GOODSHIP AND PRANFIELD HOLDINGS LTD V MINISTER OF FISHERIES & ORS HC WN CIV-1997-485-13 (CP 185/97)

GOODSHIP AND PRANFIELD HOLDINGS LTD V MINISTER OF FISHERIES & ORS HC WN CIV-1997- 485-13 (CP 185/97) 4 April 2006IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-1997-485-13 (CP 185/97)BETWEEN TREVOR PHILIP GOODSHIP AND PRANFIELD HOLDINGS LIMITED Plaintiffs AND MINISTER OF FISHERIES & ORS DefendantsCIV-2004-485-2428AND BETWEEN UNITED FISHERIES LIMITED Plaintiff AND ATTORNEY-GENERAL & ORS Defendants Hearing: 4 April 2006 Appearances: T J Castle, QC, with K G Reid for plaintiffs W M Wilson, QC, for defendants B Scott for Sanford C Jurgeleit for Barine Developments Ltd A G Stallard for Amaltal A Ivory for Simunovich Judgment: 4 April 2006ORAL JUDGMENT OF MACKENZIE J[1] The plaintiffs apply for an order in the following terms:1. That the defendants furnish forthwith the following information which the plaintiffs require to complete loss calculations for each of the plaintiffs in the proceedings herein:(a) Total targeted actual scampi catch per day by area over the period 1990/91 through to 2004/05 and the total number of vessels by area which caught that catch; (b) The highest and lowest catches (targeted and actual) of scampi per day by area by vessel for the same period.[2] In the course of argument, Mr Castle amplified what is sought by indicating that the information sought is the total targeted actual scampi catch per day by area for all areas 1 to 9 in all of the seasons from 1990 to 1991 to 2004-2005. He indicated that the plaintiffs need to know what was the actual catch of vessels when fishing, in particular in area 3; for example, how many days were spent in the area, the number of vessel days spent in each area. The information sought is also the highest and lowest catches per vessel per day, which would, the plaintiffs submit, identify the fishing capability of those vessels. [3] A direction is required because the information which the plaintiffs seek would be derived from returns made by other fishers over the relevant period. The information in returns made by those other fishers is subject to s 66(6) of the Fisheries Act 1983 [Repealed on 1 October 2001 by 1996 No 88]:66 Records and returns. (6) Except in respect of a prosecution under this Act or any proceedings for the recovery by the Crown of the amount of the deemed value of any fish payable under section 28ZD of this Act, or where a Court so directs, no return or information furnished pursuant to this Act shall be disclosed or used in any proceedings whatever.[4] The application is opposed both by the defendants and by the other parties represented, who are all parties who have supplied returns in respect of scampi catches over that period. [5] I dealt with an earlier application to similar effect in my judgment delivered on 14 December 2005, where I said:[44] I am not satisfied, on the material presently available, that an order under s 66(6) is necessary. The way in which the plaintiffs propose to calculate their claims for loss of catch, and for loss of quota allocation, is not set out clearly in the pleadings. Further particulars will have to be given.On the basis of the particulars as they stand, it is not clear that information from returns filed by other permit holders will be relevant to the calculation of damages. Several permit holders strongly oppose the application. I am not at this stage prepared to make a direction under s 66(6). However, I leave open the possibility that a further application might be made, when further particulars of the quantum claim have been given, if there is evidence as to why, in the light of those particulars, the information from the returns is necessary. Accordingly, the present application is declined, but without prejudice to the possible making of a further application at a later stage.[6] There I identified the need for further particulars to be given before the matter could be considered. Mr Castle submits that, although formal particulars by way of pleading have not been given, particulars of the way in which the plaintiffs propose to calculate their claims for loss of catch have been given in correspondence and have been responded to by the Ministry. He submits that the response from the Ministry indicates that in preparing that response information derived from the returns, some of which has been released in summary form, has been taken into account. [7] While I do not wish to be unduly pedantic in relation to points of pleading, it does seem to me that pleadings are important here. They are important for a number of reasons. First, so that the basis on which the plaintiffs propose to calculate their claims is clear on the pleadings, so that, if there is to be any change to that basis, that will be properly addressed by way of an application for amendment of the pleadings if that should prove necessary. The second reason is that it is important not only that the defendant understand the basis on which the plaintiffs propose to formulate their claim but so that the Court can understand it and make an assessment of the question (namely whether an order under s 