MINISTER OF FISHERIES AND ORS V PRANFIELD HOLDINGS LIMITED CA CA48/07

MINISTER OF FISHERIES AND ORS V PRANFIELD HOLDINGS LIMITED CA CA48/07 10 July 2008IN THE COURT OF APPEAL OF NEW ZEALAND CA48/07 [2008] NZCA 216BETWEEN MINISTER OF FISHERIES First Appellant AND CHIEF EXECUTIVE OF THE MINISTRY OF FISHERIES Second Appellant AND ATTORNEY-GENERAL FOR AND ON BEHALF OF THE MINISTRY OF AGRICULTURE AND FISHERIES/MINISTRY OF FISHERIES Third Appellant AND PRANFIELD HOLDINGS LIMITED RespondentCA56/07AND BETWEEN UNITED FISHERIES LIMITED Appellant AND ATTORNEY-GENERAL FOR AND ON BEHALF OF THE DIRECTOR- GENERAL OF AGRICULTURE AND FISHERIES AND THE MINISTRY OF AGRICULTURE AND FISHERIES First Respondent AND MINISTER OF FISHERIES Second Respondent AND CHIEF EXECUTIVE OF THE MINISTRY OF FISHERIES Third RespondentCA193/06AND BETWEEN PRANFIELD HOLDINGS LIMITED AND OTHERS Appellants AND MINISTER OF FISHERIES AND OTHERS Respondents Hearing: 7, 8, 9 and 10 April 2008 Court: O'Regan, Ellen France and Baragwanath JJ Counsel: D B Collins QC Solicitor-General, P A McCarthy and J D Kerr for Minister of Fisheries, Attorney-General & Ors T J Castle, K G Reid and D A Laurenson for Pranfield Holdings Limited and United Fisheries Limited A M Stevens for State Services Commissioner (given leave to withdraw) Judgment: 10 July 2008 at 11.30 amJUDGMENT OF THE COURT A In CA48/07, the appeal is allowed and the cross appeal is dismissed. The award of damages made in the High Court is quashed and judgment is entered for the defendants in that proceeding. B The appeal in CA56/07 is dismissed. C The appeal in CA193/06 is dismissed. D Costs are reserved. E Costs in the High Court should be determined in that Court in light of this judgment.REASONS(Given by O'Regan J)Table of Contents Para No Exclusion from the scampi fishery [1]Issues [6]Statutory context [10]Factual background [23]Mr Goodship's/Pranfield's dealings with MAFF [33]Mr Goodship's/Pranfield's judicial review proceedings [40]United's dealing with MAFF [47]Events after Goodship CA [50]Is the Crown liable for breach of a statutory duty? [53]The nature of the decision making power under s 63(4) [57](a) Did s 63(4) impose a duty on the Crown? [65](b) Did the Crown breach the duty? [75](c) Did any breach sound in damages? [76]Is the Crown liable in order to give effect to theGoodship CA declaration? [77]Is the Crown liable for breach of a duty of care? [89]Is the Crown liable for misfeasance in public office? [98]High Court approach [100]Pranfield's/United's argument [103]The legal test [104]Third element: recklessness as to illegality [109]Sixth element: recklessness as to consequences [126]Conclusion: misfeasance [130]Is the Crown liable for exemplary damages or public law damages for a breach of s 27(1) of the Bill of Rights? [131]Conclusion: liability [139]Defences [140]Are United's claims barred by s 308 or s 329 of the 1996 Act? [141]Section 329 [142]Section 308 [162]Pranfield's claims [169]Measure of damage [170]Result [171]Costs [172]Exclusion from the scampi fishery[1] In 1990, Pranfield Holdings Limited, through its shareholder Mr Goodship, and United Fisheries Limited each applied to the Fisheries Division of the former Ministry of Agriculture and Fisheries (which we will call "MAFF") for commercial permits to fish for scampi. Their applications were not processed before a moratorium was introduced in October 1990, and they were subsequently declined exemptions from that moratorium. [2] Not only did this exclude them from the scampi fishery at that time, but it prevented them from establishing a catch history in the 1990-91 and 1991-92 fishing years. That was particularly significant, because when scampi was brought within the Quota Management System (QMS) and quota was allocated to fishers, the allocations were based on the catch history in those years. Thus, Pranfield and United not only lost the opportunity to fish for scampi in the years after 1990, but also lost the opportunity to acquire a valuable asset, namely quota. [3] Mr Goodship, Pranfield and United commenced proceedings in the High Court against the Minister and Ministry of Fisheries seeking damages for breach of statutory duty, negligence, misfeasance in public office and a breach of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). Although United's claim was made many years after that of the Goodship and Pranfield, the two proceedings were heard together in the High Court. (The judicial review aspects of the Goodship/Pranfield claim had been dealt with some years earlier.) After a trial which occupied 30 hearing days in August/September 2006, MacKenzie J issued a judgment on 19 December 2006 in which he dismissed all of United's claims but entered judgment for Pranfield in the sum of $2.9 million, with interest and costs reserved: Goodship v Minister of Fisheries HC WN CIV 1997-485-13 and United Fisheries Ltd v Attorney-General HC WN CIV 2004-485-2428. [4] MacKenzie J found that actions based on breach of statutory duty, misfeasance in public office, negligence and the Bill of Rights all failed. However, he noted that, at an earlier stage in the present litigation, this Court had granted a declaration in favour of Mr Goodship and Pranfield as a remedy for their judicialreview claims. He found that despite his finding on the breach of statutory duty claim, he was obliged to give effect to that declaration by awarding damages to Pranfield. [5] The Minister of Fisheries appeals against the award of damages to Pranfield, and Pranfield appeals against the Judge's dismissal of other aspects of its claim: CA48/07. United appeals against the dismissal of its claims: CA56/07. Pranfield also appealed against an evidential ruling made by MacKenzie J (CA193/06) relating to the admissibility of a report prepared for the State Services Commissioner (described at [51] below) but abandoned that appeal at the hearing. We formally dismiss it.Issues[6] The issues for determination in the appeal are: (a) Is the Crown liable in damages to Pranfield and/or United for a breach of any actionable or statutory duty arising from the fact that MAFF did not issue commercial fishing permits to Pranfield or United for the 1991 and subsequent fishing years? (b) Is the Crown liable in damages to Pranfield on the basis that such liability is necessary to give effect to the declaration granted by this Court at an earlier stage of the present litigation? (c) Is the Crown liable in damages for a breach of a duty of care to Pranfield and/or United in relation to the consideration of their permit applications? (d) Is the Crown liable in damages to Pranfield and/or United for misfeasance in public office in relation to the manner in which their applications for commercial fishing permits were dealt with?(e) Is the Crown liable for exemplary damages or public law damages to Pranfield and/or United for a breach of s 27(1) of the Bill of Rights? (f) If the Crown is liable to Pranfield and/or United, does it have a defence under s 6(2) of the Crown Proceedings Act 1950, the Limitation Act 1950, or s 308 and/or s 329 of the Fisheries Act 1996 (1996 Act)? (g) If any of the damages claims succeed, what is the appropriate measure of damage? [7] We will deal with the liability issues ((a) – (e) above) on the assumption that no defences are available. We will then deal briefly with the defences ((f) above). [8] Mr Goodship was a shareholder in Pranfield in 1990 and was later its sole shareholder. He gave evidence in the High Court but died before the hearing in this Court. His interests and those of Pranfield were considered to be identical in the High Court, and the evidence was that he sold all the shares in Pranfield to United before the High Court hearing. Pranfield is the only respondent and cross-appellant in CA48/07 and we will not differentiate its interests from those of Mr Goodship. [9] Before turning to the specific issues, we will outline the factual and legal background to the claims in general terms, to set the context for the discussion of the specific issues. The description of the issues above is itself, expressed in broad, general terms, and each of those issues gives rise to a number of subsidiary issues.Statutory context[10] In 1986, the Fisheries Act 1983 (the 1983 Act) was amended to provide for a new system of managing commercial fishing stocks through a quota management system. In broad terms the 1986 amendment provided for the allocation to fishers of what was in essence a proprietary right to fish for a particular quantity of a species in one or more quota management areas (QMAs).[11] Initially only a few species were brought within the ambit of the QMS, and scampi was one of the many species which remained outside the QMS. For non- QMS species, the method of regulation of the fishery was through the issuing of permits by MAFF (or, more accurately, by designated officers of MAFF acting on delegation from the Director-General of Agriculture). The 1983 Act, as amended in 1986, provided for two different types of permits, fishing permits (essentially commercial fishing permits) issued under s 63 and special permits issued under s 64. These sections were repealed when the 1996 Act replaced the 1983 Act. [12] Section 63 relevantly provided:63 Fishing Permits(1) Every person who proposes to take fish, aquatic life, or seaweed for purposes of sale using a New Zealand fishing vessel or otherwise than from a vessel shall apply for a fishing permit to the Registrar at the registration office nearest to the area where the applicant wishes to take the fish, aquatic life, or seaweed. (2) The Director-General shall grant an appropriate fishing permit to any person who makes an application under subsection (1) of this section and who has the right to take fish under a guaranteed minimum individual transferable quota or an individual transferable quota or a guaranteed minimum transferable term quota or a transferable term quota. (3) Every application for a permit under this section shall be made on an approved form and shall be accompanied by the prescribed fee (if any). (4) Each fishing permit may be issued for a period of not more than 5 years on payment of the prescribed fee (if any) for each year or part of a year for which it is issued and shall be subject to such conditions relating to areas, species, quantities, methods, the use or non-use of vessels and the specific vessel or types of vessels (if any) that may be used, types and amounts of fishing gear, harvesting, handling, places where fish may be landed, and periods of time as the Director-General considers appropriate. (5) Before issuing any permit, other than a permit to which subsection (2) of this section applies, the Director-General may require an evaluation to be undertaken to determine appropriate fishing methods. (6) The Director-General may from time to time, by written notice to a permit holder, amend or revoke the conditions of the permit or add new conditions. (11) Where any decision is made under this section by any officer acting under the delegated authority of the Director-General, the applicant for the permit 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 the Director-General who was not involved in the making of the original decision. [13] Neither Pranfield nor United qualified for the automatic grant of a permit under s 63(2). Thus, their applications fell to be determined under s 63(4). That provision was unusually worded because it did not specifically empower the Director-General to issue a fishing permit, though it is clear from the context, particularly the last words of sub-section (4) and sub-sections (5) and (6) that the power to issue permits resided with the Director-General. [14] The practical position was that the power to issue permits was delegated by the Director-General to MAFF officials, and s 63(11) provided for a right of review of any decision in relation to commercial fishing permits made by an officer acting under the delegated authority of the Director-General. [15] The relevant part of s 64 was s 64(1) which provided:64 Special permits(1) Notwithstanding anything to the contrary in this Act, the Director- General may, on application made to the Director-General in writing, grant to any person named in the application a special permit, subject to such conditions as the Director-General may from time to time impose, to take fish, aquatic life, or seaweed from any waters (including waters where fishing may for the time being be lawfully prohibited or restricted) using such fishing gear as may be specified in the permit (whether or not the use of the fishing gear is otherwise lawfully prohibited or restricted)— (a) For the purposes of education, investigative research, or the carrying out of trials and experiments with fishing vessels or fishing gear or any other apparatus or technique which is capable of being used in connection with the taking of fish, aquatic life, or seaweed: (b) For the purposes of sport or recreation in the case of any disabled person within the meaning of the Disabled Persons Employment Promotion Act 1960 who, in the opinion of the Director-General, would otherwise be unable, by reason of the person's disability, to fish by the methods permitted by this Act: (c) For any purpose approved by the Minister.