Alesios & Ors v Stockdale & Ors M94/1999 [1999] HCATrans 619 (10 December 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M94 of 1999

B e t w e e n -

MICHAEL ALESIOS & THIRTY-SIX OTHER APPLICANTS (each of whom is described in the accompanying Schedule)

Applicants

and

THE HONOURABLE ALAN ROBERT STOCKDALE (Treasurer for State of Victoria)

First Respondent

THE HONOURABLE PATRICK JOHN McNAMARA (Minister for Agriculture & Resources for State of Victoria)

Second Respondent

FRANCIS C. NEWMAN

Third Respondent

MAUD A. M. NEWMAN

Fourth Respondent

CHRISTOPHER W. NEWMAN

Fifth Respondent

Application for special leave to appeal

GLEESON CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 1999, AT 11.27 AM

Copyright in the High Court of Australia

_________________

MR R.C. GILLARD, QC: May it please the Court, I appear with my learned friend, MR D.M. McLEAN, for Michael Alesios and 36 other applicants. (instructed by Fitzpatrick Teale)

MR W.F. LALLY, QC: If the Court pleases, I appear with my learned friend, MR N.D. HOPKINS, for the first and second respondents. (instructed by Victorian Government Solicitor)

GLEESON CJ: I have a certificate from the Deputy Registrar to the effect that she has been informed by Fitzpatrick Teale, the solicitors for the third to fifth respondents in this matter, that the third to fifth respondents do not wish to make any submission in this application.

MR GILLARD: That is so, your Honour.

GLEESON CJ: Yes, Mr Gillard.

MR GILLARD: This case raises three important issues which warrant consideration by this Court. First, is it still the common law that a court, construing a statute which takes away private property, will not attribute to Parliament an intention to take away the property without giving to the owner a legal right to compensation for the loss of it.

GLEESON CJ: Just remind us where we find the statutory provision, Mr Gillard.

MR GILLARD: The statutory provision, your Honour, appears in a footnote to the applicants' primary submissions at page 128 of the application book.

GLEESON CJ: Thank you.

MR GILLARD: We intended to take your Honours to that in a few moments. We are just identifying the issues for the moment which, in our submission, warrant the consideration by this Court. If this canon is still part of the common law - and we contend it is - does compensation mean full and proper compensation? If it does mean this, a court should presume that Parliament intended that full and proper compensation must be paid if property is taken away.

The second issue involves the use of extrinsic evidence in the form of parliamentary debates. Are they to be used as an aid to interpret a statute taking away private property? How should a court rely upon them? In interpreting a statute in Victoria, section 35 of the Victorian Interpretation of Legislation Act 1984 enables a court to consider reports of parliamentary proceedings. In considering parliamentary proceedings, is it permissible for a court to select certain speeches or parts of a speech which support one purpose or object underlying the statute and ignore other speeches or parts that support a competing purpose or object? What is the interaction between the common law and section 35? Thirdly, in relation to a statute which imposes upon a public official a duty to determine a payment to be made to a specified person, does that person have a private right of action against the public official for economic loss occasioned by the public official breaching the statutory duty or performing it negligently?

Your Honours, this case is no idle academic exercise. Our applicants have lost much as a result of the application of the statute and its construction by the Court of Appeal. May we just tell the Court a few pertinent facts. On 11 March 1996 during an election campaign the Premier of Victoria and the Minister of Conservation and Environment pledged to end scallop fishing in Port Phillip Bay. Prior to this announcement 84 boats were licensed to fish for scallops in Port Phillip Bay. Each of the applicants, either alone or jointly in their capacity as the registered owner of a boat, held a licence. Under the Fisheries Act 1996 of this State passed in 1968 a person was ineligible to be issued a licence if he or she was not registered as owner of a fishing boat.

