PETROMONT FISHING COMPANY LIMITED v THE MINISTRY OF PRIMARY INDUSTRIES [2018] NZHC 676

PETROMONT FISHING COMPANY LIMITED v THE MINISTRY OF PRIMARY INDUSTRIES [2018]NZHC 676 [16 April 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2016-404-3064[2018] NZHC 676IN THE MATTER OF An application for Judicial ReviewUNDER Judicial Review Procedure Act 2016BETWEEN PETROMONT FISHING COMPANYLIMITEDApplicantAND THE MINISTRY OF PRIMARYINDUSTRIESRespondentHearing: 9 August 2017Appearances: D W Grove for PlaintiffN C Anderson and E J Couper for DefendantJudgment: 16 April 2018JUDGMENT OF CLARK JPursuant to r 11.5 of the High Court RulesI direct the delivery time of this judgmentis 4:30 pm on 16 April 2018Introduction [1]Two preliminary points [4]Terminology [4]Jurisdiction [6]Background [8]Scampi is brought into the Quota Management System [8]Petromont's permit: grant and revocation [11]Factors in the delay [16]Petromont's application for judicial review [43]Questions for determination [45]Statutory context [47]Fisheries Act 1983 [47]Fisheries Act 1996 [48]First ground: Did the respondent err in limiting the administrative review todecisions made between 1 October 1992 and 1 October 1996? [53]Applicant's position [53]Respondent's position [54]Analysis [58](i) Is the review pursuant to the 1983 Act, s 63 or the 1996 Act, s 329? [58](ii) Can pre 1 October 1992 decisions be reviewed by chief executive? [78]Decision [81]Second ground: does s 308 bar compensation or damages? [89]Applicant's position [89]Respondent's position [93]Decision [94]Third ground: Is provision of draft advice paper to decision-makerin breach of natural justice? [101]Decision [104]Summary [108]Result [113]Introduction[1] Section 329 of the Fisheries Act 1996 validated decisions and purporteddecisions of the Director-General of Fisheries in relation to fishing permits issuedunder ss 63 or 64 of the Fisheries Act 1983.1 If a decision or purported decision wassubject to an internal review it was saved from retrospective validation.2[2] In October 1997 Petromont notified the Director-General of its intention torequest a review under s 329. Despite the passage of 20 years the review is still not1 Fisheries Act 1996, s 329(1) and (2).2 Section 329(4)(b).underway. There are several explanations for the astonishing delay including thefailure over time to agree the scope and nature of the review process.[3] Petromont has filed this application for judicial review. It seeks declarationsas to the scope of the internal review and as to procedural aspects of the internal reviewprocess.Two preliminary pointsTerminology[4] For clarity, I propose to adopt the applicant's terminology. I refer to thepermitting decisions which Petromont seeks to have reviewed as the "reviewdecisions" or decisions for "administrative review" or "internal review". Thedecisions which are the subject of this judicial review proceeding I refer to as the"challenged decisions".[5] From 1995 the responsibility for fisheries was with the Ministry of Fisheries.The Fisheries Act 1996 is administered by the Ministry for Primary Industries. Thechief executive responsible for the Ministry for Primary Industries is titled theDirector-General. Unless the context makes it important not to do so I will refer to"the Ministry" when referring to the respondent or its predecessors. Likewise, I willuse the term "Director-General" when referring to the chief executive of MPI or of theearlier entities which had, at different times, responsibility for fisheries.Jurisdiction[6] The respondent pleaded an affirmative defence protesting the amenability ofthe challenged decisions to judicial review. At the hearing, however, the objection wasnot pressed. Mr Anderson submitted that although the point was arguable therespondent did not object to determination of the issues in the case: "clarification ofthe issues in this proceeding would be useful and will enable the internal review toprogress to completion." Mr Anderson submitted that even if not reviewable theMinistry would find it helpful to have guidance.[7] The amenability of a decision to judicial review is akin to a jurisdictional point.If the Court lacks jurisdiction, a party's consent cannot bestow it. Similarly, if, as amatter of law, a decision is beyond the reach of the High Court's supervisoryjurisdiction and therefore not amenable to review, the consent of the parties will notmake it so. The point is of practical relevance to two of the three issues and isaddressed further in those contexts.3BackgroundScampi is brought into the Quota Management System[8] In 1986, by amendment to the Fisheries Act 1983, the Quota ManagementSystem (QMS) was introduced to manage commercial fishing stocks. As describedby the Court of Appeal:4 the 1986 amendment provided for the allocation to fishers of what was inessence a proprietary right to fish for a particular species in one or more quotamanagement areas (QMAs).[9] Under the QMS initial quota was allocated to fishers based on their recordedcatch history. Until 1 October 2004, scampi was one of the many species outside theQMS. As with other non-QMS species the method of regulating scampi was throughthe issuing of permits under the 1983 Act. Commercial fishing permits were issuedunder s 63 and special permits under s 64.[10] Scampi became subject to the QMS in 2004 pursuant to s 369N of the FisheriesAct 1996 which repealed and replaced the 1983 Act.5 The allocation of quota forscampi was made on the basis of the fisher's catch history for the fishing yearscommencing 1 October 1990, 1 October 1991, and ending 30 September 1992.6Petromont's permit: grant and revocation[11] Petromont was issued a permit on 29 September 1992. This was one day beforethe end of the catch history period used for the allocation of quota for scampi under3 The three issues for determination are set out at [45].4 Minister of Fisheries v Pranfield Holdings Ltd [2008] NZCA 216, [2008] 3 NZLR 649 at [10].5 Fisheries Amendment Act (No 2) 2004, s 5.6 Fisheries Act 1996 s 369R(5); Minister of Fisheries v Pranfield Holdings Ltd, above n 4, at [22].the QMS.7 The permit was granted subject to certain conditions. The term of thepermit was from 1 October 1992 until 30 September 1993. The permit authorisedPetromont to take specified quantities of scampi in specified quota management areas(QMAs). 8[12] On 25 May 1993, the Director-General of Agriculture and Fisheries revokedPetromont's permit in respect of some QMAs on the basis Petromont had made "nolandings of certain non-ITQ fish stocks" listed on the permit. Petromont successfullybrought judicial review proceedings challenging the revocation decision.9 AndersonJ declared invalid the Director-General's revocation of Petromont's permit to fish forscampi.10[13] The Director-General reconsidered his decision in light of the High Court'sdirections. On 15 September 1993, pursuant to s 63(6) of the Fisheries Act 1983, theDirector-General notified Petromont of the revocation of conditions then attached asschedule D to Petromont's permit and the substitution of those revoked conditionswith the conditions attached to the Director-General's notification letter.11 The newset of conditions was said to reflect the High Court's judgment.