AFMA to have made that decision in relation to the cancellation of the permit within a matter of 'weeks after the suspension'. It was further submitted that the Management Act expressly contemplated the indefinite suspension of a permit, and there was no requirement even to consider cancellation after a suspension. However it was plainly within AFMA's prerogative to determine whether it should exercise juridical powers and remedies which had crystallised in operation to the extent that it deceased to be appropriate in the contextual circumstances. Mr Rhodes next submitted that he had been already prohibited from fishing prior to the cancellation of his permit, yet interest on the unpaid levies would continue to accrue at a penal rate. No benefit to AFMA was therefore obtainable from cancellation of the permit, other than AFMA's view that it could thereupon terminate the need for so-called 'internal reconsideration', and that such motivation on AFMA's part would have been improper in any event. It was further submitted that this would have a 'very adverse effect' on Mr Rhodes. It was not however a condition to AFMA's lawful exercise of regulatory authority to endeavour to divine the particular implications of a permit cancellation personal or peculiar to a defaulting permit holder, so long as the requirements of the stipulated procedure were observed. In that regard the AAT found it sufficient in any event that AFMA had made attempts to communicate with Mr Rhodes prior to the cancellation, such attempts consisting of AFMA's letters of 9 May 2001 and 25 May 2001, calling a telephone number listed on AFMA records, and requesting on 5 June 2001 that the local police get in touch with Mr Rhodes. Mr Rhodes submitted in any event that since the AAT did not find that he received any of that AFMA correspondence or had any actual notice of AFMA's intention to cancel the subject permit, and further that the AAT expressly refused to make any finding that Mr Rhodes had deliberately avoided potential creditors, or had received what was described as 'financial correspondence', those factors should have rendered inapplicable any issue otherwise arising as to Mr Rhodes' absence of response to AFMA's communications related to Mr Rhodes' default. Instead it was contended by Mr Rhodes that the AAT took the view that his ignorance of AFMA's intention to cancel his permit was unreasonable. To the extent that that contention did have juridical significance, which I am unable to accept in any event, it is not possible to divine any basis for the extremity of the course which AFMA should have supposedly pursued in an endeavour to communicate relevantly with Mr Rhodes, and to do so prior to exercising its legal rights and remedies.