[16] It is notable that the drafting of s 64(1) contains the express authorisation to the Director-General to issue permits, unlike s 63(4). [17] An important difference between a commercial fishing permit issued under s 63(4) and a special permit was that the regime set out in the 1983 Act for bringing fisheries within the QMS provided that the primary criterion for determining the entitlement of a fisher to individual transferable quota (ITQ) for a particular species in a particular QMA was based on the recorded catch history of the fisher of fish caught pursuant to a commercial fishing permit. Fish caught pursuant to a special permit did not count for this purpose. This was provided for in s 28E of the 1983 Act as inserted by the 1986 Amendment Act. [18] The 1983 Act also provided for two different methods of control of fisheries. These were: (a) A moratorium, imposed under s 65; (b) Regulations made under s 89. [19] The Fisheries (Commercial Fishing) Regulations 1986 were passed under s 89. Regulation 47 prohibited the use of trawl nets with a mesh size of less than 100 millimetres unless authorised by a fishing permit. As trawling for scampi requires the use of mesh nets with a size of approximately 43-50 millimetres, all fishing permits for scampi were issued with an exemption from that general prohibition. That exemption was either recorded in a condition on the s 63 permit or through a separate special permit under s 64. [20] Section 65, so far as it is relevant to this appeal, provided as follows:65 Minister may restrict fishing(1) The Minister may, if the Minister considers it necessary or desirable for the conservation or management of a fishery, as a preliminary to the declaration of a controlled fishery, or for other purposes, from time to time, by notice in the Gazette, declare that, as from a day to be specified in the notice and during such period as may be specified, it shall be a condition of every fishing permit, or fishing licence issued by a Fish and Game Council,issued or renewed during that period, that the holder of the permit or licence shall be prohibited from fishing in any fishery specified in the notice. (2) Notwithstanding subsection (1) of this section, the Minister may, after a notice has been given under that subsection, authorise the holder or holders of any fishing permit or licence excluded by the notice from fishing in the fishery specified in the notice, to fish in that fishery if the Minister considers it fair and reasonable to do so in the circumstances of any particular case, and any such authorisation shall be endorsed on the permit or licence.[21] The practical effect of the imposition of a moratorium was that fishers who had commercial fishing permits under s 63 prior to the imposition of the moratorium could expect that their commercial fishing permits would be renewed when they expired, but fishing permits were not issued to newcomers unless a determination was made that they should be exempted from the moratorium. [22] The 1983 Act was repealed and replaced by the 1996 Act, which continued, with some modification, the QMS regime. Scampi became subject to the QMS in 2004 pursuant to s 369N of the 1996 Act, as amended by the Fisheries Amendment Act (No 2) 2004. The allocation of quota was made on the basis of the catch history demonstrated by fishers for the fishing years commencing on 1 October 1990 and 1 October 1991: s 369R(5) of the 1996 Act.Factual background[23] The critical events leading to the present proceedings occurred in 1990. At that time, MAFF had a regional structure, with a North office (Auckland), a Central office (Nelson) and a South office (Dunedin). Each regional office had a considerable degree of autonomy. In addition, there was a head office based in Wellington. [24] The head office had circulated a number of national policy directives, to the effect that to control fisheries the various offices were to develop their own regional management programmes for those species that had not been introduced into the QMS. As a starting point any control of those species was to be achieved through regulations under s 89, rather than through restricting the issue of ss 63 or 64 permits. In the short-term s 65 moratoria would be imposed on certain species.[25] At the time at which United and Pranfield made applications for commercial fishing permits for fishing of scampi and QMAs under the management of MAFF South, there were no regulations controlling the scampi fishery in these QMAs and no moratoria in place. The approaches of the three regional offices of MAFF to s 63 applications at that time were inconsistent, and it is that inconsistency which is at the heart of the present litigation. [26] In very broad terms, the policy of MAFF's North office was to treat scampi fishing as an unregulated and uncontrolled activity, so that commercial fishing permits under s 63 were issued automatically. Although MAFF North ought not to have issued s 63 permits for scampi fishing in QMAs under MAFF South's management, this did in fact occur. [27] MAFF Central adopted a policy in July 1990 of issuing only special permits for scampi fishing, but only if the applicant held ITQ for any by-catch species. This was important because fishing for scampi requires the use of small mesh nets which means that a number of other species including juvenile fish, are caught in the nets as by-catch. [28] Although Pranfield filed a special permit application to MAFF Central, the areas in which both Pranfield and United applied to fish for scampi were under the management of the MAFF South. As it was MAFF South which then considered the applications, it is the policy of this office which is of the most relevance to the present case. [29] MAFF South had, in accordance with the national directive, prepared regulations (made under s 89) as a means of controlling fisheries. However, a number of species were not covered by these regulations, and were also not covered by the QMS. These species became known as the "unlisted species". Scampi was one of the unlisted species. [30] Counsel for Pranfield and United, Mr Castle, placed particular emphasis on a policy statement dated 12 November 1990 regarding unlisted species, which indicated that the policy of MAFF South was to decline all applications forcommercial fishing permits under s 63(4), but to consider granting special permits under s 64 subject to certain conditions. This policy was expressed to be founded on the need to ensure that fisheries which were under pressure were not placed under further pressure by allowing more commercial fishing, particularly as it was seen to be difficult to revoke commercial fishing permits under s 63, whereas that problem did not arise for special permits for investigative purposes issued under s 64. This policy was labelled "the unlisted policy" by Mr Castle. [31] The inconsistencies between regions meant that those who applied to MAFF North easily obtained commercial fishing permits for scampi, sometimes even for areas under the management of MAFF South. The fact that inconsistencies existed was noted in contemporary memoranda dated March 1990 and June 1990, but the inconsistent application of policy continued. It was only later, on 28 September 1990, that any effort to confirm the legal position on whether s 63 confers a discretion to decline permits was made, and that effort came from another MAFF South employee who was not involved with the Pranfield or United applications – her inquiry was in the context of permit applications for butterfish. The response to the request was an opinion from Mr Capes, a lawyer in MAFF's head office, which confirmed that s 63(4) was discretionary, but that the discretion had to be exercised lawfully. A blanket policy was not permitted. [32] The failure of good administrative practice that this involved was the subject of criticism in reports of the Ombudsman, a report issued by the Primary Production Select Committee after it conducted an inquiry into the administration of the scampi fishery in 2003 and in a report of investigators appointed in 2004 by the State Services Commissioner under s 25(2) of the State Sector Act 1988.Mr Goodship's/Pranfield's dealings with MAFF[33] Mr Goodship initially sought a permit to fish for scampi from MAFF North in 1988. His application was approved but the permit was never issued because he did not have a permitted fishing vessel. Subsequently he negotiated a lease and option to purchase a vessel, the Westerner, conditional on his obtaining the necessary permit to fish for scampi. That arrangement was entered into in the name ofPranfield, which at that time was owned by Mr Goodship and a colleague, Mr Pestell. [34] On 6 August 1990 Mr Pestell applied on behalf of himself and Mr Goodship/Pranfield for a special permit to fish for scampi. This was sent to MAFF Central, but as it appeared to include the area managed by MAFF South, it was sent to MAFF South for decision. MAFF Central responded to this application by saying that MAFF was investigating scampi fisheries in QMAs two, seven and eight (i.e. those governed by Central) and that this would cause a delay in all applications for the 1989/90 fishing year which would be treated as applications for a special permit for the 1990/91 fishing year. [35] On 3 September 1990 Mr Goodship made two further applications to MAFF South for scampi fishing within MAFF South's area of responsibility: one for a s 63 commercial fishing permit and one for a s 64 permit. He received no replies in relation to the applications from MAFF South until a letter dated 24 May 1991. The letter explained that a moratorium had been imposed on the scampi fishery in the MAFF South area; that criteria had now been developed to determine whether applicants would have permits granted for the 1990/91 year (i.e. be exempted from the moratorium); and, that Pranfield did not satisfy these criteria and consequently no permit would be granted. [36] Mr Goodship sought review of this decision under s 63(11) but the outcome of this review was a confirmation that Pranfield did not satisfy the criteria for exemption from the moratorium. This was communicated to Mr Goodship in August 1991. [37] Mr Goodship then initiated a complaint through his solicitor to the Ombudsman. The Ombudsman ruled that MAFF had applied the criteria for exemption very strictly in Mr Goodship's case, but that the approach taken was not unreasonable. However he noted that Mr Goodship claimed that the same strict approach had not been taken in relation to other applicants, and the Ombudsman therefore suggested a further review of that aspect of the case.[38] That review was undertaken and its findings communicated to the Director- General of Agriculture in July 1992. It concluded that Mr Goodship did not meet the criteria but that some of those who had been exempted under s 65(2) did not meet the criteria either. The possibility that Mr Goodship should therefore be exempted was considered, but ultimately it was recommended that the decision not to exempt Mr Goodship should be upheld and that those who had received exemptions which did not appear to be justified should have their permits reviewed and if appropriate revoked. [39] Another approach to the Ombudsman led to a report in March 1993 upholding Mr Goodship's complaint that he had been unjustly denied a permit to fish for scampi. The Ombudsman recommended financial compensation.Mr Goodship's/Pranfield's judicial review proceedings[40] Mr Goodship then commenced the present proceedings against MAFF seeking judicial review and also claiming damages. The judicial review aspects of the claim were severed and dealt with first. In Goodship v Minister of Fisheries HC WN CP185/97 2 May 2002 (Goodship HC), Mr Goodship claimed that his application for a commercial fishing permit under s 63(4) ought to have been granted or alternatively that he should have been exempted from the s 65 moratorium. [41] Ellis J upheld the first claim. He referred to the conclusion he had reached in an earlier case, Vautier Shelf Company No. 14 Ltd v Chief Executive of Ministry of Fisheries HC WN CP20/97 24 July 2000 in which he had determined at [128] that MAFF had been wrong to delay issuing s 63 permits to fishers who applied for such permits where the purpose of the delay was controlling fishing in an open fishery. His principal reason for this conclusion was that the proper technique for controlling fishing in an open fishery was to use regulations, as was done in 1991, or a moratorium under s 65 as was done in September 1990. Applying that conclusion to the facts in Goodship HC, Ellis J concluded:[9] My conclusions in the Vautier case were that the withholding of a permit to control a fishery was not a legitimate use of s63 (see in particular para [128] of the Judgment). I therefore think the Ministry should haveissued a permit. As I have already noted, the Westerner was in fact licensed. Because of the way the Ministry approached granting exemptions under s65, the real hurdle for the plaintiffs became the question of commitment. While it is possible that if [Mr Goodship] had been granted a permit prior to 30 September 1990 he would have promptly received exemption, I am unable to be satisfied this would have been the case, as the recentness of his applications would have been in the minds of the officials dealing with exemptions, and I think it more likely that his application for exemption would have been treated in the same way as it actually was.