MINISTER FOR PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT v ANTONIO SCALI [2024] SASC 4

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (MS K MCEVOY) 2021/SA002273 Appellant: MINISTER FOR PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT Counsel: MS E FERGUSON - Solicitor: GILCHRIST CONNELL Respondent: ANTONIO SCALI Counsel: MR A BAILLIE - Solicitor: EZRA LEGAL Hearing Date/s: 19/10/2023 File No/s: CIV-23-008598 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MINISTER FOR PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT v SCALI [2024] SASC 4 Judgment of the Honourable Justice Kimber 18 January 2024 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS This is an appeal against an order of the South Australian Civil and Administrative Tribunal pursuant to s 71 of the South Australian Civil and Administrative Tribunal Act 2013. That order was in respect of an application by the respondent for a review of a decision of the appellant pursuant to s 112 of the Fisheries Management Act 2007 (the Act). The respondent possesses a Marine Scalefish Fishery licence pursuant to the Act. This licence was subject to a quota unit entitlement for the period of 1 July 2021 to 30 June 2022. The appellant refused an application by the respondent for additional units to be added to his quota on the basis of exceptional circumstances. On review, the Tribunal found that the respondent did have exceptional circumstances and remitted the question as to any additional quota entitlement back to the appellant. On appeal, the appellant contended the Tribunal erred in finding the respondent has exceptional circumstances on two alternative bases. If the decision was evaluative, the appellant submitted that the respondent’s circumstances could not be exceptional where they were circumstances which affected the industry as a whole. If discretionary, the decision involved an outcome error where the conclusion of exceptional circumstances was unreasonable based on the facts as found. Held: 1. The appeal is allowed. -- 1 of 21 -- 2. The decision of the Tribunal was not discretionary. 3. The respondent did not have exceptional circumstances. 4. The decision of the Tribunal is set aside. Fisheries Management Act 2007 (SA) ss 3, 52, 54, 55, 111, 112, 128; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 71, referred to. Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Kent v Wilson [2000] VSC 98; Norbis v Norbis (1986) 161 CLR 513; Markarian v The Queen (2005) 228 CLR 357; Warren v Coombs (1979) 142 CLR 531; Nikac v Minister for Immigration, Local Government and Ethnic Affairs [1988] FCA 670; Shah (a pseudonym) v Medical Board of Australia [2022] SASC 140; Pix v South Australian Housing Trust [2016] SASCFC 57; Khoo v Bartholomaeus [2020] SASCFC 122; Jackson v Lepp Investments Pty Ltd [2020] SASC 62, applied. House v The King (1936) 55 CLR 499; R v BCX [2015] QCA 188; Hili v The Queen (2010) 242 CLR 520; Banelis v Minister for Primary Industries and Regional Development [2022] SACAT 3, discussed. -- 2 of 21 -- MINISTER FOR PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT v SCALI [2024] SASC 4 Civil: Single Judge Appeal Introduction 1 This is an appeal against an order of the South Australian Civil and Administrative Tribunal (the Tribunal) dated 6 July 2023. Mr Scali (the respondent) is the holder of a Marine Scalefish Fishery (MSF) licence which he purchased in 2008. The finding of the Tribunal was the respondent had exceptional circumstances justifying the additional allocation of fish units towards his licence within the MSF. Having found exceptional circumstances, the Tribunal set aside the decision of the Minister under review and referred the matter back to the Minister for reconsideration. The appellant submits the finding of exceptional circumstances should not have been made. The grounds of appeal 2 The appellant seeks permission to appeal and that the appeal be allowed. The grounds are: 1. The Tribunal erred in undertaking the evaluative exercise involved in determining whether the respondent has exceptional circumstances. In particular, the Tribunal erred by finding that the respondent’s circumstances were exceptional because of his response to circumstances which affected the industry as a whole whereas a proper assessment of the respondent’s circumstances leads, or could only lead, to the conclusion that his circumstances were not exceptional as they affected all licence holders targeting snapper in the Marine Scalefish Fishery; and 2. In the alternative, and insofar as the Tribunal’s decision involved the exercise of a discretion, the Tribunal erred in the exercise of that discretion by reason of an outcome error, as on the facts found it was unreasonable to conclude that the respondent’s circumstances were exceptional. 3 For the reasons which follow, the Tribunal erred in finding that exceptional circumstances existed. Permission to appeal is granted and the appeal is allowed. The decision of the Tribunal to refer the matter back to the Minister for reconsideration is set aside. The decision of the Tribunal is substituted with a finding that the respondent does not have exceptional circumstances. Background and legislative and regulatory framework 4 This matter has had a protracted history. 5 Mr Scali’s application to the Tribunal arose in the context of a broader reform of the MSF, which included the introduction of a quota system. This system allocated quota entitlements attaching to commercial fishery licences for the first time in respect of four priority species: snapper; King George whiting; southern -- 3 of 21 -- [2024] SASC 4 Kimber J 2 calamari and southern garfish. The legislative and regulatory framework through which the quota system was introduced is set out below. 