FEDERAL COURT OF AUSTRALIA

Australian Fisheries Management Authority v Gilmore [2009] FCA 1369

ADMINISTRATIVE LAW – appeal against decision of Statutory Fishing Rights Allocation Review Panel in relation to provisional grant of statutory fishing rights – where respondent had sold fishing permit as part of buy-back scheme six years prior to allocation of statutory fishing rights – where respondent’s quota under fishing permit calculated by reference to catch history and value of fishing permit and nil value attributed to respondent’s fishing permit – where translation from quota attached to fishing permit to statutory fishing rights – whether Panel had discretion to depart from formula for translation in fisheries management plan – whether Panel could exercise power to vary respondent’s fishing permit so as to result in altered quota of statutory fishing rights Held: appeal allowed – Panel bound to follow fisheries management plan by virtue of s 29(3) of Fisheries Management Act 1991 (Cth) – Panel could not exercise power in s 32(8) of Fisheries Management Act 1991 (Cth) to vary fishing permit in order to alter quota for statutory fishing rights – provisions dealing with fishing permits and provisions dealing with statutory fishing rights separate in Fisheries Management Act 1991 (Cth) and subject to different review procedures. Administrative Appeals Tribunal Act 1975 (Cth) Federal Court Rules O 80 r 4(3) Fisheries Management Act 1991 (Cth) ss 4, 6, 17, 18, 19, 20, 21, 23, 24, 27, 28, 29, 32, 44, 95, 124, 142, 150, 161, 165 Australian Fisheries Management Authority v Graham (2003) 127 FCR 436 referred to Australian Securities and Investments Commission v Donald (2003) 136 FCR 7 cited Fischer and Australian Fisheries Management Authority, Re; (2002) 71 ALD 665 referred to Fischer and Australian Fisheries Management Authority, Re; Tapley and Australian Fisheries Management Authority, Re; (2005) 41 AAR 417 discussed Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 cited Lamason v Australian Fisheries Management Authority [2009] FCA 245 cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 cited Shark Bay Tuna Farms Pty Ltd v Executive Director, Fisheries WA [2000] WASC 79 cited

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AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY v TREVOR RAY GILMORE and OTHERS (According to the attached Schedule of Parties) SAD 10 of 2009 BESANKO J24 NOVEMBER 2009ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION SAD 10 of 2009 BETWEEN: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

Applicant

AND: TREVOR RAY GILMORE and OTHERS (According to the attached Schedule of Parties) Respondents

JUDGE: BESANKO J

DATE OF ORDER: 24 NOVEMBER 2009

WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal be allowed.

2. The parties have leave to make submissions on the appropriate orders in light of these

reasons.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION SAD 10 of 2009

BETWEEN: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Applicant

AND: TREVOR RAY GILMORE and OTHERS (According to the attached Schedule of Parties) Respondents

JUDGE: BESANKO J

DATE: 24 NOVEMBER 2009

PLACE: ADELAIDE

REASONS FOR JUDGMENT

1 This is an appeal by the Australian Fisheries Management Authority (“the Authority”)

pursuant to s 161 of the Fisheries Management Act 1991 (Cth) (“FM Act”). The appeal by

the Authority is from a decision of the Statutory Fishing Rights Allocation Review Panel

(“the Panel”), which is a body established under s 124 of the FM Act. The right of appeal to

this Court from a decision of the Panel is limited to an appeal on a question of law (s 161(1)).

2 There are 209 respondents to the Authority’s appeal. The first respondent is

Mr Trevor Ray Gilmore. He appeared by counsel and solicitors who provided their services

pro bono after a referral under O 80 subrule 4(3) of the Federal Court Rules. The Court is

grateful for the assistance which they provided. A judge of this Court made orders relating to

the service of the notice of appeal and supporting affidavit (without exhibits). Twelve

respondents were to be served personally and the rest of the second to 209th respondents were

to be served by registered mail. Those orders were complied with by the Authority. The 135th

respondent, Mr Patrick James Clark, appeared in person. He did not attend the hearing of the

appeal, but he made short written submissions in support of an order that the appeal be

dismissed. None of the other respondents appeared.

3 The right to take fish is a valuable right. The right and other rights defined in the FM

Act are closely regulated by the FM Act and the subordinate legislation made under it. The

FM Act defines a “fishing concession” as a statutory fishing right or a fishing permit or a

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foreign fishing licence (s 4). Each of those terms is defined in the FM Act. For the purposes

of this case, I am only concerned with statutory fishing rights and fishing permits. The

significance of a fishing concession is that it authorises activities which would otherwise be

offences under s 95 of the FM Act.

4 The nature of a statutory fishing right is described in s 21 of the FM Act and the ways

in which statutory fishing rights are granted is dealt with in ss 24-31 inclusive. The FM Act

also uses the term, fishing right, and that term is defined as a statutory fishing right. The

Authority must keep a Register of Statutory Fishing Rights (s 44). Statutory fishing rights

have a permanence not accorded to fishing permits.

5 Fishing permits are dealt with in s 32 of the FM Act. They may be granted subject to

conditions and those conditions may include a condition that limits the quantity of fish which

may be taken (s 32(7)).

6 Fishing stocks are limited and from time to time the Authority fixes a total allowable

catch for a particular species of fish in a particular fishery. A person’s entitlement to take a

particular quantity of fish may be expressed in units to accommodate the fact that the total

allowable catch is likely to vary from year to year.

7 The Authority may make plans of management under the FM Act. They are

legislative instruments under the FM Act (Lamason v Australian Fisheries Management

Authority [2009] FCA 245 at [149]-[150] per Spender J). The process by which plans of

management are made and the information or material they may contain are dealt with in ss

17-20 inclusive of the FM Act. A plan of management is relevant in this case and it is the

Southern and Eastern Scalefish and Shark Fishery Management Plan 2003. The plan

commenced on 1 October 2003 and it has been amended twice. I will refer to it as the

Management Plan.

8 The FM Act deals with the granting of statutory fishing rights. There are a number of

steps involved in the process. In a case where a grant of a statutory fishing right is not to be

conferred by auction or tender, the FM Act provides that the relevant management plan will

set out the procedures for determining the person to whom a grant is to be made available

(s 29(3) of the FM Act).

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9 There are a range of decisions the Authority is required to make under the FM Act. A

number of them may be reviewed by the Administrative Appeals Tribunal (“the Tribunal”)

under the Administrative Appeals Tribunal Act 1975 (Cth). Section 165 of the FM Act grants

rights of review from decisions of the Authority. The decisions which may be reviewed

include a decision by the Authority under s 32 of the FM Act, that is to say, a decision to

grant a fishing permit or a decision to impose a particular condition on a fishing permit.

10 There is a particular type of decision made by the Authority under the FM Act which

may be reviewed by another administrative review body. The Panel is given the particular

function of reviewing decisions mentioned in subsection 23(1) of the FM Act, being

decisions made by the Authority (and another body which is not relevant for present

purposes) as to the person or persons to whom the grant of a statutory fishing right in a

managed fishery is to be made. A decision of that nature and involving the first respondent

and a large number of other persons is relevant in this case.