[42] As to the second claim, Ellis J concluded that the Ministry had given inadequate weight to the degree of commitment of Mr Goodship and Pranfield to the scampi fishery as at 30 September 1990, and had therefore not properly dealt with their application for exemption from the moratorium. He did not, however, make a finding that they should have been granted an exemption from the moratorium. He reserved the question of what remedy should follow. [43] In a later judgment delivered on 9 October 2002, Ellis J concluded that it was more likely than not that MAFF would have granted an exemption from the moratorium to Mr Goodship or Pranfield and also confirmed his view that MAFF's failure to issue a s 63 permit before the moratorium took effect was unlawful. However he declined to grant relief by way of a declaration and dismissed the claim. [44] Mr Goodship and Pranfield appealed to this Court: Goodship v Minister of Fisheries CA236/02 2 October 2003 (Goodship CA). Significantly, the Crown did not cross-appeal against the finding that MAFF should have issued a commercial fishing permit to Mr Goodship. This Court recognised that Ellis J had wrongly concluded that, even if Mr Goodship had been issued a s 63 permit before 1 October 1990, the moratorium would still have applied to him. In giving the judgment of the Court, Blanchard J commented that, once it was clear that the grant of a permit would automatically have exempted Mr Goodship from the moratorium:[11] It therefore followed that, since there was an unchallenged finding from Ellis J that the appellants should have been granted a permit "before the moratorium was notified", no question could now arise about the need for an exemption or the likelihood that it might have been granted. It must be assumed that, armed with a permit and with a vessel and equipment available, the appellants would simply have gone fishing for scampi in the 1990/91 year.[45] The Court thus adopted the finding of Ellis J because it was not challenged, without commenting on whether it agreed with it or not. The Court then considered whether there would be any utility in granting a declaration, which required an assessment of whether the Ministry could do anything to respond to a declaration by issuing Mr Goodship or Pranfield with a permit for scampi fishing. The Court considered ss 97 and 329(5) of the 1996 Act and concluded:[18] There is no doubt that, even if the appellants [Mr Goodship/Pranfield] obtain a formal declaration concerning their entitlement to a fishing permit for the 1990/91 year, they still face the difficulties of the process described by [counsel for the Minister] and may in the end fail to achieve their objective because of a good faith exercise of discretion by the Minister or the chief executive. But nevertheless it seems to us that, contrary to the view taken by Ellis J, who was of course exercising his discretion upon an incorrect understanding of the effect of s65 of the 1983 Act, the making of a declaration could prove to be of some practical advantage to the appellants. It would not merely record the historical situation. It would assist the appellants in their ongoing efforts to obtain the right to fish for scampi. It would at least emphasise to the Ministry that it has to acknowledge the factual findings made by the Judge, and its previous misinterpretation of s65, and take these matters fully into account if an application for a special permit is now made. [46] The Court therefore granted relief in these terms:[22] We are satisfied accordingly that there should be relief in the form of declaration that the Ministry acted unlawfully in failing to grant the appellants permits for fishing scampi, in accordance with their applications, for the 1990/91 fishing year prior to the commencement of the moratorium on 1 October 1990, and a further declaration that, in terms of s65 of the Fisheries Act 1983, the appellants would have been entitled to fish for scampi in accordance with such permits during that fishing year save to the extent that the permits were lawfully called in or revoked by the Ministry.United's dealing with MAFF[47] United was granted a special permit to fish for scampi in 1987/88, but this was not used. [48] The application by United which provides the foundation for its present claim was made in late August 1990. MacKenzie J found that this application was an application for a commercial fishing permit under s 63, and that it related to the 1990/91 year. MAFF denied the existence of this application, and could find norecord of it, until about 2003 when both the application and a reply dated 24 May 1991 were discovered. The reply was in similar terms to the one sent to Pranfield on the same day. In essence it informed United that it had been unsuccessful in satisfying the criteria for exemption from the moratorium and therefore would not be issued a s 63 commercial fishing permit for scampi. United denies receiving that reply, and MacKenzie J made no factual finding as to whether the reply was in fact sent to, and received by, United. [49] United claimed to have made earlier applications for the 1988/89 and 1989/90 fishing years, but MAFF denied the existence of these applications and MacKenzie J did not find it necessary to make factual findings as to whether they existed. United also claimed to have made a s 64 application for the 1990/91 fishing year, but MacKenzie J found (at [509]) that no such application was made.Events after Goodship CA[50] In 2003, the Primary Production Select Committee held an inquiry into the administration and management of the scampi fishery. Its report was released in December of that year. The Select Committee concluded that there had been no criminality on the part of MAFF personnel but that there had been deficiencies in the management of the scampi fishery by MAFF which had not been rectified. It recommended that the Crown should enter into negotiations with six parties (including Pranfield and United) with a view to compensatory payments being made to those parties. Negotiations between the parties were not successful and no payments have been made to Pranfield or United to date. [51] In 2004, a report prepared for the State Services Commissioner by Helen Cull QC and David Smyth was presented to the Commissioner. Ms Cull and Mr Smyth had been appointed by the Commissioner under s 25(2) of the State Sector Act to inquire into, and report on, MAFF's management of the scampi fishery. That report also found no criminality by MAFF. However, the report concluded that MAFF acted unreasonably in administering the grant of permits for scampi and did not have adequate, appropriate or consistent administrative systems and processesfor granting permits. This led to disparate treatment of those seeking access to the scampi fishery. [52] We now turn to the causes of action identified at [6](a) – (e) above.Is the Crown liable for breach of a statutory duty?[53] In the High Court, the case for Pranfield and United was that MAFF had a duty under s 63 to issue commercial fishing permits to Pranfield and United when they applied for them, and that if it had complied with that duty those permits would have been issued prior to the imposition of the moratorium on 1 October 1990. Thus, Pranfield and United would have been able to fish during the period of the moratorium because of the expectation (borne out in practice) that fishers who had been granted commercial fishing permits prior to the imposition of the moratorium would have been allowed to continue fishing and could have expected that the commercial fishing permits would have been renewed when they came up for renewal. [54] In this Court, Mr Castle accepted that s 63 did not place a duty on MAFF to grant a permit to any person (other than a holder of quota) who requested one. He acknowledged there was an element of discretion to s 63(4) but said that the case for United and Pranfield was that MAFF had a duty to issue permits to them in September 1990 because the relevant decision maker had a duty to act lawfully and within the ambit of that discretion. The failure to grant permits in this case, Mr Castle said, indicated that that duty had been breached. [55] In response to a question from the Bench as to what lawful basis existed for declining permits, Mr Castle said there was, in fact, no lawful basis. That answer was predicated on the proposition that it was unlawful to decline an application for a commercial fishing permit under s 63(4) at the relevant time for the purpose of controlling a fishery for management/conservation reasons. [56] The proposition which we are asked to evaluate, therefore, is whether in practical terms, the MAFF decision maker had a discretion to decline to issue apermit to United or Pranfield at the relevant time. That requires us to consider the nature of the decision making power under s 63(4).The nature of the decision making power under s 63(4)[57] Not surprisingly, Mr Castle relied on the decision of this Court in Goodship CA for the proposition that the declining of a permit to Pranfield (and by analogy United) was unlawful in the circumstances of this case. However, we do not see that decision as determinative, because, as noted earlier, the declaration which was made in that case was predicated on an unchallenged finding by Ellis J in the High Court that Mr Goodship/Pranfield should have been granted a commercial fisheries permit under s 63 before the moratorium was notified. We do not see Goodship CA as involving a considered view of this Court as to the nature of the decision making power under s 63. [58] In that regard, we agree with the observation made by this Court inWesthaven Shellfish Ltd v Chief Executive Ministry of Fisheries [2002] 2 NZLR 158 at [6] that permits under s 63 are issued as of right to those who have a right to take fish under quota (as is provided in s 63(2)), but otherwise the grant is discretionary and may be subject to conditions. Mr Castle sought to rely on the observations to the contrary by Ellis J both in Goodship HC and in Vautier. [59] In our view those decisions are superseded by Westhaven and, in any event, we agree with Westhaven (and with MacKenzie J in the present case) that, on a proper reading of s 63, it is clear that the Director-General had a discretion under s 63(4) as to whether to grant commercial fishing permits. That seems to us to be the only available inference to be drawn from the fact that s 63(2) provided a right to a permit to those with quota but not to others. That conclusion is also supported by the fact that s 63(2) was introduced into the provision by the 1986 Amendment Act, which provided for the first time for a quota management system. If s 63, as originally enacted (it was in fact numbered s 64 in the Act as originally passed), had provided a right to a fishing permit there would have been no need to expressly state such a right in s 63(2).