PETROMONT HOLDINGS LTD v THE DIRECTOR-GENERAL OF THE MINISTRY FOR PRIMARY INDUSTRIES [2023] NZHC 3535

PETROMONT HOLDINGS LTD v THE DIRECTOR-GENERAL OF THE MINISTRY FOR PRIMARYINDUSTRIES [2023] NZHC 3535 [6 December 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-46[2023] NZHC 3535UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an application for Judicial ReviewBETWEEN PETROMONT HOLDINGS LIMITEDApplicantAND THE DIRECTOR-GENERAL OF THEMINISTRY FOR PRIMARY INDUSTRIESRespondentHearing: 19 October 2023Counsel: D W Grove for ApplicantN C Anderson and R M Fistonich for RespondentJudgment: 6 December 2023JUDGMENT OF ISAC J[Application for strike-out of judicial review]Introduction[1] In Greek mythology, Sisyphus was the founder and King of Ephyra who twicecheated death. As punishment for his hubris, Zeus sentenced Sisyphus to roll animmense boulder up a hill, only for it to roll down each time he reached the summit.Sisyphus was doomed to repeat this action for all eternity. To this day, endeavours thatare both repetitive and pointless are described as Sisyphean.[2] In a labour worthy of Sisyphus, the current proceedings between the parties arethe latest instalment in a very long running dispute. As will become evident, therelevant events occurred between 1991 and 2004. This is the sixth judgment in over20 years dealing with the same underlying complaint.The claim[3] Scampi are small members of the clawed lobster family. Since the enactmentof the Fisheries Amendment Act (No 2) 2004 (the 2004 Amendment Act), scampistocks have been managed as part of the Quota Management System (QMS) under theFisheries Act 1996 (the 1996 Act).[4] The applicant, Petromont Holdings Ltd, is a commercial fishing company. Itowns scampi quota shares allocated under the 2004 Amendment Act based on its catchhistory in the 1990/91 and 1991/92 fishing years. Since the early 2000s, Petromonthas been aggrieved at the provisional catch history (PCH) allocations made byParliament in a schedule to the 2004 Amendment Act and, in particular, the use of itscatch in the qualifying years as the basis for those allocations. Like some other fishers,Petromont considers the way scampi stocks were managed in the early 1990s affectedits ability to establish a qualifying catch history. It has, by various means, sought tochallenge restrictions imposed at that time despite the 2004 Amendment Act validatingthe key decisions of officials within the former Ministry of Fisheries.1 Litigation firstbegan in 1993 with a challenge to the conditions attached to a scampi fishing permitissued under the former Fisheries Act 1983 (the 1983 Act).[5] The genesis of this further round of litigation between the parties is afundamental difference of view about the way the injustices suffered by Petromont inthe allocation of its PCH should be remedied. The Director-General of the Ministryfor Primary Industries (the Director-General), consistent with the view of the PrimaryProduction Committee and Parliament, considers that any past wrongs should beremedied by an ex gratia payment. In contrast, Petromont considers that it has a legal1 The Ministry of Fisheries was merged into the Ministry for Primary Industries in 2012. The term"the Ministry" is used to refer to the Ministry for Primary Industries and its predecessors(including the Ministry of Fisheries) unless context requires not to do so. The same applies for theterm "the Minister".right, which it effectively seeks to enforce through judicial review proceedings, to theallocation of scampi quota it would have otherwise received had a "fair" allocationprocess occurred in the 1990s and early 2000s.[6] The Ministry now applies to strike out Petromont's claim in its entirety on thebasis that it is untenable and an abuse of process. The Ministry argues that Petromontis essentially seeking once again to challenge a political compromise that Parliamentstruck in 2004.Principles applicable to strike-out applications[7] Rule 15.1(1) of the High Court Rules 2016 provides two broad grounds forstrike-out: if the claim discloses no reasonably arguable cause of action underr 15.1(1)(a), or where the claim is an abuse of the Court's processes under one of thegrounds in r 15.1(1)(b)–(d):15.1 Dismissing or staying all or part of proceeding(1) The court may strike out all or part of a pleading if it—(a) discloses no reasonably arguable cause of action, defence, orcase appropriate to the nature of the pleading; or(b) is likely to cause prejudice or delay; or(c) is frivolous or vexatious; or(d) is otherwise an abuse of the process of the court.(2) If the court strikes out a statement of claim or a counterclaim undersubclause (1), it may by the same or a subsequent order dismiss theproceeding or the counterclaim.(3) Instead of striking out all or part of a pleading under subclause (1),the court may stay all or part of the proceeding on such conditions asare considered just.(4) This rule does not affect the court's inherent jurisdiction.