MINISTRY OF FISHERIES V AITKEN AND ANOR HC WN CIV 2005-485-001947

MINISTRY OF FISHERIES V AITKEN AND ANOR HC WN CIV 2005-485-001947 18 May 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2005-485-001947UNDER the Declaratory Judgments Act 1908 and the Judicature Amendment Act 1972 BETWEEN CHIEF EXECUTIVE, MINISTRY OF FISHERIES Applicant AND PETER AITKEN First Respondent AND CATCH HISTORY REVIEW COMMITTEE Second Respondent Hearing: 7 May 2009 Appearances: P A McCarthy for Applicant No Appearance by or on behalf of First Respondent Judgment: 18 May 2009RESERVED JUDGMENT OF RANDERSON JThis judgment was delivered by me on 18 May 2009 at 3.30 pm, pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Solicitors: Crown Law, PO Box 2858, Wellington Izard Weston, PO B ox 5348, Wellington 6040Introduction[1] The Chief Executive of the Ministry of Fisheries applies under the Declaratory Judgments Act 1908 and the Judicature Amendment Act 1972 for review. The decision at issue was made by the second respondent (the Catch History Review Committee established under the Fisheries Act 1996) in respect of the catch history of the first respondent Peter Aitken. Mr Aitken was formally engaged in New Zealand in the fishing industry but left New Zealand in 1993 and is now residing in Australia. [2] In brief outline, Mr Aitken became eligible to transfer kingfish provisional catch history (PCH) by virtue of his catch returns in prescribed qualifying years. The Chief Executive maintains that Mr Aitken was notified of his entitlement but, through failure to respond, ceased to be eligible. In consequence, the Chief Executive contends that Mr Aitken's provisional catch history was deemed to be cancelled in August 2003. Mr Aitken subsequently filed an appeal to the Review Committee which the Chief Executive maintains was filed out of time. The Review Committee determined that the appeal was not filed out of time because the Chief Executive had not notified Mr Aitken in accordance with the Act. [3] The key issue is whether the Review Committee was right to find that the appeal was in time. There is a subsidiary issue as to whether the Review Committee was entitled to amend Mr Aitken's appeal by stating an entirely new ground. [4] The Review Committee abides the decision of this Court. Mr Aitken has been served but has taken no steps.Structure of the Fisheries Act 1996 in relation to quota allocation[5] The purpose of the Act is to provide for the utilisation of fisheries resources while ensuring sustainability: s 8(1). One of the ways in which the statutory purpose is achieved is through the operation of a quota management system under Part 4 of the Act. Part 4 sets out a system for making fish stock subject to the quota management system. Although the legislation applicable at the material time wasamended with effect from 1 October 2004, the statutory process remains much the same and involves the following steps in broad terms: a) A declaration by the Minister of Fisheries to make a stock subject to the quota management system by notice in the Gazette: s 18. b) Setting a total allowable commercial catch for the stock: s 20. c) Allocating quota on the basis of PCH: s 30 (now s 29A). d) Determining eligibility to receive PCH for the stock in question: ss 32-34. e) Notifying eligibility to receive PCH, which notification must include advice as to the date by which objections must be lodged: s 35. f) As soon as practicable after the date for objections, the Chief Executive completing a determination of any objection received, deciding whether the person concerned is eligible to receive PCH, and notifying the person concerned of the outcome. The notification is to include advice as to rights of appeal, the time for lodging an appeal and, where the Chief Executive considers the person is not eligible to receive quota, the period in which the person may transfer the PCH to another: ss 36 and 37. [6] The rights of appeal to the Review Committee are defined in s 51 and its functions and powers in ss 283 to 293.The facts in more detail[7] On 24 October 2002 the Minister of Fisheries made a declaration that kingfish stocks in two quota management areas would enter the quota management system on 1 October 2003. Entitlement to receive PCH was dependent upon fishers having provided the Chief Executive with "eligible returns for the stock [kingfish] for the applicable qualifying year or qualifying years": s 32. [8] On 11 November 2002, the Ministry of Fisheries' agent FishServe sent Mr Aitken a notification of eligibility to receive PCH under s 35. The notification was sent to him at an address in New South Wales. He was informed he was eligibleto receive 4,013 kg PCH for kingfish in one area and 87 kg in a second area. He was also informed that he was not eligible to receive quota since he was no longer the holder of a fishing permit at the