Re Minister of Primary Industries and Energy v Austral Fisheries Pty Limited [1993] FCA 45; (1993) 112 ALR 211 (1993) 40 FCR 381 (1993) 30 ALD 783 (Extract) (19 February 1993)

FEDERAL COURT OF AUSTRALIA

Re: THE MINISTER FOR PRIMARY INDUSTRIES AND ENERGY
And: AUSTRAL FISHERIES PTY LIMITED
No. N G699 of 1992
FED No. 46
Number of pages - 37
Administrative Law
[1993] FCA 45; (1993) 112 ALR 211
(1993) 40 FCR 381
(1993) 30 ALD 783 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Beaumont(2) and Hill(2) JJ.

CATCHWORDS

Administrative law - fisheries and fishing rights - implementation of a Plan of Management - whether the determination constituting the implementation was an administrative or legislative act - statutory interpretation - use of a formula for the allocation of quota - formula containing a statistical fallacy that produced an irrational or absurd result - irrationality in the sense of Wednesbury unreasonableness - consequence flowing from such a finding.

Administrative Decisions (Judicial Review) Act 1977

Judiciary Act 1903, s.39B

Fisheries Act 1992, s.7B

Mixnam's Properties Limited v Chertsey Urban District Council (1964) 1 QB 214

Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142

Arthur Yates and Co. Pty Ltd v The Vegetable Seeds Committee [1945] HCA 55; (1945) 72 CLR 37

South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161

Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305

Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 108 ALR 681, considered.

HEARING

SYDNEY, 22,23 October 1992
19:2:1993

Counsel and Solicitors for the Appellant: Mr R.J. Burbidge QC with

Mr P. Roberts instructed by
Australian Government Solicitor

Counsel and Solicitors for the Respondent: Mr T.E.F. Hughes QC with
Mr R. Refshauge instructed by
Macphillamy Cummins and Gibson

ORDER

THE COURT ORDERS:
That the appeal be dismissed, with costs, other than the costs of the motion dealt with on 16 February 1993.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

LOCKHART J. I have had the benefit of reading the reasons for judgment of Beaumont and Hill JJ. and agree generally with them and with the orders which they propose. I shall add some observations of my own.

2. Subordinate legislative bodies can make laws which Parliament has expressly empowered them to make. I respectfully agree with Diplock L.J. in Mixnam's Properties Limited v Chertsey Urban District Council (1964) 1 QB 214 at 237 that:

"The various special grounds upon which
subordinate legislation has sometimes been said
to be void - for example, because it is
unreasonable; because it is uncertain; because
it is repugnant to the general law or to some
other statute - can, I think, today be properly
regarded as being particular applications of the
general rule that subordinate legislation, to be
valid, must be shown to be within the powers
conferred by the statute. Thus, the kind of
unreasonableness which invalidates a by-law is
not the antonym of 'reasonableness' in the sense
of which that expression is used in the common
law, but such manifest arbitrariness, injustice
or partiality that a court would say:
'Parliament never intended to give authority to
make such rules; 'they are unreasonable and
ultra vires'; Kruse v Johnson per Lord Russell
C.J. By-laws have in the past been declared void
for 'uncertainty'; see Nash v Finlay and
Attorney-General v Denby. Some doubt is cast on
the correctness of 'uncertainty' as a separate
ground of invalidity by the speeches in the
House of Lords in the recent case of Fawcett
Properties Limited v Buckinghamshire County
Council; but if the courts can declare
subordinate legislation to be invalid for
'uncertainty' as distinct from unenforceable, as
in the case of a clause in a statute to which it
is impossible to ascribe a meaning, this must be
because Parliament is to be presumed not to have
intended to authorize the subordinate
legislation authority to make changes in the
existing law which are uncertain."

3. The judgment of the Court of Appeal of the United Kingdom in Mixnam's Properties was affirmed by the House of Lords, reported at (1965) AC 735.

4. Delegated legislation is not invalid on the ground of unreasonableness in the sense that the courts may form a different view as to what is reasonable. Unreasonableness in this branch of the law means unreasonable in the sense that "a merely fantastic and capricious by-law, such as reasonable men could not make in good faith" is bad, because delegated legislation of this kind could not be regarded as an exercise of the power conferred upon the subordinate legislative body making the delegated legislation: Slattery v Naylor (1888) 13 App Cas at 452. In Kruse v Johnson (1898) 2 QB 91 Lord RusseLL C.J. said, in a well known passage, at 99-100:

"... I think courts of justice ought to be slow
to condemn as invalid any by-law, so made under
such conditions, on the ground of supposed
unreasonableness. Notwithstanding what Cockburn
C.J. said in Bailey v Williamson (1873) LR 8 QB
118 at 124, an analogous case, I do not mean to
say that there may not be cases in which it
would be the duty of the Court to condemn
by-laws, made under such authority as these were
made, as invalid because unreasonable. But
unreasonable in what sense? If, for instance,
they were found to be partial and unequal in
their operation as between different classes; if
they were manifestly unjust; if they disclosed
bad faith; if they involved such oppressive or
gratuitous interference with the rights of those
subject to them as could find no justification
in the minds of reasonable men, the Court might
well say, 'Parliament never intended to give
authority to make such rules; they are
unreasonable and ultra vires.' But it is in
this sense, and in this sense only, as I
conceive, that the question of unreasonableness
can properly be regarded. A by-law is not
unreasonable merely because particular judges
may think that it goes further than is prudent
or necessary or convenient, or because it is not
accompanied by a qualification or an exception
which some judges may think ought to be there.
Surely it is not too much to say that in matters
which directly and mainly concern the people of
the county, who have the right to choose those
whom they think best fitted to represent them in
their local government bodies, such
representatives may be trusted to understand
their own requirements better than judges.
Indeed, if the question of the validity of
by-laws were to be determined by the opinion of
judges as to what was reasonable in the narrow
sense of that word, the cases in the books on
this subject are no guide; for they reveal, as
indeed one would expect, a wide diversity of
judicial opinion, and they lay down no principle
definite standard by which reasonableness or
unreasonableness may be tested."

5. These views of Lord Russell were approved by Isaacs J. in Ferrier v Wilson [1906] HCA 77; (1906) 4 CLR 785 at 801-802.