[8] The applicable principles are well established.2 A Court will assess the claimon the assumption the pleaded facts are true, unless there is plain evidence they are2 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267; and Couch vAttorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].unsupportable or entirely speculative and without foundation.3 The jurisdiction shouldonly be exercised in clear cases, albeit this does not exclude the ability to decidedifficult questions of law requiring extensive argument.4 Special caution is requiredwhere a claim involves a developing area of law.5[9] In respect of the first ground (under r 15.1(1)(a)), a claim will be struck outwhere the causes of action are so clearly untenable that they cannot possibly succeed.6The second ground (under r 15.1(b)–(d)) requires an element of impropriety andmisuse of the Court's processes.7 Forms of impropriety can include prolix,unintelligible or scandalous pleadings;8 a collateral challenge to concludedproceedings;9 or improper motive on the part of claimants to seek a collateraladvantage.10 To these forms of misuse can be added one further: proceedings which,directly or indirectly, challenge Parliamentary proceedings protected by privilege,11 orwhich seek to impugn or undermine an outcome that Parliament has validly enacted.12The history of contention between the parties[10] The scampi fishery was managed outside the QMS until 1 October 2004. As anon-QMS species, scampi was managed using permits under the 1983 Act. Between1991 and 1999 the Ministry of Fisheries used permit conditions as a management tool,including conditions allocating individual catch entitlements in certain fishing areas.[11] Petromont was first issued a permit to take scampi under s 63 of the 1983 Acton 1 April 1992 (for what remained of the 1991/92 fishing year). It received asubsequent permit on 29 September 1992 for the 1992/93 fishing year. That permit3 North Shore City Council v Attorney-General [2012] NZSC 49, [2012] 3 NZLR 341 at [146],citing Attorney-General v Prince and Gardner, above n 2, at 267; and R v Imperial TobaccoCanada Ltd [2011] 3 SCR 45 at [21] per McLauchlin CJ.4 Attorney-General v Prince and Gardner, above n 2, at 267.5 Couch v Attorney-General, above n 2, at [33].6 Attorney-General v Prince and Gardner, above n 2, at 267.7 This ground was summarised by the Court of Appeal in Commissioner of Inland Revenue vChesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].8 At [89].9 Hunter v Chief Constable of the West Midlands [1982] AC 529 (HL) at 541.10 Air National Corporate Ltd v Aiveo Holdings Ltd [2012] NZHC 602 at [30]–[32]; adopted inBurchell v Auckland District Court [2012] NZHC 3413, [2013] NZAR 219 at [18]–[19].11 For example, the Courts will not restrain a minister from introducing a Bill to the House;Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA) per Cooke P.12 Rothmans of Pall Mall (NZ) Ltd v Attorney-General [1991] 2 NZLR 323 (HC) at 330, cited inShaw v Commissioner of Inland Revenue [1999] 3 NZLR 154 (CA) at 157.authorised Petromont to take scampi in areas 1–9 subject to certain conditionsimposed. In particular, it was limited to taking specific amounts of scampi in someareas.13 On 25 May 1993, the permit was revoked in respect of all but one area unders 63(13) of the 1983 Act. Petromont successfully challenged the Director-General'sdecisions to impose some of the permit conditions and revoke the permit in the HighCourt.14 The Director-General then reconsidered the decision to impose conditions inlight of the Court's judgment and notified Petromont of his decision to re-imposevirtually the same conditions. Permits were then issued for subsequent fishing years.[12] Section 329 of the 1996 Act came into force on 1 October 1996. Section 329(2)validated decisions of the chief executive made under ss 63 and 64 of the 1983 Act onor after 1 October 1992 and before 1 October 1996, subject to limited exceptions ins 329(4), including extant court challenges or statutory reviews requested not laterthan 1 October 1997. On 1 October 1997, Petromont requested an administrativereview of decisions and purported decisions of the Director-General. The Court ofAppeal has since held that the Director-General's personal decisions were notamenable to statutory review.15[13] The Primary Production Committee inquired into the management of thescampi fishery and reported on its findings to Parliament on 2 December 2003.16Petromont was actively involved in the inquiry. The Committee recommended scampibe introduced into the QMS as of 1 October 2004 using catch history as the basis ofquota allocation. The Committee also identified certain fishers with justifiedgrievances and recommended they receive ex gratia payments from the Ministry.17Petromont was not one of the fishers identified by the Committee in relation to an13 The other fishing areas covered by the permit were "competitive", in that they