[60] Although we agree with MacKenzie J that s 63 confers a discretion, we do not agree that the ambit of the discretion is affected by reg 47 of the Fisheries (Commercial Fishing) Regulations 1986, which requires fishing permits to authorise the use of trawling nets smaller than 100 millimetres. The practical effect of this regulation was that fishing permits for scampi were issued with conditions exempting them from that regulation or that a s 64 special permit was granted. While the issue of a permit to fish for scampi inevitably required the issuer to direct his or her mind to reg 47, we do not see that as a factor in determining whether or not s 63 imposes a statutory duty. [61] As we have said earlier, Mr Castle accepted that there was an element of discretion in relation to s 63(4) applications, but said it was unlawful for such applications to be declined for fisheries management/conservation reasons. That proposition is derived from the analysis of Ellis J in Vautier and Goodship. Ellis J reached the view that, because the 1983 Act provided for control of fisheries by way of a moratorium (s 65) or regulations (s 89), it was not appropriate to seek to achieve those objectives by controlling the number of permits issued under s 63(4). As we have said, we see the Goodship and Vautier High Court decisions as being superseded by Westhaven, and in any event we disagree that, on a proper interpretation of the 1983 Act, it required that control and management of fisheries be effected exclusively by a moratorium or by regulatory controls. [62] On the face of it, if there was a discretion under s 63(4), as we have found and, indeed, Mr Castle accepted, then that discretion must have been able to be exercised for reasons which advanced the purposes of the 1983 Act. There is no real argument that the purpose of the 1983 Act was the control and management of fisheries. In those circumstances, it seems to us to be unarguable that the decision maker in respect of applications made under s 63(4) could lawfully decline an application if that was necessary in order to give effect to the purpose of the legislation. It is hard to see for what other purpose the discretion to refuse a permit could have been exercised: when challenged, Mr Castle could not suggest one. [63] Mr Castle's complaint in this case was not just that the permits had been declined for an unlawful reason, but that MAFF South had a blanket policy ofdeclining all s 63(4) permits for unlisted species (including scampi) which means that the decision maker did not turn his or her mind to applications which came before him or her, and that this made the declining of the permits in this case unlawful. He relied on the decision of this Court in Westhaven. In that case, at [45], this Court said that, while MAFF may state a policy about how applications under s 63 for a particular species in a particular area may be exercised:[T]he decision makers must keep their ears open They must indicate, or at least reserve, a power to depart from the policy and a willingness to exercise that power. They must bear in mind and conform with the purposes of the legislation under which they are making decisions. [64] The evaluation of this cause of action requires us to address three issues, namely: (a) Whether s 63(4) imposed a duty on the Crown; (b) If so, whether the Crown breached that duty; (c) If so, whether that breach sounds in damages.(a) Did s 63(4) impose a duty on the Crown?[65] As noted earlier, the case for Pranfield and United in the High Court was that MAFF had a duty to grant permits to those who sought them under s 63(4) i.e. there was no discretion. If that submission had been sustainable, the argument that s 63(4) imposed a duty on the Crown may also have been sustainable. But once it was accepted that s 63(4) provided for a discretion, as conceded in this Court, the proposition became much more difficult to sustain. [66] The approach to be taken in relation to this issue was comprehensively enunciated by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council[1995] 2 AC 633 at 730-731 (HL) as follows:The question is whether, if Parliament has imposed a statutory duty on an authority to carry out a particular function, a plaintiff who has suffered damage in consequence of the authority's performance or non-performance of that function has a right of action in damages against the authority. It isimportant to distinguish such actions to recover damages, based on a private law cause of action, from actions in public law to enforce the due performance of statutory duties, now brought by way of judicial review. The breach of a public law right by itself gives rise to no claim for damages. A claim for damages must be based on a private law cause of action . Private law claims for damages can be classified into four different categories, viz: (A) actions for breach of statutory duty simpliciter (ie irrespective of carelessness); (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; and (D) misfeasance in public office, ie the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful.[67] Misfeasance in public office was not in issue and Lord Browne-Wilkinson did not consider it further. He made it clear that actions in category (B) were not sufficient to found a claim for damages in private law, i.e. where no statutory right of action or common law duty of care existed: at 732. [68] Lord Browne-Wilkinson described category (A) at 731 as follows:(A) Breach of statutory duty simpliciterThis category comprises those cases where the statement of claim alleges simply (a) the statutory duty, (b) a breach of that duty, causing (c) damage to the plaintiff. The cause of action depends neither on proof of any breach of the plaintiffs' common law rights nor on any allegation of carelessness by the defendant. The principles applicable in determining whether such statutory cause of action exists are now well established, although the application of those principles in any particular case remains difficult. The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However, a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action: see Cutler v Wandsworth Stadium Ltd [1949] AC 398; and Lonrho Ltd vShell Petroleum Co Ltd [1982] AC 173. However, the mere existence of some other statutory remedy is not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class was intended by Parliament to have a private remedy. [69] In Select 2000 Ltd v ENZA Ltd [2002] 2 NZLR 367, this Court said at [40] that whether an enactment gave rise to a course of action for breach of statutory duty was a question of construction. It noted at [43] that the test of statutory intention (whether the duty is intended to benefit an identifiable class, and whether alternative modes of enforcement exist), was helpful, but not determinative. [70] We have already explained why we consider that s 63(4) does not impose a duty on the Crown, but rather creates a discretion exercisable by the Director- General or his or her delegates. If the Director-General acts outside the limits of that discretion, the remedy is judicial review. [71] Mr Castle relied on the following comment by Lord Browne-Wilkinson inX (Minors) at 732 as authority to the contrary:It follows that in seeking to establish that a local authority is liable at common law for negligence in the exercise of a discretion conferred by statute, the first requirement is to show that the decision was outside the ambit of the discretion altogether.[72] It is clear, however that that comment was referring to a breach of a common law duty of care (negligence) not a breach of statutory duty. [73] We are satisfied that, applying X (Minors) to the facts of this case, the clear conclusion is that s 63(4) did not impose a statutory duty on the Crown. [74] Further support for that conclusion comes from the fact that s 63(11) provides for a review mechanism for those unhappy with the way in which the discretion is exercised. That indicates that Parliament did not intend that any duty amenable to an action for breach of statutory duty be created by s 63(4). Section 63(11) was included in the section as a result of the 1986 amendments, at the same time as s 63(2) was included. Of course, any party dissatisfied with the decision of the original decision maker or of the Director-General on review could also have pursued the matter by way of judicial review, as, indeed, Mr Goodship eventuallydid. We acknowledge that in Select 2000, this Court said at [44] that the existence of alternative remedies was no more than a starting point which could be displaced by contrary indicators. We see no such contrary indicators here.(b) Did the Crown breach the duty?[75] For the reasons we have given we conclude that no statutory duty existed, and therefore there was no duty for the Crown to breach. Mr Castle's formulation of the duty as a duty to act within the bounds of the discretion, which he said was breached because of the blanket policy adopted by MAFF South in relation to s 63 for applications, is untenable. The remedy for a party aggrieved by a decision made pursuant to a blanket policy when an individual discretion exists is judicial review:Westhaven is an example of this. The proposition put to us by Mr Castle would lead to most decisions granting relief on judicial review leading also to damages actions, and that is clearly not in keeping with the description of the law in X (Minors).(c) Did any breach sound in damages?[76] Having found there was no statutory duty, we do not need to deal with this aspect either.Is the Crown liable in order to give effect to the Goodship CA declaration?[77] Having found no statutory duty, MacKenzie J nevertheless concluded that he was obliged to find that the decision of this Court in Goodship CA was such that he was required to provide a remedy to Pranfield. He expressed this conclusion as follows:[59] However, to apply that conclusion [that MAFF was not under a statutory duty to grant permits to Pranfield and United] on the Goodship/Pranfield claim would be to fail to give effect to the declaration which has already been granted, namely the declaration that the Ministry acted unlawfully in failing to grant the applicants permits for fishing for scampi in accordance with their applications for the 1991 fishing year prior to the commencement of the moratorium on 1 October 1990 and that they would have been entitled to fish for scampi in accordance with such permitsduring that fishing year. That declaration, as between Goodship/Pranfield and MAF, is binding. I consider that I must give effect to it.[78] Having adopted that position, it was necessary for the Judge to go on to consider whether the breach of duty sounded in damages. He found that it did. [79] He undertook this exercise on the assumption that there was a duty on the part of MAFF to grant fishing permits to Pranfield for the 1990/91 fishing year. His reason was that, if there were a duty to grant a permit to Pranfield, the importance of the permit in establishment of a property right was such that a remedy in damages should be available: at [71]. He said, in the same paragraph:Had Goodship/Pranfield held a permit, it could have conducted fishing operations which would have led to the establishment of a catch history and the issue of ITQ. It was unable to do so. The declaration would be hollow if no remedy to give effect to it was possible.[80] Thus, he concluded that the effect of the declaration was such that a remedy in damages was available to Pranfield. [81] The Solicitor-General challenged the fundamental finding of MacKenzie J that the effect of the declaration was such that MacKenzie J was required to proceed on the basis that a duty to issue a permit existed, even though MacKenzie J himself had found that s 63(4) provided for a discretion as to whether a permit should issue. In support of that challenge, Mr Collins QC argued: (a) This Court's decision in Goodship CA to grant a declaration was intended to provide a remedy for public law purposes, and was not framed in contemplation of potential tortious liability; (b) The declaration would not be a hollow remedy if no damages were awarded. The judgment of this Court records that Pranfield's objective in those proceedings was to obtain quota "for scampi when that species was brought within the QMS system": at [17]. The declaration would assist Pranfield in that regard, as it would emphasise to MAFF that it had to acknowledge the findings made byEllis J and take them into account if an application for a special permit was made by Pranfield: at [18]; (c) This Court's assumption that Pranfield would have "simply gone fishing" if it had been granted a permit for the 1990/91 year was an assumption, not a finding; (d) The Court's decision focused on the specific application made by Pranfield in the circumstances of that particular case, rather than stating a general proposition that all applications under s 63(4) had to be granted. As we have explained at [44], there was no finding by the Court on whether a permit should have been granted. We have concluded that, as a matter of law, there was, in fact, no duty to grant permits to applicants under s 63(4): MAFF had a discretion in that regard. [82] Mr Collins said that it was an improper to award damages on the basis that a declaration without a remedy "would be hollow". He said there was no basis for an award of damages unless one or more of the claims based on breach of statutory duty, negligence, misfeasance in public office or breach of s 27(1) of the Bill of Rights was made out. [83] The principal focus of the arguments for Pranfield and United was that a breach of statutory duty was made out, and if that submission had been accepted it would not have been necessary to engage with the argument relating to the declaration. In effect, Pranfield and United supported MacKenzie J's decision in this regard as a fallback position from the primary submission that a breach of statutory duty had been established: a submission which we have already rejected. [84] We agree with the submission on behalf of MAFF that the declaration did not, of itself, provide a basis for liability of the Crown in damages. The effect of the decision of MacKenzie J is to turn a declaration granted as a remedy in public law proceedings into a form of property right which must be enforced by the Court in subsequent proceedings. There is no authority for that approach and there wasnothing in the pleadings suggesting that that was an outcome for which Pranfield contended. As Lord Browne-Wilkinson said in X (Minors) at 730:It is important to distinguish such actions to recover damages, based on a private law cause of action, from actions in public law to enforce the due performance of statutory duties, now brought by way of judicial review. The breach of a public law right by itself gives rise to no claim for damages. A claim for damages must be based on a private law cause of action.