Case: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Outcome: applied
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. 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] FCA 119 ; (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; Birdseye at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (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). 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? 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. 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. 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.