did not involveindividual fisher quotas, but rather a total allowable catch for the area which, once met, wouldbring an end to fishing in that area for the season.14 Petromont Holdings Ltd v Director-General of Agriculture & Fisheries HC Auckland M986/93,7 September 1993. Counsel referred the Court to the later decision of the Court of Appeal inWesthaven Shellfish v Chief Executive of the Ministry of Fisheries [2002] 2 NZLR 158 (CA) at[55]–[68] which found that s 63(9) of the 1983 Act did not apply to stocks outside the QMS, whichwould likely have resulted in the 1993 Petromont decision being determined differently.15 Petromont Holdings Ltd v Director-General of the Ministry for Primary Industries [2021]NZCA 567 at [36]. See also Petromont Fishing Company Ltd v Director-General of the Ministryof Primary Industries [2018] NZCA 422.16 Primary Production Committee Inquiry into the administration and management of the scampifishery (2 December 2003).17 At 12.ex gratia payment. This is likely because Petromont's position before the Committeewas that the unfairness it had encountered in its treatment by Fisheries officials oughtto be addressed through the provision of additional quota.[14] Scampi was made subject to the QMS by the 2004 Amendment Act in order toensure introduction of the stock in a timely fashion (given the negative impacts ofmanaging the scampi fishery outside the QMS and the likelihood that fishers wouldseek to delay introduction and relitigate).18 Schedule 14 of the 2004 Amendment Actset out the PCHs for scampi fishers in specified "quota management areas" based onthe fishers' catch history in the qualifying years (commencing 1 October 1990 and1 October 1991).19 The PCHs then formed the basis for the allocation of quota.20[15] Petromont objected to the PCH allocations and changes to the scampi fishingareas in the Bill that became the 2004 Amendment Act,21 and submitted to the PrimaryProduction Committee on its objections and its view that catch histories from the1992/93 fishing year should be used for areas 3 and 6B. The Committee did not amendthe Bill as result of Petromont's submissions.[16] The 2004 Amendment Act inserted s 369R into the 1996 Act, which provideda limited right of appeal to the Catch History Review Committee against the allocationof PCH. Petromont filed appeals on 8 September 2004 in relation to all PCH allocatedin quota management areas SCI1, SCI2, SCI3, SCI4A and SCI6A. On10 November 2004, the High Court determined that Petromont's appeal againstallocations to other fishers was declared a nullity because the 1996 Act only providedfor a fisher to appeal their own PCH allocation.22 Petromont wrote to the Ministrywithdrawing the appeal against its own allocations on 16 September 2005.18 Ministry of Fisheries Introduction of scampi into the quota management system (11 December2003) at [42].19 See also Minister of Fisheries v Pranfield Holdings Ltd [2008] NZCA 216, [2008] 3 NZLR 649at [22]; Goodship v Minister of Fisheries HC Wellington CIV-1997-485-13, 19 December 2006 at[203]; and Simunovich Fisheries Ltd v Executive of the Ministry of Fisheries HC WellingtonCIV-2004-485-1987, 10 November 2004 at [6].20 Fisheries Act 1996, s 47. The PCH allocation method applied to the allocation of scampi quotawithout modification pursuant to cl 5 of the Fisheries Amendment Act (No 2) 2004, whichintroduced s 369R(2) into the 1996 Act.21 Fisheries Amendment Bill (No 4) 2004 (109-2A).22 Simunovich Fisheries Ltd v Executive of the Ministry of Fisheries, above n 19, at [27] and [33].[17] As noted above, on 1 October 1997 Petromont sought an administrativereview, just in time to gain the protection of s 329(4)(b)(ii).23 As Clark J noted in adecision of this Court in 2018:24Despite the passage of 20 years the review is still not underway. There areseveral explanations for the astonishing delay including the failure over timeto agree the scope and nature of the review process.[18] Her Honour went on to note that a delay of over 20 years before anadministrative review was even commenced, much less concluded, "might be thoughtinexcusable without some explanation of the influences on the process".25[19] Her Honour then set out in detail the unsatisfactory process which followedbetween 1997 and 2016, by which time Petromont had filed judicial reviewproceedings challenging the Ministry's view of the scope of the s 369 review.26[20] Clark J ultimately dismissed Petromont's challenge to the scope of the s 329review. She also found that s 308 of the 1996 Act immunised the Minister and Ministryfrom liability for decisions validated under s 329. In particular she held:27I have determined s 329 does not authorise internal reviews or "effect"reviews. Section 329 is a validating provision, one that extinguishes rights.Section 308 protects the Crown from liability for that extinguishment ofrights. Immunisation for liability is, however, a different proposition from thefreedom which chief executives and ministers have to pay (consistent withCabinet authority) compensation or damages in settlement of claims or tomake ex gratia payments.