All the applicants engaged in the business of fishing and taking scallops for sale. This business comprised the fishing boat, the scallop gear, the licence and, in the case of nearly all the applicants, a Commonwealth permit to take scallops for sale in Commonwealth waters, but the core of their businesses was the entitlement to take scallops in waters comprising Port Phillip Bay. The boat used to take scallops was a special vessel propelled by a powerful but slow engine and equipped with scallop-fishing gear and had little appeal to fishermen and commercial boat operators. All of the applicants had made substantial investments in their business and a number of them had borrowed money to fund it. In nearly all cases the asset comprising the boat, licence and so on was an important family asset. Many of the fishermen had limited education and had been involved in scallop fishing for over 25 years.

Whenever a scallop licence changed hands, generally it was sold as part of a package which also included the fishing boat, scallop gear and Commonwealth permit. Evidence was given at the trial by the first and second applicants that they owned two fishing boats, "Sotorios John" and the "Caroline Anne". If they had sold the "Sotorios John" as a package comprising the boat, gear, licence and Commonwealth permit prior to the Premier making his announcement, they would have fetched about $450,000, but after the announcement only $160,000. In the case of the "Caroline Anne", $600,000 prior to the announcement and $240,000 after it. So they suffered losses of $290,000 and $360,000 respectively as a result of the Premier's announcement being implemented.

The third to eighth applicants gave evidence that they acquired their second boat, the "Andrea Helene", as a package in two transactions, each of which was performed the second half of 1995. The second transaction by the balance of ownership was entered into only five months before the Premier made his announcement. They paid a total of $325,000. At the time these applicants considered that they had bought a real bargain and valued the package at $500,000. Evidence was given that following the Premier's announcement this package was worth about $180,000. These applicants claimed a loss on that vessel of $375,000. The ninth to eleventh applicants claimed a loss of $245,000 for a boat called "The Paroo" and the twelfth and thirteenth claimed a loss of $215,000.

By the Fisheries (Amendment) Act the Victorian Parliament cancelled any licence that licensed a fishing boat to take scallops for sale in Port Phillip Bay but enacted that each boat owner that had its licence so cancelled was entitled to be paid an amount to be determined by the Victorian Treasurer and the Minister.

GLEESON CJ: What do you say is the meaning of section 153B(2)?

MR GILLARD: What does it mean?

GLEESON CJ: Yes.

MR GILLARD: In our submission, by reason of the use of the words "not liable in any other way for any loss" "resulting from the cancellation of a licence", it is protecting the State of Victoria from liability in any way apart from its liability for the loss described in subsection (1), namely, the liability for the amount to be paid to the registered owner of a boat that had its licence cancelled. The significant words, in our submission, are the words "the State of Victoria is not liable in any other way for any loss" "resulting from the cancellation of a licence".

GLEESON CJ: So subsection (2) is dealing with loss resulting from the cancellation of the licence under section 153A.

MR GILLARD: That is so.

GLEESON CJ: And excluding liability for such loss.

MR GILLARD: No, the other way around, with great respect. What it is saying is this: the State of Victoria is liable for the amount determined by the Treasurer and the Minister, as prescribed by section 153B(1), but is not liable in any other way for any loss resulting from the cancellation of a licence.

GLEESON CJ: But it is only talking about loss resulting from the cancellation of the licence.

MR GILLARD: That is so, your Honour.

GLEESON CJ: So, between them, subsections (1) and (2) are addressing the subject of loss resulting from the cancellation of the licence.

MR GILLARD: That is so.

GLEESON CJ: And subsection (2) is excluding certain kinds of liability for loss resulting from the cancellation of the licence.

MR GILLARD: In our submission, what it is doing is limiting the liability of the State of Victoria to liability for the amount determined in subsection (1).

GLEESON CJ: Can you give me an example of the kind of loss that is excluded by subsection (2)?

MR GILLARD: Under the 1968 Act it was open to a holder of a licence to mortgage the licence by creating a special interest over it in favour of a financier. In our submission, subsection (2) would shut out the financier or lender from suing the State of Victoria as a result of cancelling the subject matter of the security.