6. As Starke J. observed in Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142 at 149-150:

"It is well settled that the Court is not
entitled to form its own opinion as to the
reasonableness of a by-law and if it thinks it
unreasonable, though within the scope of the
powers granted, to declare it invalid (Slattery
v Naylor; Widgee Shire Council v Bonney; and see
R. v Broad). Griffiths C.J. said in Widgee
Shire Council v Bonney (1907) 4 CLR at 982-983:-
'With regard to the objection that the by-law is
unreasonable, I think that since the cases of
Slattery v Naylor and Kruse v Johnson it is very
difficult to make a successful attack on a by-
law on this ground ... The existence of a power
and the expediency of its exercise are quite
different matters. The question of the
existence of the power can always be determined
by a court of law. Thus, in my opinion the
expediency of the exercise of a power is not a
matter for determination by a court ... It is
obvious that the question whether the
circumstances of the locality warrant the
exercise of a power is one of expediency and not
of competency.' Slattery v Naylor, however,
recognizes that 'a merely fantastic and
capricious by-law, such as reasonable men could
not make in good faith' would be bad, for such a
by-law could not in any proper sense be regarded
as an exercise of the power conferred upon the
authority making the by-law."

7. See also to the same effect the judgment of Starke J. in Brunswick Corporation v Stewart [1941] HCA 7; (1941) 65 CLR 88 at 97.

8. In Clements v Bull [1953] HCA 61; (1953) 88 CLR 572 Williams A.C.J. and Kitto J., in a joint judgment, posited the test of validity of delegated legislation as being whether there is a "real connection" between the delegated legislation and the purpose for which the regulation making power was conferred by Parliament. Their Honours saw the test of invalidity on the ground that no reasonable mind could justify it as "only a way of stating the conclusion that no real connection with the purposes of the power can be seen" (at 577). See also King Gee Clothing Co Pty Limited v The Commonwealth [1945] HCA 23; (1945) 71 CLR 184 per Dixon J. at 194-196; Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 per Mason and Wilson JJ. at 320-1; Nationwide News Pty Limited v Wills [1992] HCA 46; (1992) 108 ALR 681 per Mason C.J. at 689; Australian Capital Television Pty Limited v The Commonwealth (No. 2) [1992] HCA 45; (1992) 108 ALR 577 per Brennan J. at 609; Pearce, Delegated Legislation, 198-208; and Allan Wharam, Judicial Control of Delegated Legislation: The Test of Reasonableness 1973 36 Mod Law Rev 611.

9. Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorizing the subordinate legislative authority to enact laws.

10. It is with these principles in mind that I approach the question whether clause 11 of the South East Fishery (Individual Transferable Quota) Management Plan 1991 ("the Plan") is invalid. It is obvious that the application of clause 11 of the Plan creates unreasonableness between fishermen who fish in the South Eastern Fishery and leads to the irrational result referred to in the judgments of the learned primary judge (O'Loughlin J.). His Honour said:

"In order to explain the mistake that was made
in the formula, it is necessary to bear in mind
that its primary objective was to assess, over a
specified period, the involvement of an
individual in the particular fishery by having
regard to his catch history and financial
involvement. This could have best been done by
adding the annual factors and expressing the
individual's total as a percentage of the
industry's total for the same period. Instead a
percentage was struck in respect of each year;
thereafter those annual percentages were
totalled and divided by the number of years that
were involved in the exercise."

11. Why the market share of each fisherman was taken for each of the five years in question, totalling the annual percentages and dividing the result by five; rather than simply adopting an averaging method, whereby each fisherman's total catch over the whole five year period is expressed as a percentage of the industry's total fleet catch over the same period, is unclear from the evidence. By taking the percentage of each fisherman year by year plainly results in anomalies, especially with respect to low catch years. I am mindful of the fact that any quota system introduced by government will necessarily interfere with the operation of free market forces and will almost certainly create some kind of injustice as between the players in the market, and I take that into account. But clause 11 is so artificial and creates such extraordinary results that I cannot accept it as being within the scope of the statutory powers conferred by the Fisheries Act 1952, in particular s. 7B.

12. It is plain that the Department of Primary Industries and Energy, when formulating the quota allocation process under the Plan, purported to apply three principles in determining the quota allocation process for the individual transferable quota system, namely:

(a) the process should be as fair and as equitable as possible;
(b) it should most effectively reflect market share for a species over
the catch history period; and
(c) it should minimize disruption to the fishery.

13. These are permissible and worthy objectives, but they were not achieved by clause 11. The adoption of option 25 appears to have taken place very late in the stage of settling the final details of the Plan.

14. It is only in an extreme case that the Court takes the step of declaring invalid delegated legislation of the kind with which this case is concerned, but in my view this is such a case.

15. I would dismiss the appeal with costs.

INTRODUCTION
BEAUMONT AND HILL JJ. This is an appeal, by leave, from a declaration made by O'Loughlin J. that a provision of a management plan purportedly made under the Fisheries Act 1952 ("the Act") was void. The "South East Fishery (Individual Transferable Quota) Management Plan 1991" ("the Plan") was determined by the appellant, the Minister for Primary Industries and Energy, and was notified in the Commonwealth of Australia Gazette on 9 December 1991. By its further amended application for review, the respondent, Austral Fisheries Pty. Ltd. ("Austral"): (a) applied under the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act") for review of the decision of the Minister on the footing that it involved administrative action and; (b) applied for an injunction under s.39B of the Judiciary Act 1903, on the footing that the Plan was delegated legislation, restraining the Minister from implementing the Plan and a declaration that the Plan was void. Austral, the owner of several vessels to fish for orange roughy, a species of deep sea fish in the waters covered by the Plan, claimed that the Plan adversely affected its business. O'Loughlin J. granted relief under the Judiciary Act in respect of para.11 of the Plan.