[85] Nor do we agree with MacKenzie J that the declaration was a "hollow" remedy unless it was seen as creating a right capable of enforcement and providing a base for a claim in damages. As is clear from [18] of this Court's judgment (quoted at [45] above), this Court was aware that the declaration might have limited practical effect. However, it accepted the submission that Pranfield did have avenues to claim the grant of a fishing permit or quota and that a declaration may assist it in that regard. [86] In the context of discussion of MacKenzie J's decision about the effect of this Court's earlier declaration, it was raised with counsel whether there might be scope for a damages claim against the Crown where it has wrongly failed to give effect to a citizen's entitlement to a right, which, if recognised and given effect, would have developed into a proprietary interest. After reserving judgment we located some academic support for such an approach: David Cohen and J C Smith, "Entitlement and the Body Politic: Rethinking Negligence in Public Law" (1986) 64 Canadian Bar Review 1 and Peter Cane "Damages in Public Law" (1999) 9 Otago Law Review 489. [87] We have considered whether the Court should defer issuing its judgment on the case as pleaded to allow further argument on this point. [88] However, counsel for Pranfield and United did not pursue the point in argument and, as we have noted, there is no relevant pleading. The academic writers referred to above do not suggest that the approach discussed represents the law. Rather, the authors made a case for the law to develop in that direction. Consideration of such a development is also entangled in factual implication. Although some of us would give greater weight to one or more of these factors, wehave concluded that there is insufficient foundation to call for further argument. Therefore, the Court having reached a unanimous view on the points which the parties put in issue in this litigation, the parties are now entitled to have a judgment on those points.Is the Crown liable for breach of a duty of care?[89] The Judge recorded that in the High Court the duties alleged by Pranfield and United were, in essence, duties to: (a) Ensure that MAFF had in place rational and fair policies for the grant of permits and that fishers were not unduly disadvantaged by whatever office processed their applications; (b) Process and grant Pranfield's and United's permit applications before the commencement of the 1990-1991 fishing year; (c) Apply the moratorium criteria and statutory power under s 65(2) consistently, fairly, reasonably and in accordance with the relevant statutory and regulatory provisions. [90] MacKenzie J found that no duty of care arose in this case, applying the analysis in X (Minors). A duty of care would come within category (C) of Lord Browne-Wilkinson's analysis in X (Minors) (see [66] above). Lord Browne- Wilkinson described category (C) in these terms (at 735):(C) The common law duty of careIn this category, the claim alleges either that a statutory duty gives rise to a common law duty of care owed to the plaintiff by the defendant to do or refrain from doing a particular act or (more often) that in the course of carrying out a statutory duty the defendant has brought about such a relationship between himself and the plaintiff as to give rise to a duty of care at common law. A further variant is a claim by the plaintiff that, whether or not the authority is itself under a duty of care to the plaintiff, its servant in the course of performing the statutory function was under a common law duty of care for breach of which the authority is vicariously liable.[91] Lord Browne-Wilkinson then drew a distinction between cases in which it is alleged that a public authority owes a duty of care in the manner in which it exercises a discretion and cases in which the duty is said to arise from the manner in which a statutory duty has been implemented in practice. The present case falls within the former of those categories. In dealing with that category, his Lordship said (at 738):From these authorities I understand the applicable principles to be as follows. Where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise the discretion: nothing which the authority does within the ambit of the discretion can be actionable at common law. If the decision complained of falls outside the statutory discretion, it can (but not necessarily will) give rise to common law liability. However, if the factors relevant to the exercise of the discretion include matters of policy, the court cannot adjudicate on such policy matters and therefore cannot reach the conclusion that the decision was outside the ambit of the statutory discretion. Therefore a common law duty of care in relation to the taking of decisions involving policy matters cannot exist.[92] MacKenzie J concluded that MAFF had a statutory discretion, and that nothing done within the ambit of that discretion could give rise to a duty of care or an action for damages for breach of such a duty. He noted that this conclusion was consistent with the decision of Neazor J in Vickerman Fisheries Ltd v Attorney- General HC WN CP1007/91 26 August 1994 and the comments made by this Court in Jenssen v Attorney-General CA273/98 25 May 1999 at [52] – [54]. [93] However he undertook an examination of the facts on which Pranfield and United relied to establish both the existence and breaches of duties in case he was wrong in that conclusion. He concluded that matters relating to the development of permitting procedures and policies could not give rise to a duty of care. He then went on to consider allegations as to the way in which the particular permit applications of Pranfield and United were dealt with. Pranfield alleged both delay and failing to determine its application by 30 September 1990 (when the moratorium began) and a failure to adhere to the open fisheries policy evidenced by the advice given by Mr Shallard to MAFF regional officers on 17 May 1989. [94] As to delay, MacKenzie J found that, even if the application had been dealt with, it was inevitable that it would have been refused, given the policy then being applied by MAFF Central and MAFF South. As to the failure to adhere to the open fisheries policy, he concluded that delaying or refusing to issue a permit did notconstitute a breach of a duty of care. The level of concern about the possible impact of an open fishery policy on scampi stocks meant a moratorium was imminent. Any permit, if issued, would necessarily have required an exemption from the mesh site restriction. [95] Although the notice of appeal foreshadowed a challenge to the essential finding that no duty of care arose, the submissions on that point were limited to one proposition, namely:To exercise a discretionin a matter which is beyond jurisdiction, i.e. beyond its ambit, here not for lawful purpose under the statute (or regulation for that matter) must be a breach of duty – either statutory duty or duty of care; or both.[96] As pointed out by Mr Collins, that proposition is inconsistent with the analysis of Lord Browne-Wilkinson in X (Minors). As noted in the quote appearing at [91] above, the fact that a decision falls outside a statutory discretion can give rise to common law liability, but does not necessarily do so. In our view MacKenzie J correctly applied the analysis of X (Minors), and his finding that no duty of care arose in the circumstances of the present case was correct. [97] That disposes of the present ground of appeal. MAFF had a discretion in relation to the s 63 applications, and it was not unlawful for that discretion to be exercised for fisheries management purposes. The failure to adhere to the national policy was poor public administration, but did not make the decisions of MAFF ultra vires. The only duty which could fairly be said to have been breached by MAFF is the duty to process applications efficiently. On this issue MacKenzie J was correct to find that, even if the applications had been processed before the moratorium was imposed, the applicants would have been declined given the fisheries management concerns in MAFF South which explained the imminent imposition of a moratorium.Is the Crown liable for misfeasance in public office?[98] Both Pranfield and United alleged that MAFF and the MAFF officers responsible for processing their applications for a commercial fishing permit acted unlawfully in:(a) Implementing a policy of not processing permit applications or declining those which were processed until the future management of the scampi fishery had been clarified; (b) Failing to process the permit applications and issue fishing permits before 1 October 1990; (c) Subjecting the permit applications to the moratorium criteria; (d) Reaching decisions on success of applications for exemption from the moratorium on an inconsistent unreasonable and unfair basis. [99] It was alleged that the relevant MAFF officers knew, or were reckless as to whether, their conduct was unlawful and would cause loss or damage. Notwithstanding that, they took no steps to remedy the position, nor did they seek legal advice.High Court approach[100] In the High Court, MacKenzie J considered separately the allegations made against Head Office personnel (particularly Dr Allen and Mr Shallard) and in both MAFF Central and MAFF South. He found that none of the allegations of misfeasance were substantiated. In this Court Mr Castle challenges only the findings relating to personnel in MAFF South, particularly Dr Beentjes and Mr Vowler. [101] The Judge found: (a) Although the United applications for commercial fishing permits were lost for a number of years and this was unexplained, the evidence did not support United's claim that the application was deliberately lost or destroyed by MAFF South personnel;(b) At the time both Pranfield and United filed their applications in August – September 1990, MAFF South was applying a policy of not issuing s 63 permits for unlisted species (which included scampi); (c) Neither Dr Beentjes nor Mr Voller believed the law required that commercial permits should have been issued as of right but knowingly acted to the contrary by applying the MAFF South policy for unlisted species. The unlisted policy was motivated by fisheries management concerns and not by an intention to cause harm to fishers, and the Judge found that both officers considered there was a discretion in relation to the issuing of permits under s 63; (d) The Judge rejected allegations that officers in MAFF South engaged in time wasting, delay and avoidance tactics; (e) A report about United's applications written by Dr Beentjes in November 1993 was incorrect, but the Judge was not satisfied that Dr Beentjes deliberately wrote a false report with the intention or in the knowledge that United would suffer loss as a result; (f) There was no evidence that any of the MAFF South officials were aware of the consequences of their actions in such a way that an intention to cause deliberate injury to Pranfield and/or United, or persons in their position, could be inferred. [102] Although the Judge referred to the knowledge of MAFF South officials as to the legality of the action and the consequence that their actions would cause damage to Pranfield/United, he used the term "knowledge" in a specific way. In [135] of his judgment he said that references to knowledge or actual knowledge were intended to include references to reckless indifference, except where the context required otherwise.Pranfield's/United's argument[103] Mr Castle accepted the Judge had correctly stated the law on misfeasance, but argued that he had been in error in the manner in which he approached the analysis of the evidence of the misfeasance claim. He said that the Judge had failed to take into consideration in his analysis issues of subjective recklessness, notwithstanding the extent of the meaning of the term "knowledge" adopted by the Judge. Mr Castle summarised his submission on this aspect of the appeal in the following terms:In summary, the appellant submits that if the High Court had approached its analysis of the evidence correctly the Court would have determined that the tort of misfeasance was clearly made out. The appellant submits that the evidence shows: 73.1 MAF South operated a policy of not issuing any s.63 commercial permit applications to applicants in circumstances where they knew that the basis upon which they were justifying this approach was at least legally doubtful, as was alleged by the other MAF regions, in particular North and Head Office; 73.2 MAF South continued to act unlawfully by failing to issue permits applied for until the moratorium was imposed in