GLEESON CJ: Does subsection (2) exclude any kind of loss suffered by the registered owner of a boat?

MR GILLARD: In our submission, it certainly does not exclude the right of the boat owner to receive full and proper compensation for the cancellation of the licence and the resulting effect it has upon the business owned by the owner.

McHUGH J: That is one of the questions, is it not, as to whether or not you read into the end of 153B(1) some words such as "for the value of the licence"? You say "for all loss flowing to the licensee"?

MR GILLARD: We do not put it quite as high as that, given the way in which the first part of the trial was run before the learned trial judge. Each applicant who gave evidence - and they gave evidence for a limited purpose - gave evidence on the basis that the loss they had suffered and for which they would have sought recompense had they been afforded the opportunity was a loss in value between the difference in value of the boat licence and so on sold as a package before the Premier made his announcement and what it was worth after the Premier made his announcement.

McHUGH J: But subsection (1) is a proposition without a predicate. When it says that you are "entitled to be paid an amount determined by the Treasurer and the Minister", what is the predicate? For what; for the value of the licence, for the loss and damage you have suffered?

MR GILLARD: Full and proper compensation, your Honour. In our submission, it is a well-entrenched rule - - -

McHUGH J: But full and proper compensation for what?

MR GILLARD: Flowing from the cancellation of the licence.

GLEESON CJ: It must follow from that then that subsection (2) cannot apply to the registered owner of a boat, because your construction of subsection (1) entitles the registered owner of a boat to compensation "for any loss, damage or injury whatsoever resulting from the cancellation of a licence".

MR GILLARD: Yes, that is so.

GLEESON CJ: On that view then, subsection (2) must be limited in its application to people other than the registered owner of a boat.

MR GILLARD: It might well be, your Honour, that the legislature also had in mind to limit the liability of the boat owner if the boat owner in reliance upon such licence had acquired such things as fish processing plants which some of them had done. So that subsection (2) was intended by Parliament to confine or limit the liability of the boat owner to the loss flowing from the cancellation of the licence. In so far as that licence was granted to the boat, it was a specialised boat and, had it been sold as a package, at the minimum the boat owner should have received an amount of compensation for experiencing that loss. It is a bit torturous, your Honour, but, in our submission, if this rule of construction is right and for which we contend, then not only the courts and lawyers but the community should be able to read this statute and distil from it the intention of Parliament.

GLEESON CJ: What is there about the common law rule of construction that would either entitle or require you to draw a line between loss in the form of reduction in value of the boat and loss in the form of uselessness of a processing facility?

MR GILLARD: The processing facility does not depend for its operation upon the operator holding a fishing licence. It was just that some of the fishermen resolved to buy fish processing plants. At the trial evidence was given by the first and second applicants that they had acquired a fish processing plant at Queenscliff. As a result of the cancellation of its licence they gave evidence that that plant was no longer viable and would have to be closed down. But it was put at the trial in the end that they were not entitled to claim by way of compensation the loss of value of that plant because the holding operation of it was not dependent upon a scallop licence which had been cancelled by section 153A. So that when you look at the words in subsection (2), "liable in any other way", in our submission, they may well result in circumscribing the entitlement of the boat owner to be paid compensation as a result of the cancellation of their licence. In our submission, the authorities are pretty clear on this.

I should say to your Honours that the State of Victoria has gained a substantial benefit from the cancellation of these licences. Prior to the 1996 Acts it had passed legislation in which it has vested ownership of all wild fish found in Victorian waters in the Crown in right of Victoria. This vesting did not become effective until 1 April 1998. Evidence was given at the trial that in late 1997 there were large numbers of scallops in areas of Port Phillip Bay traditionally fished by the scallop fishermen. The Crown of Victoria now owns all these scallops unencumbered by any licences to fish them.