THE LEGISLATIVE SCHEME
2. Part II of the Act dealt with the regulation of fisheries. Management plans were dealt with by s.7B:

"7B. (1) The Minister may, by instrument in writing,
determine a plan of management for a fishery in proclaimed
waters.
(2) A plan of management for a fishery shall set out -
(a) the objective of the plan of management; and
(b) measures by which the objective is to be attained.
(3) Without limiting the generality of sub-section (2),
the Minister may, in a plan of management for a fishery -
(a) determine the manner in which the fishing capacity of
the fishery is to be measured; and
(b) determine the fishing capacity, measured in that
manner, permitted for the fishery.
(4) Without limiting the generality of sub-section (2),
a plan of management for a fishery may make provision for
and in relation to -
(a) the granting of licences under sub-sections 9(2) and
(3) in relation to the fishery;
(b) the conditions to which licences granted under
sub-sections 9(2) and (3) in relation to the fishery are
to be subject; and
(c) the duration, transfer, renewal and variation of
licences granted under sub-sections 9(2) and (3) in
relation to the fishery.
(5) Where, in a plan of management for a fishery, the
Minister determines the fishing capacity permitted for the
fishery, then, without limiting the generality of
sub-section (2), the plan of management may make provision for
and in relation to -
(a) the division of the fishing capacity permitted for the
fishery into units (in this section referred to as
'units of fishing capacity');
(b) the allocation to persons of units of fishing capacity
in the fishery;
(c) the assignment of units of fishing capacity to boats,
and the holding, and cessation of holding, of units of
fishing capacity in relation to boats;
(d) requiring units of fishing capacity to be held in
relation to boats;
(e) the determination of the number of units of fishing
capacity to be held in relation to boats;
(f) the holding of units of fishing capacity that are not
assigned to a boat, including the number of such units
of fishing capacity that may be held by a person and
the period during which such units of fishing capacity
may be held;
(g) the duration, variation, re-assignment, transfer,
surrender, replacement, renewal of allocation,
suspension and cancellation of units of fishing
capacity;
(h) the recording of the allocation, assignment, holding,
cessation of holding, variation, re-assignment,
transfer, surrender, replacement, renewal of
allocation, suspension and cancellation of units of
fishing capacity and the manner in which such
recording is to be evidenced, including the issue,
recall and replacement of certificates and other
documents evidencing such recording; and
(j) the reconsideration of decisions made under the plan
of management.
(6) Such fees (if any) as are prescribed are payable in
respect of the allocation, assignment, variation,
re-assignment, transfer, replacement, and renewal of
allocation, of units of fishing capacity and the issue and
replacement of certificates and other documents evidencing
the recording of the allocation, assignment, holding,
cessation of holding, variation, reassignment, transfer,
replacement, and renewal of allocation, of units of fishing
capacity.
(7) Regulations made for the purposes of sub-section (6)
may specify different fees, or prescribe different methods
of calculating fees, in respect of units of fishing capacity
included in different classes of units of fishing capacity.
(8) While a plan of management is in force for a
fishery, the Minister and the Secretary shall perform their
functions, and exercise their powers, under this Act in
relation to the fishery in accordance with the plan of
management, and not otherwise.
(8A) The Minister and the Secretary shall, in the
performance of their functions and the exercise of their
powers generally under this Act, have regard to the effects,
either direct or indirect, that the performance of the
functions and exercise of the powers may have in relation to
any plan or plans of management.
(9) In this section -
'decision' has the same meaning as in the Administrative
Appeals Tribunal Act 1975;
'fishery' means a class of activities by way of fishing,
being a class of such activities that is identified in a
plan of management as a fishery to which the plan of
management applies.
(10) Without limiting the matters by reference to which
a fishery may be identified in a plan of management, those
matters include all or any of the following:
(a) a species of fish;
(b) a description of fish by reference to sex or any other
characteristic;
(c) an area of waters or of seabed;
(d) a method of fishing;
(e) a class of boats;
(f) a class of persons;
(g) a purpose of activities."

3. Section 7C provided, inter alia, for the tabling and disallowance of management plans:

"7C. (1) The Minister shall cause to be published in the
Gazette, in respect of each determination, notice of -
(a) the fact that the determination has been made; and
(b) the place or places where copies of the determination
can be obtained.
(2) A determination may make provision for or in
relation to a matter by applying, adopting or incorporating,
with or without modification -
(a) a provision of any Act or any regulation made under an
Act, of any notice published under section 8 or of any
other determination as in force at a particular time
or as in force from time to time; or
(b) any matter contained in any other instrument or
writing as in force or existing at the time when the
determination takes effect.
(3) Section 48 (other than paragraph (1)(a)), 48A, 48B,
49 and 50 of the Acts Interpretation Act 1901 apply to
determinations as if, in those sections, references to
regulations were references to determinations and references
to a regulation were references to a provision of a
determination.
(4) Determinations are not statutory rules within the
meaning of the Statutory Rules Publication Act 1903.
(5) For the purposes of section 5 of the Evidence Act
1905, a determination shall be deemed to be an order made by
a Minister.
(6) A determination shall be deemed to be an enactment
for the purposes of the Administrative Appeals Tribunal Act 1975.
(7) In this section, 'determination' means a
determination under sub-section 7B(1)."

THE PLAN
4. The objectives of the Plan and the measures for attaining them were:

"Objectives
5. For the purposes of subsection 7B(2) of the Act, the
objectives of this plan are -
(a) to achieve a level of parental biomass for each stock
in the fishery consistent with optimum sustainable
yields for that stock having regard to among other
things scientific assessments of the status of that
stock; and
(b) to promote optimum utilisation of the resource in the
fishery."
"Measures for attaining objectives
6. The principal measures for attaining the objectives
specified in paragraph 5 are -
(a) determining the TAC (total allowable catch) for each
specified species that may be taken from the fishery;
(b) at the commencement of this plan dividing the TAC for
each specified species into units of fishing capacity
and allocating those units to individual operators in
the fishery; and
(c) exercising the powers in Part III of the Act so as to
prevent a person from using a boat, other than in the
course of exempt fishing, to take in a season a
liveweight of specified species exceeding the quota in
relation to the units in respect of that species which
are assigned to the boat."