11 For the calendar year 2006, the first respondent held a fishing permit under s 32 of the

FM Act. The first respondent’s permit was subject to a condition as to the quantity or quota

of fish, being gummy shark and school shark, which may be taken. In June 2007, the

Authority made a decision which had the effect of translating the first respondent’s quota to

statutory fishing rights. The decision also affected the entitlement of other fishers. The

decision was made by the Authority by applying the formula contained in the Management

Plan.

12 The first respondent sought review of the decision by the Panel. However, his

complaint was not with respect to the formula; rather, he complained that the quota attached

to his fishing permit for the calendar year 2006 and, indeed for previous years, was incorrect.

He claimed that his quota should have been higher than the quota recorded on his fishing

permit and therefore the translation of his entitlement to statutory fishing rights should have

been higher. Subject to an error acknowledged by the Authority, the Authority denied that the

first respondent was entitled to a higher quota than that recorded on his fishing permit for the

2006 calendar year. In any event, the Authority contended that, on a review of a decision

mentioned in s 23(1) of the FM Act, it is not open to the first respondent to agitate a

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complaint about a condition attached to his fishing permit for the 2006 calendar year dealing

with the quantity of shark he could take.

13 The Panel accepted the first respondent’s arguments and substituted a different

decision for that made by the Authority.

Notice of appeal

14 The Authority was given leave at the hearing of the appeal to amend its notice of

appeal. In the amended notice of appeal, the Authority alleges that the Panel’s decision raises

the following four questions of law. They are as follows:

“1. Whether the Panel has jurisdiction under the FM Act to make a decision which is inconsistent with the applicable fisheries management plan in respect of the decision under review by the Panel.

2. Whether in reviewing a decision to grant statutory fishing rights pursuant to a fisheries management plan made under the FM Act, the Panel is bound to apply the terms of the applicable fisheries management plan, or whether the Panel has a discretion to depart from the terms of such plan.

3. Does the Panel exceed its jurisdiction under the FM Act if, in reviewing a decision to grant statutory fishing rights pursuant to a fisheries management plan made under the FM Act, the Panel misunderstands and misconceives the effect of a decision of the Administrative Appeals Tribunal in a review related, and material, to that being undertaken by the Panel.

4. Does s 150(1) of the FM Act authorise the Panel to vary a condition on an expired fishing permit, so as to alter the operation or effect of a provision in a fisheries management plan which takes as its basis the terms of a condition on a fishing permit as expressed at a particular date?”

The background to the appeal

15 In order to fully understand the issues raised by the appeal, it is necessary to set out

the historical background to the decision.

16 The Southern and Eastern Scalefish and Shark Fishery incorporates the

Commonwealth Victorian Inshore Trawl Fishery, the South East Trawl Fishery, the Great

Australian Bight Trawl Fishery and the Gillnet, Hook and Trap Fishery (formerly the South

East Non Trawl Fishery and the Southern Shark Fishery). The Management Plan was

designed to replace a management regime based on the issue of fishing permits under s 32(1)

of the FM Act. The statutory fishing rights referred to in the Management Plan (see, for

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example, s 6(c)) represent a translation from existing permit-based interests and, as I have

said, they allow the holder to take a certain proportion of the total catch of various quota

species. For convenience, I will refer to statutory fishing rights as SFRs.

17 In terms of the regulation of the fishing industry, there is a difference between “input”

controls on the taking of fishing stock and “output” controls. An input control involves

measures such as restrictions on the equipment which can be used or on entry into a particular

fishery, and an output control involves a limit on the quantity of fish which can be taken.

Until the 1990s, the fishing industry was regulated by input controls. For example, in the

Southern Shark Fishery, there were limits on the length of gillnets which could be used and

the number of hooks which could be deployed. There was then a move to output controls and

this move included the attaching of conditions to fishing permits issued under s 32 of the FM

Act which limited the proportion of the total allowable catch which could be taken by the

holder of the permit. The proportion was defined by reference to Individual Transferable

Quotas or ITQs or, to use the terminology used in the Management Plan, quota units.

18 The system involving ITQs was introduced on 1 January 2001. In some respects, it

was a controversial exercise because it involved operators moving from a system where there

was no direct limit on allowable catch to a system involving limits on allowable catch. A

method of calculating the number of ITQs or quota units to which a particular operator was

entitled needed to be devised. Initially, the method adopted by the Authority was based on the

operator’s catch history during the period from 1994 to 1997. The higher the operator’s catch

during that period, the higher the operator’s proportionate allocation of the total allowable

catch set for the entire fishery. This method of calculation was adopted following a

recommendation by an Independent Advisory Panel. The Hon K Jenkinson QC was the Chair

of the Independent Advisory Panel.

19 On 10 January 2001, a Mr Horst Fischer was issued with a fishing permit which had a

quota allocation calculated in accordance with his catch history. He challenged the

Authority’s decision in the Tribunal on the ground that the policy applied by the Authority in

determining the quota allocation was unfair because it ignored the fact that, in practice,

permits were transferred and had a capital value. Mr Fischer was successful before the

Tribunal and an appeal to this Court by the Authority was dismissed (Re Fischer and

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Australian Fisheries Management Authority (2002) 71 ALD 665; Australian Fisheries

Management Authority v Graham (2003) 127 FCR 436). I will refer to those proceedings as

the Fischer No 1 proceedings.

20 The Tribunal’s decision meant that the Authority had to take a different approach.

Before discussing the approach taken by the Authority, it is necessary to make reference to a

buy-back scheme undertaken by the Commonwealth in 2001.

21 The buy-back scheme was introduced in 2001 and, under the scheme, the

Commonwealth made offers to buy back fishing permits held by operators who did not wish

to participate in the move from regulation by input controls to regulation by output controls.

The buy-back scheme was described by Downes J in Re Fischer and Australian Fisheries

Management Authority; Re Tapley and Australian Fisheries Management Authority (2005)

41 AAR 417, a decision I discuss below, in the following terms (at 431 [67]):

“There was, however, a legal market which does provide some evidence of market value. Prior to the introduction of quotas, operators were given the opportunity to take part in a buy-back scheme. AFMA established an adjustment assistance program for those who did not wish to change to the proposed scheme of output controls. Under the scheme operators were paid $8000 per gillnet unit for gillnet permits and $25 per hook for hook permits. Forty permit holders took part in the scheme. They gave up their fishing permits but they retained the right to allocation of quota. However, the quota could not be utilised otherwise than by transfer or by acquisition of a fresh fishing permit. Under the new scheme the quota allocated could be sold to someone with a permit. Although the buy back does not amount to an open market it was voluntary and does provide some evidence of the value of permits severed from the quota entitlements about to be introduced. I note that at the time of the buy-back the Jenkinson panel had already announced its proposal that quota should be based on catch history.”

