Case: Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406
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 in the context of those levy and charge collection provisions of the Management Act that Mr Rhodes further submitted that '[w]here the Act has expressly provided for the penalty to be imposed for failure to pay a levy, it is an improper exercise of power by AFMA [to] seek to impose a further penalty on Mr Rhodes by refusing to issue him a new permit', and further that '[h]ad Parliament intended that cancellation of a permit be permanent, it would have made specific provision to that effect'. It was further submitted by Mr Rhodes that '[t]he cost recovery argument also ignores the ability of AFMA under section 32(6) to impose conditions on the issue of a permit', and further that '[i]f there are outstanding levies or other obligations, the permit could be made conditional upon the applicant first discharging his outstanding levy obligations'. Whether a logical stopping place in terms of viable and convenient economic management may be articulated in support of that contention must be at least difficult to encapsulate. It is a common feature of contractual remedies of cancellation of entire contractual rights on default of payment of a liquidated sum that the same crystallise ipso facto , and are exercisable subject to whatever formalities of notice may be stipulated by the governing contract or any statutory stipulation. Treating the failure to pay levies as fatal to Mr Rhodes' application was said by Mr Rhodes in any event to misconstrue the discretion vested in AFMA under s 32 of the Management Act, that being described as not a matter of cost recovery but effecting in substance a forfeiture which in private law would give rise to relief for unconscionable conduct. Qualification for relief of that kind would normally be at least formidable. Mr Rhodes invoked the decision of the High Court in Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406, but the analogy is hardly in kilter. That well known High Court authority concerning relief against forfeiture related to a purchaser by instalments originally of vacant land, in circumstances where the purchaser erected subsequently a home on the land at a time when the land had not been fully paid for, and hence in circumstances where upon termination of the contract for default in payment of the purchase price for the vacant land, 'the vendors will receive an ill-merited windfall' (per Gibbs CJ and Murphy J at 429). In my opinion the loss of the statutory privilege in the nature of the present fishing permit by reason of non-payment of periodic levies geared to the continuance on foot of the permit would not constitute sufficient analogy with the principles of the general law concerning forfeiture of property or proprietary rights in circumstances where the statutory entity gains no proprietary or pecuniary advantage and is merely enabled or assisted to perform its statutory functions and obligations.