5. Part 2 of the Plan, headed "Determination of Fishing Capacity", were relevantly as follows:

Total allowable catch
7.1 The TAC for each specified species at the
commencement of this plan is that specified in Schedule 3.
...
Total number of units
8.1 The fishery is divided into units for each specified
species.
8.2 The Manager may withhold from allocation a
proportion of the total number of units for a specified
species -
(a) for the purposes of scientific research; or
(b) for the allocation of additional units upon
reconsideration of decisions under this plan.
8.3 The total number of units of a specified species
available for allocation at the commencement of this plan
shall be divided into a number of units available for
allocation to those persons eligible for a determination
under paragraph 11 in respect of -
(a) otter trawl boats ...
and those numbers shall be specified in the relevant species
Schedule.
8.4 The number of units of a specified species available
for allocation at the commencement of this plan in respect
of otter trawl boats is equal to the product of -
(a) the total number of units of that species available
for allocation in respect of all boats; and
(b) the proportion of the total verified catch of that
species of all boats in (a) that are otter trawl
boats.
...
Quota in relation to a unit
9.1 The quota in relation to a unit at the commencement
of this plan is one kilogram liveweight.
9.2 Where the Minister varies a TAC in respect of a
specified species under subparagraph 7.2, the quota in
relation to a unit for that species is equal to the varied
TAC divided by the total number of units for that species at
the commencement of this plan and expressed as kilograms
liveweight and rounded to two decimal places.
9.3 A variation to the quota in relation to a unit under
subparagraph 9.2 has the same date of effect as the
corresponding variation to the TAC.
9.4 The Manager must as soon as practicable notify each
unit holder of any change to the quota in relation to a unit
and of the day from which that change takes effect.
Eligibility for determination
10.1 A determination under paragraph 11 in respect of a
specified species may be made to a person who -
(a) at the commencement of this plan is the holder of an
endorsed licence;
...
10.2 A relevant boat for the purposes of paragraphs 11,
12 and 13 means -
(a) in the case of a person who qualifies under
subparagraph 10.1(a) - the boat in respect of which
the endorsed licence is in force;
...
Allocation of units available for assignment
11.1 The number of units of a specified species
available for assignment to a person in respect of a
relevant boat shall be determined on the basis of -
(a) verified catch; and
(b) boat units; and
(c) a weighing factor given to each of (a) and (b).
11.2 The Manager shall determine in respect of a
relevant boat where that boat is an otter trawl boat, the
number of units of a specified species available for
assignment equal to the result of the formula -
( (ao x TCPCo) + (bo x BUPCo) ) x TUo
Where -
ao = a weighting specified in the relevant species Schedule
given to verified catch; and
TCPCo (Total catch percentage component) = the sum of catch
percentage components for that boat and that species
calculated under subparagraph 11.4 for the years defined in
the relevant species Schedule; (emphasis added) and
bo = a weighting specified in the relevant species Schedule
given to boat units; and
BUPCo = a boat unit percentage component calculated under
subparagraph 11.6; and
TUo = the number of units of that specified species
available for allocation in respect of otter trawl boats as
calculated under subparagraph 8.4.
..."

6. Sub-paragraph 11.4 was relevantly as follows:

"11.4 The catch percentage component for a specified
species in respect of a relevant boat for a year is the
result of the formula -
X x Z x 100
Y
Where -
X = verified catch of that species by the boat in that
year calculated under paragraph 12; and
Z = a weighting specified in the relevant species Schedule
for that year; and
Y = (a) in respect of an otter trawl boat, the sum of the
values of X for all otter trawl boats in respect of
which a catch percentage component is calculated for
that specified species for that year under this
subparagraph;
..."
The relevant species schedule was Schedule 7:
"SCHEDULE 7
SPECIFIED SPECIES
ORANGE ROUGHY-EASTERN SECTOR
1) In respect of paragraph 8 the total number of Orange
roughy - Eastern sector units available for allocation is
7,125,000
2) The qualifying period is from 1 January 1984 to 31
December 1989.
3) In respect of subparagraphs 11.2 and 11.3 the years for
which verified catch is used in the calculation of TCPC are
the 5 years of the qualifying period having the highest
verified catch of the sum of Orange roughy - Western sector
and Orange roughy - Eastern sector and Orange roughy -
Southern sector by the relevant boat.
4) With respect to subparagraph 11.2:
ao = 0.5; and
bo = 0.5
5) The threshold catch for:
(a) otter trawl boats = 100 kilograms/boat unit;
...
6) With respect to subparagraph 11.4
Z = 0.2"

AUSTRAL'S CHALLENGE
7. Austral did not seek to challenge the TAC fixed for orange roughy. Its complaint was about the size of its quota, that is, the units of fishing capacity allocated to it by virtue of the operation of the provisions of para.11. Austral's contention, upheld by the primary Judge, was that para.11 contained a "statistical fallacy" that produced an "irrational" result, so that consequently, it was void in law. In order to understand the context in which this contention arose, it will first be necessary to mention some of the background facts disclosed in the evidence.

THE BACKGROUND FACTS
8. In early November 1991, a working group, comprising representatives of the Australian Fisheries Service ("AFS") and the State Directors of Fisheries, together with three industry representatives as non-voting observers, was established to consider possible calculation methods or "options" for allocating orange roughy quota. Many options were considered. The working party recommended Option 25, which was described in one of the papers prepared for the working group as follows:

"Years: worst year discarded between 1984 - 1989
Zones: single zone
Catch History Weighting: 50%
Investment Units Weighting: 50%"

9. No question arises here with respect to investment units. The area of contention is "catch history".

10. The background to this option was described in an official briefing by Mr. B.J. Scott, the senior officer in the AFS responsible for the development of the individual transferable quota system for management and administration of the South Eastern Trawl Fishery ("SETF"). This briefing was given to an industry workshop held in Canberra between 7 and 10 November 1991 and said, relevantly:

"ALLOCATION
The basic tenants (sic) for allocation were that it should be
FAIR
EQUITABLE
MINIMISE DISRUPTION to the operations of those
involved in the fishery at that time
In order to achieve these fundamental requisites and
after talking to all operators in the fishery it was agreed
that instead of using the logbook data we would move to
verified catch information for six years ie 1984 to 1989.
We also adopted the Market share concept to try to identify
each participants involvement over time.
ie an operators catch for any one year would be
divided by the catch of all other catches for that
species and this would be expressed as a percentage or
the operators market share for that species for that year.
In order to address the problems associated with individual
special (sic) a number of generic solutions were invoked.
These included taking the five best years of catch as
opposed to the six for calculating the market share. This
allowed people who had one bad year to be able to eliminate
that year for a particular species.
This provided a resolution of a number of the individual
problems that were registered with us at the time. Unique
solutions were also developed for many of the special groups
but at all times the fundamental tenant (sic) of fair and
equitable were foremost in the consideration of a particular
circumstance.
All these circumstances are outlined in a paper that was
presented to both the SETMAC Liaison Committee and the AFC
sub committee which is available for those who wish to
examine these issues.
Each species was treated separately.
Basically the allocation was done on the basis of 80% catch
history for all Otter Board trawlers that had operated on
the traditional species and 20% on units of capacity.
This was not the case for the Orange Roughy and the Blue
Grenadier species where a 50%/50% split was used.
The rationale for the change was that these species are
relatively new to the fishery and the traditional fishermen
had not operated on these species overtime and that the
investment that had been made in the SW sector was designed
to utilise the orange roughy resource."