22 The first respondent was one of the forty permit holders who participated in the buy-

back scheme which was known as the Southern Shark Industry Development Program. His

participation in the scheme included an application by him dated 6 February 2001 to

surrender his fishing permit in the Southern Shark Fishery pursuant to s 32(9) of the FM Act.

On the same day, that is, 6 February 2001, the first respondent executed a Deed of Release.

23 The application by the first respondent to surrender his permit contained the

following:

“I acknowledge that the effect of this surrender is that my having held a permit in the

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Southern Shark Fishery and South East Non Trawl Fishery will not be a consideration in any future decision by AFMA in relation to an application by me for a permit in this fishery. I further acknowledge that my having held permits in the Southern Shark Fishery and South East Non Trawl Fishery or the catch history associated with such permits, will not be a consideration in any allocation of quota decisions apart from decisions in relation to the grant of quota for school shark and gummy shark.”

24 The Deed of Release between the first respondent and the Commonwealth of

Australia contained the following:

“RECITALS A. The Southern Shark Fishery Industry Development Program (‘the SSFIDP’)

is a Commonwealth industry restructure financial assistance package that aims to increase the economic efficiency of the Southern Shark Fishery (‘the SSF’), encourage greater certainty and lessen the impact on operators of new SSF management arrangements, principally the introduction of an Individual Transferable Quota (‘ITQ’) management regime. Under the SSFIDP financial assistance is provided to former Commonwealth SSF permit holders who satisfy specified eligibility criteria including the surrender of their permits. Recipients of financial assistance under the SSFIDP are entitled to retain, sell or lease any school and gummy shark ITQs allocated in respect of their surrendered shark permits. However, a recipient of financial assistance will not be entitled to any further claims against the recipient’s surrendered shark permit or its associated catch history in relation to any other species.

… 2. Payment of Exit Assistance

2.1 Subject to:

(a) sufficient money remaining from the Parliamentary appropriation for the SSFIDP after payment of financial assistance under the SSFIDP to applicants who were ranked higher than the Recipient in accordance with the order of payment specified in the SSFIDP Guidelines;

(b) the Recipient having met, and continuing to meet, all criteria, payment conditions and other requirements for exit assistance contained in the SSFIDP Guidelines and under this Deed; and

(c) any other provision of this Deed;

the Commonwealth will pay to the Recipient the amount of $49,500 as exit assistance under the SSFIDP.

2.2 The giving of the Payment to the Recipient does not in any way affect the right of the Recipient to retain any school and gummy shark ITQ allocated to the Recipient by AFMA and to sell or lease that school and gummy shark ITQ in the future.

3. Recipient’s Activities after Permit Surrender or Non-Renewal

3.1 The Recipient shall not at any time after receipt of the Payment reapply to

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obtain or renew, or rely in any way on catch history associated with, the Commonwealth SSF permit or Commonwealth South East Non-Trawl Fishery permit or gear access rights formerly held by the Recipient other than for the purpose of being granted school and gummy shark ITQs.”

25 I return now to the Authority’s response to the Fischer No 1 proceedings. The

Authority commissioned a report addressing the appropriate method of determining a fisher’s

entitlement to ITQs or quota units. An Independent Allocation Review Panel for the Southern

Shark Fishery (“Review Panel”) was established. The Hon Mr J Lockhart QC was the Chair

of the Review Panel. The Review Panel provided a report dated 4 September 2003 to the

Authority. For present purposes, the key conclusions of the Review Panel were as follows:

“Proposed Formula for Allocating Quota among Fishers in the SSF with Access to Commonwealth Waters The formula proposed for allocating quota among fishers in the SSF with access to Commonwealth waters is: 1. The value of his or her permit (representing an access right/fishing

entitlement); and 2. The quantum of his or her catch history (based on the same ‘best three years

in the period 1994-1997’ as was advanced by the SSAAP). As to the value of the permit, we propose that the amounts assigned for the purpose of the allocation formula be those established under the buyback scheme, adjusted using the applicable discount rate, to 2003 dollars. Details of the formula, including worked examples, are set out in Section 6.1 of the report. … Allocation of TAC to Fishers that Relinquished their Permits under the ‘Buyback’ Scheme Forty permit holders surrendered their permits under the permit buyback arrangements. In doing so they forfeited their right to fish for shark commercially although, under the terms of the buyback, they retained their quota allocated on the basis of catch history. The Panel believes that AFMA should confirm the legal status of those fishers who have surrendered their permits but which have allocated quota. In the absence of information to the contrary, it could reasonably be concluded from the above-mentioned contract that those fishers will be treated in accordance with the Panel’s quota allocation proposal as set out in Table 6.8 in Section 6.1 (i.e. adjusted quota based on catch history but nil quota on the basis of permit value).”

26 The Authority adopted the recommendations of the Review Panel and determined the

entitlement of fishers accordingly. As far as the first respondent was concerned, the effect of

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what occurred is described in a letter from the Authority to the first respondent dated

21 October 2004:

“3. Table 4 – 2004 unit and kg calculations from 2001 units details your new allocation based on 2001 units. This is 5276 gummy shark units and 861 school shark units. Then your 2001 unit allocation was converted to 2004 units. This includes a reallocation adjustment for 2003 following the decision in the Fisher case. As you surrendered your permit to the buy-back a factor of around 16% (varied slightly between species) was deducted for the value of the permit. Your correct 2004 unit allocation is 4545 units of gummy shark and 797 units of school shark. This represents 3563.97 kg of gummy shark and 467.53 kg of school shark.”

27 In short, prior to 2004, the first respondent’s entitlement to ITQs or quota units was

calculated in accordance with his catch history. The Authority’s adoption of the

recommendations of the Review Panel meant that the value of a fishing permit would also be

taken into account in determining a person’s entitlement to ITQs or quota units. For those

fishers who had participated in the buy-back scheme, the value to be attributed to the permit

was nil. The new policy resulted in a reduction of the first respondent’s entitlement and this

reduction was in the order of 16 per cent.

28 Mr Horst Fischer and Mr Graham Tapley applied to the Tribunal for review of the

quota allocations allocated to them for the 2004 calendar year. Their ground was that “the

decision should have allocated quota wholly by reference to the permit itself, taking no

account of catch history, or should have placed much less emphasis on catch history” (Re

Fischer and Australian Fisheries Management Authority; Re Tapley and Australian Fisheries

Management Authority (2005) 41 AAR 417 at 421 [12] per Downes J). I will refer to this

proceeding as the Fischer No 2 proceeding. The first respondent was added as a party to the

application for review. Downes J expressed his conclusions on the review as follows (at 438-

439 [107]):

“Two applications are before the Tribunal. They challenge quota allocations for the year 2004 for gummy and school shark allocated to Horst Fischer and Graham Tapley. No grounds specific to Messrs Fischer and Tapley are relied upon. Messrs Fischer and Tapley say that the quota should not be determined by reference to the quantity of shark they had caught in the past. They say that equal quota should be awarded to all operators holding the same permits. I have found that the quota system under review by which quota calculations are based partly upon equality between permits, representing the right to fish, or access entitlement, and partly upon catch history, is the preferable way to allocate quota. I have also found that the way the two have been integrated are the appropriate and preferable methods.”