6 Commercial fishing in the MSF is regulated by the Fisheries Management Act 2007 (the FM Act). The FM Act prohibits fishing activity of a class that constitutes a fishery for a commercial purpose unless the person holds a licence or permit (or acts as the agent of a person who holds a licence or permit) in respect of the fishery.1 7 The Minister has power to grant or refuse applications for an authority (defined as a licence, permit, registration, authorisation or other authority under the FM Act); may place conditions on an authority; and may subsequently vary, revoke, or place further conditions on the authority.2 8 The FM Act also authorises the making of regulations for the management of a ‘fishery’, including to prescribe a quota system for a fishery and the allocation of quota entitlements to holders of licences or permits in the fishery.3 A ‘quota entitlement’ is defined as the total quantity of aquatic resource of a particular class that may be taken under the licence or permit during a quota period.4 9 The Fisheries Management (Marine Scalefish Fishery) Regulations 2017 (MSF Regulations) are regulations made under the FM Act. The respondent did not dispute the appellant’s submission they relevantly provide that: 1. The MSF is constituted as a fishery under the FM Act and consists of the taking of the aquatic resources specified in Schedule 1 of the regulations. The aquatic resources include the four priority species identified above. 2. Certain fishing zones are established, being the West Coast, Spencer Gulf, Gulf St Vincent and South East zones. 3. In respect of each priority species, the Minister must, by notice in the Gazette on or before the 12 month quota period commencing on 1 July 2021 determine: the total allowable commercial catch (TACC) for each species and each fishing zone in that quota period; the number of kilograms of each species that is to be the value of a unit for that priority species for each fishing zone for that quota period; and the methodology or formula by which units of priority species fish are to be allocated to licences in respect of the relevant fishery. 4. The fixing of the methodology or formula for fish units was expressly permitted, without limitation, to provide for or include a scheme for the allocation of additional priority species fish units on the basis of there 1 FM Act s 52. 2 Ibid ss 54 and 55. 3 Ibid s 128. 4 Ibid s 3. -- 4 of 21 -- [2024] SASC 4 Kimber J 3 being exceptional circumstances that apply to the holder of a licence, as determined by the Minister. 5. The quota entitlement for each priority species was defined, in relation to a licence in respect of the MSF and fishing zone, to mean the maximum number of kilograms of each priority species that may be lawfully taken by the holder of the licence in that zone during a quota period, being the product of the unit entitlement under that licence in respect of that zone and the unit value for that zone and quota period, subject to any variation applying during that quota period. 6. The Minister may impose or vary conditions on licences in respect of the MSF (and other fisheries), including that a condition may be imposed on a licence in respect of the MSF fixing a quota entitlement for each priority species. 10 The former Minister published a Determination in the Government Gazette on 29 June 2021 determining the issue of quota. The quota for each licence holder was to be determined by a formula set out in the Determination. The quota was based in part on a ‘Base Share’ and in part on each licence holder’s catch history (the eligible catch history) which included the six years prior to and including the 2015–2016 financial year (the reference period). The portion of each licence holder’s quota referable to their catch history was calculated by determining their total catch history for their best five years out of the six year reference period, representing their ‘totally eligible catch’, as a percentage of the total eligible catch for all licensees. The methodology for determining the allocation of fish units, and therefore quota allocations, for licensees included an ability on the part of the Minister to determine that a person had ‘exceptional circumstances’. Relevantly, the Determination also provided that: A scheme for the allocation of additional units on the basis of exceptional circumstances 7. If I determine that exceptional circumstances apply to a licence holder, I may allocate fish units … to the licence holder that are in addition to the licence holder’s catch history for the reference period. In determining the amount of additional fish units, I may take into account factors including but not limited to the following: (a) the nature of the exceptional circumstances; and (b) the need to ensure the sustainability of fish stocks (noting that additional resources have been made available as a result of the Voluntary Licence Surrender Program). 11 The relevant effect of the general methodology was that where the Minister determined that a licence holder had exceptional circumstances, the Minister may add additional fish units to the licensee’s eligible catch history, which then increases the licensee’s individual unit entitlement for a species. -- 5 of 21 -- [2024] SASC 4 Kimber J 4 12 By letter dated 29 June 2021 to each MSF licence holder, the Minister imposed, pursuant to s 55 of the FM Act, a condition fixing a quota unit entitlement on all licences which was calculated in accordance with the Minister’s determination. Under the FM Act, a person aggrieved by certain decisions of the Minister may review such a decision through a process of internal and external review. Relevantly: • A person aggrieved by a decision of the Minister to impose conditions on an authority or vary a condition of an authority may apply to the Minister for an internal review of the decision. • The Minister must review the decision that is the subject of an application for review. • On an internal review, the Minister may confirm or vary the decision under review or set aside the decision and substitute a new decision. • An applicant for internal review who is not satisfied with the decision of the Minister on the review may apply to the Tribunal under s 34 of the SACAT Act for a review of the Minister’s decision. • The SACAT Act then provides for the processes and powers of the Tribunal on the external review.5 The IAAP 13 Before the publication of the Determination in the Government Gazette, the former Minister had engaged an Independent Allocation Advisory Panel (IAAP) to provide recommendations as to the formulation of an Individual Transferable Quota (ITQ) system in relation to the four priority species. The terms of reference of the IAAP as established by the former Minister included a requirement that the IAAP identify and include in the allocation system any exceptional circumstances the IAAP considers should be taken into account. 