date of the notification in the Gazette: see s 45(a)(i) (although, as noted above, he could be entitled to transfer his PCH to another within a defined period). The letter advised that all objections must be lodged with the Chief Executive within 60 working days of the notification and that the last day for objections to be received was 26 February 2003. [9] The address in New South Wales was the last known address for Mr Aitken but the notification was returned marked "Return to sender not at this address". It appears Mr Aitken had moved to Queensland sometime in 1998. [10] Public notification of the eligibility of all qualifying fishers to PCH, as required by s 35(3), was given on 23 November 2002 in 10 newspapers nation-wide around New Zealand. There was a further publication in the same newspapers on 7 December 2002. [11] Mr Aitken did not lodge any objection within the time specified in the notification. The Chief Executive then proceeded to determine Mr Aitken's eligibility to PCH and to give the notification required by s 36. A further letter was sent to Mr Aitken at the same New South Wales address on 22 April 2003. The letter informed Mr Aitken that, although he was not eligible to receive quota, he was entitled to transfer his PCH within a transfer period from 16 July 2003 to 12 August 2003 unless he appealed against the determination of the Chief Executive. Mr Aitken was informed that any appeal must be lodged by 15 July 2003. The available grounds for appeal under s 51(1) were set out in the notification. This letter of notification was returned marked "Not at this address". [12] Since he did not receive the notification Mr Aitken did not appeal within the time specified nor did he transfer his PCH within the specified period. Accordingly, his entitlement to PCH was deemed by operation of law to be cancelled in August 2003 by virtue of s 37(3).[13] On 5 October 2004 Mr Aitken wrote to the Ministry of Fisheries giving a Queensland address and advising that he had only recently become aware of the earlier notification letters sent to him at the New South Wales address. He advised that he had an eligible fisher to whom he could transfer the PCH immediately. The Ministry responded shortly afterwards advising Mr Aitken that it was not possible for his PCH to be reinstated and suggesting that he lodge an appeal. The Ministry informed him however that the Review Committee would be "mindful of the fact that...the last date for appeals to be received was 16 July 2003". [14] Mr Aitken signed a notice of appeal in which he stated:I am appealing against the Ministry's decision to cancel my PCH for KIN1 and KIN2 on the following grounds: 1) The Letter of Notification was sent to the wrong address;..and subsequently returned to FishServe as noted on their records. 2) I have been living in Australia since 1993 and had received no prior notification at all that the PCH Allocation process was taking place (or was about to take place). 3) After the Letter of Notification was returned to FishServe, my current address could have been found by them with minimal additional effort. 4) The cancellation of my PCH does not alter the fact that I did actually catch the fish. 5) I have an eligible Fisher that I can transfer the PCH to immediately. 6) Because I have been living in Australia since 1993 and the fact that I received no notification at all from MAF (pending or otherwise) I was completely and totally unaware that the PCH allocation process was taking place until August 2004. (emphasis in original).Decision of the Review Committee[15] In due course, the Review Committee determined Mr Aitken's appeal on the papers and issued a decision on 8 September 2005. [16] After stating the relevant factual background (about which no issue is taken) the Review Committee noted that, in terms of s 51(1), Mr Aitken was obliged to appeal on or before the date of 15 July 2003 specified in the relevant notice issued under s 36(2). Since the appeal was not lodged until 1 December 2004 the ReviewCommittee accepted that the appeal was filed very late "if the appellant can be said to have been notified...". The Review Committee then stated:7.12 However this date for lodging an appeal is dependent upon there having been notification to the person concerned (in this case the appellant) of the allocation and amount of PCH. The appellant, not having been notified of the allocation and amount of PCH, is not required to, and indeed not able to, lodge an appeal within the time limit specified. 7.13 This is clear, as a matter of statutory interpretation. S.36(3) of the Act ties the date of lodging an appeal in s.36(2)(c)(ii), to the notification. No notification, no date of lodging an appeal. 7.14 It follows that this appeal was not filed late. 7.15 It also follows that the appellants PCH could not "be deemed to be cancelled" pursuant to s.36(2)(b) of the Act, because that provision is dependent on there having been notification of the allocation and amount of PCH.