October 1990; 73.3 The position being taken by MAF was at all relevant times to the disadvantage of MAF South applicants into which category fell United (application dated 27 August 1990 and/or 31 August 1990) and Goodship/Pranfield (application dated 6 September 1990). This was during a period when other MAF officers did not have restrictions on the issue of scampi permits. The disadvantage to South fishers was a serious issue; 73.4 MAF South knew that the approach being taken by South would cause loss both in the sense of preventing and from establishing commercial fishing operations; 73.5 The approach taken by MAF South in not issuing permits to Goodship and by analogy United was unlawful because the use of s.63 to control access to a fishery and to implement a general policy of exclusion was not a legitimate use of that section; 73.6 MAF Fisheries South staff were reckless in failing to issue permits to Goodship and United in the face of the continuing legal doubtfulness of their position. The evidence establishes that all MAF South staff involved in the non-QMS area had the requisite knowledge in order to establish the tort of misfeasance, in particular Dr Beentjes.The legal test[104] Before embarking on a consideration of the appellant's submissions, we pause to outline the elements required to establish the tort of misfeasance in public office. These are helpfully summarised in the opinion of Lord Steyn in Three Rivers DC v Bank of England (No.3) [2003] 2 AC 1 at 191 – 196. Lord Steyn's analysis draws on the decision of the High Court of Australia in Northern Territory v Mengel(1995) 185 CLR 307 and the decisions of this Court in Garrett v Attorney-General[1997] 2 NZLR 332 and Rawlinson v Rice [1997] 2 NZLR 651. [105] As Lord Steyn pointed out at 191, there are two different forms of liability for misfeasance in public office: (a) Targeted malice: where conduct is specifically intended to injure a person or persons; (b) Non-targeted malice: where a public officer acts knowing that he or she has no power to do the act complained of and that the act will probably injure the plaintiff. [106] In this case we are concerned only with the latter, and we say no more about targeted malice. [107] Lord Steyn described the six ingredients of the tort as follows: (i) The act complained of must be done by the public officer: that is not disputed in this case; (ii) The act must be done in the exercise of the public officer's public functions: again there is no dispute about this in the present case; (iii) The public officer must have acted with knowledge of the illegality of his or her act, or with a state of mind of reckless indifference to the illegality of the act. The nature of recklessness in this element of thetort is a matter of dispute in this appeal and we will come back to it later; (iv) The plaintiff must have standing to sue. In this case there is no doubt that Pranfield and United, as applicants for commercial fishing permits who were refused those permits as a result of the conduct said to constitute misfeasance, have standing in the present case; (v) The conduct of the public officer must cause the plaintiff's loss. Causation is a question of fact. (vi) The public official must have had knowledge that his or her conduct would probably injure the plaintiff or a person of a class of which the plaintiff was a member, or have been reckless about the consequences of his or her conduct in the sense of not caring whether the consequences happen or not. [108] Only the third and sixth of those elements require further discussion.Third element: recklessness as to illegality[109] Although recklessness is considered to be sufficient to satisfy the third and sixth of the requirements set out above, Lord Steyn made it clear that a unifying element of both targeted and non-targeted conduct constituting misfeasance in public office was "conduct amounting to an abuse of power accompanied by subjective bad faith": at 191 of Three Rivers. In Garrett, Blanchard J, delivering the judgment of this Court, said (at 349):The tort has at its base conscious disregard for the interests of those who will be affected by official decision making.[110] Mr Castle's submission (quoted at [103] above) suggested that the third element, subjective recklessness as to illegality, is satisfied in circumstances where MAFF South staff failed to issue permit in the face of "the continuing legal doubtfulness of their position". Much of his criticism of the MAFF South officerswas the contrast between the rigidity of the MAFF South position in not issuing permits with the rigidity of the MAFF North position of issuing permits as of right. There is no doubt that that was a situation which involved a failure of public administration which ought not to have been allowed to occur. But the focus of this appeal is on what was done in MAFF South, not what was done to fishers other than Pranfield and United in MAFF North. [111] As we have noted earlier, Mr Castle proceeded on the basis that s 63 did require the issuing of permits to applicants as of right, so that the failure to issue a permit constituted a failure to perform a statutory duty. We have found that to be incorrect. MacKenzie J did also. MacKenzie J commented in his judgment that the finding that the issuing of s 63 permits was not a matter of right was fatal to the misfeasance in public office claim. Mr Castle took strong issue with that. He said that was never a prerequisite of the claim being made by Pranfield and United. He said that he accepted there was a discretion not to issue a s 63 permit, but that it had to be exercised lawfully. He said it was not lawful to decline a permit for fisheries management reasons, but when asked for what other reasons a permit could be declined he had no answer. [112] On the view we take of the case the policy of MAFF South to decline permits for fisheries management reasons would have been lawful, and the policy of MAFF North to issue them without considering fisheries management issues would have been questionable. The only aspect of unlawfulness which remains is the apparent policy of MAFF South not to issue s 63 permits for the unlisted species under any circumstances. If such a policy existed it would not have been lawful, because it would have involved pre-judgment of each application: see Westhaven at [46]. Mr Collins pointed out that the evidence that Dr Beentjes was aware of the doubt surrounding the unlisted species policy did not go so far as to indicate that MAFF South staff were aware of illegality. [113] On Mr Castle's formulation of the case, knowledge on the part of a public official that an action is "legally doubtful" would be enough to satisfy the recklessness requirement of the third element. He pointed to the failure of Dr Beentjes and Mr Voller to seek legal advice when they knew their position wasdoubtful as evidence of recklessness. MacKenzie J rejected a similar submission in the High Court. He said (at [155]):An official is not recklessly indifferent merely because that official knows that the decision may be challenged, or has legal advice that the legal position is uncertain. Public administration would soon grind to a halt if certainty as to the legal position were required before any action could be taken.[114] We agree. A similar concern was expressed by the Privy Council in Takaro Properties Ltd v Rowling [1987] 2 NZLR 700 at 710. [115] It is necessary to establish what standard of recklessness is required in relation to recklessness as to illegality and assess the facts against that test. InGarrett, this Court adopted a description of recklessness which followed the articulation made by Clarke J at first instance in Three Rivers ([1996] 3 All ER 558 at 632 - 633). The decision of Clarke J was upheld in this respect by the House of Lords. Garrett was not a case about legal uncertainty. The formulation by Blanchard J in Garrett was (at 344): "knowing" in relation to both the breach and its effect on the plaintiff includes acting recklessly, in the sense of believing or suspecting the position and going ahead anyway without ascertaining the position as a reasonable and honest person would do.[116] This involves both subjective and objective elements. The subjective element is the requirement that the official must actually know of or suspect unlawfulness. The objective element is that once the official is put on notice, then the expectation is that he or she would act in a way that a reasonable and honest person would do. [117] In this Court's decision in Rawlinson v Rice McKay J referred at 658 to "the requirement being that the official "acted with 'Nelsonian blindness' or reckless indifference". In his concurring judgment, Tipping J indicated that a failure to enquire as to the lawfulness of an action, having been put on notice that the action is unlawful, could amount to reckless indifference. Barker J dissented, on the basis that the public official (a District Court Judge in that case) did not exhibit malice in the sense of being recklessly indifferent as to the exercise of his jurisdiction. Thus heproceeded on the basis that malice was a requirement, rather than simply subjective/objective recklessness in the sense described in Garrett. [118] In our view the formulation of the test for recklessness in Garrett requires more than simply uncertainty on the part of a public official as to the legal position, coupled with a failure to make enquiry. We agree with the comment of MacKenzie J, referred to earlier, in that regard. In our view, the test set out in Garrett must be read in light of the earlier adoption in that decision of the justification given by Brennan J in Northern Territory v Mengel for the acceptance of the recklessness test. Brennan J said (at 357):the mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform the functions of a public office is reckless indifference to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce. The state of mind relates to the character of the conduct in which the public officer is engaged – whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury.[119] To the extent that the broad words of Garrett are capable of encompassing conduct which does not have the qualities described by Brennan J they must be read down. Our caution in this regard is supported by the judgment of Lord Hobhouse of Woodborough in Three Rivers (decided after Garrett), where he formulated the test in this way (at 230):Another way of putting it is that [the public officer] must be shown either to have known that he was acting unlawfully or to have wilfully disregarded the risk that his act was unlawful. This requirement is therefore one which applies to the state of mind of the official concerning the lawfulness of his act and covers both a conscious and a subjectively reckless state of mind, either of which could be described as bad faith or dishonest.[120] In a footnote appearing at 231 of the report Lord Hobhouse added: 'without an honest belief' in the lawfulness of his conduct best conveys the requisite state of mind covering both actual knowledge and dishonest disregard.