[21] Petromont then appealed to the Court of Appeal. By then the sole issue waswhether the scope of review in s 329 of the 1996 Act was confined to decisions madeby delegates of the Director-General, but not personal decisions of the Director-General.28 The Court of Appeal found that right of review under s 329 was limited to23 Petromont Fishing Company Ltd v Director-General of the Ministry for Primary Industries, aboven 15, at [10].24 Petromont Fishing Company Ltd v Ministry of Primary Industries [2018] NZHC 676, [2018]NZAR 740 at [2].25 At [16].26 At [17]–[42].27 At [100] (footnotes omitted).28 Petromont Fishing Company Ltd v Director-General of the Ministry for Primary Industries, aboven 15, at [1].the statutory right of review contained in s 63(11) of the 1983 Act.29 Accordingly,Petromont's judicial review challenge faltered; it was seeking to challenge decisionsnot of the Director-General's delegate, but of the Director-General himself. Thisappears to have brought an end to the first judicial review challenge to the Ministry'sview of the scope of the right of administrative—or internal—review.[22] Undeterred, Petromont commenced the current proceeding in 2019. In ajudgment of 9 December 2020, Gwyn J granted the Director-General's application forpartial strike out.30 Her Honour concluded that Petromont's amended statement ofclaim sought to challenge decisions made under ss 63 and 64 of the 1983 Act whichhad been validated by s 329 of the 1996 Act, and which did not come within anexception to validation set out in s 329. Gwyn J accepted that the relevant decisionsmade by delegates of the Director-General's predecessors between 1 October 1992and 30 September 1996 could only be challenged by way of:31(a) court proceedings commenced before 1 October 1996 (as a result ofs 329(4)(a)); or(b) administrative review under s 63(11) of the 1983 Act, lodged with theChief Executive of the Ministry of Agriculture and Fisheries by no laterthan 1 October 1997 (s 329(4)(b)) or subsequent judicial review of anysuch administrative review.[23] In addition, Gwyn J struck out Petromont's legitimate expectation claim.Petromont had argued that prior to the Court of Appeal's decision in the first judicialreview, both parties had proceeded on the shared but mistaken understanding thats 329(4) continued a right of review of decisions made by the Director-Generalpersonally. Petromont argued that, but for this mutual assumption, it would havesought judicial review of the decision on or before 1 October 1996.32 Gwyn J observedthat most recent claims for a substantive legitimate expectation in this country had29 At [6].30 Petromont Holdings Ltd v Director-General of the Ministry of Primary Industries [2020] NZHC3242.31 At [22].32 At [54].failed.33 But ultimately, she found the central difficulty for Petromont was that thealleged legitimate expectation was inconsistent with the statutory scheme.34 On appealto the Court of Appeal, Brown J writing for the Court agreed with this conclusion:35[35] However the hurdle which Petromont faces is more fundamental thanany issue relating to the identity of the alleged promisor. The point is simplythat a claim of legitimate expectation cannot be invoked to undermineparliamentary sovereignty and to seek to compel public authorities to actcontrary to law. A claim cannot be brought in the Courts to secure such anobjective. Thus the chief executive cannot be required to conduct anadministrative review of a decision of the Director-General. Nor can a judicialreview proceeding filed after 1 October 1996 be entertained on the footingthat such is required in order to redeem what has been discovered to be amisconceived election to pursue an administrative review.[36] To recapitulate, the insuperable difficulty for Petromont is that bys 329 Parliament validated the 15 September 1993 decision. Consequently anyCourt proceeding in respect of that decision had to be commenced before1 October 1996. It was not. The Director-General's decision was not amenableto administrative review because, as this Court has held, such reviews derivedfrom s 63(11) of the 1983 Act and only applied to delegated decisions. The15 September 1993 decision was not such a decision.Petromont's third amended statement of claim[24] Proceedings for judicial review should be simple, untechnical and prompt.36However, in an echo of the two decades that passed without argument betweenPetromont and the respondent on the terms of an administrative review, thisapplication for judicial review has been on foot for four years but is still a long wayfrom a final hearing. Despite the glacial pace at which it has moved, Mr Grove referredto the importance of obtaining discovery before Petromont can finally articulate itsclaim. An illustration of the possibility of further change is the