[14] On 1 October 1996, s 329 of the 1996 Act came into force.12 The broad effectof s 329 was to validate decisions of the Director-General made prior to 1 October1992 in respect of permitting decisions under ss 63 or 64 of the Fisheries Act 1983 andalso decisions made between 1 October 1992 and 1 October 1996. Savings provisionsexempted specific classes of decisions from the retrospective validating effect ofs 329. I return to s 329 in my discussion of the legislative framework. Section 329 iscentral to Petromont's application for judicial review. Indeed, in his reply submissions7 The fishing permit issued to Petromont on 29 September 1992 was issued by the Director-Generalof Agriculture and Fisheries.8 A quota management area is a term used under the quota management system to refer to ageographically isolated and biologically separate population of a fish species.9 Petromont Holdings Ltd v Director-General of Agriculture & Fisheries HC Auckland M986/93,7 September 1993 [High Court decision or decision of Anderson J].10 At 13.11 Letter from R Ballard (Director-General of the Ministry of Agriculture and Fisheries to PetromontHoldings Ltd regarding Director-General's 1993 decision (25 May 1993) [Director-General's1993 decision].12 Pursuant to cl 2 Fisheries Act (Commencement Order No 2) 1996 (SR 1996/255).Mr Grove, counsel for Petromont, accepted that the correct interpretation of s 329 "hasbecome the key issue in this matter".[15] In any event on 1 October 1997, Petromont's solicitors wrote to put theMinistry on notice that it was "requesting a review of decisions and purporteddecisions of the Director-Generalas we are entitled to do pursuant to s 329 of theFisheries Act 1996". The letter did not state what decisions or purported decisionsPetromont wished to have reviewed.Factors in the delay[16] Since Petromont's request for an internal review on 1 October 1997 there hasbeen an extraordinary delay. The delay is explained in the affidavit of Louise Cook, asenior solicitor in the respondent's legal team. Ms Cook's affidavit evidence wasunchallenged. Ms Cook's evidence, and the extensive documentation which wasexhibited to her affidavit, show a course of events which I have decided to set out. Adelay of over 20 years before a review is even commenced, much less concluded,might be thought inexcusable without some explanation of the influences on theprocess.13Negotiation of the process for administrative review[17] I have already recorded that on 1 October 1997 Petromont notified the Ministryof its request for a review.[18] In March 1998 the Ministry asked Petromont to urgently advise whether itintended to participate in the consolidated scampi proceedings then before the HighCourt.14 The Ministry asked Petromont whether it agreed to defer its review of thescampi permitting decisions until the various proceedings had been determined. Otherscampi permit-holders, who were parties to the scampi proceedings, had agreed tohave their reviews deferred.13 I have summarised only that part of the extensive background which has some relevance to theproceeding.14 Vautier Shelf Company No 14 Ltd v Chief Executive of the Ministry of Fisheries CP20/97, 24 July2000.[19] As at 20 May 1998 Petromont had not responded to that letter nor to theMinistry's 17 February 1998 request for clarification of the decisions Petromontsought to have reviewed. The Ministry advised Petromont that, unless it confirmedby 27 May 1998 its requirement for the review, the Ministry would defer the reviewuntil determination of the scampi proceedings.[20] Petromont's solicitor, Mr Halse of Foy and Halse, advised during a telephoneconversation with Crown Counsel on 31 July 1998 that Petromont did seek review inrelation to its permit to take scampi. Mr Halse proposed to take instructions as towhether Petromont agreed to defer the review.[21] Following correspondence from the Ministry of Fisheries in August 2000Mr Halse advised that Petromont wished to proceed with its review "under s 329 ofthe Fisheries Act 1996 and/or s 63 of the Fisheries Act 1983".[22] On 7 December 2000, the Ministry advised the name of the officer undertakingthe review, sought submissions or further material by 22 December and indicated apreliminary decision was intended by February 2001. The preliminary decision wouldbe provided to Petromont for its response.[23] On 22 December 2000 Mr Halse replied to advise that it had been agreed withCrown Law to defer the review until the conclusion of (other) litigation.15 Theoutcome of the appeals might render the review unnecessary.[24] Almost a year later, on 29 November 2001, the Ministry wrote to Mr Halse toadvise that it was proceeding to carry out the review. The Ministry asked forPetromont's confirmation it wished to proceed and, if so, to specify the decisions tobe reviewed. Submissions in support of the application for review were requested by14 December 2001. A preliminary decision would be sent to Petromont for itscomment by 18 January 2002 and Petromont would have 15 working days to respond.[25] Mr Halse replied:15 Official Assignee v Chief Executive of the Ministry of Fisheries [2002] NZLR 722 (CA). Petromont's review will include decisions made prior to 1October 1992 under s 329(1) & 329(3) of the Act. You will beaware that Petromont took review proceedings in the HighCourtin relation to a decision of the Ministry made in respect ofthe 1991-1992 fishing year and as such the decision that is beingchallenged was subject to Court proceedings in accordance withthe requirements of section 329(3).The review therefore encompasses a total of some 11 years ofdecision making.[26] Mr Halse added that it was impossible to meet the proposed timetable in lightof the volume of material to be assembled and reviewed. Mr Halse suggestedsubmissions could be filed and oral submissions presented to the reviewer towards theend of February 2002, some four weeks after his return to work on 15 January 2002.[27] The Ministry responded on 13 December 2001 maintaining its view that onlydecisions made between 1 October 1992 and 30 September 1996 could be reviewedunder s 329 as decisions made before 1 October 1992 were validated. If Petromontwanted review of decisions of fishing years outside these dates "it must specify theaspects of the decisions to be reviewed". Submissions were required by 21 January2002.[28] The parties continued to dispute the scope of the review. Petromont insistedthat the 1993 High Court decision16 related to decisions made by the Ministry prior to1 October 1992 and accordingly Petromont was entitled to have those decisionsreviewed. In February 2002 Petromont foreshadowed the likelihood of applying forjudicial review of the Ministry's view that the Director-General's 1993 decision, whichwas the subject of final determination by the 1993 High Court decision, could not bereviewed.[29] Through 2002 the date for submissions continued to be missed and resetaccompanied by ongoing assurances Petromont still "required the review to beconducted in full".16 See [12] above.[30] The review was placed on hold pending the outcome of inquiries by the StateServices Commission and Primary Production Committee.[31] On 23 December 2004 Petromont confirmed to the Ministry that it wished tocontinue with its s 329 review.[32] Between 2005 and 2009 the parties attempted to agree the process for thereview. Petromont requested the appointment of a retired High Court Judge to conductthe review. It considered the Ministry's decision-maker was compromised and couldnot be impartial given his role in the scampi inquiries. The Ministry took the view itwas inappropriate to outsource the chief executive's s 329 decision. It proposedcontracting an independent external individual (John Edwards, barrister) to provide arecommendation to the Ministry decision-maker. The Ministry also proposed theadvice of a Queen's Counsel (Mary Scholtens QC) be obtained as to the lawfulness ofproposals in the draft decision paper and as to the relevance, or irrelevance, of anydisputed considerations.The process is agreed[33] By November 2009 the parties had reached agreement. In a letter dated12 August 2009 to Bruce Gray QC, acting for Petromont, Crown Counsel agreed toMr Gray's clarification of the process "which would therefore be as follows":• Petromont makes such submissions as it thinks appropriate.• The Ministry prepares a paper for the designated decision-makerMr Peacey, which addresses those submissions and makes arecommendation as to the outcome of the review.• If it wishes, Petromont responds to the paper.• Mary Scholtens QC reviews the paper, Petromont's submission andany other documents referred to in the paper or the submissions thatshe wishes to see.