14 The final report of the IAAP is dated 27 October 2020. The IAAP made eleven recommendations. One recommendation was that two criteria should be used in the ITQ formula, licence holding (base allocation) and catch history. As to catch history, the final report of the IAAP stated: There is a widespread global acceptance that catch is a reasonable proxy for income. Catch history, as recorded in logbooks, has been used in other quota allocations both in Australia and worldwide to recognise the needs of users who rely on the species for their livelihood. In the submissions, over half of survey respondents who answered the question on catch history expressed support for a catch history component; many written submissions were also supportive. 5 FM Act s 111. -- 6 of 21 -- [2024] SASC 4 Kimber J 5 Conclusion: to recognise the level of fishing activity of a licence holder and to minimise the change in their relative economic position, catch history of the licence holder should be a criterion for the allocation of ITQs for priority species.6 (emphasis in original) 15 As to exceptional circumstances, the final report of the IAAP stated: A licence holder may wish to argue that, by reason of certain events, such as illness, serious misfortune, administrative error etc. his or her circumstances were exceptional and that but for such events, he or she would have been entitled to a higher allocation of priority species than they received. PIRSA has advised the IAAP that an ‘exceptional circumstances’ process has now been initiated to allow for these circumstances and ensure that the principles of fairness and good management result in consistency in the application of the allocation process. The IAAP suggests that determining a definition of ‘exceptional circumstances’ would be helpful in providing greater certainty to those licence holders wishing to apply for reconsideration of their allocation using this provision and in reducing the number of claims. PIRSA advised the IAAP that if a positive finding is made under ‘exceptional circumstances’ and an individual’s allocation (ITQ) is increased, this will have the effect of reducing the number of quota units to be shared among other licence holders. As a consequence, all licence holders will not know their final allocation of ITQs until the completion of the exceptional circumstances process and the Voluntary Licence Surrender Program.7 16 As will be referred to below, Dr Cannon was engaged by the Minister as an independent advisor and to make recommendations. The IAAP was re-engaged to consider the broad recommendations of Dr Cannon and to provide advice to the Minister. That further advice to the Minister included: In the view of the IAAP: • Consideration of [exceptional circumstances] should not include circumstances that have the potential to affect all, or a significant number of, participants in the fishery (with the exception of a declared natural disaster or pandemic). • Consideration of [exceptional circumstances] should include circumstances that have a unique impact on an individual licence holder.8 17 The IAAP recommended that ‘general rules’ as to what is and is not exceptional circumstances could be applied. The IAAP set out those general rules in a table: 6 IAAP, Final Report (27 October 2020) 10–11 (Appeal Book 154–155). 7 Ibid 30–31 (Appeal Book 174–175). 8 IAAP, Further Advice to the Minister for Primary Industries and Regional Development regarding the Exceptional Circumstances process (24 March 2021) 4 (Appeal Book 224). -- 7 of 21 -- [2024] SASC 4 Kimber J 6 Exceptional Circumstance IAAP recommendation (General Rule) Exceptional Circumstance in other jurisdictions 1 Licence holder affected by serious illness, boat accident/sinking Exceptional Circumstance Yes 2 Natural disaster, pandemic Exceptional Circumstance Yes 3 Obtained licence a few months prior to June 30 2016 Not exceptional- business risk. Licence holders aware of PIRSA’s long-standing policy on not being able to transfer catch history. This is regularly communicated to all licence holders in SA. Not applicable in other jurisdictions as catch history is transferred with the licence. 4 Transferred licence for tax reasons 5 Transferred licence within family Not exceptional. Family transfers of licences permitted but policy explicit that catch history is not transferable. 6 Other economic activity; holiday; Not exceptional circumstance. Loss of catch history is opportunity cost of undertaking other activities No 7 Management changes Not exceptional circumstance. Applies to many/all licence holders No 8 Family obligations Not exceptional circumstance. Common and typical experience of many members of Australian community No 9 Attendance at industry consultations Not exceptional circumstance. Voluntary position. Unlikely to affect more than a few days a year. No The Policy Position document — exceptional circumstances 18 At some point, the Minister had a policy document titled Policy Position – considerations as to exceptional circumstances. It is not necessary to consider the policy document. The Tribunal rejected the policy document as being relevant to whether Mr Scali had exceptional circumstances. The appellant does not challenge that aspect of the approach of the Tribunal. -- 8 of 21 -- [2024] SASC 4 Kimber J 7 The application of the respondent and the recommendations of Dr Cannon 19 The respondent made an application for exceptional circumstances on the following basis: 1. He had purchased the licence in 2008 using his superannuation fund for his son to enter the industry and make a living, and for himself to make a living after his career as a mechanic ceased. 2. Throughout 2011/2012, there were periods where the market price for snapper was between $2 – $3 per kilogram. Mr Scali and his son considered it commercially unsustainable to continue in the industry. They did not have the equipment to fish for other species. 3. In 2012, Mr Scali’s son left the fishery and obtained a job as a commercial property manager. 4. Mr Scali stated that if he and his son had known that a quota system would have been implemented based on catch history during 2010 – 2016, his son would not have left the fishery in its entirety. 5. The indicative allocation he had been provided was insufficient and would put him in financial distress. 