proposed introductionof a new cause of action based on unjust enrichment. Such a claim, in the context ofan application for judicial review, is to be discouraged.37[25] The fourth iteration of Petromont's statement of claim pleads an extensivehistory dating back to the introduction of the QMS in 1986, its prior litigation againstthe Director-General in 1993, the introduction of the 2004 Amendment Act and its33 At [66].34 At [67].35 Petromont Holdings Ltd v Director-General of the Ministry for Primary Industries, above n 15.36 Dotcom v Attorney-General [2013] NZCA 43, [2013] 2 NZLR 213 at [39].37 At [39]–[41] and [47]–[48]; and Orlov v New Zealand Law Society [2012] NZCA 12 at [21]–[22].catch history, and the subsequent administrative review process which has gonenowhere.[26] Under a heading "Decisions under review" the third amended statement ofclaim records:On 20 December 2003 the then Fisheries Minister announced that legislationwould be introduced to Parliament to introduce scampi to the QMS from1 October 2004.The decision to do so was based primarily upon an enquiry into theadministration and management of the scampi fishery report of the PrimaryProduction Committee dated December 2003; and further supported by areport for the State Services Commissioner of an enquiry into fisheriesmanagement of the scampi fishery dated May 2004.[27] While Mr Anderson on behalf of the respondent argued that this passageindicates Petromont is essentially trying to undermine the 2004 Amendment Act, orthe decisions that led to it, Mr Grove's response was that Petromont seeks to challengewhat it considers has been the failure by the Crown subsequently to comply with itsobligation to provide redress for Petromont's grievances through the allocation ofscampi quota the Crown retains in a scampi fisheries area.38 This challenge is in partreliant on a complex argument that, in addition to defining catch histories in the 2004Amendment Act, Parliament also changed the then scampi fishery area boundaries. Indoing so, Petromont claims that a further injustice occurred, in that catch history whichit ought to have had recognised in the 1992/93 season was effectively lost as a resultof an administrative decision to change the fishery area boundaries.[28] The essence of Petromont's argument is that, in order to be consistent with thePCH allocations contained in sch 14 of the 1996 Act, the PCH allocations for areas 3and 6B should have been based on the catch history in the 1992/93 fishing year.Building on this premise, the third amended statement of claim makes the followingpositive allegations:38 Referred to at the hearing as Capital Area 3 and referred to in the evidence as SCI3.No allocation of provisional catch history relating to Areas 3 and 6B50. Up until 30 September 2005 the plaintiff's provisional catch historywas referred to as being PITQ being provisional individualtransferable quota. For reasons unknown to the plaintiff, on30 September 2005 the status was changed by the Ministry ofFisheries to "normal".51. In calculating and setting out the fisher's provisional catch historyallocation pursuant to Schedule 14 of the Act, the plaintiff's catchhistory in the 1992/1993 fishing year in Area 3 and 6B have beenignored and excluded.52. The result of ignoring and/or not taking into account the plaintiff'scatch histories in Areas 3 and 6B was that the plaintiff's provisionalcatch history allocations in those areas were substantially, incorrectlyand inconsistently reduced.Crown quota held – Area 353. Upon the passing of the Amendment Act the Crown retained30,476,765 of the total shares for scampi fishing in Area 3. ThatCrown quota was held to be available for settlement with aggrievedfishers, including the plaintiff. ("The Crown Quota Area 3").54. The Crown Quota Area 3 remains held by the Crown and remains sopending the conclusion of the plaintiff's litigation.55. It is averred that all other aggrieved fishers' claims have been resolvedby settlement with the Crown or withdrawn. Accordingly, the plaintiffremains the last outstanding aggrieved fisher.56. As referred to in the Review of Sustainability Measures for theOctober 2018/2019 fishing year prepared by Fisheries New Zealandand described as a decision paper Fisheries New Zealand confirmedto the then Minister of Fisheries that:"Due to a long outstanding legal dispute regarding the allocation ofSCI3 quota shares, approximately 30% of SCI3 quota shares are heldby the Crown."57. The defendant is aware that the plaintiff's claim as to the failure toallocate quota to it following the passing of the Amendment Actrelates to both areas 6B and 3.58. However, the defendant continues to refuse to allocate to the plaintiffsome or all of the Crown Quota Area 3 to provide the plaintiff withquota that should and could have been allocated to it based upon theplaintiff's catch history in Areas 3 and 6B in the 1992 fishing year.59. Once a decision has been made to allocate provisional catch historyto the plaintiff based on its catch history in Areas 3 and 6B, theprovisional catch histories, the allocation (and thereafter quotaallocation) to the plaintiff using the Crown Quota Area 3 should be:(a) Area 3 – 19,543,294 shares.