Re Karina Fisheries Pty Ltd; Dinko Lukin and Captain Suzuki v Don Wayne Mackie [1986] FCA 37 (21 February 1986)

FEDERAL COURT OF AUSTRALIA

Re: KARINA FISHERIES PTY LTD; DINKO LUKIN and CAPTAIN SUZUKI
And: DON WAYNE MACKIE
No. G8 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Forster J.

CATCHWORDS

Administrative Law - judicial review - decision of fisheries officer requiring tuna processing vessel to return to port to facilitate investigation of alleged discrepancies between reports and details of an alleged unreported trans-shipment of tuna - application for continuation of order suspending operation of decision - whether applicants could make out arguable case - whether making of decision breached rules of natural justice - whether decision unreasonable - whether alleged discrepancies "significant".

Fisheries Act, s. 10(1)(e)

Administrative Decisions (Judicial Review) Act 1977, s. 5, 15(1)(a)

Perkins v. Cuthill (1981) 34 A.L.R. 669

HEARING

ADELAIDE
21:2:1986

ORDER

Application for suspension of operation of decision is dismissed.

The order granted on 15 February 1986 suspending operation of decision is rescinded.

The applicants pay to the respondent its costs of these proceedings.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The applicants seek a review under the Administrative Decisions (Judicial Review) Act of a decision of the respondent dated 14 February 1986. The respondent (Mackie) is a fisheries officer and his decision required the master of the Daito Maru ("the ship") to take the ship to Port Lincoln and cause it to remain there until its departure was permitted. The decision was evidenced by a written notice addressed to the ship's master signed by Mackie, a copy of which was exhibited to his affidavit. The notice purports on the face of it to be given pursuant to s. 10(1)(e) of the Fisheries Act 1952 and recites that Mackie "being an officer within the terms of the said Act" requires the master to take the ship to Port Lincoln. The notice recites that Mackie has "reason to believe" that the ship "has been used in contravention of the said Act". Section 10(1)(e) of the Fisheries Act is as follows -

"10(1) An officer may -

(e) require the master of a boat which the
officer has reason to believe has been
used, is being used or is intended to be
used in contravention of this Act to
bring the boat to a place in Australia
or a Territory specified by the officer
and to remain in control of the boat at
that place until an officer permits him
to depart from that place;".

2. It is not disputed that Mackie's decision to issue the notice was a decision of an administrative character made under an enactment viz. the Fisheries Act 1952 and is thus a decision to which the Administrative Decisions (Judicial Review) Act applies. It is similarly undisputed that at least one of the applicants is a person aggrieved by the decision and may therefore apply under s. 5 of the Act for a review of the decision.

3. The Daito Maru is a fish processing vessel to which has been issued a "processing boat licence" current until 30 September 1986. Conditions of the licence require, inter alia, that the ship report daily to the Fisheries Department information of deliveries to it of tuna by catching vessels and information of "each boat into which the boat named herein delivers tuna for carriage to a place beyond Australia and the external territories and the quantity and form of each species so delivered". The catching vessels are also similarly required to report information of deliveries by them to the processing ship.

4. On the morning of Friday 14 February, a naval vessel, H.M.A.S. Whyalla came alongside the ship and a party from the vessel boarded the ship and the notice referred to above was served upon the master by a fisheries officer. On Saturday morning 15 February, the solicitor and junior counsel for the applicants saw me in chambers and in view of what was put to me as to the great urgency of the matter I heard their ex parte application based upon their instructions and with no affidavits or other papers in support. It was put to me that the only thing wrong with the operations of the ship so far as the Fisheries Department was concerned was that there were some unimportant discrepancies in the reports and that these could be cleared up without the ship returning to Port Lincoln. Mention was made of the failure to report the trans-shipment of fish at sea and it was said that the applicants considered that such a trans-shipment did not have to be reported until the ship returned to port. It was said that the return of the ship to Port Lincoln would cause the applicants considerable financial loss and that the decision was based on infractions of the Fisheries Act which were, in the circumstances, trivial. On the basis of what was put, I made an order suspending until further order, the operation of the decision in question and ordered service as soon as possible upon the respondent and adjourned further consideration of the application until Wednesday 19 February. I also directed the applicant to file and serve a formal application under the Administrative Decisions (Judicial Review) Act and affidavits to prove the matters put to me in chambers.

5. A review of the decision is sought upon the following grounds stated in the application -

1. That a breach of the rules of natural justice occurred in connection with the making of the decision (s. 5(1)(a) of the Act).

2. That the making of the decision was a improper exercise of the power conferred by the Fisheries Act (s. 5(1)(e) of the Act) in that there was -

(a) a failure to take relevant considerations into
account (s. 5(2)(b) of the Act)

(b) an exercise of discretionary power in accordance
with a rule of policy without regard to the merits
of the applicants' case (s. 5(2)(f) of the Act)

(c) an exercise of power that was so unreasonable that
no reasonable person could have so exercised the
power (s. 5(2)(g)).