20 The former Minister appointed Dr Cannon to assess each application for exceptional circumstances. The respondent met with Dr Cannon on 15 January 2021. Subsequently Dr Cannon recommended that the former Minister ‘consider a finding of exceptional circumstances’. Dr Cannon said that if exceptional circumstances were found by the Minister, it was recommended that the allocation of the respondent be calculated on his average catch history from 2010/2011 and 2011/2012 multiplied by five. Dr Cannon concluded: The loss of catch history here because they made the decision to stop fishing cannot be regarded as bad luck or bad decision making. On close consideration there is a good argument for exceptional circumstances. [They] made significant investment decisions before the 2017 investment warning that has adversely affected their catch history. Whereas most in this category were deprived of catch history by late entry, these recent entrants have been deprived of catch history by early exit. They made the decision to stop fishing as a response to the overfishing by others, and the consequent low price, rather than the notice of snapper closures. The Minister might see it as unfair that they lose quota as a result of their prescient decision to stop fishing when hindsight shows us that the overfishing at that time has led to the complete closure of the snapper industry. This case can be distinguished from others who changed their fishing approach after measures to limit the catch of snapper and garfish because the Scalis made their decision to leave the fishery early and based on their own assessment.9 9 Andrew Cannon, Exceptional Circumstances Report (Antonio Scali) 2 (Appeal Book 20). -- 9 of 21 -- [2024] SASC 4 Kimber J 8 The decision of the Ministers and delegates 21 On 20 April 2021, Professor Begg wrote to Mr Scali providing an indicative outcome of his application for exceptional circumstances. That letter advised that the Minister had indicated that he was unlikely to find that Mr Scali had exceptional circumstances, but that he would be willing to offer Mr Scali an opportunity to voluntarily surrender his licence. 22 On 14 May 2021, Mr Scali wrote to the Minister requesting that he reconsider his decision. On 17 May 2021, the Minister advised that he had ‘decided to accept Dr Cannon’s recommendation that a finding of exceptional circumstances applies’ and offered a remedy of voluntary surrender of the licence. 23 On 29 June 2021, the Minister wrote to Mr Scali enclosing his final allocation of quota unit entitlements. The Minister advised Mr Scali in that letter that he was ‘satisfied you are not entitled to additional quota units on the basis of exceptional circumstances’. 24 On 1 July 2021, the Minister imposed conditions on Mr Scali’s licence fixing his quota unit entitlements for each of the priority species. He was not allocated any additional units on the basis of exceptional circumstances. 25 On 6 September 2021, the Minister provided reasons for his decision which stated: Pursuant to section 55 of the Act, I imposed a quota condition fixing a quota unit entitlement calculated in accordance with my determination. This included my finding that while I recognised exceptional circumstances may be found, I am not able to allocate additional quota units based on your application, your submission made to the independent adviser, Dr Andrew Cannon, … and the advice provided to me by the Independent Allocation Advisory Panel. 26 After noting that Mr Scali discontinued fishing due to his concern about the sustainability of snapper fishing, the letter goes on to say: As a matter of general policy, management arrangements in a fishery which have the potential to impact all fishers (such as restrictions on snapper) are not considered exceptional, even where those impacts are felt more intensely by some fishers and not at all by some others. Your decision to reduce your fishing effort as a result of these pressures is not of itself an exceptional circumstance. Similarly, I can make no finding of exceptional circumstances where there has been limited fishing activity due to a business decision, such as engaging in alternative employment. 27 The respondent sought an internal review of the decision of the Minister pursuant to s 111 of the FM Act. By letter dated 20 October 2021, the delegate of the Minister confirmed the decision of the Minister made on 29 June 2021 said to be that there were no exceptional circumstances. -- 10 of 21 -- [2024] SASC 4 Kimber J 9 The first proceedings in the Tribunal 28 At the time of the first proceedings before the Tribunal, the decision of the former Minister was treated as being to have found exceptional circumstances and as a result, to provide the remedy of a second chance to participate in the voluntary licence surrender scheme. 29 The respondent filed an application to review the decision of the former Minister pursuant to s 112 of the FM Act and s 34 of the South Australia Civil and Administrative Tribunal Act 2013 (the SACAT Act). On 1 November 2022, the Tribunal held that the Minister was wrong in deciding that an appropriate remedy was a second chance to participate in the voluntary licence surrender scheme rather than to allocate additional quota (the first decision). The first application to this Court 30 The Minister appealed the first decision of the Tribunal to this Court pursuant to s 71 of the SACAT Act. The Minister’s grounds of appeal contended the Tribunal had erred by: a. finding the appellant had made two decisions (being first, a decision as to whether the respondent had exceptional circumstances, and second, the exercise of discretion by the appellant in response to that decision) rather than a single decision for the purposes of ss 11 and 112 of the FM Act; and b. finding that only the appellant’s decision in the exercise of discretion was the subject of review, whereas the Tribunal should have concluded that the reviewable decision included whether the respondent had exceptional circumstances. 31 The respondent filed a notice of alternative contention. The contention was that even if the Minister’s notice of appeal was made out, the Court should nevertheless determine the respondent had exceptional circumstances. On 10 February 2023, and before the date fixed for the hearing of the appeal, a Judge of this Court indicated he did not intend to determine the substantive question of exceptional circumstances but only the issue in the notice of appeal and, if necessary, remit the matter for reconsideration. 