• Ms Scholtens advises on the relevance of any disputed factor andadvises whether she considers the outcome recommended by thepaper is lawfully open.• The paper, Petromont's submissions and Ms Scholten's comments areprovided to the decision-maker for a decision on the review.[34] In his acknowledgment dated 17 November 2009 Mr Gray confirmed that"Petromont accepts the process for review described in your letter". Mr Gray advisedthat Petromont was currently preparing its submissions and expected to provide itssubmissions by 28 February 2010.The process stalls[35] On 11 February 2010 Ms Cook (who was the deponent in this proceeding)sought from Mr Gray his confirmation that Petromont would meet the 28 Februarydate for provision of its submissions. Mr Gray replied: "Petromont has had anunexpected event which has slowed its ability to help its lawyers complete thesubmission". Mr Gray hoped to be able to write the following week to propose a newtimeframe.[36] Five years later, by letter dated 13 May 2015 from Mr Halse, Petromont soughtto have the review concluded. It was not, however, prepared to accept anyoneassociated with the Ministry undertaking the review.[37] The Ministry expressed its surprise at receiving a letter questioning the processagreed five years earlier particularly when it had been expecting Petromont'ssubmissions and supporting material to enable the review to proceed. The Ministry'sposition was that, bearing in mind the five years of inactivity in respect of a reviewrequested 18 years earlier, the review had lapsed. However, following furthercorrespondence with Mr Halse during 2015, in March 2016 the Ministry agreed toreactivate the review in the interests of resolving the matter. In a letter dated 3 March2016 to Mr Halse, Ms Cook set out the process agreed in 2009:1 Petromont Holdings Limited (Petromont) provides MPI with fullsubmissions on all matters that Petromont wishes to have consideredin the review;2 MPI prepares a paper for the designated decision maker (Dave Turner,Director Fisheries Management acting under delegation) whichaddressed those submissions and makes a recommendation as to theoutcome of the review;3 If it wishes, Petromont responds to the draft decision paper;4 External Legal expert reviews the draft paper, Petromont'ssubmissions and any other documents referred to in the paper or thesubmissions that he/she wishes to see, for the limited purposes of:a Advising on whether the outcome recommended in the paper tothe decision-maker is lawful; andb Advising on the relevance or irrelevance of any disputedconsiderations(The external legal expert's advice will be provided to MPI uponMPI's instructions and at MPI's expense and will not be madeavailable to Petromont);5 The paper, Petromont's submissions and external legal expert'scomments are provided to the decision maker for a decision on thereview; and6 Petromont is informed of that decision.[38] Ms Cook's letter included confirmation that Mr Turner "had no priorinvolvement in Petromont's original permitting decisions, the subsequent litigation orthe current section 329 review". Finally, Ms Cook proposed a timetable for the abovesteps. The timetable envisaged Petromont's submissions being provided to theMinistry by 31 March 2016, thereafter comments from Petromont and expert externallegal advice on the lawfulness of proposals in the draft decision paper. Mr Turner'sdecision on the s 329(4) review would be provided to Petromont on 17 June 2016.[39] In his capacity as counsel instructed by Petromont to deal with the reviewMr Grove replied on 14 March 2016 to attempt agreement on timing which wouldneed to take into account his and his client's availability as well as the "substantialvolume of material to be compiled given the extensive history of the matter".Mr Grove advised the "thrust" of Petromont's case was that it was unlawfullyprejudiced by the conduct of the former Ministry of Fisheries and:as a result of that conduct the scampi allocation received was too low,particularly compared to the allocation made to other companies suchas Simunovich and Sanford. If the allocations had been allocatedfairly, Petromont would have ended up with a far higher quota.[40] Mr Grove suggested the review should begin with a determination of whatallocation should have been made and when that allocation would have been received.If the reviewer considered Petromont should have received a higher allocation theissue of remedy would arise – whether by way of further quota or damages. Mr Grovetook issue with other aspects of the review including the role of the expert legaladviser. Mr Grove nominated an alternative Queen's Counsel to the Queen's Counseloriginally agreed with Mr Gray in 2009.17[41] In its reply, dated 1 April 2016, the Ministry expressed disappointment in theattempt to renegotiate a process agreed in 2009 and with which Petromont had failedto comply. Further, the Ministry:(a) disputed that compensation by way of damages or further quota wasavailable following a s 329(4) review;(b) maintained that a s 329(4) review was confined to decisions in respectof the issue, variation, refusal, revocation, or cancellation of any permitissued under ss 63 or 64 of the Act made in the period 1 October 1992to 30 September 1996; and(c) required particulars of the specific decisions which Petromont soughtto have reviewed.[42] The parties continued to dispute the scope and nature of the review. On1 December 2016 Petromont filed this application for judicial review.Petromont's application for judicial review[43] In its amended statement of claim dated 1 December 2017 Petromont pleads ithas applied to the respondent under s 63(11) of the Fisheries Act 1983 for a review ofthe following decisions:18(a) The decision by MFish, prior to 1 October 1992, to allocateretrospective interim catch limits for scampi in Quota ManagementAreas (QMAs) 1 and 2, based on catch landings for the 1990-91fishing year. The plaintiff asserts this decision, and the actions ofMFish that preceded it, were unlawful, unfair and unacceptable, andled to very small catch limits being imposed on the plaintiff. As aresult, these decisions have caused the plaintiff substantial economicloss and have prevented it from establishing itself in the scampifishery.17 Above at [33].18 Amended statement of claim dated 31 January 2017 at [4].(b) The decisions made by MFish each year in relation to the plaintiff tocontinue the unfair, inconsistent, unlawful and prejudicial actions anddecisions made prior to 1 October 1992, despite the ongoingcomplaints by the plaintiff.(c) The inconsistent and unlawful decisions made by MFish not toallocate catch limits for QMAs 3 and 6B in the 1992-93 fishing year,despite the interim catch limits being fully caught.[44] Petromont pleads that during the negotiations about the review process theMinistry made a number of decisions that "are improper, contrary to law and/or abreach of natural justice":19(a) that it is not open to the decision-maker to award relief to Petromontas either there is no basis to award relief and/or Petromont is barred bys 308(2)(c) of the Fisheries Act 1996 from claiming compensation;20(b) that the review is limited to decisions made on or after 1 October1992;21 and(c) that the Ministry will prepare a "draft advice paper" for the decision-maker which will be reviewed by an external legal adviser prior to thedecision-maker making her or his decision on the review.22Questions for determination[45] I propose to address the challenged decisions in a slightly re-ordered sequence.Logically the first issue for resolution concerns the scope of the administrative review.The availability of relief following that review, and the process issue raised by thecontention around the provision of a draft advice paper, will then be addressed.Accordingly, the questions for determination are:(a) Was the Ministry in error in limiting the administrative review todecisions of the Director-General made between 1 October 1992 and1 October 1996?19 Amended statement of claim at [6], [10], [16] and [21]. These are the three decisions describedabove, at n 4, as the review decisions, or decisions for administrative or internal review.20 Amended statement of claim at [10]–[12].21 Amended statement of claim at [16]–[18].22 Amended statement of claim at [21]–[24].