11. The Minister accepted the working party's recommendation in favour of Option 25.

12. By letter dated 28 November 1991, Mr. Scott wrote to operators outlining the basis of the quota allocation process. He stated (relevantly):

"There were three major considerations in determining the
quota allocation process for the individual transferable
quota (ITQ) system about to be introduced in the SETF:
. the process should be as fair and as equitable as
possible;
. it should most effectively reflect the market share
for a species over the catch history period; and
. it should minimise disruption to the fishery.
Views were sought from all operators in the fishery as to
the factors which might be used to determine quota
allocation. With catch history and investment (boat units)
decided as the two factors to be used in developing an
allocation formula, further negotiation led to the catch
history period stretching across six years, from 1984 to
1989 inclusive and the use of verified catch history data
only.
After further negotiations, catch history and investment
were given the following weightings:
. ...
. for otter trawlers a weighting of 80%/20% applies for
all species under quota except orange roughy and blue
grenadier in which cases the weighting is 50%/50%."

13. Mr. Scott went on to describe the "catch history component":

"...For each year which could be included in the allocation
calculations, the operator's catch was divided by the total
of all operators' catches for that species in each year.
This was multiplied by 100 to give a percentage
representation of that operator's market share of that
species in that year.
Example
John Brown caught 20 tonnes of Species X in 1988. The total
of all operators' catches of Species X that year was 2000
tonnes.
20 x 100 = 1%
2000
John Brown's market share of Species X in 1988 was 1%.
This calculation was made for each operator for each of the
five best years of catch history for that species or for
each of the years within the catch history period in which
he caught that species if the number of those years was less
than six.
To ensure equity in the quota allocation process, each year
was given equal weighting in the allocation formula. With a
total of five years which could be included in the catch
history component of the formula, each year was weighted as
one-fifth of a whole. The market share from each year was
then multiplied by 0.2 to determine its weighting within the
catch history period. The results from these calculations
were then added together to determine the total market share
for the catch history period.
Example
These are the calculations that would apply to John Brown's
catch history for Species X to determine his market share
for that species:
1984 40 x 100 = 1.14 x 0.2 = 0.23
3500
1985 35 x 100 = 0.97 x 0.2 = 0.19
3600
1987 24 x 100 = 1.00 x 0.2 = 0.20
2400
1988 20 x 100 = 1.00 x 0.2 = 0.20
2000
1989 20 x 100 = 1.11 x 0.2 = 0.22
1800
The sum of these five figures is 1.04. That is, John
Brown's market share for Species X over the catch history
period is deemed to be 1.04%..."

14. By letter dated 23 December 1991, the Manager of Shark, Scallop and Southern Trawl Fisheries informed operators of his "final quota determination" for the South East Fishery ("SEF"), to apply from 1 January 1992. Attached to the letter was an explanation, in respect of orange roughy, of Option 25 as follows:

"This Option involves dealing with the orange roughy fishery
as a whole for calculating market share and threshold
catches and allocating the same percentage share for each
Sector. The method of calculating market share, ie, equal
representation of each year of the qualifying period (the
best five out of six years in the period 1984 to 1989) and
the weighting given to catch history and units (50:50) is
unchanged.
The effect of Option 25 is to minimise the effect of orange
roughy catches in a lightly-fished Sector in a particular
year on the overall quota determined for a vessel."

THE REASONING AT FIRST INSTANCE
15. At first instance, Austral challenged the validity of the Plan on several grounds, one of which was upheld by O'Loughlin J. The other grounds are no longer pressed.

16. His Honour held that the relevant part of the formula in para.11 contained a "statistical fallacy". In arriving at this conclusion, the learned Judge relied on the expert opinion evidence of Dr. D.F. Nicholls, Reader in Statistics and Dean of the Faculty of Economics and Commerce, Australian National University. Dr. Nicholls said that the formula contained a statistical fallacy that produced an "irrational result". His Honour said (at 15-16):

"Although it was argued (for the Minister) that issues of
fairness, equity and maintenance of market shares were the
criteria that led to the choice of option 25, Mr. Nicholls'
mathematical conclusions have not been challenged by (the
Minister). I must say that I do not readily comprehend how
a statistical fallacy that produces an irrational result
could be said to be synonymous with fairness, equity and
maintenance of market share."
...
In order to explain the mistake that was made in the
formula, it is necessary to bear in mind that its primary
objective was to assess, over a specified period, the
involvement of an individual in the particular fishery by
having regard to his catch history and financial
involvement. This could have best been done by adding the
annual factors and expressing the individual's total as a
percentage of the industry's total for the same period.
Instead a percentage was struck in respect of each year;
thereafter those annual percentages were totalled and
divided by the number of years that were involved in the
exercise."

17. His Honour then referred to Dr. Nicholls' hypothetical example:

"To illustrate the fallacy, let it be assumed that the road
deaths over Easter in two successive years are as set out in
the following table.
NSW VIC SA Q WA TAS ACT Total
Year 1 20 25 10 10 5 3 1 74
Year 2 25 20 10 15 6 3 4 83
Percentage
Increase 25 -20 0 50 20 0 300 12.2%
In this hypothetical example, the overall percentage
increase in road deaths between the two years is 12.2%. If,
however, one averages the percentage increase figures, there
is an increase of 53.6%. The figure of 53.6% is quite
meaningless. It has no mathematical significance and it has
no practical purpose or use whatsoever. Anyone suggesting
that the figure of 53.6% was relevant to any question
associated with road safety would be relying on a
statistical fallacy."

18. The Judge found that -

"...the formula that appears in clause 11 of the new plan
for the allocation of units in the fishery is flawed in a
manner that is reflected by this example and that it has
produced an irrational result."