[121] In our view the test postulated by Mr Castle, that there was mere uncertainty as to the lawful position and a failure by the officials to enquire as to the lawfulness of their actions, is not "inconsistent with an honest attempt to perform the functions of a public office" to use the words of Brennan J. Nor is it indicative of "a conscious disregard for the interests of those who will be affected" to use the words of Blanchard J in Garrett. [122] On the view we take of the facts, which is essentially the same as that of MacKenzie J at [173], we are satisfied that Dr Beentjes did not act in bad faith or dishonestly. Mr Castle described him as "the architect of the misfeasance" but we do not consider the evidence justifies that description. Dr Beentjes accepted in cross-examination that the legal position was uncertain at the time the Pranfield and United applications were made. But, as the Judge found, this was not a situation where Dr Beentjes believed that there was a duty to grant a s 63 permit but refused to do so in breach of that duty. On the contrary, he appeared to have (correctly as it turns out) considered that there was a discretion to decline an application for a s 63 permit by a fisher who did not hold quota. Similarly, in the course of Dr Beentjes' involvement in a working group for non-QMS species, such as scampi, he became aware of the inconsistent approaches of the regional offices, in particular those of MAFF North and South, and the confusion surrounding the legal soundness of the differing policies. However Dr Beentjes believed the approach of his office best promulgated the purpose of the Act, to control and manage fisheries, and that it did so in a lawful manner. Nor do we believe Mr Vowler acted in bad faith or dishonestly. Each officer appeared to genuinely believe that permits could and should be withheld for proper fisheries management reasons. [123] Taking the facts at their best from the point of view of the fishers, each was aware that MAFF North was taking a different position on the approach to s 63 and that there was debate within the Ministry as to what the correct legal position was. But that is different from knowingly acting unlawfully or not caring whether their actions were lawful or not. [124] Even if, as alleged, MAFF South had treated s 63 as a fisheries management tool and effectively predetermined the fishers' applications for permits, theinvolvement of Dr Beentjes and Mr Vowler was based on a genuine concern for the management of the fishery. They did not make the permit decisions or the decisions on the later applications for exemption from the moratorium. To the extent they were aware of the uncertainty in the legal position before the imposition of the moratorium, their conduct in not seeking a legal opinion was not a failure to do what a reasonable and honest person would do. Their involvement in the decisions relating to exemption from the moratorium was after the legal position had been clarified and the decisions which were made on those applications did not involve any unlawfulness. Other officials in MAFF South, particularly Mr Brown and Mr Rayns, were involved in the decision making and their conduct was criticised by Mr Castle in his submissions. But there was no pleaded allegation of misfeasance against them and they did not give evidence. [125] We find that this element of the tort has not been made out.Sixth element: recklessness as to consequences[126] Although it is not strictly necessary for us to do so, we consider also the sixth element in [107] above, namely knowledge of or reckless indifference as to the consequences of the action taken by the public official. [127] MacKenzie J concluded that there was no evidence that would lead him to conclude that any officials in MAFF South were aware of the consequences of their actions in such a way that an intention to cause deliberate injury to the plaintiffs, or persons in their position, could be inferred. He adopted the term "deliberate injury" from Garrett: at [350]. [128] If, as Pranfield and United originally argued, MAFF South officials were under an obligation to issue a s 63 permit when requested, then the refusal to do so would clearly have entailed depriving the applicant of a valuable right, and we do not see how it could be argued that the relevant officials did not know of that consequence. We have found there was no such obligation.[129] If we had found that MAFF South officials had acted in a way which satisfied the other elements of the tort, we would have found that the sixth element was satisfied also. The officials were aware of the value of a s 63 fishing permit. It entitled the fisher to fish during the term of the permit (up to five years) and there was an expectation, borne out in practice, that a permit would be re-issued when it expired. It may well be that the officials were also aware that a permit could later lead to the issuing of quota which would be a transferable and therefore a valuable asset, but knowledge of that aspect would not be necessary in order to fulfil this element of the tort.Conclusion: misfeasance[130] We agree with the High Court Judge that the misfeasance cause of action was not made out. This ground of appeal therefore fails.Is the Crown liable for exemplary damages or public law damages for a breach of s 27(1) of the Bill of Rights?[131] United claimed that the failure by MAFF to observe the principles of natural justice in its dealings with United contravened s 27(1) of the Bill of Rights. Section 27(1) provides:Every person has the right to observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected by law.[132] United claimed the actions of MAFF in not processing its commercial fishing permit application and in not granting it a fishing permit as soon as reasonably possible after the application was made, and the continuing failure to issue a permit after the moratorium was imposed, constituted a breach of United's rights under s 27(1). [133] Both Pranfield and United also claimed "exemplary damages" or "public law damages" of $900,000 (Pranfield) and $400,000 (United). MacKenzie J ruled out anaward of exemplary damages on the basis that the misfeasance in public office claim had failed but otherwise did not engage with the merits of a claim under s 27(1). [134] Pranfield's claim under this head was pleaded only as an adjunct to its claim for misfeasance in public office (hence MacKenzie J's ruling). But in this Court Mr Castle said that the award of damages was based on the recommendations of the Primary Production Select Committee that compensatory payments should be made to Pranfield and United. The precise link between the recommendations of the select committee and an award of damages by the High Court is elusive. Reliance is placed on s 27(1), but no attempt was made to respond to the Crown's submission that, as MAFF South was not a tribunal or a public authority exercising an adjudicative function, s 27(1) was not engaged on the facts of this case. The Crown's submission accords with High Court authority: Chisholm v Auckland City Council [2005] NZAR 661 at [32] and Ubilla v Minister of Immigration HC WN CIV 2003-485-2757 19 February 2004 at [32]. [135] Mr Collins asked us to apply the law as stated in those cases. He said that the present case involved the exercise of discretion by a public official, rather than an adjudication on the rights of a person of the kind which could be expected from a tribunal. In support of that he cited R (Husain) v Asylum Support Adjudicator [2001] EWHC Admin 852 in which Stanley Burnton J said that the equivalent provision in the European Convention on Human Rights, art 6(1), does not apply to the exercise by public authorities of their discretion, as distinguished from their compliance with the obligations owed to citizens. [136] We accept Mr Collins' submission. In our view Chisholm correctly states the ambit of s 27(1), and we agree that it is not engaged unless the decision of the public authority which is under consideration is of an adjudicative character. That position is supported by the decision of the Supreme Court in Taunoa v Attorney-General[2008] 1 NZLR 429 at [221] (Blanchard J) and [377] and [379] (McGrath J). [137] Although Mr Castle also sought to base the claim for exemplary damages or public law damages on the Primary Production Select Committee report, there is no legal basis for that. That is not, however, to say that the recommendations of theSelect Committee that compensation should be paid cannot be pursued. Whether that occurs is not for us to determine. [138] Even if s 27(1) were engaged on the facts of this case, it is not clear that damages would be an appropriate remedy. We simply note that point because it is not necessary to decide it. In that regard, see Taunoa at [261] per Blanchard J andAttorney-General v Udompun [2005] 3 NZLR 204 at [168] – [170] (CA). We agree with the High Court Judge that there is no basis for an award of exemplary damages.Conclusion: liability[139] For the reasons given above, we find that none of Pranfield's or United's causes of actions succeeds.Defences[140] Having found that none of Pranfield's or United's causes of action succeed, it is not necessary for us to deal with the defences put forward by the Crown. We considered whether to engage with the arguments relating to the defences and decided that, with one exception, it would be preferable not to. In particular, consideration of the Crown Proceedings Act 1950 provisions in the absence of a finding as to the nature of the Crown's liability is difficult. We do, however, comment on the application of ss 308 and 329 of the 1996 Act because of their particular relevance to the causes of action pursued by United, and because we have reached the conclusion that MacKenzie J's views on s 329 are at odds with earlier authority of this Court.Are United's claims barred by s 308 or s 329 of the 1996 Act?[141] The Crown submitted that United's claims in tort are barred by s 329 of the 1996 Act. We consider that contention and, in addition, we consider whether s 308 of the Act applies to bar any claim for damages.Section 329[142] Section 329 validates decisions and purported decisions made by the Director-General in respect of, relevantly, the refusal of a fishing permit under s 63 or any special permit under s 64 made before 1 October 1992. In particular, s 329 provides (as is relevant):329 Validation of certain decisions relating to permits(1) Every decision and every purported decision of the Director-General of Agriculture and Fisheries – (a) made in respect of the issue, variation, refusal, revocation, or cancellation of any fishing permit under section 63 or any special 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 of Agriculture and Fisheries) – (a) made in respect of the issue, variation, refusal, revocation, or cancellation of any fishing permit under section 63 or special permit under section 64 of the Fisheries Act 1983; and (b) made on or after 1 October 1992 but before the commencement of this section – is hereby declared to be and always to have been valid. (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 special permit under section 64(1)(c) of that Act or section 97(1)(c), 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 obliged to, issue to the person an appropriate fishing permit in place of the special permit: (b) upon the commencement of a fishing permit issued to any person under this subsection, the special permit held by that person shall be deemed to be revoked.[143] MacKenzie J said at [207] that s 329 precluded proceedings that questioned the relevant decision or the decision-making process, "with the objective of obtaining relief which would involve revisiting in some way the decision". It followed that the Judge dismissed United's first cause of action based on judicial review (at [207]). [144] However, MacKenzie J doubted whether it was "so clear" that s 329 precluded an action for damages of the type alleged by United. The Judge explained his reasoning in these terms at [208]:But the section does not say that the decision is declared to be and always to have been validly made. The section necessarily involves the proposition that the decision has not been validly made; otherwise the section would be unnecessary. [I] think it is arguable that the section does not have the effect of precluding a claim for damages, based upon a breach of duty in the decision-making process, where the decision itself is not challenged in the proceedings. That is the position here. One can appreciate the legislative desire to bring certainty to the fishing industry, and to bring an end to challenges intended to overturn decisions which had been made. The potential for such challenges to affect the rights of others, either directly or indirectly, is well illustrated by the course of this litigation, and of other cases. But it does not follow from that that Parliament is to be assumed to have intended to preclude recourse to the courts for other remedies, particularly by way of damages, for breaches of duty in the process of reaching the decisions which have been validated. A claim for damages does not challenge the validity of the decision; it challenges specific errors in the decision-making process. Remedying them in damages does not involve questioning the present validity of the decision.[145] In our view, as MacKenzie J accepted at [209], that approach is contrary to the decision of this Court in Jenssen v Attorney-General (cited above at [92]) which is indistinguishable. In Jenssen this Court said s 329 did preclude such a claim. [146] The appellants in Jenssen argued that they had wrongly been refused fishing permits which meant they did not get quota and so had suffered a loss for which some $50m in damages was claimed. The Court dismissed an appeal from a decision to strike out proceedings as disclosing no cause of action. The Court said at [44] that s 329 is to be "read against the background of judicial decisions and legislative reaction outlined in Cooper v Attorney-General [1996] 3 NZLR 480 at 480-90 (HC). The Court observed that:Construction of s329 [46] Subsection (3) of s329 in our view is to be taken to express the full extent of the limitation upon the scope of the wide language of subsection (1). While read out of its context the Court would be disposed to read subsection (1) narrowly, and perhaps so as not to apply to decisions that had gone on appeal to the Quota Appeal Authority, such construction would defy the will of Parliament which the history makes plain. Application of s329 [47] We accordingly agree with the conclusion of the learned Master that the claim cannot succeed insofar as it is founded upon entitlement to permits in relation to the 1983-4 years. [147] The need to construe s 329 broadly to give effect to its intention has been confirmed in United Fisheries Limited v Chief Executive Ministry of Fisheries[2001] NZAR 707 at [31] (CA).