(b) Is an award of compensation or damages barred by s 308(2)(c) of theFisheries Act 1996?(c) Does the Ministry's proposal to provide to the decision-maker a draftadvice paper which will reflect the legal advice of Queen's Counselbreach Petromont's right to natural justice?[46] First, it is necessary to set out the statutory context.Statutory contextFisheries Act 1983[47] Under s 63 of the Fisheries Act 1983 the Director-General had power to grantfishing permits allowing the holder to take fish, for the purpose of sale, using a fishingvessel. Under s 63 the Director-General could impose conditions on permits and, fromtime to time, amend, revoke and add new conditions.23 Section 63(11) also created anentitlement to an administrative review of decisions made under s 63 by a delegate ofthe Director-General:63 Fishing permits(11) Where any decision is made under this section by any officer actingunder the delegated authority of the Director-General, the applicant for thepermit or permit holder, as the case may be, shall be entitled to have thedecision reviewed by the Director-General or by an officer designated by theDirector-General who was not involved in the making of the original decision.Fisheries Act 1996[48] Section 329 of the 1996 Act came into force on 1 October 1996. Because itsinterpretation is central to determination of the issues in this proceeding s 329 isreproduced in its entirety:23 See the Court of Appeal's description of s 63 in United Fisheries Ltd v Ministry of Fisheries [2001]NZAR 707.329 Validation of certain decisions relating to permits(1) Every decision and every purported decision of the Director-Generalof Agriculture and Fisheries—(a) made in respect of the issue, variation, refusal, revocation, orcancellation of any fishing permit under section 63 or anyspecial permit under section 64 of the Fisheries Act 1983; and(b) made before 1 October 1992—is hereby declared to be and always to have been valid.(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 or specialpermit 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.(3) Subsection (1) does not apply to a decision or purported decisionreferred to in that subsection if the decision or purported decision isbeing challenged in or is otherwise subject to any court proceedingscommenced before the date of commencement of this section.(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, lodged withthe chief executive; or(ii) within 12 months after the commencement of this section,lodges with the chief executive—a notice requesting the chief executive to review that decision orpurported decision.(5) Notwithstanding anything in section 93 of this Act or in section 63(13)of the Fisheries Act 1983, if a person has been or is granted a specialpermit under section 64(1)(c) of that Act or section 97(1)(c) of thisAct, being a special permit granted to rectify an administrative error,the following provisions shall apply:(a) the chief executive may from time to time, but is not obligedto, issue to the person an appropriate fishing permit in placeof the special permit:(b) upon the commencement of a fishing permit issued to anyperson under this subsection, the special permit held by thatperson shall be deemed to be revoked.[49] In summary, s 329 validated every decision and purported decision of theDirector-General made before 1 October 1996 in respect of the issue, variation,refusal, revocation or cancellation of any fishing permit under s 63 or special permitunder s 64 of the 1983 Act. The legislative purpose in retrospectively validatingpermitting decisions was to ensure appeals did not undermine the introduction of newspecies into the QMS.24 But, in respect of challenges that had been commenced bythe time the 1996 Act came into force, the legislature did not intend that permitapplicants should lose the opportunities those challenges afforded. As the SelectCommittee observed in its report on the bill:25There is a need to validate permitting decisions so that challenges to thosedecisions do not undermine the introduction of new species into the QMS.However, this can be achieved by validating permitting decisions up to30 September 1992, the period including the catch history years. We considerthat appeals against permit decisions after 30 September 1992 should be ableto be lodged up to one year after the Bill's enactment. Any proceedings filedbefore the commencement of the Bill should be allowed to continue.[50] Thus, s 329 exempted from validation two categories of decision:(a) The first category, those decisions or purported decisions made before1 October 1992, were exempted from validation if they were the subjectof court proceedings commenced before 1 October 1996.26(b) The second category, those decisions or purported decisions made onor after 1 October 1992 but before 1 October 1996, were exempted fromvalidation if they were the subject of court proceedings commencedbefore 1 October 1996.27 They were also saved from validation if thepermit holder had lodged a notice requesting a review either before24 Fisheries Bill No 63-2 as reported from the Primary Production Committee, at p xxxviii.25 At p xxxviii.26 Fisheries Act 1996, s 329(3).27 Section 329(4)(a).1 October 1996, when s 329 commenced, or within 12 months of itscommencement.28[51] Section 308 is also relevant. Section 308 limits the Crown's liability to paycompensation or damages. Relevantly s 308 provides:308 Protection of the Crown, etc(2) Nothing effected or authorised by—(c) any of sections 329...shall be regarded as making the Crown liable to pay compensation ordamages to any person.[52] Finally, in this legislative overview, s 322 provides that where there is anyinconsistency between a provision in the 1983 Act and a provision in the 1996 Act theprovision in the 1996 Act prevails to the extent of the inconsistency:322 Relationship between offence provisions of Fisheries Act 1983 andthis Act(1) If there is any inconsistency between any provision of the FisheriesAct 1983 and any provision of this Act (in so far as the provisionsof this Act are in force), the provision of this Act shall prevail to theextent of the inconsistency.(4) Without limiting anything in the Interpretation Act 1999, theprovisions of the Fisheries Act 1983 shall, notwithstanding theirrepeal by section 314, continue to apply to proceedings in respect ofany offence against the Fisheries Act 1983 committed before thecommencement of section 252.28 Section 329(4)(b).First ground: Did the respondent err in limiting the administrative review todecisions made between 1 October 1992 and 1 October 1996?Applicant's position[53] Referring to the Director-General's refusal to accept for review decisions madebefore 1 October 1992, Mr Grove advanced two bases for submitting the refusal waswrong in law:(a) Petromont seeks review pursuant to s 63 of the 1983 Act not s 329 ofthe 1996 Act which the respondent relies upon. Section 329 does notcreate any right of review. In fact s 329 does not create rights butcurtails the extent of existing rights under s 63. Accordingly, anyreview must occur under s 63.