3. That there was no evidence or other material to justify the making of the decision (s. 5(1)(h)).

6. It is proved by Mackie's affidavit that he was concerned by discrepancies between the reports of deliveries of fish to the ship and those made by the catching vessels and also by internal discrepancies between the radio reports and the forms CR42 submitted by the ship. He was also concerned by a report that there had been an unreported trans-shipment at sea of tuna amounting to approximately one hundred tonnes from the ship to a freighter bound for Japan. As appears from the conditions of the licence such a trans-shipment should have been reported on the day that it was made. It has still not been reported by or on behalf of the ship. It is proved that during last season the ship reported a number of similar trans-shipments by it in accordance with the terms of the licence. Having as he said, reason to believe that the ship had been used in contravention of the Fisheries Act, he decided to require it to be brought to Port Lincoln so that the discrepancies between reports and the details of the unreported trans-shipment might be investigated by examining the ship's records and interrogating the master and members of the crew and probably by weighing the fish on board.

7. At the hearing on 19 February it was somewhat faintly argued that the rules of natural justice should apply to the making of a decision to call the ship into Port Lincoln and that these rules were broken in that the decision was made without giving the applicants a prior opportunity to refute the allegations made. In the circumstances it is not, in my view, a decision of the class which requires the giving of prior notice of the intention to make it. Mackie was charged with the duty of investigating possible breaches of the Fisheries Act. Subject to what I say later as to the reasonableness or otherwise of this decision, if he decided that he had reason to believe that the ship had been used in contravention of the Act and that in order to determine whether or not such contravention had occurred, it was necessary to examine the ship's records, interrogate the master and possibly to weigh the fish, it would be a totally unreasonable fetter upon his investigation if he were required to warn the applicants in advance of his intention to investigate, or of any steps considered to be necessary to the investigation. No doubt Mackie's reason to believe must be a genuine one and his decision to require the ship to come into Port Lincoln must not be capricious or vindictive and without adequate basis and to this extent he must act fairly. However, to say that he must warn the applicants in advance of the steps proposed to be taken in his investigation, goes altogether too far. I reject the ground based on the rules of natural justice.

8. I should perhaps interpolate here that I am aware of the distinction between an application to review under the Administrative Decisions (Judicial Review) Act and an application under the Administrative Appeals Tribunal Act and I am not here concerned with whether the decision was in an absolute sense right, but simply whether any of the grounds set out in s. 5 of the Administrative Decisions (Judicial Review) Act are, or may be, made out. Ground 2(a) in the application was not pressed and neither were ground 2(b) and ground (3).

9. The main argument for the applicant was on ground 2(c). It was said that the discrepancies between the reports said by the deponent Burns to be of significance were in fact insignificant and capable of reconciliation and explanation. Because the question of significance is, to some extent a subjective one, I required the respondent to file a further affidavit setting out the general nature of the discrepancies alleged. This has been done and Mackie deposes to a total of discrepancies amounting to about twenty-seven tonnes. He also deposes to the fact that of sixty-two trans-shipments to the ship from the catching boats reported by radio, forty-three cannot be reconciled with the forms later submitted. On either basis these discrepancies seem to me to fit the description "of significance". It is not submitted that the admitted unreported trans-shipment of about a hundred tonnes to a freighter bound for Japan is not of significance. It is argued however by the applicants that even accepting that the fisheries officers needed to investigate discrepancies between the returns and the circumstances surrounding the trans-shipment to a freighter this could be done while the ship is still at sea and that the decision to order the ship's return was entirely unreasonable. It is argued by the respondent that there are serious difficulties about sending officers to sea to investigate the records on the ship and also that there is a satisfactory interpreter for the purpose of interrogating the master and possibly the crew available only in Port Lincoln. More important perhaps it is said that the fish on board the ship may need to be weighed in order to attempt to reconcile their returns and that it would be most difficult if not impossible to do this at sea. This last is not disputed.

10. It is proved that there are five other fish processing boats in the general area and no irregularities at all have occurred with respect to any of them. As at present informed I am quite unable to say that Mackie's decision to require the ship to return to Port Lincoln was unreasonable. Certainly I am not satisfied that it was or may have been "so unreasonable that no reasonable person could have so exercised the power". At this interlocutory stage I am not trying the matter but simply deciding whether I should continue the suspension of the operation of the decision under s. 15(1)(a) of the Administrative Decisions (Judicial Review) Act. I am not satisfied that the applicants have made out an arguable case for continuation of the suspension or that they have made out an arguable case in support of their application for review and indeed, even if I were so satisfied, this would possibly not be sufficient (see Perkins v. Cuthill (1981) 34 ALR 669 per Keely J.).

11. For the above reasons the application for a continued suspension of the operation of the decision was dismissed with costs.