[148] United accepted that this Court is bound by Jenssen and did not advance any basis on which the Court should reconsider Jenssen. Rather, United's submissions focused on whether there was a decision as envisaged by s 329. Two arguments were made. First, United says that any "decision" or "purported decision" was not perfected and so s 329 is inapplicable. Second, if there was a decision or purported decision then s 329 does not apply because the decision was made under s 65 not under ss 63 or 64. [149] The first argument turns on United's claim that it did not receive a copy of a letter from MAFF dated 24 May 1991 declining to grant United's application for a permit. As we have noted earlier, United further claims that it did not see the letter until 2003 when its existence was disclosed by MAFF. The letter is addressed to United Fisheries Limited at its Christchurch box number. The letter reads as follows:I refer to your application to take scampi (Metanephrops spp.) from Quota Management Areas (QMA) 1 – 10. On the 1st of October 1990, a moratorium on the issuing of new scampi permits was brought into effect. This was put in place in response to an increase in effort, and concerns about overfishing in QMA's 1(sic) 1 and 2.A review of permit holders and applicants who wish to enter the scampi fishery has subsequently been undertaken by MAF Fisheries in order to limit the amount of effort. Recently the Minister decided who should be granted permits for the scampi fishery in the 1990/91 fishing year, using the following criteria: (i) A permit application for scampi by the method of bottom trawling was received for the 1989/90 fishing year; or (ii) A permit was issued for scampi by the potting method for the 1989/90 fishing year; and (iii) The fisher has demonstrated a commitment to the scampi fishery (ie. financial or previous involvement); such commitment be assessed as at 30 September 1990. (iv) The fisher holds appropriate quota/lease agreements to cover probable bycatch; and (v) Any permit issued for bottom trawling for scampi during the 89/90 season was actually fished. MAF Fisheries South wishes to advise that you do not meet the criteria and therefore will not be granted a commercial fishing permit to enter the scampi fishery at this time. MAF Fisheries is currently developing a management plan for the scampi fishery and until this is complete, no special permits will be issued. With regard to your application to take jackknife and royal red prawns: In accordance with MAF Fisheries South policy, prawns are prohibited in QMA's (sic) 3, 4, 5 and 6, however the status of these species is currently being reviewed.[150] The letter was signed by Ms Laurel Teirney, Regional Science Manager. [151] Applying Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 (CA), United says that its non-receipt of the letter meant that the decision was not perfected and therefore there was no decision or purported decision in accordance with s 329 until 2003. [152] MacKenzie J was satisfied that a decision was made but, as we have said, did not make a finding as to whether or not United had received the letter (at [209], [440] and [529]). Whether or not United received the letter, it is plain for the following reasons that there was a decision or purported decision in terms of s 329. [153] First, United did not get a permit and knew that it had not. It could not fish. Mr Kotzikas, the Managing Director and principal shareholder in United, incross-examination gave evidence that he was told that the permit application had been refused:Q Going forward to the 1990/91 fishing year. You knew, didn't you, that you had been refused a permit for that year, a scampi permit? A I knew I was refused, verbally. Q When were you told that, Mr Kotzikas? A During those meetings. Then it became clear at the end of October 1990 that the moratorium had came on. So for that, the moratorium came on, that they said they won't issue any more permits.[154] That statement was later qualified by Mr Kotzikas in cross-examination in the following exchange:Q [Y]ou knew by the end of 1990, didn't you, that you'd been refused a scampi permit for each of the fishing years 1988 to 89, 89 to 90 and 90 to 91? A No, I will answer your question different. I knew by then that I was not given a permit. I didn't know I was refused a permit, which I think is two different things. I knew that I was not given a permit because nothing arrived on my desk to tell me otherwise. Q Well I'll rephrase my question. You knew, by the end of 1990, didn't you, that the application that the applications for scampi permits that you say you made for each of those three fishing years had all been unsuccessful? A No, I gave you the answer. I don't know if they were successful. All I know is that I was not given a permit to go fishing. Q Right. So you knew by the end of 1990 that even though you'd applied for a scampi permit for the three years we've been talking about, you hadn't got a permit for each of those years, had you? A I never had any replies back, so I didn't know – I don't know what I was given. There was no replies, no nothing. Q The end result was, you didn't have a permit for any of those years, did you? A The end result is that I never received a fishing permit to go fishing.[155] It is difficult to accept the claim that there was no decision before 2003 such that United believed a decision was continually pending until that year. If that were so, why did United bring judicial review proceedings challenging the refusal of attempts in 1992 and 1993 to obtain scampi permits? Those proceedings were struckout by Heron J on the basis of s 329 and that decision was upheld by this Court on appeal: United Fisheries Limited v Chief Executive of the Ministry of Fisheries HC WN CP194/99 24 March 2000 and [2001] NZAR 707 (CA). [156] Second, Goulding does not assist United because it dealt with a different point. In that case, the decision had been made to grant the appellants a marine farming permit. But, before the decision was communicated to the appellants, the decision maker obtained further information and purported to make another decision this time declining the application. The discussion summarised at [43] of Goulding, that communication to the affected party is necessary to perfect the decision, has to be read in that context. In any event, s 329 also applies to "purported" decisions which must cover the situation where a decision is made but the affected party does not receive notification of the decision. [157] The second argument, that the Director-General did not purport to make a decision under either s 63 or s 64, relies on the letter of 14 May. United says that letter shows the Minister decided not to grant United an exemption under s 65. [158] In substance, the letter recorded that United's application for a permit under s 63 was declined. In any event, we consider that is what the letter says. [159] In this context, the Crown points to an earlier letter of 23 August 1990 to Messrs Pestell and Goodship on behalf of Pranfield. The letter refers to Pranfield's application of 6 August 1990 "for a special permit to fish for scampi". The letter goes on to record that MAF Fisheries has received "critical" information on scampi fishing that will require "detailed investigation" before issuing any further special permits for QMAs 2, 7 and 8. The letter indicated that the investigations will take about two months and in view of the delay:[A]ll applications for 1989/90 will be treated as applications for a special permit to fish for scampi in the 1990/91 fishing year.[160] United make the point that this letter was from Mr Bishop of MAFF Central, not a MAFF South officer. It seems likely, nonetheless, given the 14 May letter that the same approach – at least in this respect – was taken by MAFF South.[161] We conclude that United's claims in tort are barred by s 329.Section 308[162] There is an additional bar to United's claim in the form of s 308. This section was not drawn to MacKenzie J's attention so is not dealt with in the High Court judgment. [163] Section 308 relevantly provides:308 Protection of the Crown etc (2) Nothing effected or authorised by – (c) any of sections 11, 13, 14, 15, 16, 19, 22, 23, 25, 26, 26A, 45, 47, 52, 53, 54, 56 to 58B, 67, 67A, 81, 82, 147, 148, 163, 289, 319, 320, 321, 329, 338, 340, 347A, 352, 362, 367, 368, 369, 369A, 369B, 368C, 369D, 369E, 369F and 369T; or shall be regarded as making the Crown liable to pay compensation or damages to any person.[164] Section 308(2)(c) has been amended from time to time by substituting and adding to the sections listed, but since its enactment it has provided that "[n]othing effected or authorised by section 329 shall be regarded as making the Crown liable to pay compensation or damages to any person". Accordingly, provided that s 329 applies to United's claim, the combined effect of ss 308(2)(c) and 329 is that United cannot recover any damages. [165] The argument for United is that s 308 should be read as referring only to s 329(5) because anything else is superfluous. Further, based on the select committee's report back on the provision, United submits that s 308 is intended to deal with disaffected third parties who are affected by a change of permit and to render certain the allocation process for quota along with any new claims.[166] As introduced, what became s 308 was cl 333. It was headed "Protection of the Crown etc" and provided that:Without limiting any other provision in this Act, nothing effected or authorised by this Act shall be regarded as – (a) Making the Crown, or any person acting pursuant to this Act, liable to pay compensation to any person; or (b) Otherwise making the Crown or any other person guilty of a civil wrong.[167] The current wording of s 308 reflected the recommendation of the Primary Production Select Committee. The Committee referred to the provision in the Bill as introduced and the adverse submissions on that clause. The Committee said at xxxvii that it considered the provision was necessary:[T]o enable the Crown to manage fisheries resources at sustainable levels. No compensation should be payable for any decision relating to sustainability measures, allocation of fishing rights, and enforcement and administration of the Bill. However, we agree that, when taking steps under the Bill that significantly impact on the ability of commercial fishers to take their ACE, for the purpose of managing disputes and competing claims between fishing sectors, the possibility of compensation should not be excluded. We, therefore, recommend clause 308 which clearly sets out the provisions of the Act that the Crown is protected from liability for compensation in administering. For the matters not referred to in this clause, namely managing conflicts between fishing sectors, the issue of compensation may arise.[168] There is nothing to indicate that the provision was not intended to apply to the current situation and we consider it does apply to United's case. We therefore find that s 308 would have been a bar to United's claims for damages in this case.Pranfield's claims[169] It is accepted by the parties that neither ss 329 or 308 applies to Pranfield's case. That is because s 329 does not apply to proceedings filed before the commencement of s 329, as Pranfield's claim was. While the argument could be made that this decision is "effected" by s 329, it would be an odd result if proceedings were saved by s 329 but litigants were deprived of the fruits of theirlitigation by s 308. That might be the case if it was envisaged that only administrative law remedies should be preserved but we do not consider that is so.Measure of damage[170] As we have found no liability, it is unnecessary for us to deal with the arguments about quantum of damages. We considered whether we should offer some observations on the topic but decided that, without findings identifying liability under or in respect of particular cause of action, any discussion would need to be too generalised to be of any real utility.Result[171] We have concluded that none of Pranfield's or United's pleaded causes of action succeeds. Accordingly, we allow the Crown's appeal and dismiss Pranfield's cross-appeal in CA48/07. The appeals in CA56/07 and CA193/06 are dismissed.Costs[172] We did not hear from counsel on the subject of costs in this Court. If the parties are unable to agree on costs, leave is reserved to any party to apply to this Court for determination of the issue. Any such application must be made on or before 29 August 2008. If we receive such an application, we will set a timetable for the filing of submissions and deal with the matter on the papers unless any party persuades us that a further hearing is needed. [173] Costs in the High Court should be determined in that Court in light of this judgment.Solicitors: Crown Law Office, Wellington for Minister of Fisheries, Attorney-General & Ors Goodman Steven Tavendale & Reid, Christchurch for Pranfield Holdings Limited and United Fisheries Limited Izard Weston, Wellington for State Services Commissioner