(b) In any event the review decisions are saved by s 329(3). BecausePetromont challenged the pre 1 October 1992 decisions in its 1993judicial review proceeding the decisions "were 'otherwise subject' tocourt proceedings".Respondent's position[54] The respondent accepts the decisions made after 1 October 1992 arereviewable pursuant to s 329(4)(b)(ii) because Petromont lodged a notice within thestatutory timeframe.29[55] Beyond that, the respondent says, Petromont's submissions are an attempt tocircumvent the proper operation of s 329 the plain meaning and intent of which isclear:(a) Section 329 validated the decisions made during the fishing yearscommencing 1 October 1990 and 1 October 1991 which were the catch29 That is, where the applicant for a permit lodged with the chief executive a request for a revieweither before the commencement of s 329 or within 12 months of its commencement then thedecisions sought to be reviewed are saved from the validating effect of s 329(2). Section 329came into effect on 1 October 1996. Accordingly, the request for review notified on 1 October1997 falls within s 329(4)(b)(ii).history years used to establish the provisional catch history allocated tofishers (and which allocations were fixed in sch 14 to the 1996 Act).Thus, the effect of s 329(1) and (3) was to prevent fishers from callinginto question the validity of quota allocations at some time in the future.(b) Section 329 subs (2) and (4) created a stand-alone review procedure fordecisions made in the period 1 October 1992 to 30 September 1996.The same catch history issue did not arise for decisions made duringthis period. That is why a review procedure was provided.[56] Mr Anderson submitted Petromont is unable to retrospectively rely on therepealed s 63(11). Allowing reviews under the repealed s 63(11) would not only cutacross the 1996 Act but would defeat the purpose of s 329. Even if s 63(11) could berelied upon it is confined to decisions made under the delegated authority of theDirector-General whereas all relevant decisions in this case were made by theDirector-General personally. Further, s 322 applies so that, to the extent of anyinconsistency with the 1983 Act, the 1996 Act prevails.[57] As to Petromont's reliance on the 1993 High Court proceeding Mr Andersonadvanced detailed submissions. The essential argument was that Petromont cannotbring itself within the s 329(3) savings provision by relying on a proceeding that onceexisted and has been finally determined.Analysis(i) Is the review pursuant to the 1983 Act, s 63 or the 1996 Act, s 329?[58] This part of the analysis addresses the first of Petromont's two bases for itscontention (at [53] above) that the respondent erred in refusing to accept for reviewdecisions made before 1 October 1992.[59] Petromont relies on s 63 of the 1983 Act as the source of its entitlement to theadministrative review which it seeks. Petromont's insistence that s 63 prevails is tiedto the position it takes on the availability of relief under s 308. I address that issuewhen considering the second ground of challenge.[60] The respondent says there are a number of reasons why Petromont cannot relyon s 63 including that Petromont's review was notified on 1 October 1997 when s 329was in force and s 63 was repealed. In turn Petromont says the repeal of s 63 "did notand does not affect Petromont's right to continue its review under that section".[61] Both parties' cases have proceeded on a misapprehension of the legislation inforce at the operative time. Section 63 was not in fact repealed as at 1 October 1997.Section 63 was not repealed until 1 October 2001. If counsel were aware of this factthey did not draw it to my attention. The oversight contributed to avoidablecomplexity and confusion.[62] The position regarding s 63 of the 1983 Act is as follows:(a) The 1996 Act came into force on 1 October 1996.30 But the cominginto force of the 1996 Act did not mean the whole of the 1983 Act wasrepealed as at that date. Repeal of the provisions of the 1983 Act wasstaggered.(b) Section 314(1)(a)–(zi) of the 1996 Act provided for repeal of provisionsin the 1983 Act. Section 314(r) provided for the repeal of ss 62 to 64of the 1983 Act.(c) Section 314(r) came into force on 1 October 2001 thereby effecting therepeal of ss 62–64 on 1 October 2001.31 Although the bulk of theFisheries Act 1983 was repealed from1 October 1996, ss 62, 63 and 64remained extant for a further five years until their repeal on 1 October2001.[63] Consequently, when Petromont's solicitors wrote on 1 October 1997 to put theMinistry on notice of its request for a review of the Director-General's permittingdecisions32 Petromont was exercising the right to a review conferred by s 63(11) ofthe 1983 Act. Confusingly, perhaps, the solicitor's letter of 1 October did say30 Apart from the provisions specifically exempted by s 1(2A) and (3) of the 1996 Act.31 Fisheries Act Commencement Order (No2) 2001.32 See [15] above.Petromont was "requesting a review as entitled pursuant to s 329 of the FisheriesAct 1996" but of course 329 creates no right or entitlement to review.[64] Section 329 retrospectively validates decisions coming within its reach.Decisions saved from validation are those decisions to which s 329(3) and (4) apply.Subsection (3) saves from validation decisions, or purported decisions, beingchallenged in or otherwise the subject of court proceedings. And subs (4) saves fromvalidation decisions, or purported decisions, being challenged in or otherwise thesubject of court proceedings, as well as decisions subject to administrative reviewalready commenced or to be lodged within the statutory timeframe.33[65] The effect of the savings provisions is to recognise challenges, such as courtproceedings or administrative reviews, already afoot. Legislative recognition of achallenge already underway, or to be initiated within a strict timeframe, is altogetherdifferent from legislative conferral of a right to institute a challenge. Section 329(4)no more creates a right of administrative review than does s 329(3) create a right tocommence court proceedings.[66] The respondent says Petromont cannot "retrospectively rely on the repealeds 63(11)". My view is that the Interpretation Act 1999 governs the position.Section 18 of the Act provides:18 Effect of repeal on enforcement of existing rights(1) The repeal of an enactment does not affect the completion of a matteror thing or the bringing or completion of proceedings that relate to anexisting right, interest, title, immunity, or duty.(2) A repealed enactment continues to have effect as if it had not beenrepealed for the purpose of completing the matter or thing or bringingor completing the proceedings that relate to the existing right, interest,title, immunity, or duty.[67] Subject to one qualification s 18 of the Interpretation Act applies so thatPetromont's review, commenced as it was in 1997 pursuant to the then extant s 63(11),is to be completed despite the repeal of s 63 on October 2001. The qualification is that33 That is, commenced in accordance with s 329(4)(b)(i) or (ii).the decisions which Petromont seeks to have reviewed must be decisions which areeligible for administrative review.[68] The three decisions which Petromont wants to have reviewed are set out at [43]but are reproduced for convenience.(a) The decision by MFish, prior to 1 October 1992, to allocateretrospective interim catch limits for scampi in Quota ManagementAreas (QMAs) 1 and 2, based on catch landings for the 1990-91fishing year. The plaintiff asserts this decision, and the actions ofMFish that preceded it, were unlawful, unfair and unacceptable, andled to very small catch limits being imposed on the plaintiff. As aresult, these decisions have caused the plaintiff substantial economicloss and have prevented it from establishing itself in the scampifishery.(b) The decisions made by MFish each year in relation to the plaintiff tocontinue the unfair, inconsistent, unlawful and prejudicial actions anddecisions made prior to 1 October 1992, despite the ongoingcomplaints by the plaintiff.(c) The inconsistent and unlawful decisions made by MFish not toallocate catch limits for QMAs 3 and 6B in the 1992-93 fishing year,despite the interim catch limits being fully caught.[69] Mr Anderson submitted a stand-alone procedure for decisions in the period1 October 1992 to 30 September 1996 reflects the recommendation of the PrimaryProduction Committee in its Report on the Fisheries Bill 1996.