32 The parties then consented to the appeal being allowed; the first decision being set aside; and the matter being remitted before the Tribunal for reconsideration. The Tribunal decision dated 6 July 2023 (the second decision) 33 It is the second decision of the Tribunal dated 6 July 2023 which is the subject of this appeal. A finding of exceptional circumstances by the Minister 34 Before the Tribunal, the Minister did not concede that the former Minister had found that exceptional circumstances existed. The Minister submitted that it was unclear. As set out above, the Tribunal found that the former Minister had -- 11 of 21 -- [2024] SASC 4 Kimber J 10 accepted Dr Cannon’s assessment of the circumstances of the respondent as being exceptional and communicated that to him.10 That finding is not challenged in this appeal. Exceptional Circumstances 35 Before the Tribunal, the Minister argued that the circumstances of the respondent were not exceptional. The Tribunal took the position that ‘exceptional circumstances’ meant ‘circumstances out of the ordinary, special, uncommon’. There is no challenge to that approach. The Tribunal found that the respondent did have exceptional circumstances. It is that finding which is the subject of this appeal. 36 The Tribunal stated: … the Tribunal is… tasked with making its own assessment of whether Mr Scali had exceptional circumstances. I am satisfied that he does. I note that Mr Scali purchased his licence in 2008, and subsequently his son Joseph obtained his coxswain’s licence and began fishing with his father. As a consequence their catch increased significantly, from 1800kg in 2010–2011, to 6300kg in 2011–2012. Mr Scali and his son had intended to pursue fishing together and expected similar or improved catch in future years. However, in 2012 they exited the snapper fishery, having concluded that the fishery was being overfished. Accordingly their recorded relevant catch history was very limited, and they argued that it did not reflect the exceptional circumstances (their early exit from the industry, having foreseen future difficulties) which they said applied in their case, so that their quota should not be calculated taking into account the loss of catch as a result of their ceasing to fish. Dr Cannon considered these circumstances amounted to exceptional circumstances, because they did not reflect “bad luck or poor decision making”, but rather “prescience”, as it was that overfishing which led to the closure of the industry. The respondent in this matter submitted these circumstances were not exceptional because they applied commonly throughout the fishing industry: that is, all participants were impacted by the overfishing and the consequent low prices and lack of commercial return. I accept this, but the distinction in this matter is that Mr Scali responded to these circumstances by stopping fishing, whereas others responded by continuing to fish until [being] prevented from doing so by government management. Mr Scali’s catch history reflected his decision to exit the industry, whereas the circumstances of others in the industry in continuing to fish is reflected in their ongoing catch history. I accept the assessment contained in Dr Cannon’s recommendation to the Minister in this matter, and I agree with his assessment. The circumstances of others in the fishing industry are not before me in detail, but I note that Dr Cannon made a similar assessment of two other applicants (out of 6 overall) for exceptional circumstances. I am satisfied that Mr Scali’s circumstances constituted exceptional circumstances for the purposes of this scheme. 10 Minister for Primary Industries and Regional Development (South Australian Civil and Administrative Tribunal, Ms K McEvoy, Senior Member, 6 July 2023) [60]–[61]. -- 12 of 21 -- [2024] SASC 4 Kimber J 11 37 The Tribunal set aside the decision of the former Minister and referred it back to the Minister for reconsideration. The finding of the Tribunal — a discretionary decision? 38 Proper characterisation of the nature of the decision is necessary before the appeal can be determined. The primary position of the appellant is reflected in Ground 1. That is, that the decision of the Tribunal was not a discretionary one. If that is the case, the principles in House v The King11 in relation to discretionary decisions do not apply. The alternative position of the appellant is reflected in Ground 2. That is, that the decision of the Tribunal involved the exercise of a discretion. The respondent submits that this is the proper characterisation of the decision of the Tribunal. The respondent submits that the decision is, or is at least to be treated as, a discretionary decision. In that event, the parties accept the principles in House v The King apply. 39 Section 71 of the SACAT Act confers a right of appeal by way of rehearing to this Court against a decision of the Tribunal. Section 71 relevantly provides: 71—Appeals (1) Subject to this section and to any provision of a relevant Act as to the review of, or appeal against, a decision of the Tribunal, an appeal lies— … (b) … to the Supreme Court constituted of a single Judge. … (3a) An appeal under this section will be by way of rehearing. (3b) The Supreme Court may, in conducting an appeal, draw inferences of fact from evidence or material before the Tribunal and may, as it thinks fit, allow further evidence or material to be presented to it. (4) The Supreme Court may, on an appeal under this section— (a) affirm the decision appealed against; or (b) vary the decision appealed against; or (c) set aside the decision appealed against and, if it thinks fit, return the matter to the Tribunal for reconsideration in accordance with any directions that the Court considers appropriate. 40 In Minister for Immigration and Border Protection v SZVFW,12 Gageler J said: 13 11 (1936) 55 CLR 499, 505. 12 (2018) 264 CLR 541. 