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29 As to the first respondent, Downes J said (at 436 [88]):

“Trevor Gilmore took part in the buy-back. Under the Fischer and Tapley proposal he would not be entitled to any quota because he no longer has a permit. Persons who took part in the buy-back were informed they would be entitled to quota. The quota allocation under review will give persons such as Mr Gilmore an entitlement to quota although less than under the Jenkinson Panel scheme. The system under review seems to me to be appropriate for persons who took part in the buy-back.”

30 The events leading up to the decision made by the Authority are as follows.

31 By a notice in the Commonwealth Gazette of 21 December 2006, the Authority

invited interested persons to apply to be registered as eligible persons for the grant of SFRs

for shark species under the Management Plan. The notice was given under s 24 of the

FM Act. After the registration period had closed, a register of persons eligible for the grant of

SFRs was finalised.

32 By letter dated 18 June 2007, the first respondent was advised by the Authority that it

had made a provisional grant of shark quota SFRs to eligible persons including the first

respondent. The provisional grant followed a decision by the Authority that the first

respondent satisfied the condition for registration as an eligible person for the grant of a quota

fishing right and a determination as to his entitlement. The first respondent was advised of the

total number of SFRs provisionally granted to each eligible person under the Management

Plan and the composition of that number, including the shark quota SFRs granted to him. He

was provisionally granted 4,352 units in relation to gummy shark and 748 units in relation to

school shark. Finally, the Authority’s letter to the first respondent dated 18 June 2007 advised

the first respondent of his right to apply to the Panel for a review of the decision.

33 On 19 July 2007, the first respondent made an application to the Panel for review of

the decision by the Authority. He contended that his unit allocation should have been 5,429

units in respect of gummy shark and 952 units in respect of school shark. He contended that

his unit allocation had been unfairly and unreasonably adjusted in 2004 as a result of the new

policy of the Authority and his participation in the buy-back scheme. The first respondent

contended that when he participated in a buy-back scheme he was assured his action in doing

so would not impact upon “the allocation of school or gummy shark quota to [him]”. He

contended that the removal of approximately 16 per cent of his unit allocation was unjust.

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The Panel’s reasons

34 The Panel’s reasons are dated 1 December 2008. The Panel made its orders on

22 December 2008. It is common ground between the parties that the Panel was to conduct a

merits review and that its task was to arrive at the correct or preferable decision.

35 The Panel began by referring generally to its function under the FM Act and it noted

that it operated separately from the Tribunal.

36 The Panel noted the history of the matter as follows:

1. On 16 November 2006, the AFMA announced its decision to commence the process

of granting SFRs for school, gummy and saw shark in the Southern and Eastern

Scalefish and Shark Fishery.

2. Amendments to the Management Plan were effected on 20 December 2006.

3. On 21 December 2006, the Authority published a notice in the Government Gazette to

the effect that it intended to grant SFRs in relation to the Southern and Eastern

Scalefish and Shark Fishery for shark species including school, gummy and saw

shark, and it invited persons to apply to be registered as eligible persons. For the

purposes of s 27(6) of the Management Plan, the notice period was specified to be

5.00 am on Friday, 22 December 2006.

4. On 18 April 2007, the Authority wrote to the first respondent acknowledging his

application for registration as an eligible person for the grant of SFRs for shark

species in the Southern and Eastern Scalefish and Shark Fishery and advising him that

he had been registered as an eligible person.

5. On 19 June 2007, the Authority published in the Government Gazette its decision in

relation to the SFRs including its allocation to the first respondent of 4,352 units in

relation to gummy shark and 748 units in relation to school shark.

37 The Panel then dealt with its function under the FM Act in more detail. There is no

complaint about this section of its reasons, and I will summarise briefly what the Panel said.

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38 The Panel noted that its function was to review the decisions mentioned in s 23(1) of

the FM Act, being (relevantly) decisions made by the Authority as to the person or persons to

whom the grant of a fishing right in a managed fishery is to be made (s 142).

39 It is convenient at this point to set out the terms of s 23(1) of the FM Act:

“(1) Where AFMA or a Joint Authority makes a decision as to the person or persons to whom the grant of a fishing right in a managed fishery is to be made, not being a grant or grants to be made after:

(a) the holding of an auction in respect of the grant; or (b) the calling of tenders in respect of the grant;

the following provisions of this section apply.”

40 The Panel referred to its powers on a review. It is convenient at this point to set out

s 150 of the FM Act:

“(1) The Panel may, for the purposes of reviewing a decision, exercise all the powers and discretions that are conferred by this Act on the person or persons who made the decision.

(2) The Panel may:

(a) affirm the decision; or (b) vary the decision; or (c) set the decision aside and substitute a new decision.

(3) If the Panel:

(a) varies the decision; or (b) sets aside the decision and substitutes a new decision;

the decision as varied or substituted is (except for the purposes of applications to the Panel for review or of appeals from decisions of the Panel) taken to be a decision of AFMA or the Joint Authority, as the case may be.

(4) A decision made by the Panel takes effect when the applicant is notified of the decision under subsection 160(2).”

41 The Panel said that the decision it had to review was the decision made by the

Authority on 18 June 2007 to allocate school shark, gummy shark, elephant fish and saw

shark quota SFRs. The Panel said that, having regard to s 150 of the FM Act, its function was

to conduct a merits review with a view to making the correct or preferable decision.

42 The Panel referred to s 29(3) of the FM Act which refers to the persons to whom the

grant is available in cases where an auction has not been held and tenders have not been

called. That subsection is in the following terms:

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“Where subsections (1) and (2) [auction and tender] do not apply in relation to a grant of a fishing right, the grant is available to the person selected in accordance with the procedures specified for that purpose in the plan of management relating to the grant.”

43 The Panel said that the task of the Authority had been “to identify the procedures

specified in the Plan and make a selection in accordance with them”, and that its task,

standing in the shoes of the Authority, entailed “a review of the allocation in accordance with

the procedures specified in the Management Plan”.

44 The Panel then made reference to two important sections in the Management Plan.

45 Section 27 of the Management Plan deals with the conditions which must be satisfied

by a person in order for that person to qualify as an eligible person for registration for a grant

of various types of quota statutory fishing rights. Section 27(5) is in the following terms:

“A person satisfies the condition for registration as an eligible person for the grant of a quota statutory fishing right for a quota species mentioned in items 21 to 24 of Schedule 2 if, immediately before the end of the notice period, the person was authorised to take a number of quota units of that species in the fishery”.

46 The species referred to in items 21 to 24 of Schedule 2 are school shark, gummy

shark, elephant fish and saw shark.