It is our understanding, your Honours, that this Court takes the view that where it is called upon to construe a statute which affects fundamental rights, it will not impute to the legislature an intention to interfere with those rights unless that intention is clearly manifested by unmistakable and unambiguous language. I am referring to what this Court said in Coco v The Queen. In our submission, it cannot be argued against the right to own and retain property as a fundamental right.

It is our submission that if in fact Parliament had intended to deprive a boat owner of the value of the business of which the right to fish in Port Phillip Bay was such an important part and confine the amount of compensation to pay to the boat owner to the licence or the value of the licence - and even that is subject to debate - then it could have easily so provided, but it did not do so. Had it stated something in the terms that were suggested by the learned Chief Justice a few moments ago, then, in our respectful submission, we would not be here fighting about all this. If in fact Parliament does intend to take property away and do so without making provision for full compensation, then the courts when construing statutes which take away property should construe them on the basis that the owner of the property should be given full compensation.

McHUGH J: But can I put to you that that rule really has no effect in this particular case because the Parliament has made it plain that it is dealing with the question of compensation. So the only question is: what upon its proper construction does the legislation mean? It does not seem to me there is any room for the operation of the presumption.

MR GILLARD: But with great respect to your Honour, if compensation means in the rule full and proper compensation - and, in our submission, it does so - then, if Parliament intended to only allow for the payment of a limited amount of compensation, it should have expressed its intention in unambiguous and clear terms, but it did not do so.

GLEESON CJ: Why does not "full and proper compensation" include loss of the value of a processing plant?

MR GILLARD: Because, in our submission, the plant does not turn upon the holding of the licence. In our submission, the loss must result directly from the cancellation of a licence itself and it conferred an entitlement upon each holder to take scallops for sale and, by taking away such entitlement, each fisherman lost a very important part of his fishing operation, which can be measured in monetary terms, being the difference, as I keep repeating, between what it was worth before the announcement and what the package of the boat and so on was worth after the announcement. That is all they are seeking and that is all they sought in the end at the trial of the proceedings. In our submission, this amount of compensation covers those items. It does not cover the items that your Honour has just alluded to.

I may say, your Honours, that nowhere in the Court of Appeal decision do the learned judges actually spell out what is this canon of construction. What they spell out is how it was described by counsel appearing for the applicants. In our submission, what would have troubled the Court of Appeal is that this canon of construction, which has been affirmed time and time again in a number of cases and referred to in a large number of textbooks, says that when Parliament intends to take away property without allowing for the payment of compensation, then it should express its intention in unequivocal terms.

GLEESON CJ: Thank you, Mr Gillard. Yes, Mr Lally.

MR LALLY: As has been clear from the submissions made by our learned friend, the crux of this case is really whether under that legislation they can make good the entitlement to consequential loss as distinct from loss in the form of the value of the licence. The Court of Appeal made that distinction and that section 153B(1) is the section that deals with the direct loss and subsection (2) is the section that deals with losses consequential upon cancellation.

The way the court construed it was in the context of section 153A which dealt with the cancellation of scallop licences, the notional statutory acquisition of scallop licences in section 153B is therefore dealing with the subject of scallop licences and no more. It is not dealing with fishery business, fishing boats, tackle or other investments in private enterprise. Subsection (1) deals with the liability of the State of Victoria to pay and when that is read in conjunction with subsection (3), it gives the liability of the recipient to that amount.

GLEESON CJ: I notice that there was a finding of fact that the amount that was in fact determined was not unreasonable as an amount related to the value of the licence. That finding of fact having been made, it was not necessary for the Court of Appeal to explore that issue, as I understand it, but could you just as a matter of interest explain how you value a scallop licence briefly.

MR LALLY: Yes, your Honour. The licences are sold in the market with or without a boat.

GLEESON CJ: I see, thank you. That answers the question. There was a market.