13 Ibid 557–60 [36]–[37], [39], [41], and 563–4 [48]–[50]. -- 13 of 21 -- [2024] SASC 4 Kimber J 12 In relation to an appeal from a final judgment of a primary judge sitting without a jury, essentially two standards of appellate review have come to be recognised in Australia. … If and to the extent that the judgment under appeal turned on the exercise of what can be characterised as a ‘discretion’ committed to the court of which the primary judge was a member, the long-settled understanding is that members of an appellate court cannot substitute on appeal a judgment which turns on their own exercise of discretion ‘merely because they would themselves have exercised the original discretion, had it attached to them, in a different way’. For appealable error in the exercise of judicial discretion to be established, the appellate court must be satisfied that what was done by the primary judge in the judgment under appeal amounted ‘to a failure to exercise the discretion actually entrusted to the court’. … For a period during the 1960s … some Justices of the High Court expressed support for importing similar considerations into appellate review of an evaluative conclusion reached by a primary judge when applying imprecisely defined legal criteria to findings of primary fact, even where the appellate court's ability to apply those criteria to those findings of primary fact so as to form its own opinion as to the correctness of the primary judge's conclusions was unimpeded by any limitation inherent in proceeding on the record. … Rejecting the approach of appellate restraint and reaffirming the approach more commonly taken in Australian and English case law of treating correctness as the general standard of appellate review, the majority in Warren v Coombes stated: ‘Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it’. … The course of High Court authority since Warren v Coombes has accordingly proceeded on a consistent understanding of how the line of demarcation is to be drawn between those of a primary judge's conclusions which attract the correctness standard of appellate review reaffirmed in that case and those which attract the deferential standard applicable to appellate review of an exercise of judicial discretion. Without excluding the potential for other considerations to affect the standard of appellate review in a particular category of case, the understanding provides a principled basis for making at least the principal distinction. The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable. -- 14 of 21 -- [2024] SASC 4 Kimber J 13 That understanding has in the past been acknowledged and applied to guide appellate review in the Full Court of the Federal Court. There is no reason to depart from it now. (footnotes omitted) 41 In submitting the decision was a discretionary one, or at least should be treated in that way, one of the authorities upon which the respondent relied was R v BCX.14 In R v BCX, the appellant had been sentenced to imprisonment for sexual offences involving children under the age of 16 years. Section 9(4) of the Penalties and Sentencing Act (1992) (QLD) provided that for such offences, an actual term of imprisonment was mandated unless there were ‘exceptional circumstances’. The appellant had appealed on the basis the sentencing Judge had erred in not finding exceptional circumstances. It was held: 15 First, whether the circumstances in any given case justify a finding of exceptional circumstances will always be a matter for the discretionary judgment of the sentencing judge. For that reason, this Court will not lightly interfere with such a finding in the absence of an error of the kind identified in House v The King. It will only be if the sentencing judge has erred in that sense that the Court will proceed to make its own assessment whether exceptional circumstances exist, and substitute its own decision, provided the material before the Court is sufficient to do so. Secondly, whether exceptional circumstances are established on the facts of a particular case is a matter where reasonable judicial minds might very well differ. This is because such an assessment calls for a value judgment in respect of which, as Mason and Deane JJ said in Norbis v Norbis, there is “room for reasonable differences of opinion, no particular opinion being uniquely right”. Their Honours continued: If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision- making, it would be wrong to determine the parties’ rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal. (footnotes omitted) 42 R v BCX is not of assistance in this case. Burns J went on to say: 16 … in the sentencing process, the court ‘must consider whether there are exceptional circumstances which, in the light of all the other aspects of the case including those described in [sub-ss 9(5), 9(6) and 9(7)], warrant the imposition of a sentence which does not involve actual custody’. Viewed in this way, a finding whether exceptional circumstances exist is but one part of the overall process of ‘instinctive synthesis’ discussed by McHugh J in Markarian v The Queen whereby each of the factors relevant to the 14 [2015] QCA 188 (‘R v BCX’). 15 Ibid 518–19. 16 R v BCX (n 14) [51]. -- 15 of 21 -- [2024] SASC 4 Kimber J 14 sentence are identified and then weighed before a value judgment is made as to a sentence which is, in all of the circumstances of the case, appropriate. (footnotes omitted) 43 The sentencing process is very different to the question before the Tribunal (and the Minister). That question was whether there were exceptional circumstances. It was not part of a process of ‘instinctive synthesis’ analogous to what occurs in sentencing. In my view, it is best characterised as a threshold, or a precondition, which, if satisfied, permits a discretion to be exercised. Expressed another way, it was a ‘jurisdictional fact’ that had to exist before a power was enlivened. The answers available to the question before the Tribunal the subject of this appeal was either yes or no. While it involved an evaluative exercise, it was a decision that was either right or wrong. There were either exceptional circumstances or there were not. 44 For the above reasons, the decision for the Tribunal was not a discretionary one. Accordingly, it will be unnecessary to consider the alternative contention of the appellant. The principles to be applied 45 This appeal is not subject to the principles of appellant restraint that apply when reviewing the exercise of a discretion. The principles to be applied are those stated by the majority in Warren v Coombs: 17 Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. The fact that judges differ often and markedly as to what would in particular circumstances be expected of a reasonable man seems to us in itself to be a reason why no narrow view should be taken of the appellate function. The resolution of these questions by courts of appeal should lead ultimately not to uncertainty but to consistency and predictability, besides being more likely to result in the attainment of justice in individual cases. 