(b) Area 6A – 2,004,176 shares.Full particulars are set out in Schedule "A" hereof.60. The Crown shares that should have been allocated to the plaintiff asparticularised in the foregoing paragraph should have been allocatedto the plaintiff by way of provisional catch history in the fishing yearcommencing 1 October 2004. Since that time however the defendanthas retained those shares and in each subsequent year has tenderedthem for use for economic gain to the defendant.61. The plaintiff has suffered losses as a result of the defendant's conductin not allocating the provisional catch history allocations based on theplaintiffs fishing in Areas 3 and 6B particulars of which are to beprovided before trial.[29] Following this general pleading, Petromont advances four causes of action.The first ground of review relates to a legitimate expectation relating to the allocationof "individual catch entitlements" for quota management areas 3 and 6B. Thestatement of claim pleads that for the 1992/93 fishing year, quota management areas 3and 6B were "fully developed" and that fishing year should have been used to allocateindividual catch entitlements in those stocks in a consistent position with other quotamanagement areas. However, in contrast to other areas (such as quota managementareas 1, 2, 4 and 6A) where catches in years when the fishery was considered fullydeveloped were used, it is said the respondent has refused to do so for areas 3 and 6B.[30] The claim concludes:Accordingly, the plaintiff had a legitimate expectation that following thepassing of the Amendment Act, including the amendment to the fishing areas,the plaintiff would subsequently receive a fair proportion of [quota] in newAreas 3 and 6A that are calculated based upon its 1992/1993 catch history inold Areas 3 and 6B.[31] The prayer for relief then seeks the following relief:(a) a declaration that the defendant must allocate the Crown quota inarea 3, or part of it, to the plaintiff;(b) the allocation of compensatory quota as particularised in paragraph 60of the pleadings (set out above at [28]);(c) in the alternative, an award of damages to compensate for the monetaryvalue of quota not allocated;(d) damages for consequential economic loss arising from the defendant'sunlawful, unfair and prejudicial decisions, to be quantified prior to trial;(e) interest pursuant to the Interest on Money Claims Act 2016; and(f) costs.[32] The second ground of review relates to substantive unfairness orunreasonableness. Relying on paragraphs [57]–[61] of the pleadings (set out aboveat [28]), it alleges that the "decisions and conduct" referred to there "wereunreasonable, inconsistent and/or substantively unfair to the plaintiff". The prayer forrelief seeks the same orders as the first ground of review, including the allocation ofcompensatory quota, or alternatively damages, and interest.[33] The third and fourth grounds of review also appear to be based on irrationality.The third ground relates to "disproportionality of outcome" on the basis that the failureto allocate, consider or provide for PCH allocation for the plaintiff in new managementareas 3 and 6A taking into account the catch history for the 1992/93 year has resultedin "a disproportionate outcome in that the plaintiff's quota allocation has beendisproportionately reduced with a resulting benefit to other fishers, principallySimunovich". The fourth ground of review is similarly distinct but pleads a "logicalfallacy" on the basis of the defendant's "actions" as particularised in paragraph [57] to[61] of the amended statement of claim. The nature of the logical fallacy is unpleadedand unclear, but would seem likely to be based on the allegation that the Ministry'sapproach to the allocation of catch history for areas 3 and 6A was inconsistent with itsapproach for other quota management areas.The defendants' application to strike-out the pleading and Petromont's response[34] The respondent argues that Petromont's claims are both untenable and an abuseof process. In relation to the former, the Director-General submits that:(a) in substance, all four causes of action at their heart seek to challengeand unravel the PCH allocations prescribed by Parliament in sch 14 tothe 2004 Amendment Act;(b) there is no basis for a legitimate expectation claim on the facts alleged;(c) the alleged failure to resolve Petromont's grievances by the allocationof quota is not justiciable; and(d) the relief sought is not available. Compensation and damages are notavailable in judicial review, the mandatory orders are otherwiseuntenable based on the pleadings, and s 308 of the 1996 Act protectsthe Crown from liability.