MR LALLY: The finding that was made in that respect was referred to by Mr Justice Phillips where he adopted that as a critical finding of fact that enabled the value of the licences alone to be fixed at $120,000 which, as he said, the learned trial judge had found was pleaded. That entitles then the focus upon an item of property in its own right and a loss. If the Court looks at the wording of subsection - - -

GLEESON CJ: It is part of the background against which the section was enacted that these licences had a fairly readily established market value?

MR LALLY: They did and they have the inquiry that took the form of the submissions.

GLEESON CJ: It just occurred to me that may be an aid to the construction of section 153B, that fact.

MR LALLY: It is. As the court found, they were pleaded as such as having a value of $120,000. The real question between the parties is whether or not this legislation, in making provision for compensation, goes further than making provision for compensation for the loss of the licences per se. Subsection (2), where it refers to "the State of Victoria is not liable in any other way", that means additional or further way - that is additional or further liability than arises under subsection (1) - and it is "for any loss, damage or injury whatsoever resulting from the cancellation of a licence". Clearly the loss of the licence itself is a loss in itself. Whether or not investments are made on the expectation that one might be successful in business by reason of having that licence is a separate question.

GLEESON CJ: It is really, by the application of the common law principle that Mr Gillard relies upon, that you reach the conclusion that subsection (1) entitles them to the value of the licence.

MR LALLY: And no more.

GLEESON CJ: And no less.

MR LALLY: No less.

GLEESON CJ: Why otherwise would subsection (1) not entitle them to an amount equal to what the Treasurer determined the State of Victoria, having regard to its finances, could afford to pay?

MR LALLY: The State of Victoria could have regard to that and take into account in balance the claims that might be made by those partaking in a regulated fishery as compared with other industries that may need statutory regulation. That is true.

GLEESON CJ: You mean the State of Victoria under subsection (1) or the Treasurer under subsection (1) could have determined to pay them less than the value of the cancelled licence?

MR LALLY: No, not on the terms of the legislation as drawn, because the legislation was clearly directed towards the licence being cancelled and the methodology is to notionally acquire that which was cancelled, being the licence. Therefore, it would have been inappropriate to exercise discretion at less than a fair amount for the licence. That is why the Wednesbury principles had a part to play at the first instance at the trial and that his Honour the trial judge determined that 120,000 was within the range - - -

McHUGH J: At the low end of the range.

MR LALLY: At the low end, and could not be attacked on that basis. However, the more critical question between the parties was whether or not 120,000 was full compensation. That then raises the question not so much as whether 120,000 was insufficient for the licence itself but whether other items of loss should have been included. The way this rule is stated by our learned friends now is higher than the common law rule of statutory construction was in any event. That statutory rule was no more than taking away property without compensation. They have introduced the wording of "full and proper compensation" to avoid the emphasis that the Court of Appeal had upon the two areas of loss. What they call "full and proper compensation" is another way of terming "consequential loss". To get to that level of an entitlement to consequential loss, there would have to be either an interpretation of this section that gave it to them or, alternatively, the common law rule that they rely upon would need to go further than it does.

McHUGH J: I must say I have great difficulty in seeing how the common law rule has anything to do with it once 153B was enacted. Did not one of the judges in the Court of Appeal say something to that effect? Was it Justice Brooking?

MR LALLY: It is Mr Justice Buchanan. If I could take the Court to the relevant passage. It is at page 103, paragraph 41:

The cases relied upon by the trial judge were concerned with the question whether a requirement to pay compensation for compulsory acquisition stemming from an earlier statute or a constitution had been excluded or breached. They do not provide any assistance in determining the nature of the compensation for compulsory acquisition which a statute does provide. No case was cited to us which supports the proposition that statutes providing compensation for compulsory acquisition of property are presumed to require payment extending beyond the value of the property so as to cover all losses resulting from the acquisition, and my own researches have disclosed none.