46 In this case, the Tribunal was in no better position than this Court to decide whether there were exceptional circumstances. However, as SACAT is a specialist Tribunal, this Court would ordinarily give substantial weight to its findings.18 17 Warren v Coombes and Anor (1979) 142 CLR 531, 552. 18 Jackon v Lepp Investments Pty Ltd (2016) 125 SASR 1, 6 [19]–[21]. -- 16 of 21 -- [2024] SASC 4 Kimber J 15 47 Whether exceptional circumstances exist for licence holders in the position of the respondent has only been relevant since 2021. I recognise that the Tribunal has not acquired the length of experience, or degree of specialist knowledge, that it has with respect to other fields (e.g. – residential tenancies). Nonetheless, pursuant to ss 111 and 112 of the FM Act, the Tribunal has a specialised role. This decision is not the only one made by the Tribunal with respect to exceptional circumstances in the same context as applies to this case. For these reasons, I am satisfied it is appropriate to give substantial weight to the finding of the Tribunal that there were exceptional circumstances. 48 Because the appeal is by way of rehearing, it is still incumbent upon the Minister to establish error by the Tribunal, being either factual error, error of reasoning or legal error.19 Exceptional circumstances 49 Courts have been reluctant to define exceptional circumstances. It is used in a variety of legal contexts. In Kent v Wilson, Hedigan J stated:20 Courts have been both slow and cautious about essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors. 50 In Nikac v Minister for Immigration, Local Government and Ethnic Affairs, Wilcox J said:21 The term exceptional circumstances postulates a criterion which is both vague and subjective. Every case is different, so that there are always some aspects of a case which may be regarded as exceptional. The question inevitably arises: exceptional compared with what? Even if it be conceded that there is nothing very exceptional about drug offences appearing upon a list of convictions, there will always be differences in the circumstances of those offences. For example, I would not myself have thought that the particular offences committed by Mr Nikac were of such a nature as to constitute a reason for taking the unusual step of declining to accept the recommendation of the Tribunal, by whom both the offences and all the other relevant circumstances were considered. But it is impossible to categorise a different view as being devoid of plausible justification. Like beauty, exceptional circumstances lies in the eye of the beholder. (emphasis in original) 51 Like the Tribunal, I will treat ‘exceptional circumstances’ as something ‘out of the ordinary, special or uncommon’ with respect to the regulatory scheme and the legislative context in which it sits. 19 Shah (a pseudonym) v Medical Board of Australia [2022] SASC 140, [219]. 20 [2000] VSC 98, [22]. 21 [1988] FCA 670, [56]. -- 17 of 21 -- [2024] SASC 4 Kimber J 16 The submissions — Ground 1 52 In Ground 1, the appellant identifies the error as being to find exceptional circumstances because of a response by the respondent to circumstances which impacted the industry as a whole. As set out by the Tribunal, the respondent had decided to exit the snapper fishery in 2012 having concluded there was overfishing. The respondent had told Dr Cannon that his catch in 2011/2012 was only selling for $2 or $3 a kilogram; on one occasion the buyer would not take his catch; and a realistic income could not be earned at the price being obtained. The appellant submits the price being paid for snapper in 2011/2012 was one that must have impacted all relevant licence holders and for that reason, was not a circumstance which was exceptional. The appellant characterised the financial returns for snapper as a circumstance which ‘affected all licence holders targeting snapper in the Marine Scalefish Fishery’ and submitted that circumstance could not be exceptional. 53 The respondent submitted that the approach of the appellant was unduly narrow. The respondent submitted, consistent with the approach of the Tribunal, it was not the price of snapper which was an exceptional circumstance on its own. Rather, that was a circumstance which, in conjunction with others, amounted to exceptional circumstances. Those other circumstances being the response of the respondent to stop fishing at all in comparison to other license holders who continued to fish until prevented by Government regulation. The respondent also submitted that the diminished financial returns as a result of the price of snapper could be viewed as an exceptional circumstance as it was not something which could be assumed to have impacted all licence holders to the same extent. Consideration 54 Before turning to the circumstances of the respondent which are said to be exceptional, it is important to identify the context in which that decision is to be formed. That context is what is said about ‘exceptional circumstances’ set out in the paragraphs of the Determination quoted at [10] above. The context is also how quota was calculated using catch history in a defined period. The exceptional circumstances must provide reason to depart from that catch history and to allocate additional fish units. 55 I turn to consider the circumstances of the respondent which are said, in combination, to be exceptional circumstances. It was not disputed that they were identified by the Tribunal in the passage set out at [36] above. They may be described as: the impact of overfishing, consequent low prices and lack of commercial return (the first circumstance); the decision of the respondent to stop fishing in response, thereby diminishing catch history (the second circumstance); in contrast, the decision of others to keep fishing thereby increasing catch history (the third circumstance). 56 In considering each circumstance, I do not overlook that they must be viewed in combination. They are also not independent of each other. Each is related to -- 18 of 21 -- [2024] SASC 4 Kimber J 17 the commercial returns in the relevant fishery; that being a circumstance about which responses of participants in the relevant fishery differed which in turn, had a variable impact upon the catch history of those participants. 57 As to the first circumstance, the Tribunal found that was not an exceptional circumstance. I agree. The price offered by buyers in a market will impact every seller into that market to some extent. It may be accepted, as the respondent submitted, that not every seller may be affected to the same extent. That will likely depend upon a variety of individual circumstances, but I am not satisfied that varying impacts makes this an exceptional circumstance. 