PETROMONT FISHING COMPANY LIMITED v THE DIRECTOR-GENERAL OF THE MINISTRY OF PRIMARY INDUSTRIES [2018] NZCA 422

PETROMONT FISHING COMPANY LIMITED v THE DIRECTOR-GENERAL OF THE MINISTRY OFPRIMARY INDUSTRIES [2018] NZCA 422 [11 October 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA243/2018[2018] NZCA 422BETWEEN PETROMONT FISHING COMPANYLIMITEDAppellantAND THE DIRECTOR-GENERAL OF THEMINISTRY OF PRIMARY INDUSTRIESRespondentHearing: 11 September 2018 (Further material received 25 September 2018and 2 October 2018)Court: Miller, Winkelmann and Williams JJCounsel: D W Grove for AppellantN C Anderson and S J Jensen for RespondentJudgment: 11 October 2018 at 2.30 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondent costs for a standard appeal on aband A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] This appeal raises a narrow question of statutory construction pertaining toPetromont's right to an administrative review of decisions about quota to fish forscampi. That such a right exists is not in dispute. The appeal concerns its scope.Petromont says that it extends to decisions made by the Director-General of theMinistry of Primary Industries personally.1 The respondent says it is confined todecisions made by the Director-General's delegates. This matters because one of thethree decisions that Petromont wants to review was made by the Director-General inperson.[2] The decisions concerned were made in the 1990s. For reasons that need nottrouble us, the Director-General accepts that Petromont's right to an administrative —that is, internal to the Ministry — review survives to this day. The question is wherethe right is found in statute. The answer determines the scope of the right.[3] Petromont says that a right of review was created by s 329 of the Fisheries Act1996 (1996 Act). That section deemed certain decisions of the Director-General madeafter 1 October 1992 but before 1 October 1996 (including those made under delegatedauthority) always to have been valid, but excluded those decisions for whichthe applicant had, within time, lodged a request to have the decision reviewed.[4] The Director-General says that the right arises under s 63(1) of the FisheriesAct 1983 (1983 Act); it is a right to have decisions made by "any officer acting underthe delegated authority of the Director-General" reviewed by the Director-General oranother of his or her delegates. It therefore excludes decisions made by theDirector-General personally. Section 329 created no right of review; it merelypreserved those that already existed where a review had been sought within time, as itwas in Petromont's case.[5] Petromont failed on judicial review before Clark J.2 Recourse may be had toher judgment for the narrative facts. We are grateful to her for clearing away a numberof issues and framing the single issue that remains. We observe that the position beforeher was complicated because the parties took positions contrary to those they now1 Originally the Director-General of the Ministry of Fisheries but later known as theChief Executive. Nothing turns on this, so for ease of understanding we refer throughout to theDirector-General.2 Petromont Fishing Co Ltd v Ministry of Primary Industries [2018] NZHC 676, [2018] NZAR740.advance: Petromont maintained that it could rely on s 63, and the Director-Generalmaintained that a right of review arose under s 329.[6] We turn at once to the relevant provisions. Under s 63 of the 1983 Actthe Director-General might grant fishing permits to take fish for sale, using a fishingvessel. Conditions might be imposed and varied from time to time. Section 63(11)created the right of administrative review:63 Fishing permits(11) Where any decision is made under this section by any officer actingunder the delegated authority of the Director-General, the applicantfor the permit or permit holder, as the case may be, shall be entitled tohave the decision reviewed by the Director-General or by an officerdesignated by the Director-General who was not involved in themaking of the original decision.It is common ground that this right of review does not extend to decisions made bythe Director-General in person. It is also common ground that s 63 survived thepassage of the 1996 Act. It was not repealed until 2001.[7] Section 329(1) of the 1996 Act validated decisions in respect of the issue,variation or termination of any fishing permit under s 63 of the 1983 Act, providedthose decisions had been made before 1 October 1992. Section 329(3) excluded fromvalidation under subs (1) only decisions already the subject of court proceedings filedbefore 1 October 1996. Section 329(2), which concerns us, validated decisions madeafter 1 October 1992 but before 1 October 1996, being the date on which s 329 cameinto effect:329 Validation of certain decisions relating to permits(2) Every decision and every purported decision of the chief executive(whether made by the chief executive or the Director-General ofAgriculture and Fisheries)—(a) made in respect of the issue, variation, refusal, revocation, orcancellation of any fishing permit under section 63 orspecial permit under section 64 of the Fisheries Act 1983; and(b) made on or after 1 October 1992 but before thecommencement of this section—is hereby declared to be and always to have been valid.