[17] In deciding that Mr Aitken had not been notified under s 36 the Review Committee drew attention to s 306 of the Act which relevantly provides:306 Giving of notices, etc(1) Except as otherwise specified in this Act, if under this Act any notice or other document is to be given, served on, or furnished to any person, that notice or other document may be— (a) Given to the person personally; or (b) Sent by registered post to the person at the person's usual or last known place of business or abode; or (c) Given personally to any other person authorised to act on behalf of the person; or (d) Sent by registered post to that other person at that other person's usual or last known place of business or abode; or (e) Except in the case of any notice or document to be given or served in the course of or for the purpose of any proceedings for an offence against this Act, sent by post to the person, or any other person authorised to act on the person's behalf, at that person's or other person's usual or last known place of business or abode; or ... (2) Any notice or other document so sent by post or registered post shall be deemed to have been given, served, or received 7 days after thedate on which it was posted, unless the person to whom it was posted proves that, otherwise than through that person's fault, the notice or document was not received.[18] The Review Committee drew particular attention to s 306(2) and stated:7.7 In the present case the respondent has, quite properly, attached copies of the envelopes sent to the appellant which were returned to the respondent. It was apparent to the respondent when the first notification was returned to sender, that the appellant had left that address. Yet the respondent continued to send notices to the appellant at that address. I suppose that is bureaucracy. But in most organisations some note would be made of that fact, and some attempt made to find the correct address. After all, a valuable property right was involved. 7.8 Be that as it may, the result was that the appellant was not notified, and I am satisfied that the appellant has proved that, otherwise than through his fault, the notifications and documents were not received. It is true, as the respondent submits, that the appellant did not notify the respondent of his new address, and it could be said that the failure to receive the notifications and documents was due to that omission. However, given the importance of the notifications, I think that the respondent ought to have made reasonable attempts to trace the appellant once the first letter was returned to sender unopened. The fishing industry in New Zealand is a close knit community, and enquiries in the area where the appellant previously fished, should have been made. It is likely that the appellant's address could have been ascertained by making appropriate enquiries. I therefore find that the presumption in s.306(2) of the Act that notices are deemed to have been received 7 days after posting, is rebutted.[19] Having determined that the appeal was not filed late, the Review Committee then dealt with the Chief Executive's submission that the Review Committee did not have jurisdiction to entertain the appeal because Mr Aitken was appealing against the decision to cancel his PCH. The Review Committee decided that it was appropriate to look at the appeal as if it was "effectively an appeal against the respondent's decision that the appellant was not eligible to be allocated quota because he did not hold a fishing permit". On that basis, the Review Committee considered it had jurisdiction to hear the appeal under s 51(1)(b)(iv). [20] The Review Committee went on to decide that the appeal should be dismissed as Mr Aitken did not hold a fishing permit as required by s 35(1)(b). In consequence, the 20 working day period in which Mr Aitken could transfer his PHC was available to him, commencing on the day following the Review Committee's decision by virtue of s 37(2)(b)(i) of the Act.Was Mr Aitken's appeal out of time?