47 Section 28 of the Management Plan deals with the provisional grant of statutory

fishing rights to a person who is registered as an eligible person for the grant of a statutory

fishing right. The Authority must make a provisional grant to the eligible person in

accordance with the provisions of the paragraphs in s 28(2). Section 28(2)(j) is in the

following terms:

“If the person is registered as an eligible person for the grant of a quota statutory fishing right for a quota species because of subsection 27(5) – 1 quota statutory fishing right for the species for each quota unit of that species that the person was authorised to take in the fishing in accordance with a fishing permit held by that person immediately before the end of the notice period.”

48 As I have said, the notice period in this case was specified to be 5.00 am on Friday,

22 December 2006.

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49 The Panel set out the submissions made by parties before it. I do not need to repeat

what the Panel said.

50 The Authority conceded during the application for review before the Panel that the

Register was not correct as at 22 December 2006. That was said to have been due to a “data

entry problem”. The Authority submitted that the correct allocation of SFRs was 4,545 units

of gummy shark (not 4,352 units) and 797 units of school shark (not 748 units).

51 The real point in contest before the Panel was as follows. The first respondent

contended that his entitlement was 5,429 units for gummy shark and 951 units for school

shark. In 2004, the Authority had reduced his entitlement by a figure in the order of 16 per

cent by reason of his participation in the buy-back scheme. The first respondent submitted

that that decision was contrary to his understanding of the buy-back scheme and unfair and

unreasonable. That was, the first respondent submitted, a decision the Panel could and should

correct on his application to review the decision made by the Authority in June 2007. The

Panel accepted that contention. The Panel’s reasons for doing so are contained in the

following paragraphs of its reasons:

“In this regard the Panel notes that in determining the issues raised by Horst Fischer and Graham Tapley, Justice Downes, sitting as a President of the AAT observed:

‘Trevor Gilmore took part in the buy-back. Under the Fischer and Tapley proposal he would not be entitled to any quota because he no longer has a permit. Persons who took part in the buy-back were informed they would be entitled to quota. The quota allocation under review will give persons such as Mr Gilmore an entitlement to quota although less than under the Jenkinson Panel scheme. The system under review seems to me to be appropriate for persons who took part in the buy-back.’

The Panel sees no basis for the contention that Gilmore ought to have agitated his position before Justice Downes. Nor does the Panel accept that by not being involved as a party to the Fischer and Tapley proceedings Gilmore is prevented from seeking the relief sought before the Panel. The Panel is of the view that Gilmore has made out his case before the Panel. He entered in an agreement with the Commonwealth. He ought to have been treated as being entitled to the issue of SFR. The Authority failed to consider him as so entitled. The Authority was in error not to do so and acted unreasonably.”

52 On 22 December 2008, the Panel made the following orders:

“1. AFMA’s decision of 19 June 2007 as to the persons to whom a grant of Statutory Fishing Rights (SFRs) is to be made under the Southern and

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Eastern Scalefish and Shark Fishery Management Plan 2003 is set aside. 2. The Panel substitutes a decision as to the persons to whom a grant of SFRs is

to be made under the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 in accordance with the Schedule attached and marked “Attachment A”.

53 Under the Panel’s orders, the SFRs allocated to the first respondent were 5,429 for

gummy shark and 951 for school shark.

Issues on the appeal

54 The Authority accepts that the figures for the first respondent which were the subject

of the provisional grant by it are incorrect. The quota SFRs for gummy shark should be

4,545, not 4,352 as advised, and the quota SFRs for school shark should be 797, not 748 as

advised. During the progress of the application for review before the Panel, the solicitors for

the Authority wrote to the Panel (with a copy of the letter to the first respondent)

acknowledging the error and advising that the Panel had reissued the Register as at

22 December 2006 to reflect the true position. It referred the Panel to s 150 of the FM Act

and asked it to give effect to the Register as reissued.

55 The error acknowledged by the Authority was an inadvertent one. It seems to have

involved some adjustments which were only partially made in 2004. The adjustments were

the subject of a letter from the Authority to the first respondent dated 21 October 2004. The

first respondent sought a review by the Tribunal of his fishing permit for 2001. The

adjustments or need for adjustments were also referred to in the course of that review. In any

event, by mistake, the proper allocation of gummy shark and school shark which could be

taken was not reflected in the condition attached to the fishing permit held by the first

respondent for the years 2004, 2005 and 2006.

56 I accept that the error acknowledged by the Authority was unintended and was due to

an error either in the calculation or recording of the quota units for the first respondent. There

seems to me to be no reason why it cannot be corrected by the Authority and, if appropriate,

by the Panel. In fact, I did not understand the first respondent to suggest otherwise. In the

discussion which follows, I proceed on the basis that the first respondent’s fishing permit for

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the 2006 year and the Register as at 22 December 2006 have been corrected to eliminate the

error acknowledged by the Authority.

57 The Authority’s argument is a relatively simple one. It submits that the Panel did not

have the power to go behind the first respondent’s fishing permit for the 2006 year or the

Register as at 22 December 2006. The Panel’s only power was to apply the formula in

s 28(2)(j) of the Management Plan and it did not have the power to depart from that formula

on the grounds of fairness or reasonableness. The Panel erred because it considered that it had

a general discretion to depart from the provisions of the Management Plan and had exercised

that discretion. Although the Authority did not accept that the decision it made resulted in

unfairness or unreasonableness as far as the first respondent was concerned, a lack of power

to depart from the provisions of the Management Plan was the primary focus of its argument.

58 The first respondent did not seek to argue that the Panel had a general discretion to

depart from the provisions of the Management Plan where it considered it appropriate to do

so. He submits that the Panel had the power to make the decision it did by virtue of the power

in s 32(8) of the FM Act to vary or revoke a condition attached to a fishing permit. Section

32(8) of the FM Act is in the following terms:

“(8) AFMA may, by written notice given to the holder of a permit, whether or not at the request of the holder, vary or revoke a condition of the permit (not being a condition mentioned in subsection (5) or (7A)) or specify a condition or a further condition to which the permit is to be subject.”

59 The first respondent acknowledges that the Authority did not exercise this power, but

he submits that the Panel did exercise the power and that it was entitled to do so by reason of

s 150(1) of the FM Act. Under that subsection, the Panel may, for the purposes of reviewing a

decision, exercise all the powers conferred on the Authority. He submits that, by reason of

s 32(8) of the FM Act, the Panel was able to go behind the fishing permit and Register and, in

an appropriate case, vary the allocation in the fishing permit and Register, at least notionally.

The Panel would then apply the formula in s 28(2)(j) of the Management Plan to the

allocation as varied.

60 There was a good deal of debate before me as to the approach which was actually

taken by the Panel. Did it take the broader approach which the Authority contends involved

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an error of law and which the first respondent does not seek to support, or did it take the

narrower approach which the Authority submits was in any event erroneous and which the

first respondent seeks to uphold?

61 In my opinion, both approaches involve an error of law and an excess of jurisdiction.

In those circumstances, it is not strictly necessary for me to consider the particular approach

taken by the Panel. However, for the sake of completeness and in case there is a further

appeal, I will do so later in these reasons.