19. O'Loughlin J. then addressed the question whether the Plan was administrative or legislative in character. After referring, in particular, to the provisions of ss.7B and 7C of the Act and to the decisions of French J. in Azevedo v Secretary, Department of Primary Industries and Energy [1992] FCA 84; (1992) 35 FCR 284 and of Heerey J. in Secretary, Department of Primary Industries and Energy v Collins [1992] FCA 61; (1992) 106 ALR 351 (at 357), his Honour concluded that the Plan was delegated legislation and not administrative action.

20. The Judge then considered whether there had been an "unreasonable" exercise of power. After referring to the discussion by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (1985) 1 AC 374 and, in particular, "irrationality" in the sense of "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation (1948) 1 KB 223) and to observations of Lord Scarman in Nottinghamshire County Council v Secretary of State for the Environment [1985] UKHL 8; (1986) AC 240 (at 247-8), his Honour said (at 30-32):

"The exact number of boats that trawl for orange roughy in
the fishery was not established. However, it was agreed
that there were about 50 to 60. In a comparison of their
1991 and 1992 quotas, every boat, bar one, had its quota
reduced: the quota of that one boat was increased to over
double its previous annual catch...which meant one of 50 or
60 boats being entitled to approximately 18% of the TAC.
Prima facie, there does not appear to be any reason for such
a result; prima facie the utilization of option 25 was not
only 'outrageous in its defiance of logic', it also would
have created a deep sense of injustice. Mr. Scott in his
evidence maintained his support for option 25; he was given
every opportunity to explain it or justify it. In my
opinion he was unable to do so. His evidence was:
'... what did lead you to support option
25?...Well, we had three fundamentals that we
were trying to develop and one was that we
wanted to develop a fair and equitable
distribution and the other one was that we
wanted to get as close as we could, as we stated
right from the very beginning, to have a look at
how close they could get to market share. What
had been market share over the period of time.
And they were the three, sort of basic tenets
that we were looking at and so as a consequence
we tried to do that. The other thing was that
we wanted consistency through the whole of our
operation if that was at all possible and so
that was why we felt that the principles were
the ones that we had to develop and apply those
principles so that we would have very little
subjectivity in our decision making.
And with the advantage of hindsight did option
25 serve those objectives?... I think it did.
When you take it in the broad I think it did.
Well, there's been a suggestion made that the
boat Santo Rocco Di Bagnara was a glaring
example of a departure from an equitable result
because it, on the application of option 25's
formula, came out a lot better than it had been
under the pre-existing regime. Knowing that do
you still adhere to the view that the objectives
to which you've referred are achieved by option
25?... Taken in the broad context I do. I think
that what we were looking at was that the - was
the period of time that we were given which was
up until 89, to have a look at the catches up
until that period of time it did achieve those
objectives. ...'
This evidence leaves me quite unsatisfied and causes me to
revert to my original proposition - prima facie, there does
not appear to be any reason for the adoption of option 25.
When as here, it produces such an absurd result, doubling
one man's quota and giving him 18% of the TAC whilst
reducing everybody else's, there is justification for
judicial intervention to redress an understandable sense of
injustice.
...
In Kruse v Johnson ... Lord Russell of Killowen C.J. ...
instanced certain examples where a court might interfere to
condemn by-laws; one such example which could be
appropriate to the facts of this case was where the by-laws
'...were found to be partial and unequal in their operation
as between different classes'. Those views were approved by
Isaacs J. in Ferrier v Wilson...."

THE MINISTER'S GROUNDS OF APPEAL
21. In seeking to challenge his Honour's declaration that para.11 of the Plan was void, the Minister contends that the Court erred in the following respects:

(1) in assuming that assessment of individual involvement was "best"
done "by adding the annual factors and expressing the individual's
total as a percentage of the industry's total for the same
period";
(2) in finding or assuming that evidence of difference between results
derived from the application of the formula in para.11 of the Plan
and another formula was evidence of irrationality;
(3) in relying on Dr. Nicholls' statistical illustration;
(4) in finding that a "mistake" had been made in the formula in
para.11;
(5) in making the following findings of fact in respect of which there
was no evidence or the evidence was to the contrary:
(a) that in 1991 fishing boats had been allocated a quota for
orange roughy;
(b) that in 1992 every boat bar one had its quota for orange
roughy reduced;
(c) that in 1992 one boat was entitled to approximately 18% of
the TAC; and
(6) in applying the "Wednesbury" principle as the test for validity.

AUSTRAL'S NOTICE OF CONTENTION
22. For its part, Austral now contends that his Honour should not have held that the making of the Plan, or at least para.11, was the enactment of delegated legislation rather than an administrative decision.

CONCLUSIONS ON THE APPEAL
23. It is convenient to deal with Austral's contention before turning to the Minister's appeal.

(a) Was the determination of the Plan legislative or administrative?
24. In Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, Gummow J. said (at 634):

"...a decision made under an enactment of the Parliament by a
Minister or his delegate under statutory power may be essentially
legislative in character in a direct and immediate rather than in
any incidental sense. And such a decision will be excluded from
review under the ADJR Act as much as if it had fallen within the
direct terms of exclusion of decisions, under an enactment, by the
Governor-General in Council. Hence, the necessity for some
criterion to mark the legislative from the administrative or
judicial. In seeking those criteria, one bears in mind the
remarks of Professor Freund, repeated by Dixon J. in Dignan's
case... as to finding in loose terms and unascertainable
standards, refuge from thought and expression. In Commonwealth v
Grunseit... Latham C.J. said: 'The general distinction between
legislation and the execution of legislation is that legislation
determines the content of a law as a rule of conduct or a
declaration as to power, right or duty, whereas executive
authority applies the law in particular case.' See also Arnold v
Hunt..."

25. In Collins' case, above, Heerey J. held that a fishery management plan had the force of law. His Honour said (at 356-7):

"The starting point is the proposition that the plan has the
force of law. So much was conceded by counsel for the
respondent, although their argument sought, unsuccessfully
to my mind, to avoid the consequences which necessarily
follow. Parliament clearly intended that a plan of
management determined by the minister under s 7B should
create detailed rights and obligations in relation to a
fishery. Particular reference in this regard might be made
to subss (4), (5), (6) and (7). The provisions of the Acts
Interpretation Act 1901 concerning tabling before and
disallowing by parliament are to apply.
Thus a plan of management stands on quite a different legal
footing from policy statements or guidelines. The minister
and the secretary, like all other citizens, are bound by the
law contained in a plan of management just as they are by
the law in the Act itself.
In the present case, the plan was part of the law which the
AAT had to apply in considering whether the decision made
was, on the material before the tribunal, the correct or
preferable one."