[21] For the Chief Executive, Mr McCarthy submitted that the "specified date" on which the appeal period ended and the transfer period began applied to all persons potentially eligible for PCH irrespective of whether they had actually received personal notification. On that basis, the deadline for appeals was 15 July 2003 and Mr Aitken's appeal dated 1 December 2004 was out of time. Mr McCarthy submitted there was no power for the Review Committee to extend time and noted that the Review Committee did not suggest otherwise. Section 51(1) of the 1996 Act may be contrasted with s 28H(1) Fisheries Act 1983 (as it stood prior to 23 December 1991) where appeals were to be brought "within 28 days ... or such longer period as the Quota Appeal Authority may allow". I accept Mr McCarthy's submission that the omission of any such power to extend in s 51 clearly suggests a deliberate change in Parliamentary intention so as to exclude any power for the Review Committee to extend the time to appeal. [22] On this issue, the real question is at what point the appeal period started to run, given the finding of the Review Committee that the appeal period did not begin to run until Mr Aitken was notified of his allocation of PCH. [23] For present purposes, the key provisions are ss 36 and 306 of the Act. So far as it is relevant, s 36 stated at the material time:36 Notification of allocation of provisional catch history(1) As soon as practicable after the specified date referred to in section 35(2)(ea) of this Act, the chief executive shall- (a) Complete his or her determination of any objection or notification received under section 35 of this Act ...: (b) In the case of any person whom the chief executive considers to be eligible to receive provisional catch history for a stock, allocate the amount of such provisional catch history as the chief executive considers the person is eligible to receive: (c) Notify the person concerned, –(i) In the case of any person whom the chief executive considers to be eligible to receive provisional catch history for a stock, of the allocation and the amount of provisional catch history; and (ii) In all cases, of the result of any determination under paragraph (a) of this subsection. (2) Every notification under subsection (1) of this section shall be sent to the person's last known address and shall state-(a) Both – (i) The person's right to appeal under section 51(1)(b) of this Act; and (ii) That the appeal must be lodged not later than the date specified for the purpose in the notice; and (b) If the chief executive considers under section 35(1)(b) of this Act that the person is not eligible to receive quota, that unless the person lodges an appeal not later than the date specified under paragraph (a)(ii) of this subsection the person may transfer the person's provisional catch history within the period of 20 working days commencing on the day after that specified date, and that, if the provisional catch history is not transferred within that period, it shall be deemed to be cancelled on the expiration of that period; and ... (3) The date referred to in paragraphs (a)(ii) and (c)(ii) of subsection (2) of this section and specified in a notification under subsection (1) of this section shall be not less than 60 working days after the date of the notification. (4) As soon as practicable after notifying persons under subsection (1) of this section, the chief executive shall notify the Registrar of Quota of – (a) The amount of provisional catch history the chief executive has allocated to each person; and (b) The name of every person allocated provisional catch history for the stock who the chief executive believes is not eligible to receive quota. (5) As soon as practicable after the specified date referred to in subsection (2)(c)(ii) of this section, the chief executive shall notify the Registrar of Quota of whether any person or the chief executive has appealed to the Catch History Review Committee under section 51 of this Act in respect of any provisional catch history. (Emphasis added).[24] Mr McCarthy submitted that the Review Committee appeared to have overlooked s 36(2) which required "Every notification" under the section to be "sentto the person's last known address...". That meant in Mr McCarthy's submission that s 306 was excluded from consideration because s 306 only applies "Except as otherwise specified in this Act...". [25] I do not accept Mr McCarthy's submission that s 306(1) has no application to the notification required by s 36(2). While, s 36(2) specifies the manner of notification (i.e. by sending the notification to the person's last known address), it is not inconsistent with s 306(1)(d) and therefore does not "otherwise specify". But I accept Mr McCarthy's submission that s 306(2) does not apply here. Under s 36(2)(a)(ii), the Chief Executive must specify the last date for the lodging of an appeal which, in terms of s 36(3), must be not less than 60 working days after "the date of the notification". Importantly, the time for appeal is not to run from the date of receipt (or deemed receipt) of the notification. Rather, the last date for appeal is to be the date specified in the notification. It would not be possible to specify the date for appeal if it depended upon the date of receipt or deemed receipt of the letter of notification. Here, the critical date is the date for appeal specified in the notice. [26] The scheme of s 36 requires only that the notification be sent to the person's last known address and that the notification contains the information mandated by the section. It