62 Neither the Authority, nor the Panel, had a general discretion to depart from the

provisions of the Management Plan. The provisions of the FM Act and the Management Plan

are clear. Section 29(3) of the FM Act provides that the selection process is to be carried out

in accordance with the procedures specified in the Management Plan. Put another way, that

means in conformity with procedures which, it is envisaged by the FM Act, will be laid down

in the Management Plan. Full particulars of those procedures are to be specified in the notice

under s 24 of the FM Act which starts the process whereby SFRs are to be granted (see

s 25(b)). The Management Plan is quite clear in the procedures it specifies. It would have

been open to the makers of the Management Plan to confer a general discretion but they did

not do that. Section 27 of the Management Plan deals with eligibility for registration and does

so by reference to the quota units a person is authorised to take. The authorisation to take is

the fishing permit. Section 28(2)(j) of the Management Plan sets out the formula to be applied

and it is even more explicit. It refers to what a person was authorised to take in the fishery in

accordance with a fishing permit held by the person immediately before the end of the notice

period. The matter is put beyond any doubt by s 25 of the Management Plan which links the

quota units which are to be translated directly to the units specified in the permit and

registered in the Register. The relevant fact is the number of quota units specified in the

fishing permit and Register, not what the number of quota units might be after a review as to

the merits (Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145

FCR 1). I would also note that a general discretion to examine entitlement by examining the

merits of a condition attached to a fishing permit may lead to delay and that does not appear

to be contemplated by the process envisaged by ss 24-31 inclusive of the FM Act and the

relevant provisions of the Management Plan.

- 18 -

63 In my opinion, these considerations also lead to a rejection of the narrower

submission that it was open to the Panel to exercise the power in s 32(8) of the FM Act.

There is an additional reason why this submission must fail. The power to make a decision as

to the availability of a grant of SFRs is dealt with in a different section of the FM Act

(s 29(3)) from the power to make a decision to vary or revoke a condition attached to a

fishing permit (s 32(8)). The decisions are subject to different review procedures, the first is

subject to review by the Panel under s 142 and the second is subject to review by the Tribunal

under s 165. The first respondent had the opportunity to challenge the quota allocation

attached to his fishing permit by seeking review by the Tribunal. He may, in fact, have

exercised that right by his involvement as a party in the Fischer No 2 proceeding. However, I

do not need to decide that question because the important point is that the FM Act provides

for a separate procedure for such challenge.

64 There was a good deal of debate before me as to whether the power in s 32(8) to vary

or revoke a condition attached to a fishing permit could only be exercised during the period

of the permit and for a purpose related to the fishing activities undertaken, or to be

undertaken pursuant to the permit. That question raises difficult issues which I will refrain

from addressing because it is not necessary for me to do so. I would only say that the decision

to which the first respondent referred, Shark Bay Tuna Farms Pty Ltd v Executive Director,

Fisheries WA [2000] WASC 79, is, with respect, of no real assistance because it is a decision

dealing with quite a different statutory scheme (see at [30]-[41] per Wheeler J).

65 The first respondent’s submission that the Panel may, for the purposes of reviewing

the decision, exercise a power or discretion conferred on the Authority even where the

Authority did not exercise the power or discretion is correct: Australian Securities and

Investments Commission v Donald (2003) 136 FCR 7 at 15 [29]-[30] per Kenny J. That is so,

it seems, even where the original decision-maker, in reaching the decision it did, was not

bound to consider the exercise of the particular power or discretion: Secretary, Department of

Social Security v Hodgson (1992) 37 FCR 32. However, these principles do not assist the first

respondent’s argument because, for the reasons I have given, the Authority did not have the

power or discretion to vary or revoke a condition attached to the first respondent’s fishing

permit in the course of making the decision it did.

- 19 -

66 In my opinion, whichever approach the Panel took, it erred in law and thereby

exceeded its jurisdiction.

67 As I have said, for completeness and in case there is a further appeal, I will set out my

conclusions as to the approach taken by the Panel. I bear in mind that the Panel’s reasons are

not to be construed minutely and with an eye keenly attuned to the perception of error:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

68 The Panel was under an obligation to give each party a written statement setting out

its decision and the reasons for its decision (s 160 of the FM Act). The Authority submits that

the Panel was also under the obligation as to reasons contained in s 25D of the Acts

Interpretation Act 1901 (Cth). I do not need to deal with that submission because I have

reached a clear conclusion about the Panel’s reasons without having to rely on the

Authority’s submission based on that section.

69 In my opinion, the Panel did not proceed by reference to the power in s 32(8) of the

FM Act. It proceeded on the basis that there was a general discretion to depart from the

provisions of the Management Plan. There is no reference in the Panel’s reasons to s 32(8) of

the FM Act. There is no reference to the fact that the Authority did not address the power in

s 32(8). There is no reference to the question whether, in those circumstances, it was open to

the Panel to exercise the power in s 32(8) having regard to its powers in s 142 and s 150 of

the FM Act. There is no reference to the question whether, in selecting the person to whom a

grant is to be made available, it is open to the decision-maker to in effect exercise the power

in s 32(8) of the FM Act before exercising the power of selection. There is no reference to the

particular merits of exercising or not exercising the power in s 32(8). I have considered the

matters to which the first respondent referred, including the matters in the transcript, but none

of them persuade me that the Panel considered it was exercising the power in s 32(8) of the

FM Act. The Panel made its decision on the basis that it was free to depart from the

provisions of the Management Plan where it would be unreasonable not to do so.

70 The Authority made two particular criticisms of the Panel’s reasons, both of which are

related to the third question of law it identified (see [14] above).

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71 First, the Authority submits that the Panel’s statement that the first respondent was not

a party to the Fischer No 2 proceeding was plainly wrong (see [51] above). The first

respondent submits that this is simply a typographical error and that no party suggested to the

Panel that he was not a party to that application. I think the first respondent is probably right,

but I do not need to decide the point because, as I have said, the Panel has erred in law in a

more significant respect. Secondly, the Authority submits that the Panel’s statement that the

Authority had failed to treat the first respondent as being entitled to the issue of SFRs is

plainly incorrect (see [51] above). Such a statement is incorrect, but I do not think the Panel

misunderstood the position, but rather expressed itself somewhat loosely. The Panel’s reasons

as a whole indicate that it was aware that the dispute related to the quantity of SFRs to which

the first respondent was entitled.