26. In Azevedo's case, above, French J. said (at 299-300):

"The question remains whether a plan of management made
under the Fisheries Act attracts the application of s 46 of
the Acts Interpretation Act and thus of the general
provisions of the Act including ss 8 and 8A. Section 7B of
the Fisheries Act requires that the determination of a plan
of management be by instrument in writing. The word
'instrument' as used in s 46 of the Acts Interpretation Act
is not defined except to the extent that it includes rules,
regulations and by-laws. The ordinary English meaning in
this context is 'a formal legal document whereby a right is
created or confirmed, or a fact recorded; a formal writing
of any kind, as an agreement, deed, charter, or record,
drawn up and executed in technical form': Shorter Oxford
English Dictionary. It may be debatable whether a plan of
management could be said to have a direct legal effect in
the way that regulations or by-laws do. Its principal legal
consequence is that it circumscribes the exercise of the
powers and functions of the Minister and Secretary not of
its own force but by virtue of s 7B(8) and (8A) of the
Fisheries Act. Nevertheless, in my opinion, the statutory
requirement that a determination be made by instrument in
writing and the ordinary meaning of the word 'instrument'
require that a plan of management under the Fisheries Act be
considered as an instrument for the purposes of s 46 of the
Acts Interpretation Act."

27. More recently, in Latitude Fisheries Pty. Ltd. v The Minister, (1992) 110 ALR 209, French J. said (at 228):

"A determination under s.7B is not a policy statement. In
... (Collins), Heerey J. observed that a Plan of Management
stands on quite a different legal footing from policy
statements or guidelines. I respectfully agree with his
Honour's view in this regard which accords with the opinion
I expressed in (Azevedo) ... On the other hand a
determination is not a species of regulation or by-law
creating rights and duties by virtue of a general statutory
authority delegating a law making power to the Minister.
Whether it falls within the wider concept of delegated
legislation at all may be debateable. In Pearce - Delegated
Legislation in Australia and New Zealand (1977) it is
suggested that delegated legislation can be defined as
'instruments that lay down general rules of conduct
affecting the community at large which have been made by a
body expressly authorized so to act by an Act of parliament'
(pp 1-2). Accepting the limitations of that definition and
the uncertain boundaries of executive and legislative
activity which are pointed out in the text, it may be
doubtful whether a determination under s.7B of the Fisheries
Act 1952 is properly described as delegated legislation.
The provisions of the Act by which it is deemed to be an
order for one purpose and an enactment for another, and the
application of provisions of the Acts Interpretation Act
1901 specifically relating to regulations suggest that while
the determination is so regarded for some purposes, that
characterisation is not of general application."

28. French J., after referring to the decision at first instance in the present matter, went on to say (at 229):

"In the Second Reading Speech for the Fisheries Legislation
Amendment Act 1985 by which s.7B was introduced into the
Fisheries Act 1952 it was said that management plans would
'have the force of law' (H. Of R. Deb 17.4.85 p 1289). The
problem of classification perhaps points up the difficulty
adverted to by Professor Pearce in separating legislative
and executive action where the two areas of official conduct
meet. In the end, I think the better course in most cases
is probably to eschew the taxonomic debate and focus upon
identification of the rights, duties, powers and privileges
which arise as a result of the determination of the Plan."

29. In his work, Delegated Legislation (1977), Professor Pearce said (at para.2):

"As far as judicial review of delegated legislation is
concerned, the principles adopted by the courts when
considering the validity of such legislation are, for all
practical purposes, the same as those used for judicial
review of executive action. The terminology is sometimes a
little different - the notions of jurisdiction and error of
law are not applied to delegated legislation - but the
general doctrine of ultra vires is adopted in like manner in
regard to delegated legislation as it is to executive
action. Hence there is no need to attempt fine distinctions
between the two types of activity for the purposes of
judicial review."

30. In Arthur Yates and Co. Pty. Ltd. v The Vegetable Seeds Committee [1945] HCA 55; (1945) 72 CLR 37, Dixon J. said (at 80):

"For the purpose of such a provision as s.5(4) of the
National Security Act 1939-1943, the orders here in question
may be considered to be of a legislative and not of an
executive character, though strangely enough it nowhere
appears whether they were so dealt with under that
sub-section. But to say that, for the purpose of a requirement
that they be laid before the Houses of Parliament, the
orders are of a legislative character will shed no light
upon the question whether the purpose animating them or
their corporate author is a ground of invalidity. Indeed I
do not think that in English law such a question will be
found ever to be solved by ascertaining whether, upon a
correct juristic analysis, the power should or should not be
described as legislative. It will depend rather upon the
nature of the authority in whom the power is reposed and
upon the measure and extent of the power, its subject matter
and its limitations and the conditions in or upon which it
is exercisable."

31. In our opinion, these observations are applicable in the present case. It is true that if the jurisdiction of the Court to entertain this matter depended solely upon the provisions of the AD(JR) Act, it would be necessary to determine whether there existed a decision of an "administrative character" within the meaning of that legislation. But, as has been noted, the Court's jurisdiction under s.39B of the Judiciary Act was also invoked and it is accepted that this jurisdiction permits, in an appropriate case, judicial review of both administrative and legislative action. We propose then to embark upon an inquiry of the kind described by Dixon J., noting that his Honour's reference to the nature of the authority in whom the power is reposed must now be viewed in the light of modern authority (see South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 per Brennan J. at 174; see also Minister for Foreign Affairs and Trade v Geraldo Magno (Full Federal Court, unreported, 26 November 1992, per Gummow J. at 26).

(b) Was para. 11 of the Plan void?
32. As has been noted, the Minister may determine a fishery management plan (s.7B(1)), setting out its objectives and measures by which they are to be attained (s.7B(2)). In a plan, the Minister may determine the manner in which the fishing capacity of the fishery is to be measured and determine that capacity (s.7B(3)). A plan may provide, inter alia, for the grant and transfer of licences in relation to the fishery (s.7B(4)). Where the Minister determines fishing capacity, the plan may provide for the division of the fishing capacity into units, their allocation to persons and their assignment to boats; and the plan may also require units to be held in relation to boats (s.7B(5)).