[35] In response, most of Mr Grove's written and oral submissions for Petromontfocussed not on the legal framework and identifiable decisions subject to challengebut rather the respondent's behaviour. Mr Grove essentially argues that the apparentdecisions by the respondent to redefine the quota management areas, and the decisionsconcerning the qualifying years for determining a PCH for quota management areas 3and 6A, have resulted in further unfairness for Petromont. The catch history in theoriginal area 3 was "simply ignored" and this was "illogical, inconsistent andunreasonable". Insofar as the "new" area 6A recognised in sch 13 of the 2004Amendment Act, Mr Grove submitted:Again, however, at least based upon the documentation available to Petromontat this time, when PCHs were allocated in the 2004 Amendment Act, only thecatch history in Area 6A was used. Petromont['s] catch history in theoverlapping area in 6B was again simply ignored.[36] Central to Petromont's claim to a legitimate expectation were statementscontained within three key documents. The first is the report of the Primary ProductionSelect Committee Report of December 2003,39 which sets out the Committee's viewthat the Ministry was "consistently inconsistent" in determining whether the scampifishery was a "developed" fishery and could therefore be turned into individual catchentitlement. The Committee found that some fishers may have anticipated that the39 Inquiry into the administration and management of the scampi fishery, above n 16.Ministry would have applied the same approach in relation to quota managementareas 3 and 6B that it had previously taken in relation to areas 1, 2, 4 and 6A.40[37] The second document was a report by the State Services Commission ofMay 2004 which also found that there was an inconsistency in the Ministry's decisionto introduce individual catch entitlements as between areas 3 and 6B, and other areas.41The Ministry had concluded that its approach to areas 3 and 6B had been wrong andthat the fisheries were fully developed within the catch limits after the 1992/93 year,and this should be the year used to allocate individual catch entitlements.42[38] The third document was a 2018 Ministry of Fisheries document that recordedthat 30 per cent of the Crown held quota in area 3 was held for "settlement of a longstanding dispute regarding the allocation of SCI 3 quota shares".43 Mr Grove submitsthis is a clear acknowledgement that a significant proportion of quota is retained forhis client's benefit and the statement supports a legitimate expectation that the quotawill be transferred to Petromont.The first ground of review: breach of legitimate expectation[39] Mr Grove appeared to acknowledge that the current pleading fails to addressan essential element of a legitimate expectation, namely a promise, representation orestablished practice from which a legitimate expectation arises. To address thatdifficulty, he submitted that the pleadings at [33]–[37] and [53]–[61] of the thirdamended statement of claim met the requirement. Those sections relate to thestatements in the reports of the Primary Production Committee and the State ServicesCommission, and the quota held by the Crown in area 3.[40] I am unable to accept Mr Grove's submission. Even taking a generous view ofthe pleading and its reframing by Mr Grove in argument, none of the pleadedstatements (or conduct) amounts to a clear promise or unambiguous and established40 At 7.41 Helen Cull and David Smyth Report for the State Services Commissioner of an Inquiry intoFisheries Management of the Scampi Fisher (State Services Commission, 25 May 2004).42 At 108.43 Fisheries New Zealand Review of Sustainability Measures for the October 2018/19 Fishing Year(August 2018) at [648].practice capable of supporting a substantive legitimate expectation. While Petromontmay have hoped that certain PCH allocations would be made to it, I agree withMr Anderson that given Petromont's involvement in the Parliamentary process thatresulted in the 2004 Amendment Act, and the legislative prescription of qualifyingcatch histories, Petromont could not have any expectation, legitimate or otherwise,that a catch history or quota would be allocated to it on any basis other than that setout in the legislation as the qualifying years. Petromont argued for different allocationsin its submission to the Select Committee, but the relevant Bill was not changed.[41] Regardless, the Crown is under no obligation to allocate scampi quota toPetromont on a basis inconsistent from that set out in the 2004 Amendment Act.A claim of legitimate expectation cannot now be invoked to compel public authoritiesto act contrary to law.44 It is the 2004 Amendment Act itself which provides for therelevant catch history allocations for each fisher in each management area, based ontheir catch history in the qualifying years. The qualifying years were themselvesdefined by Parliament.