Conclusion

72 The Panel erred in law and exceeded its jurisdiction. The appeal must be allowed.

I will hear the parties as to the appropriate orders.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated: 24 November 2009

Counsel for the Applicant: Ms D S Mortimer SC with Mr R M Niall Solicitor for the Applicant: Deacons Counsel for the First Respondent: Mr S D Ower with Ms C Sullivan Solicitor for the First Respondent: Camatta Lempens Counsel for the 2nd to 134th and The 2nd to 134th Respondents and 136th to 209th

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136th to 209th Respondents: Respondents did not appear Counsel for the 135th Respondent: The 135th Respondent did not appear. Written

submissions were filed on 12 June 2009. Dates of Hearing: 18, 19 June 2009 Date of Judgment: 24 November 2009

SCHEDULE OF PARTIES

AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

Applicant

TREVOR RAY GILMORE First Respondent

A G PURDON Second Respondent

AJKA PTY LTD Third Respondent

ALAN J ROBERTSON Fourth Respondent

ANDREW F JOY Fifth Respondent

ANKA FISHERIES PTY LTD Sixth Respondent

ANTHONY & HEATHER GRAY Seventh Respondents

ANTHONY GRAEME GRAY Eighth Respondent

ANTHONY GUSS (GUSTO SUPER FUND) Ninth Respondent

ANTONIO MUSUMECI Tenth Respondent

ARTHUR MARKELLOS Eleventh Respondent

ARTHUR N & GAIL SIFFORD Twelfth Respondents

ARTHUR N SIFFORD Thirteenth Respondent

AUSTRALIAN CRAYFISH ENTERPRISES PTY LTD Fourteenth Respondent

AUSTRALIAN FISHING ENTERPRISES PTY LTD Fifteenth Respondent

BARRY G & VALMA J ALSOP Sixteenth Respondents

BARRY J POWER Seventeenth Respondent

- 2 -

BATFISH EDEN PTY LTD Eighteenth Respondent

BEN BOYD FISHING CO PTY LTD Nineteenth Respondent

BENJAMIN INNES Twentieth Respondent

BERNARD J KENNEDY Twenty-first Respondent

BIRCHGOLD PTY LTD Twenty-second Respondent

BLACK PYRAMID PTY LTD Twenty-third Respondent

BLUEBEARDS SEAFOODS COMPANY PTY LTD Twenty-fourth Respondent

BRENDA ISABEL KLINGBERG Twenty-fifth Respondent

BRETT MARTYN Twenty-sixth Respondent

BRIAN J DAFF Twenty-seventh Respondent

BRIAN K & HEATHER E BAILEY Twenty-eighth Respondents

BRIAN S BOLDING Twenty-ninth Respondent

BRUCE A TEDHAM Thirtieth Respondent

C PUGLISI & SONS Thirty-first Respondent

C R MARLOW & SON PTY LTD Thirty-second Respondent

CAPE HOOD PTY LTD Thirty-third Respondent

CHARISSA PTY LTD Thirty-fourth Respondent

CHRIS CATSAMBALIS Thirty-fifth Respondent

CHRISTINE M SECKOLD Thirty-sixth Respondent

- 3 -

CHRISTOPHER & ANNE NEWMAN Thirty-seventh Respondents

CRAIG A HARRISS & JUDITH A ROWLINGS Thirty-eighth Respondents

CRAIG D LAWRIE Thirty-ninth Respondent

CRAIG GARLAND Fortieth Respondent

CRANVIC PTY LTD Forty-first Respondent

CULL FISHERIES PTY LTD Forty-second Respondent

CUNNINGHAM FISHERIES PTY LTD Forty-third Respondent

D R HIBBERD Forty-fourth Respondent

DARIN BROOKS Forty-fifth Respondent

DAVID & PAMELA WILSON Forty-sixth Respondents

DAVID A SHARP Forty-seventh Respondent

DELMARK HOLDINGS PTY LTD Forty-eighth Respondent

ELLIAAS & ZOE TOUMAZOS & SOUTHERN SEA EAGLES PTY LTD

Forty-ninth Respondents

EMPRESS PEARL PTY LTD Fiftieth Respondent

ENDYMON PTY LTD Fifty-first Respondent

EOIN MALCOLM MCEACHERN Fifty-second Respondent

ERIC G TAYLOR Fifty-third Respondent

E W & V C JONES Fifty-fourth Respondents

F & H TRAWLING CO PTY LIMITED Fifty-fifth Respondent

- 4 -

F C NEWMAN & M A NEWMAN Fifty-sixth Respondents

F M ROBERTS, M S THOMSEN, B J THOMSEN trading as T & R TRAWLING

Fifty-seventh Respondents

G & E PITLIANGAS PTY LTD Fifty-eighth Respondent

G L & V R WALDEN Fifty-ninth Respondents

G & E PITLIANGAS PTY LTD, C, N, & E PITLIANGAS, F & D HATZOPOULIS & F V VOTSIS-BIVOLTSIS

Sixtieth Respondents

GARRIE T HENNESS Sixty-first Respondent

GARRY C WALTON Sixty-second Respondent

GARY JOHN LLOYD Sixty-third Respondent

GAZAK HOLDINGS PTY LTD Sixty-fourth Respondent

G B & J COTTEE and F C & M NEWMAN Sixty-fifth Respondents

GEORGE TOWN SEAFOODS PTY LTD Sixty-sixth Respondent

GERHARD WILMINK Sixty-seventh Respondent

GREGORY HOWARD Sixty-eighth Respondent

GREGORY PAUL PHILLIPS Sixty-ninth Respondent

GUSTAV KRAUSE & JULIE KRAUSE Seventieth Respondents

H M FISHING CO PTY LTD Seventy-first Respondent

IRONNET PTY LTD Seventy-second Respondent

J & N JARVIS PTY LTD & DEWEBB PTY LTD Seventy-third Respondents

- 5 -

J F, C R & A LAVALLE Seventy-fourth Respondents

JACK MIRIKLIS MARINE PTY LTD Seventy-fifth Respondents

JAMES ALEXANDER HURSEY SNR Seventy-sixth Respondent

JAMES P RACOVOLIS Seventy-seventh Respondent

JARROD BRETT CHAMBERS Seventy-eighth Respondent

JEFFREY W SCHMUCKER Seventy-ninth Respondent

JIMMY ELIAS & SON PTY LTD Eightieth Respondent

JOHN C GUILLOT Eighty-first Respondent

JOHN CHARLES & CHERYL ANN GUILLOT Eighty-second Respondent

JOHN E GRAY Eighty-third Respondent

JOHN MAURICE BARRET Eighty-fourth Respondent

JOHN PALEOLOGOUDIAS Eighty-fifth Respondent

JOHN R STEWART Eighty-sixth Respondent

JOHN WILMOT & C WHEATLEY Eighty-seventh Respondents

JOSEPH & WANDA STEVENS Eighty-eighth Respondents

JOSEPH G PUGLISI Eighty-ninth Respondent

