The High Court has dismissed a motion by State respondents to set aside leave for judicial review in two fisheries cases, allowing the applicants to proceed with their claims.
Mr Justice Cross ruled that the statutory restrictions on challenging fisheries appeals decisions did not prevent these proceedings from continuing. His judgment, delivered on 19 December 2011, concerned separate applications by Carbery Fishing Limited and Fintra Trawling Company Fishing Limited, which raised similar issues.
The cases followed a hearing by Michael Vallely, identified in the judgment as the first named respondent and an Appeals Officer. A dispute arose over whether he had jurisdiction to hear an appeal concerning a mackerel authorisation. After the parties made submissions, he agreed to refer legal questions to the High Court by way of a case stated. He later told the applicant that he could not sign it because the State had questioned his appointment and his warrant appeared to have expired.
The applicants sought declarations about Vallely’s appointment and authority, and orders requiring him to refer the legal questions. They also sought other relief, including orders concerning the handling and rehearing of the appeal, damages and costs. The State respondents argued that section 19 of the Fisheries (Amendment) Act 2003 provided the exclusive route for challenging an Appeals Officer’s decision, subject to a three-month limit and a requirement to establish substantial grounds. They said the applicants’ claims, taken together, questioned such a decision and that the leave order could not be divided up.
The applicants disputed that the challenged matters were decisions by an Appeals Officer “on an appeal” within section 19. They argued, among other things, that Vallely had already decided to refer the legal questions, and that he stopped only after the State questioned his authority.
Cross J accepted that section 19 was restrictive and should be strictly construed. He also accepted the principle that, where an application combines relief questioning an Appeals Officer’s decision with relief outside the statutory procedure, the leave order should not be severed. But he held that the respondents were estopped from arguing that Vallely had acted as a validly appointed Appeals Officer when their own position was that he had never been validly appointed at the relevant time.
The judge also held that the specific requests concerning the proposed case stated did not, in effect, question a decision made by an Appeals Officer on an appeal. The motion was dismissed. The judgment permitted the applicants to proceed; it did not determine the merits of their underlying claims or grant the substantive relief they had sought.