[8] Section 329(4) excluded from validation under subs (2) decisions that werealready the subject of court proceedings or in respect of which the applicant had,within time, requested the Director-General to review the decision:(4) Subsection (2) does not apply to a decision or purported decisionreferred to in that subsection if—(a) the decision or purported decision is being challenged in or isotherwise subject to any court proceedings commencedbefore the date of commencement of this section; or(b) the applicant for the permit which was the subject of adecision or purported decision referred to in that subsection—(i) has, before the commencement of this section, lodgedwith the chief executive; or(ii) within 12 months after the commencement of thissection, lodges with the chief executive—a notice requesting the chief executive to review that decisionor purported decision.[9] Clark J explained that the decision to validate past decisions was made becausethe legislature was concerned that challenges to previous decisions should notundermine the introduction of new species into the quota management system.1 October 1992 was chosen because catch histories for the fishing years commencing1 October 1990 and 1991 were used to establish the provisional catch history allocatedto fishers under the 1996 Act.3[10] On 1 October 1997 Petromont sought an administrative review, just in time togain the protection of s 329(4)(b)(ii). At that time, as noted, s 63 was still in force.3 At [49] and [55(a)].[11] Clark J reasoned that s 329 conferred no right of administrative review butmerely protected existing rights by saving certain decisions from validation where therights were invoked within time:[77] In summary the purpose of s 329(1) and (2) is to validate decisionsand purported decisions in relation to fishing permits under s 63 and s 64 ofthe 1983 Act. Those decisions became "unassailable" with the enactment ofs 329. Section 329 subs (3) and (4)(a) save from validation decisions andpurported decisions which were the subject of court proceedings commencedprior to 1 October 1996. Section 329(4)(b) further exempts from validationthose decisions in respect of which an applicant sought an administrativereview in time. The savings provisions do not confer a right to commencecourt proceedings or a right to request an administrative review. Rather, s 329recognises the existence of that right or entitlement and saves from validationthose discussions subject to the exercise of that right provided the right wasexercised in time. The right to an administrative review was given by s 63(11).Section 63 was in force on 1 October 1997 when Petromont lodged its reviewand I conclude that Petromont's review is pursuant to s 63(11) not s 329.[12] We consider that this reasoning is plainly correct as a matter of construction.In particular:(a) Subsection (4)(b)(i) must by definition refer to an existing right ofreview, one that predated the commencement of s 329.(b) Similarly, the section does not confer jurisdiction on the High Court tohear a judicial review application; that must be found elsewhere.(c) A decision made by the Director-General in person was susceptible tojudicial review.(d) There is no reason why the legislature would want to confer a widerright of review than already existed. Its evident purpose in s 329 wasto preserve for a time such rights, for two classes of decisions definedby the dates on which they were made.[13] In an admirably succinct argument before us, Mr Grove for Petromont focusednot on the legislative language but the respondent's behaviour, saying that at no timehad the Director-General limited the right of review to s 63 and submitting that theparties have always proceeded on that basis. That is so. He did not advance alegitimate expectation argument, however. We express no view about whether suchan argument is available on the facts or in law. The record shows that Petromont hadpreviously succeeded on judicial review in 1993 but did not reapply whenthe Director-General reconsidered the matter as directed but came to the samedecision.4 It is that latter decision of the Director-General that Petromont now wantsto review. Because the point was not in issue below, the record does not establishwhether Petromont was influenced in a decision not to seek judicial review before1 October 1996 by knowledge of the Director-General's assumption that s 329conferred a right of review.Result[14] The appeal is dismissed.[15] Petromont must pay the Director-General costs for a standard appeal on aband A basis and usual disbursements.Solicitors:Foy & Halse, Auckland for AppellantCrown Law Office, Wellington for Respondent4 Petromont Holdings Ltd v Director-General of Agriculture and Fisheries HC AucklandM986-93, 7 September 1993.