[70] The full extract from the Select Committee's report is set out at [49] above. Ireproduce the particular passage upon which the respondent relies as demonstrating alegislative intent to create an entitlement to review:34We consider that appeals against permit decisions after 30 September 1992should be able to be lodged up to one year after the Bill's enactment. Anyproceedings filed before the commencement of the Bill should be allowed tocontinue.[71] This passage does not reveal an intention to create a statutory entitlement to anadministrative review. As stated previously, when s 329 came into effect on 1 October1996 s 63 was in force. The right to an administrative review which s 63(11) conferred34 Fisheries Bill No 63-2 as reported from the Primary Production Committee, above n 24 above, atxxxviii.existed until the repeal of s 63 on 1 October 2001. Entitlements to review unders 63(11) were not time-bound. The apparently open-ended entitlement to have apermitting decision reviewed under s 63(11) was of little avail, however, in the face ofthe validating effect of s 329. Mr Grove characterised s 329 as "a rights-destroyingprovision, not a rights-creating provision". In a sense, he is correct. Review rightswere effectively extinguished by s 329 unless the review had been lodged with thechief executive prior to 1 October 1996. The respondent's arguments on this pointcannot be sustained. Section 329 did not confer any rights of review. The extract fromthe Select Committee report reveals no more than the Select Committee's proposal toallow court proceedings to continue and the opportunity to challenge to be availablefor one year post enactment.[72] The respondent advanced two further arguments against the application ofs 63(11). It is necessary to address them only briefly.[73] The first is that s 322 of the 1996 Act can be relied upon to resolve theinconsistency between s 63 and s 329. Section 322 was included because the SelectCommittee recognised at the time some provisions of the Fisheries Act 1983 would beoperative at the same time as the newly enacted Fisheries Act 1996. I discern noinconsistency between s 63(11) and s 329. It is unnecessary, therefore, to invokes 322.[74] Next the respondent contended that, even if s 63(11) does apply, it does notavail Petromont because s 63(11) is confined to reviews of decisions made by officersacting under the delegated authority of the Director-General and the pre 1 October1992 decisions Petromont seeks to have reviewed were all made by the Director-General personally.[75] Two obstacles stand in the way of that argument:(a) First, no evidence as to who made the challenged decisions wasadduced. In fact, the copy of the permit issued on 29 September 1992and included in the exhibits to Ms Cook's affidavit, is signed by anofficial "acting under delegated authority of the Director-General ofAgriculture and Fisheries".(b) Secondly, the respondent's contention is at odds with the Court ofAppeal's attribution of responsibility for similar permitting decisions.In Minister of Fisheries v Pranfield Holdings Ltd the Court of Appealaddressed the question whether the Director-General or a delegatemade permitting decisions. Mr Grove relied on the following twopassages:35[11] Initially only a few species were brought within the ambit ofthe QMS, and scampi was one of the many species which remainedoutside the QMS. For non-QMS species, the method of regulation ofthe fishery was through the issuing of permits by MAF (or, moreaccurately, by designated officers of MAF acting on delegation fromthe Director-General of Agriculture).[14] The practical position was that the power to issue permits wasdelegated by the Director-General to MAF officials, and s 63(11)provided for a right of review of any decision in relation tocommercial fishing permits made by an officer acting under thedelegated authority of the Director-General.(Petromont's emphasis)[76] In the absence of any evidence as to who made the decisions the Court ofAppeal's rather specific observation on the very point is authoritative. There is nobasis for finding the Director-General personally made the challenged decisions.[77] In summary the purpose of s 329(1) and (2) is to validate decisions andpurported decisions in relation to fishing permits under s 63 and s 64 of the 1983 Act.Those decisions became "unassailable" with the enactment of s 329.36 Section 329subs (3) and (4)(a) save from validation decisions and purported decisions which werethe subject of court proceedings commenced prior to 1 October 1996.Section 329(4)(b) further exempts from validation those decisions in respect of whichan applicant sought an administrative review in time. The savings provisions do notconfer a right to commence court proceedings or a right to request an administrativereview. Rather, s 329 recognises the existence of that right or entitlement and saves35 Minister of Fisheries v Pranfield Holdings Ltd, above n 4, at [11]–[14].36 Jenssen v Attorney General CA273/98, 25 May 1999, at [49].from validation those discussions subject to the exercise of that right provided the rightwas exercised 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 review and Iconclude that Petromont's review is pursuant to s 63(11) not s 329.(ii) Can pre 1 October 1992 decisions be reviewed by chief executive?[78] The respondent accepts decisions made after 1 October 1992 are reviewablebecause Petromont's notice was lodged within the statutory timeframe. The disputeconcerns, therefore, only the decisions set out above at [68](a) and (b) that is, thedecisions made before 1 October 1992.[79] The submissions on behalf of Petromont directed to this, the core of its case,were concise:(a) For all the reasons advanced in respect of the first limb of this groundof challenge (that is, whether the review right is conferred by s 63 ors 329) Petromont submits its right of review is contained in s 63(11).(b) In basing its decision on the savings provisions in s 329 of the 1996 Actthe respondent's view that decisions made prior to 1 October 1992 arenot open to review is wrong in law.(c) The review decisions made before 1 October 1992 were the subject ofAnderson J's decision in Petromont Holdings Ltd v The Director-General of Agriculture and Fisheries.37 As the review decisions madeprior to 1 October 1992 were the subject of a High Court decision priorto 1996 "they were 'otherwise subject to' court proceedings and arethus excepted from the application of section 329".(d) Consequently, the review decisions were not retrospectively validatedand, Petromont submits, there is no legal basis for the defendant toexclude them from the administrative review.37 Petromont Holdings Ltd v The Director-General of Agriculture and Fisheries, above n 9.[80] The respondent's position and submissions with respect to s 63 have been setout and discussed in the preceding section. Its position on this part of Petromont'scase may be shortly stated. The respondent relies on s 329 as providing the completeanswer to Petromont's contention that the 1993 High Court Decision saves thepre 1 October 1992 decisions from retrospective validation.Decision[81] For the following reasons my clear view is that Petromont cannot rely on its1993 High Court proceeding as entitling it to an administrative review of decisionsmade prior to 1 October 1992.[82] Section 329(1) validates every decision or purported decision taken by theMinistry under s 63 or s 64 of the 1983 Act before 1 October 1992. The validation issubject to only one exception.38 Section 329(3) saved from validation decisions thenthe subject of court proceedings. Petromont's argument overlooks that s 329(3) is castin the present tense:(3) Subsection (1) does not apply to a decision or purported decisionreferred to in that subsection if the decision or purported decision isbeing challenged in or is otherwise subject to any court proceedingscommenced before the date of commencement of this section.