If the Court goes to paragraph 44 at line 45:

The appellants did not contend s.153B(1) conferred upon them an unfettered discretion to fix an amount akin to an ex gratia payment. Rather, they contended that the sub-section required them to determine and pay the value of each cancelled licence, but no more than that. For their part the respondents, like the trial judge, relied on the common law principle referred to in the cases cited by his Honour. The principle, it was said, required a determination and payment of full compensation for all losses unless there were clear words in the statute which produced a different result. As there were no such words in this statute, the respondents contended that they were entitled to be compensated for all their losses caused by the cancellation of the licences. As I have said, in my view there is no principle or rule of construction such as that for which the respondents contend. The question is not whether the statute expressly or by necessary implication excludes a particular type of compensation, but rather what is the nature of the compensation which the statute contemplates.

Mr Justice Phillips dealt with the same point at page 93 of the application book, and at line 14:

Therefore, in line with the common law, that was the construction that ought to be applied. But in my view this is to misunderstand De Keyser. In that case, property was taken in the exercise of the prerogative and so an application of the common law principle is readily understood. In this case, insofar as property was taken at all, it was taken by statute; for the licence was cancelled by s.153A. The statute effecting that result itself provided for payment to be made and all that remains is properly to construe the relevant legislative provision - that is, s.153B: contrast s.143 of the 1995 Act. In that exercise, the common law principle exemplified by De Keyser can have only limited effect; ultimately the question must turn upon the proper construction of the statute and not upon the common law.

Then on the following page, 94 at line 14, after referring to the authorities relied upon by our learned friends:

However that may be, there is no need to consider the authorities in any detail because the defendants have acted on the footing that the licences which were cancelled had a value which was lost to the licence holders, and, as earlier mentioned, that was a basis of the plaintiffs' pleading too. As that approach is common I say no more about it, save to note that it conforms to the heading to s.153B, for what that is worth: Interpretation of Legislation Act 1985 s.36(3), cf.(4).

My conclusion that the only question now is one of statutory construction should not be taken to mean that under no circumstances is there any room for applying the common law principle in interpreting s.153B; I mean only that the room for its application is limited.....To that extent the common law principle might, perhaps, be called in aid, if it were necessary. But so far as relevant the defendants appear to have always accepted that s.153B(1) required the determination of an amount reflecting the cancellation of the licence; it was not to be a purely arbitrary amount. Although plaintiffs' counsel insisted that the common law principle could guide the construction of s.153B(1) beyond this, I do not accept the submission. A question whether the amount to be determined by the two ministers is an amount going beyond the fair value of the licence which was cancelled can be resolved otherwise and in that resolution the common law principle, so strenuously relied upon, plays no part.

His Honour then turned to the question of construction and dealt with that in a way that was consistent with that adopted by Mr Justice Buchanan. That construction is to determine that subsection (1) deals with the direct loss, being the licence that is cancelled, and that other than that liability or, so far as those engaged in the fishery were concerned, their entitlement, their entitlement for compensation is limited to the value of that item of property which was taken away, namely, the licence. The legislation did not seek to go further and subsection (2) is quite clear in its ambit. It covers the field other than what is included in subsection (1).

McHUGH J: The second reading speech makes it plain.

MR LALLY: It does. There is no need, in our submission, but if there is any doubt, those speeches make it abundantly clear as to the distinction between the compensation that would be available for the loss of items other than the licence itself. For those reasons it is, in our respectful submission, a case that is quite clear in its interpretation given by the Court of Appeal. It does not warrant the grant of special leave and it does not raise on that interpretation any doubt. If there were, it still would not be appropriate for the grant of special leave in this instance. If the Court pleases.

GLEESON CJ: Thank you. Yes, Mr Gillard.

MR GILLARD: Might I just briefly reply, your Honour. First of all, with great respect to what fell from the lips of Justice McHugh, in the earlier part of the second reading speech the Minister when introducing this Bill said:

Proposed section 153B bars a person from seeking any compensation from the state of Victoria in relation to a cancelled licence to dredge for scallops or take scallops in Port Phillip Bay additional to that provided by that section.