K T NEWMAN Ninetieth Respondent

KARL & FIONA KRAUSE Ninety-first Respondents

KENNY FISHERIES PTY LTD Ninety-second Respondent

- 6 -

KENTON G WAY Ninety-third Respondent

KEVIN J GRAY Ninety-fourth Respondent

KEVIN RONALD & CHERYL FRANCES NEWMAN Ninety-fifth Respondents

KEVIN T, V T, K R & F E HASLAM Ninety-sixth Respondents

KYRIAKIOS TOUMAZOS Ninety-seventh Respondent

L & A KAVADAS Ninety-eighth Respondent

LEIGH CHAMBERS Ninety-ninth Respondent

LEIGH COX One hundredth Respondent

LEIGH ROBERT & TANIA LYNETTE CASTLE 101st Respondents

LORAINE A & DAVID A HURSEY & J G SAYERS 102nd Respondents

LORJONA PTY LTD 103rd Respondent

LUCKY S FISHING PTY LTD 104th Respondent

M J GOULDEN 105th Respondent

MARK CHRISTOPHER NURSE & HAYLEY LOUISE NURSE

106th Respondent

MATTHEW P CONNALLY, DALE P CONNALLY & DIANE M CONNALLY

107th Respondent

MAYSAN PT LTD & ROSS HUGO MILLS 108th Respondents

MCLAUGHLIN CONSOLIDATED FISHERMAN LTD

109th Respondent

MERVYN H MARWOOD 110th Respondent

MICHAEL & TELLY ALESIOS 111th Respondents

- 7 -

MICHAEL A BELL 112th Respondent

MICHAEL J CRIPPS 113th Respondent

MICHAEL J O’NEILL 114th Respondent

MICHAEL JOHN WHITE 115th Respondent

MICHAEL N KELLY 116th Respondent

MICHAEL PETER & SUSAN AMY MCCORMACK 117th Respondents

MICHAEL V HARDY 118th Respondent

MURES FISH CENTRE PTY LTD 119th Respondent

MURES FISHING PTY LTD 120th Respondent

N, E & C PITLIANGAS, F VOTSIS-BIVOLTSIS & F HATZOPOULOS

121st Respondent

NATHAN MAX ZWART 122nd Respondent

NEALE BLUNDEN 123rd Respondent

NEALE M LISK 124th Respondent

NEIL ANTHONY INNES 125th Respondent

NEIL WARREN HOSKING 126th Respondent

NICHOLAS POLGEEST 127th Respondent

128th RespondentOCEAN FRESH FISHERIES PTY LTD

OPAL STAR FISHERIES PTY LTD

129th Respondent

- 8 -

ORION FISHING PTY LTD SUPERANNUATION FUND

130th Respondent

OWEN JAMES & CHRISTINE GRASSBY 131st Respondents

P, D & S CLARKE 132nd Respondents

PACIFIC FISHERIES PTY LTD 133rd Respondent

PARNKALLA INVESTMENTS PTY LTD 134th Respondent

PATRICK JAMES CLARK 135th Respondent

PAUL A CLAUGHTON 136th Respondent

PERSY BARNETT FISHING CO PTY LTD 137th Respondent

PETER BELL 138th Respondent

PETER DOUGLAS (DOUGLAS FISHING SUPER FUND)

139th Respondent

PETER G & UNA M ROCKLIFF 140th Respondents

PETER M LE MAITRE 141st Respondent

PETER TERENCE KELLY 142nd Respondent

PIEDMONT INVESTMENTS PTY LTD 143rd Respondent

R B LOWDEN PTY LTD 144th Respondent

RACOVOLIS AMALGAMATED FISH AGENTS PTY LTD

145th Respondent

RACOVOLIS AUSTRALIA LTD 146th Respondent

RAPTIS FISHING LICENCES PTY LTD 147th Respondent

- 9 -

RAYMOND & JUDITH A DICKIE 148th Respondents

RAYMOND J OTTEY 149th Respondent

R C & S E CUNNINGHAM 150th Respondents

RICHARD WILLIAM HOWARD 151st Respondent

ROBERT C CHIRGWIN 152nd Respondent

ROBERT C MORGAN 153rd Respondent

ROBERT C YOUNG 154th Respondent

ROBERT FERGUSON 155th Respondent

ROBERT FISH 156th Respondent

ROBERT P BARRETT 157th Respondent

ROCKFISH 1 PTY LIMITED 158th Respondent

RODGER GRAHAM SNR 159th Respondent

RODNEY G & BRONWYN L CASEMENT 160th Respondents

RODNEY G CASEMENT 161st Respondent

RODNEY G SMITH 162nd Respondent

RODNEY J W FRIEND 163rd Respondent

ROGER MICHAEL FOURTER 164th Respondent

ROSMA FISHING CO PTY LIMITED 165th Respondent

RUSSELL C FROST 166th Respondent

- 10 -

S & J SEAFOOD SUPPLY PTY LTD 167th Respondent

S, S & J SOTIRAKIS 168th Respondent

SANPOOL FISHERIES PTY LTD 169th Respondent

SARRIBA PTY LTD 170th Respondent

SCOTT A GLUYAS 171st Respondent

SCOTT ALBERT GLUYAS as trustee for JOTORI SUPERANNUATION FUND

172nd Respondent

SHANE A BEVIS 173rd Respondent

SHAUN V RANSOM and VERONICA J PEARCE 174th Respondents

SHAYNE LESLIE BARLING and ANNEMAREE FRIEND

175th Respondents

SIME SARIN 176th Respondent

SIMOAN PTY LTD 177th Respondent

SIMON K TIDSWELL 178th Respondent

SKYANEE PTY LTD 179th Respondent

SLIDELL PTY LTD 180th Respondent

STEPHEN GIBBONS & SUSAN CLEMENTS 181st Respondents

STEPHEN V CHAMBERS 182nd Respondent

STEPHEN WILLIAM JOHN FARQUHAR 183rd Respondent

STEVE SPRALJA 184th Respondent

STEVEN W CLARK 185th Respondent

- 11 -

SYDNEY FISH MARKET PTY LTD 186th Respondent

T & D P GUARNACCIA PTY LTD & HUNT MORREY PTY LTD

187th Respondents

T & M VAN BOOM & LUCAS HILL 188th Respondents

T & V PARISSOS 189th Respondents

TANIA L VON STANKE 190th Respondent

TASMAN BLUE PACIFIC PTY LTD 191st Respondent

THE FISH FACTORY PTY LTD/FAMAZOS 192nd Respondent

THEO PETER HAIRON 193rd Respondent

THEODORUS & MIRANDA VAN BOOM, LUCAS & MARGARET HILL

194th Respondents

THEOPHILOS TOUMAZOS 195th Respondent

TIMOTHY JOHN KIELY 196th Respondent

TOBERFISH PTY LTD 197th Respondent

UDO WINKELHOFER 198th Respondent

V M HARDY 199th Respondent

VALENTE HOLDINGS PTY LTD 200th Respondent

VICKI A SMITH 201st Respondent

W J FOUNTAIN PTY LTD 202nd Respondent

W M & J E CULL PTY LTD 203rd Respondent

WAYNE L CHEERS 204th Respondent

- 12 -

WELLINGTON CAPE PTY LTD 205th Respondent

WILLIAM P RITTER 206th Respondent

WILLIAM R WATTS 207th Respondent

thWOODSTEIN PTY LTD 208 Respondent

thYOSHIKO STYNES 209 Respondent