[Emphasis added][83] Petromont says there is nothing in s 329 that requires the decisions to be thesubject of ongoing court proceedings. In my view the position which Petromont hasso strongly pressed over the years and which it maintains in this proceeding ishopeless. The effect of its argument is that the pre 1 October 1992 decisions are notvalidated because they were once the subject of a court proceeding. The argument forPetromont is tantamount to a submission that wherever a pre 1 October 1992permitting decision has been challenged in a court proceeding it remains amenable toadministrative review even where the proceeding is long concluded. The argument isuntenable. Petromont's approach requires the validating purpose expressed in s 329(1)38 Sealord Group Ltd v Chief Executive of Ministry of Fisheries CA238/02, 1 April 2004, at [54].to be read so narrowly as to "defy the will of Parliament which the history makesplain".39[84] The decision which Petromont seeks to have internally reviewed is not onlysuperseded by Petromont's successful and concluded judicial review but by thereplacement decision made by the Director-General on 15 September 1993. To theextent any element of the 29 September 1992 decision to issue a fishing permit wasnot subject to the 1993 judicial review challenge, that element of the decision isvalidated by s 329(1).[85] As to the respondent's replacement decision made on 15 September 1993, therespondent has always accepted it can be reviewed. The decision Petromont says itwants reviewed, and attempts to bring within the pre 1 October 1992 class of decisions,no longer exists. It is overtaken by time, court proceedings and the replacement 1993decision.[86] The answer to this ground of judicial review is the same as the "straightforwardanswer" given by the Court of Appeal to a similar ground in Sealord Group v ChiefExecutive of Ministry of Fisheries:40A request to the Ministry for a review does not extend to pre-1 October1992 decisions. However the Ministry's actions before that date arecharacterised and whatever may be their possible relevance to discretionarydecisions those actions cannot be reviewed under s 329.[87] The respondent did not err in limiting the administrative review to decisionsmade between 1 October 1992 and 1 October 1996. The respondent was correct toaccept for review only the decisions made by the Ministry of Fisheries not to allocatecatch limits for QMAs 3 and 6B in the 1992-93 fishing year.[88] This ground of review must fail.39 United Fisheries Ltd v Ministry of Fisheries [2001] NZAR 707 at [31]; Jenssen v Attorney-General, above n 36, at [46].40 Sealord Group v Chief Executive of Ministry of Fisheries, above n 38, at [54].Second ground: does s 308 bar compensation or damages?Applicant's position[89] Petromont challenges the respondent's "view" that the combined effect ofss 329 and 308 means no damages or compensation is payable for anything "effectedor authorised" by s 329. That includes reviews under s 329(4) and decisions validatedunder s 329(1) or (2).[90] Petromont argues that s 329 does not "effect" or "authorise" anything. Thereview is effected and authorised by s 63(ll). Section 308 can only apply if s 329applied in the first place. Where s 329 does not apply neither can s 308. Mr Grovesubmitted the respondent misunderstands the law as set out in Minister of Fisheries vPranfield Holdings Ltd at [169]:41[169] It is accepted by the parties that neither ss 329 or 308 applies toPranfield's case. That is because s 329 does not apply to proceedings filedbefore the commencement of s 329, as Pranfield's claim was. While theargument could be made that this decision is "effected" by s 329, it would bean odd result if proceedings were saved by s 329 but litigations were deprivedof the fruits of litigation by s 308. That might be the case if it was envisagedthat only administrative law remedies should be preserved but we do notconsider that is so.[91] Mr Grove argued that it would be illogical if a right to review was granted, butno remedy was available. He submitted this is a case where Parliament intended abreach of statutory duty to be actionable.[92] Finally, Mr Grove submitted that it was for the decision-maker, not therespondent, to decide what relief should be available.Respondent's position[93] Mr Anderson submitted it is simply not the case (as Petromont asserts) thatwithout damages or compensation no relief is available following a review. A remedy,in the form of a different decision, may follow a review. Additionally, Governmentpolicy in the area has been to award ex-gratia payments where justified. Petromont41 Minister of Fisheries v Pranfield Holdings Ltd, above n 35.was not identified by the 2003 Primary Production Committee inquiry as having ajustified grievance warranting an ex-gratia payment. The Ministry's position is thatthe correct legal position has been conveyed to Petromont.Decision[94] As Mr Anderson points out the respondent has made no substantive decisionregarding the availability of relief. That of course raises the issue of the amenabilityof the respondent's "decision" to review. I set out below the respondent's most recentformulation of its "decision" on the issue of relief and the application of s 308. It iscontained in a letter from Ms Cook to Mr Grove dated 1 July 2016. The letter iswritten in the interests of "moving the review forward" and addresses five mattersincluding the issue of compensation: s 329(4)(b) of the Fisheries Act 1996 creates the right of review and issilent as to the scope of available relief.However, s 308(2)(c) of the Act applies and confirms that nothing effected orauthorised by s 329 shall be regarded as making the Crown liable to paycompensation or damages. (See also [164]–[168] Minister of Fisheries andOrs v Pranfield Holdings Ltd Likewise a review decision to that effectdoes not have to lead to compensation as well.)[95] I can see no basis for concluding the views set out by Ms Cook are amenableto judicial review.(a) The first and fundamental point is that the review has not yetcommenced much less concluded. Its very scope is to be determinedin this judgment. Consequently the issue of relief is entirely theoreticalat this stage.(b) Mr Grove's reply submissions tend to illustrate the hypothetical natureof the question of relief at this time. Mr Grove is critical of the Ministryfor making "much of the review itself providing an adequate remedy"without providing any "convincing argument [as to] how the review isan adequate remedy" if compensation is not available. In the absenceof findings that there has been a wrong, or error, and without anyunderstanding of the nature of the wrong or error, arguments aboutrelief border on the pointless.(c) Expressed as they are at this embryonic stage of the process therespondent's views as to the relief available, if any, when the review isconcluded do not jeopardise the review process itself. It is thereforenot necessary that the High Court exercise its supervisory jurisdictionin order to avoid the review itself seriously going "off the rails" asYoung J was concerned to avoid in Marlborough Aquaculture Ltd vChief Executive, Ministry of Fisheries.42 As is evident from the processthat has been agreed (more or less) there will be ample opportunity forPetromont to consider the draft outcome and recommendations and tomake submissions.(d) Additionally, there is a further proposed step in the process namely theMinistry's intention to obtain legal advice from an independent, seniorcounsel as to the lawfulness of the Ministry's draft proposals andrecommendations. This step may be seen as one that further safeguardsPetromont's interests.(e) Accordingly, there will be ample opportunity during the review processfor the parties to turn their minds to the question of relief incircumstances when the topic is other than theoretical. At thispreliminary stage, when history suggests the review may yet falter, theissue of relief is entirely speculative and hypothetical.