McHUGH J: But he went on to say:

It is important to acknowledge that they are payments for licence cancellations rather than compensation arrangements which give a much broader interpretation of what should be paid.

They are not payments in compensation for potential loss of earnings or similar matters; they are payments for value of licence, which is a little different.

MR GILLARD: Might I just say this to your Honour. When the statement of claim was drawn up it cast the plaintiffs' claim very widely, but when it came to the trial the case was put on a much narrower basis which we endeavoured to explain in our opening submissions.

GLEESON CJ: I can understand the tactical reasons for that, Mr Gillard, but as a matter of construction, particularly as a matter of construction of subsection (2), I find it very difficult to draw the line between compensation in the form of loss of the value of a boat and compensation in the form of loss of the value of a business connected with fishing for scallops.

MR GILLARD: Might I just say in response to your Honour, as we said in our primary submission, you could not have a licence without a boat, so the two were intimately connected with each other. In actual fact, the evidence given at the trial is that licences were very rarely sold by themselves. In the main they were sold as a package and often the buyer had to pay a premium for the boat because he wanted to acquire a licence. Often the boat was in a poor state but the buyer ended up paying a very substantial amount of money for it. As a result, the true loss is to be measured by reference to the loss of the value of the boat which really cannot be used in any other commercial fishery or for commercial purposes because of the size of its engine and so on combined with the licence, as opposed to the loss of the licence itself. One of the members of the government did actually allude to the fact that he hoped "a price would be arrived at both for the licence and the dredge" - we assume from that he meant the fishing boat - "for those 18 licence holders whose licence confined them to fishing in Port Phillip Bay only".

So he clearly was of a view that at least those people were going to get something more than the mere licence. Looking at it from their point of view, they cannot fish anywhere else in Victoria. They cannot fish in Commonwealth waters. They have a boat which is virtually useless, and subsequent events have shown that to be so. So not only are they out of pocket in relation to the licence but they are also out of pocket in relation to the boat. We go back to our initial point: without a boat you could not have a licence, so you have lost the value of both of them.

It might be said on one view if you use the word "value", value is not to be equated with the word "price". They are quite distinct concepts. Something might well have more value than what it might otherwise fetch in the marketplace. In our submission, the test of compensation is that formulated by Sir Owen Dixon in the Nelungaloo Case. We appreciate, your Honours, that he was there speaking about compensation in the context of the Constitution but, in our submission, his formulation is appropriate here. At page 136 of our application book we set out what he says it means. Compensation means:

"recompense for loss, and when an owner is to receive compensation for being deprived of ... personal property his pecuniary loss must be ascertained by determining the value to him of the property taken from him. As the object is to find the money equivalent for the loss or, in other words, the pecuniary value to the owner contained in the asset, it cannot be less than the money value into which he might have converted his property had the law not deprived him of it".

If in fact most of these licences sold as a package with the boat or, in the case of the Port Phillip Bay only licence holders, their loss on any view of the facts goes beyond the mere price of the licence.

I may add that our learned friend did rely on what Mr Justice Buchanan said. Mr Justice Buchanan said that he was able to find any authority that compensation in the context of this rule of construction meant full compensation.

GLEESON CJ: Thank you, Mr Gillard.

MR GILLARD: I was just simply going to refer the Court to the Manitoba Fisheries Case in Canada where they did state that "compensation" in that context did mean full compensation. May it please your Honours.

GLEESON CJ: This case turned upon a question of the construction of section 153A and section 153B of the Fisheries legislation. The question which it raised was of great importance to the individuals whose licences were cancelled pursuant to that legislation. However, we have formed the view that the construction placed upon that legislation by the Court of Appeal was correct and, for that reason, the application is refused.

Can you resist an order for costs, Mr Gillard?

MR GILLARD: No, your Honour.

GLEESON CJ: The application is refused with costs.

AT 12.13 PM THE MATTER WAS CONCLUDED