66(6) should be made) in the light of a clear understanding of the plaintiff's basis for its claim. Pleadings are also important in that there are other parties involved, namely the persons who have supplied the information in the returns, who ought properly to be heard, as they have been heard to date, on the question of whether an order under s 66(6) should be made. [8] Having heard argument at some length on the issue, I am satisfied that the point has not been reached where an order under s 66(6) should be made. There are a number of reasons for that. The first is that the matter does, for the reasons I have given, need to be addressed by way of pleading. The second reason is that, while itis for the plaintiffs to formulate their claim as they see fit, it seems likely that the plaintiffs will each have to state a claim as to what fishing for scampi they might reasonably have undertaken had the relevant permits been granted. It is for the plaintiffs to decide how, and in what level of detail and specificity, they formulate that claim. Decisions by the plaintiffs as to what they would have done had they obtained a permit will have to be considered in the light of what was known to the plaintiffs at the time. Hindsight, in the sense of the actual experience of other fishers in catching scampi in the various areas over the time-frame involved, would not have been available to the plaintiffs, and it is therefore not clear to me how that information could assist the plaintiffs, or is necessary for the plaintiffs to formulate their claim as to what they would have done. Indeed, as I have raised with Mr Castle, it seems to me that there are dangers from the plaintiffs' perspective if the historical information is known to them when the claims are formulated, in that they will be likely to be subject to suggestions that their plans of what they would have done has been influenced by the actual experience of fishing and where the best catches were in fact obtained. [9] Accordingly, I do not consider that the plaintiffs have demonstrated a need for an order as sought at this point. [10] Dealing with the other aspect which Mr Castle raises, namely that the defendant has already, in responding in correspondence to the claim as formulated, relied on the information and released some of it in summary form, that raises some potentially quite difficult issues in this case. Mr Wilson acknowledged, at the earlier hearing in November when this matter was argued, in a way which I recorded in paragraph 43 of my judgment, that it would not be appropriate for the Ministry to use information from the returns unless that information was also available to the plaintiffs. Mr Castle's submission is that the information has already been relied upon. As a matter of pleading, that is, of course, not the case, because the pleadings do not cover the point. But that does not deal entirely with the concern. It would not be appropriate to allow the Ministry to have access to the information in the returns, and for itself to make a decision whether to rely on that information or not when responding to the plaintiffs' claims. That would give rise to the possibility of some selective use of the material: that is that the Ministry would seek to use it if itassisted the Ministry's case but would not seek to use it if it did not, or indeed if it supported the plaintiffs' cases. How that can be best addressed is a matter which in the first instance at least will have to be the subject of consideration by the defendants. Some degree of ring-fencing of the information in returns seems to be necessary, so that it is not relied upon by the Ministry in any way in preparing its response to the plaintiffs' cases. If it is to be relied upon in any way at all, then an application must be made before reliance is placed on the material, or before access is had by those responsible for the litigation to the material, so that the issues can be then considered in the light of the circumstances as they are then. [11] At this stage I cannot make any formal direction that no access be had to the material. All that I can do is remind the parties of the terms of s 66(6) and note Mr Wilson's acknowledgement, both on the earlier hearing and today, that, if any information which is subject to s 66 is to be used, that must be the subject of a direction from the Court, and that would necessarily be made on the basis that if the information was made available that would extend to all parties. [12] For these reasons, the application for an order is refused, without prejudice to the possibility of either party bringing a further application if the circumstances should change. [13] As to the costs of this application, I indicate that the parties and the other persons represented here today may submit memoranda as to costs if they are unable to agree. "A D MacKenzie J"SolicitorsGoodman Steven Tavendale & Reid, Christchurch, for plaintiffs Crown Law Office, Wellington, for defendants OceanLaw New Zealand, Nelson, for Barine Developments Ltd Craig Griffin & Lord, Auckland, for Simunovich Chapman Tripp, Wellington, for Sanford Stallard Hunter, Nelson, for Amaltal