follows that s 306(2) has no direct application to the notification required under s 36 since s 306(2) is concerned with situations where the date of receipt of a notice is at issue. [27] Section 36 contemplates that the notification will apply to all persons to whom the chief executive has determined to allocate PCH. This is apparent, for example, from s 36(4) which requires the chief executive to notify the Registrar of Quota of the amount of PCH "allocated to each person". Notification to the Registrar is to be given "as soon as practicable after notifying persons under subsection (1) of this section [s 36(1)]". Similarly, under s 36(5) the chief executive's obligation extends to notifying the Registrar of any person who has appealed in respect of any PCH. Logic compels the conclusion that all who are allocated PCH for a particular species should be dealt with together since the allocation of quota (or the right to transfer PCH as the case may be) is to bedetermined globally. Any adjustment to an individual's PCH will have a corresponding effect on the entitlements of all those affected. [28] These considerations support the conclusion that Parliament could not have intended that the time for appeal should run from the date of receipt or deemed receipt of the notification since an obligation of that kind would be likely to render the scheme unworkable. [29] Even if s 306(2) were to apply, I am satisfied that, as a matter of law, there is no justification for the Review Committee's conclusion that the Chief Executive was under an obligation to make inquiries to establish the whereabouts of Mr Aitken once the first letter was returned to the sender unopened. There is no express obligation to do so and I am unable to discern any basis to imply such an obligation. Indeed, all the statutory indications are the other way. Section 36(2) does not require the notification to be served. The obligation is to send it to the last known address. Given the nature of the statutory scheme already described, imposing an obligation on the Chief Executive to make inquiries to establish the whereabouts of persons who may have "gone no address" carries obvious potential to make the scheme impossible or difficult to administer in an effective way. It also needs to be kept in mind that the initial notification of PCH entitlement under s 35 requires public notices to be given in addition to letters of notification to the individuals concerned. The Chief Executive arranged for notices to be given in newspapers throughout New Zealand on two separate occasions. [30] If, as the Review Committee thought, s 306(2) applied, the absence of any obligation by the Chief Executive to make inquiries to establish Mr Aitken's address removes the foundation for the Review Committee's finding that Mr Aitken had proved the notice was not received otherwise than through his fault. As the Review Committee acknowledged, Mr Aitken did not notify the Chief Executive of his new address "...and [it] could be said that the failure to receive the notifications and documents was due to that omission". I am satisfied that the obligation was on Mr Aitken to notify the Chief Executive when he changed address if he wished to take advantage of any PCH which might become available. Given my conclusion thatthere was no obligation on the Chief Executive to attempt to trace Mr Aitken, the failure to receive the notification was plainly Mr Aitken's fault in terms of s 306(2). [31] In the light of my conclusions on this issue, it is unnecessary for me to consider whether the Review Committee was entitled to change the ground of appeal. On this point, Mr McCarthy submitted that the appeal was void from the outset since it did not address any of the grounds available under s 51(1)(b). Mr McCarthy's submission was that there was no power to consider an appeal against the cancellation of PCH which occurred by operation of law upon the expiry of the 20 working day transfer period specified in s 36(2)(b) without any transfer having been effected. It was further submitted that the Review Committee had no jurisdiction to amend an appeal where the appeal was plainly void from the outset.Conclusion and Disposition[32] For the reasons stated, I conclude that Mr Aitken's appeal was out of time and the Review committee had no jurisdiction to consider it. The consequence is that any entitlement Mr Aitken may have had to transfer his PCH was cancelled by operation of law. [33] The decision of the second respondent is set aside accordingly. I record counsel's advice that the disputed PCH has not been allocated to Mr Aitken and has not been transferred to a third party. There is no basis for any direction to reconsider the matter. [34] The Chief Executive does not seek costs and no order is made in that respect. ______________________________ A P Randerson J Chief High Court Judge