33. If taken literally, the Minister's power to provide in a plan for the allocation of units may be thought to be unlimited. However, on three bases, as a matter of statutory interpretation, the scope of the power cannot be unrestricted.

34. First, in the absence of an explicit contrary provision, s.7B(5) should be interpreted so as not to "result in an operation...which in (the Court's) opinion is capricious and irrational", per Mason and Wilson JJ. in Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 321. As their Honours point out (at 320), referring to observations by Professor Pearce and R.S. Geddes in Statutory Interpretation in Australia, this approach reflects the rule of common sense (rather than law) that it is not to be expected that Parliament intends legislation to operate in a capricious and irrational way.

35. Secondly, a determination of a plan will be beyond power if it "could not be justified on any reasonable ground", per Menzies J. in Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305 at 323. Menzies J. went on to say (also at 323):

"There is, however, a world of difference between
justifiable opinion and sound opinion. The former is one
open to a reasonable man; the latter is one that is not
merely defensible - it is right. The validity of a local
rule does not depend upon the soundness of a council's
opinion; it is sufficient if the opinion expressed is one
reasonably open to a council."

36. Thirdly, as Mason C.J. said in Nationwide News Pty. Ltd. v Wills [1992] HCA 46; (1992) 108 ALR 681 (at 689):

"...this court has held that, in characterising a law as one
with respect to a permitted head of power, a reasonable
proportionality must exist between the designated object or
purpose and the means selected by the law for achieving that
object or purpose. The concept of reasonable proportionality
is now an accepted test of validity on the issue of ultra
vires... It is a test which governs the validity of statutes
as well as that of regulations. So, in Castlemaine Tooheys
Ltd v South Australia,... in deciding whether a law was
appropriate and adapted to the protection of the
environment, in which event the law would have been valid,
it was necessary to consider whether the adverse or
extraordinary consequences of the law were disproportionate
to the achievement of the relevant protection."

37. See also The Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 per Deane J. at 260; South Australia v Tanner, above, at 165 per Brennan J. at 178; Australian Capital Television Pty. Ltd. v Commonwealth of Australia (No. 2) [1992] HCA 45; (1992) 108 ALR 577 per Brennan J. at 609; Minister for Foreign Affairs and Trade v Magno, above, per French J. at 30 and Einfeld J. at 41.

38. In ascertaining for present purposes the true scope of s.7B and, in particular s.7B(5), it must be borne in mind that the relevant power is one of allocation. The Macquarie Dictionary meanings of "allocate" include -

"1. to set apart for a particular purpose; assign or allot:
to allocate shares..."

The Macquarie definitions of "allocation" include -

"1. The act of allocating; apportionment."

39. It follows, in our view, that s.7B(5) contemplates a process of apportionment of units between operators, so that, for instance, it would be beyond power for a plan to provide that there be no apportionment at all. It further follows, in our opinion, that the apportionment contemplated by s.7B(5) must reflect a method that is not capricious and irrational. At the same time, it is not for the Court to devise a method of allocation which appears fairer than that adopted in a plan. As Isaacs J. said in Ferrier v Wilson [1906] HCA 77; (1906) 4 CLR 785 at 801:

"A Court is not at liberty to declare a regulation or by-law
invalid on the ground of unreasonableness merely because the
Court may think it could be more fairly framed, so as to
bear with less hardship on those affected. Such
considerations are here entrusted to high public
functionaries, and although the ultimate power of
supervision remains in the Court, it is only for the purpose
of confining the rule making power within the limits of its
jurisdiction, and not for correcting any possible unwisdom
in its determinations."

40. The relevant principles in this area are well summarised by Paul Walker in "Irrationality and Proportionality" in Judicial Review (1992) (ed. by Supperstone and Goudie) as follows (at 121):

"Reasonable people may differ about moral standards, and
about the rigour with which logic must be applied. An
assertion that a decision is illogical or fails to meet
moral imperatives must be weighed against the needs of good
administration, recognising that administrators will
sometimes find themselves confronted with a Gordian knot,
and must not shirk from applying a common sense solution.
Only if the solution strays so far from logic or accepted
moral standards that no reasonable administrator could have
thought it right will it be condemned as irrational. This
involves a value judgment by the court: but it is a
judgment of a very limited kind.
The fact that the test is so stringent places a high burden
upon an applicant. This does not mean, however, that an
administrative body may render itself immune from judicial
review on rationality grounds by simply asserting that it
weighed all relevant factors and formed its own value
judgment."

See also comments in three articles in the Federal Law Review (1991) Vol 20 No. 1: Peter Bayne, "The Court, the Parliament and the Government - Reflections on the Scope of Judicial Review" 1 at 36; John McMillan, "Developments under the ADJR Act: The Grounds of Review" 50 at 57; and Mr. Justice Gummow "Reflections on the current operation of the ADJR Act" 128 at 132.

41. The method adopted in the Plan will only be beyond the scope of s.7B(5) if no reasonable person could ever have devised it. This is a stringent test, but the learned primary Judge concluded that, in the present circumstances, it had been satisfied. It is now common ground that some of the illustrations given by his Honour were not sustainable, yet as we read his reasons, his Honour's judgment was that, as a matter of principle, the method of allocation provided for in the Plan was fundamentally flawed by virtue of the "statistical fallacy" inherent in its operation. It is pertinent to note here that, in the area of ultra vires, the facts "(are) not ascertained as though (they) were...mere issue(s) between the parties" (per Brennan J. in Tanner's case at 179).

42. In substance, the Judge held that the relevant provisions of the Plan were capricious and irrational, such that no reasonable person could ever have devised it. This was an extreme conclusion. But it was justified on the expert evidence of Dr. Nicholls. We are not persuaded that, in principle, his Honour was wrong in that conclusion. In the absence of evidence or a process of reasoning to propound any rational basis to warrant the adoption of a statistically flawed formula for the calculation of catch history over the five year period, it was, we think, reasonably open to his Honour to conclude that the relevant provisions of the Plan were beyond power and thus void. No case for interfering with that conclusion has, in our view, been made out.

43. We would dismiss the appeal, with costs, other than the costs of the motion dealt with on 16 February 1993.