STEVEN OSWALD HUNTLEY v THE ATTORNEY-GENERAL & ORS [1999] NZCA 282 (30 November 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 73/99

	between	steven oswald huntley
		Appellant

	and	the attorney-general
		First Respondent

	AND	DIANE PHYLLIS IVAMY and DAVID JULIAN CLARK as Trustees of the Estate of DONALD LANGRY HUNTLEY
		Second Respondents

	and	the quota appeal authority
		Third Respondent

Hearing:	30 November 1999
Coram:	Richardson P Gault J Tipping J
Appearances:	P J Radich and A V Clyne for Appellant P A McCarthy and D K Anderson for First and Third Respondents D J Clark for Second Respondent
Judgment:	30 November 1999

judgment of the court delivered by RICHARDSON P

[1] The appellant, Stephen Oswald Huntley, seeks to challenge by way of judicial review a decision of the Director-General of Agriculture and Fisheries made on 29 September 1986, to allocate individual transferable quota for paua in the Marlborough Fishery to the appellant and his brother, Donald Huntley.The appellant asserts that the Director-General erred in awarding quota to Donald Huntley and that the full amount of the quota should have been awarded to him, the appellant, alone.Ellis J dismissed the appellant's claim in a judgment delivered in the High Court at Wellington on 10 March 1999.

[2] The factual background to this case extending back many years is fully traversed in Ellis J's judgment.The only aspect of the Judge's factual assessment particularly challenged in the appellant's submissions is his finding that the brothers were in an informal partnership arrangement.We are satisfied that as a question of fact that finding was justified on the material before the Judge, including the affidavit evidence of Mr Buckley for the Ministry cited by Ellis J and supported by the notes of Mr Phillips, who acted for the appellant, exhibited to Mr Phillips' affidavit.

[3] The essence of the appellant's argument is that quota should not have been awarded to Donald Huntley pursuant to s28E of the Fisheries Act 1983 on the ground that the legal criteria involved were not satisfied.There is much force in the straightforward answer that Donald Huntley fulfilled the statutory criteria in s28E and was therefore eligible to be allocated, along with the appellant, quota under the section:namely that he had a relevant catch history for the purposes of subs (1);and he held a permit (jointly with the appellant) at the date of declaration as required by subs 2(a).

[4] In any event, the appellant acquiesced in his brother's participation in the quota under arrangements in which the boat from which they fished was in their joint names and the permit was in their joint names and that led to the grant of individual transferable quota in their joint names.

[5] Before and after September 1986 the appellant acted inconsistently for so long with what he now asserts that, even if the Director-General erred, and given the extraordinary delay in bringing these judicial review proceedings, the discretion to refuse the relief would have to be exercised against the appellant.The appeal is accordingly dismissed.

[6] In the circumstances there will be no order for costs.

Solicitors

Radich Dwyer Hardy-Jones Clark, Blenheim, for appellant

Crown Law Office, Wellington, for first and third respondents

Wisheart NacNab & Partners, Blenheim, for second respondents