[42] It follows that I also accept the Crown's fundamental submission that the latestpleaded claims are a direct challenge to the 2004 Amendment Act now masqueradingas an application for judicial review of actions or omissions of the respondentsubsequent to the 2004 Amendment Act.45 It is an impermissible attack throughjudicial review on Parliamentary sovereignty. For these reasons the first cause ofaction must be struck out.44 Petromont Holdings Ltd v Director-General of the Ministry for Primary Industries, above n 15, at[35]. See also Radhi v District Court at Manukau [2015] NZHC 3347 at [52]; and Vea v Ministerof Immigration [2002] NZAR 171 (HC) at 181.45 During the hearing I asked Mr Grove the following question: had sch 14 contained the allocationsnow being sought by Petromont, would there be a claim? The answer, as Mr Grove seemed obligedto accept, must be "no". So Petromont's claim once again comes down to a challenge to the sch 14catch history allocations. That renders the claim of a legitimate expectation both untenable and, inmy view, an abuse of the Court's process. Petromont's claim rests on the proposition that quotahas been put aside to give to it, and therefore it has a legitimate expectation that the quota will betransferred. But whether the Crown is prepared to reach an ex gratia settlement with the plaintiffthat involves either catch or quota is a matter falling within the prerogative powers. It is entirelyfor the Executive to determine, within the usual common law constraints, whether to address agrievance by a citizen or company and, if so, the extent of any remedy. For the reasons set out byKós J in McLellan v Attorney-General [2015] NZHC 3218, [2016] NZAR 859 at [57]–[66], Iwould not be prepared to extend the boundaries of judicial review to include judicial supervisionof the exercise of prerogative powers relating to ex gratia settlements in which no yardstick forthe assessment of legality and reasonableness exists.The second, third and fourth grounds of review: substantive unfairness anddisproportionality of outcome[43] At the heart of the three remaining causes of action is the allegation that therespondent's failure to allocate, consider or provide for PCH allocation for the plaintiffin the new quota management areas 3 and 6B on the basis of catch history for the1992/93 years has resulted in a disproportionately detrimental outcome for theplaintiff's quota.[44] While I am conscious of the high threshold required to be met before a pleadingis struck out as untenable, based on the pleading as a whole I am satisfied it has beenmet. I am also satisfied that the remaining causes of action are a challenge to the2004 Amendment Act or, alternatively, a challenge to the exercise of the prerogativepower. In arguing that the respondent has acted unreasonably each claim is predicatedon a contention that, in passing the 2004 Amendment Act, Parliament failed to actfairly in both its redefining of the quota management areas and the selection ofqualifying years for identification of the relevant catch history. The relief sought—ineach case mandatory orders requiring the allocation of significant amounts of quota,or damages in the alternative—leaves no room for doubt that Petromont is againseeking to unravel a political and commercial compromise that was settled byParliament almost two decades ago.46[45] Finally, I reject the plaintiff's argument that strike out must await discovery,and its attempts to join common law causes of action to its application for judicialreview. While historically the courts have entertained hybrid proceedings involvingboth common law claims and judicial review, more recent decisions reflect a concernto ensure that judicial review, which serves an important constitutional function and issubject to special procedures, is not shackled to private law claims for damages.4746 I would have struck out most of the prayers for relief on each cause of action given they are clearlyuntenable in judicial review.47 See, for example, Attorney-General v Dotcom, above n 36, at [47]–[48]; and Wilson v Departmentof Corrections [2018] NZHC 2977.Conclusion and result[46] In this proceeding Petromont is once again seeking to challenge Parliament'sultimate political trade off, which recognised there was inevitable injustice to somefishers as a result of the Ministry's previous administrative practices in the allocationof catch history. Parliament nevertheless self-consciously adopted that unfairness intothe legislation, preferring to address any resulting inequity through ex gratia paymentsto identified fishers. The latest version of Petromont's claim should be struck out in itsentirety because it is simply a renewed challenge to the will of the House ofRepresentatives.[47] The plaintiff's proceeding is struck out as both untenable and an abuse ofprocess.[48] The respondent is entitled to costs on a 2B basis together with disbursementsas fixed by the Registrar.Isac JSolicitors:Foy & Halse, Auckland for ApplicantCrown Law, Wellington for Respondent