[96] My approach to the amenability to judicial review of the respondent's opinionsabout relief has been guided by the Court of Appeal's analysis in Singh v CE Ministryof Business.43[97] My conclusions effectively determine this second ground of challenge.Nevertheless, I make the following observations.42 Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries [2003] NZAR 362 (HC)at [15].43 Singh v CE Ministry of Business [2014] NZCA 220, 3 NZLR [2014] 23.[98] Section 308 protects the Crown from liability for compensation or awards ofdamages when exercising certain powers conferred by the Fisheries Act 1996. Whenthe Bill was introduced the proposed exclusion from liability for compensation wasopposed by the fishing industry as being constitutionally inappropriate and unfair. TheNew Zealand Law Society also submitted the clause was contrary to the Bill of Rights.In its report the Select Committee responded to the submission as follows:44We consider this provision is necessary to enable the Crown to managefisheries resources at sustainable levels. No compensation should be payablefor any decision relating to sustainability measures, allocation of fishing rightsand enforcement and administration of the Bill.We, therefore recommend cl 308 which clearly sets out the provisions of theAct that the Crown is protected from liability for compensation inadministering.[99] Section 308 therefore immunises the Crown from liability for damages orcompensation in respect of decisions "effected or authorised" by a number ofprovisions, including s 329.[100] I have determined s 329 does not authorise internal reviews or "effect" reviews.Section 329 is a validating provision, one that extinguishes rights. Section 308protects the Crown from liability for that extinguishment of rights. Immunisation forliability is, however, a different proposition from the freedom which chief executivesand ministers have to pay (consistent with Cabinet authority) compensation ordamages in settlement of claims or to make ex gratia payments.45Third ground: Is provision of draft advice paper to decision-maker in breach ofnatural justice?[101] The Ministry proposes to prepare a draft advice paper for the decision-maker.The process envisages the draft advice paper will be given to Petromont for itsresponse. The external legal expert will review the draft, Petromont's submissions andany other documents of relevance.46 Petromont objected to the process as being in44 Fisheries Bill No 63-2 as reported from the Primary Production Committee, at p xxxvii.45 See Cabinet Office Circular CO (15) 4.46 See [38] above.breach of its natural justice entitlements. Mr Grove's written submissions summarisedPetromont's reasons for its concerns:(a) The perceived impartiality of the decision-maker is crucial to theintegrity of the review.(b) The concerns about impartiality are aggravated by the relationship ofthe decision-maker to the respondent. The decision-maker is anemployee of the respondent.(c) Petromont is concerned that by providing an "advice paper" or"recommendation" to the decision-maker the respondent will lendimproper weight to its arguments or prejudice a fair review process.(d) The description "advice paper" implies collegiality between therespondent and decision-maker.[102] In reply, however, Mr Grove submitted that providing the advice paper isdisclosed to Petromont prior to the review being decided, and Petromont is given anopportunity to respond, Petromont is willing to accept the provision of an advice paperto the decision-maker. Petromont prefers the advice paper to be termed "submissions"to maintain, as far as possible, the appearance of impartiality.[103] Petromont contends that it would be procedurally unfair if the decision-makerreceives independent legal advice when that independent legal advice has not beenprovided to Petromont and it has no opportunity to respond to it.Decision[104] Mr Grove's concession, that provision of a draft advice paper will not breachPetromont's fair hearing rights, is properly made. In my view affording Petromont anopportunity to respond to the draft advice paper before the paper is provided to thedecision-maker meets Petromont's natural justice entitlements and expectations offairness.[105] I see no issue arising from the fact that the paper may be written up as "draftadvice" or "draft decision". Such a description would accurately reflect its contentand purpose. The decision-maker remains free to adopt a different path from thatwhich is recommended in the paper. It is not for the Court to direct the Ministry as tohow it should compose or characterise its internal advice.[106] I do not agree that Petromont is entitled to see the legal advice which theMinistry proposes to obtain. Presumably legal advice about the lawfulness of the draftrecommendations would be obtained prior to Petromont seeing the draft. It wouldhardly be sensible to do otherwise. In this way the legal advice would tend to bereflected in a draft, or proposed, outcome that will have been in a sense, certified interms of its lawfulness. It would be a potential waste of time for Petromont to beinvited to comment on a draft, prior to legal input, and which therefore may bevulnerable to change because of issues as to lawfulness of the recommendations.[107] No authority was cited to me in support of the proposition that the failure toprovide a copy of legal advice to a third party — even a third party who may beimpacted by that advice — is a breach of natural justice. I have no doubt thatPetromont is not entitled to the legal advice itself. It will be for the respondent todecide whether it wishes to waive privilege in the legal advice but that is not a matterwhich concerns this Court at this stage.Summary[108] When Petromont wrote on 1 October 1997 to put the Ministry on notice of itsrequest for a review of the Director-General's permitting decisions it was exercisingthe right to a review conferred by s 63(11) of the Fisheries Act 1983. Despite therepeal of the 1983 Act, s 63 remained in force until its repeal on 1 October 2001.Section 329 confers no right of review, limited or otherwise. The purpose of s 329 (1)and (2) is to validate decisions and purported decisions in relation to fishing permitsunder the 1983 Act. Those decisions became unassailable by operation of s 329.[109] Section 18 of the Interpretation Act 1999 applies. Subject to the decisionsbeing reviewable the review Petromont commenced in 1997 is to be completed despitethe repeal of s 63(11).[110] Decisions prior to 1 October 1992 are validated by s 329 and therefore not ableto be reviewed. Petromont is unable to rely on its 1993 High Court judicial reviewproceeding as exempting the decisions from validation. Its position in that respect isuntenable.[111] The Ministry's views as to the availability of relief following the review arenot amenable to judicial review. The views are expressed at such an embryonic stageof the process the issue of relief is theoretical.[112] Petromont is not entitled to the external legal advice which the Ministryproposes to obtain as to the lawfulness of proposals to be included in a draft decisionpaper.Result[113] Petromont has not established its entitlement to the declarations it seeks. Theapplication for judicial review is dismissed.[114] The respondent is entitled to costs. If the parties are unable to agree costs theymay file written submissions not exceeding six pages. I make this final observationbearing on costs. Although the applicant has not succeeded in any of its grounds ofreview that part of the respondent's case which relied on s 329 as the source of thepower to conduct an internal review was found to be flawed._____________________________Karen Clark JSolicitors:Foy & Halse, Auckland for PlaintiffCrown Law, Wellington for Defendant