58 As to the second and third circumstances, I will discuss them together as they contrast the response of the respondent to that of others. The material available to me as to the response of others to the market is limited. That said, I do not understand it to be disputed other licence holders kept fishing and that by doing so, they were able to demonstrate a catch history over a longer period than the respondent. 59 On the hearing of the appeal, the appellant did not direct attention to any aspect of the material which might establish that the response of the respondent to the market price for snapper at the relevant time was one adopted by others. I was not directed to any material which suggested that others had ceased fishing at all due to the downturn in the market price for snapper. This is not to overlook that reference was made to the circumstances of another fisherman who had also fished for snapper at the relevant time. These are the circumstances of Mr Banelis which are detailed in Banelis v Minister for Primary Industries and Regional Development.22 60 Mr Banelis stopped fishing for snapper at about the same time as the respondent. He did so because in 2009 his catch was plummeting ‘at a rapid rate’. Because of that, he said that he targeted other species (i.e. – calamari) but finding that was not financially sustainable, he ceased fishing until resuming full time in 2015. When resuming full time in 2015, he did not resume fishing for snapper. He resumed fishing for calamari and did so from 2015 to 2021 (with some time off for ill health). 61 The circumstances of Mr Banelis are not the same as the undisputed circumstances of the respondent. Mr Banelis ceased fishing for snapper because of declining catches. While that will make fishing for snapper uncommercial, it is not the same as stopping due to declining prices in the market. Further, Mr Banelis did not cease fishing altogether. He resumed fulltime during the period used to calculate catch history but directed his attention to another species. In my view, the circumstances of Mr Banelis do not provide a sound basis to conclude that the 22 [2022] SACAT 34. -- 19 of 21 -- [2024] SASC 4 Kimber J 18 decision of the respondent to stop fishing was not something capable of being characterised as exceptional. 62 The appellant submits that the different responses of the respondent and others to the market cannot provide exceptional circumstances as the overall context is the same. That is, they are different responses to a circumstance that impacted all those in the market to some extent. The appellant submits that one response to those same conditions cannot be something which is exceptional. I accept the force of that submission. 63 In addition, in my view, whether a commercial decision to stop participating in the relevant fishery should be regarded as an exceptional circumstance should be evaluated mindful of the decision to calculate allocation based upon catch history. That decision is more consistent with prioritising allocation to those who continued to participate in the relevant fishery and not those who decided not to participate, however financially prudent, or even essential, that decision by an individual licence holder may have been. 64 As set out earlier, I must give weight to the decision of the Tribunal. Were it not for that consideration, I would not hesitate to conclude that the respondent did not have exceptional circumstances and that the Tribunal was wrong to conclude that he did. 65 Having weighed that consideration in combination with the three circumstances discussed above, I find that the respondent did not have exceptional circumstances. The response of the respondent to market conditions which must have impacted each participant in the fishery to some extent, albeit in different ways, in contrast to the response of others, does not amount to exceptional circumstances when evaluated in the context of the decision to allocate quota to those who had participated. Permission to appeal 66 Section 71(2) of the SACAT Act provides that an appeal is only by leave of this Court. 67 In Shah (a pseudonym) v Medical Board of Australia, Blue J stated:23 In a passage subsequently approved by the Full Court in Pix v South Australian Housing Trust and Khoo v Bartholomaeus, Parker J in Jackson v Lepp Investments Pty Ltd said: In deciding whether to grant permission to appeal from SACAT to this Court I consider that the ordinary principles applied when the Court decides whether or not to grant permission for a civil appeal should be followed. The overriding principle is always the interests of justice. The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration. 23 [2022] SASC 140, [222]–[223]. -- 20 of 21 -- [2024] SASC 4 Kimber J 19 The subject matter will usually be of sufficient substance to justify consideration if the refusal of leave will result in substantial prejudice to the appellant if the decision below is wrong or the appeal raises a question of general importance. (footnotes omitted) 68 The respondent submits that permission to appeal should not be granted. It was submitted there would not be substantial prejudice to the appellant and the appeal does not involve a question of general importance. It is unnecessary to decide whether there would be prejudice if the appeal was dismissed. Nonetheless, I observe that the Minister would be required to consider the exercise of the relevant discretion on an incorrect premise. That is, that the respondent had exceptional circumstances. 69 I am satisfied that the appeal raises a question of general importance, namely whether a circumstance which affects all relevant licence holders can be a foundation for the exercise of the discretion to grant additional quota units based on exceptional circumstances. I grant permission to appeal and allow the appeal. Orders 1. Permission to appeal is granted and the appeal is allowed. 2. The decision of the Tribunal setting aside the decision of the Minister and referring it back for consideration is set aside. 3. The decision of the Tribunal is substituted with a finding that the respondent does not have exceptional circumstances. 4. The decision of the delegate of the Minister set out in the letter dated 20 October 2021 is confirmed. -- 21 of 21 --