IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2019-485-46
[2023] NZHC 3535	

UNDER	the Judicial Review Procedure Act 2016	
IN THE MATTER	of an application for Judicial Review	
BETWEEN	PETROMONT HOLDINGS LIMITED
Applicant	
AND	THE DIRECTOR-GENERAL OF THE MINISTRY FOR PRIMARY INDUSTRIES
Respondent	

Hearing:	19 October 2023	
Counsel:	D W Grove for Applicant
N C Anderson and R M Fistonich for Respondent	
Judgment:	6 December 2023	

JUDGMENT OF ISAC J
[Application for strike-out of judicial review]

Introduction

[1]	In Greek mythology, Sisyphus was the founder and King of Ephyra who twice cheated death. As punishment for his hubris, Zeus sentenced Sisyphus to roll an immense boulder up a hill, only for it to roll down each time he reached the summit. Sisyphus was doomed to repeat this action for all eternity. To this day, endeavours that are both repetitive and pointless are described as Sisyphean.

PETROMONT HOLDINGS LTD v THE DIRECTOR-GENERAL OF THE MINISTRY FOR PRIMARY INDUSTRIES [2023] NZHC 3535 [6 December 2023]

[2]	In a labour worthy of Sisyphus, the current proceedings between the parties are the latest instalment in a very long running dispute. As will become evident, the relevant events occurred between 1991 and 2004. This is the sixth judgment in over 20 years dealing with the same underlying complaint.

The claim

[3]	Scampi are small members of the clawed lobster family. Since the enactment of the Fisheries Amendment Act (No 2) 2004 (the 2004 Amendment Act), scampi stocks have been managed as part of the Quota Management System (QMS) under the Fisheries Act 1996 (the 1996 Act).

[4]	The applicant, Petromont Holdings Ltd, is a commercial fishing company. It owns scampi quota shares allocated under the 2004 Amendment Act based on its catch history in the 1990/91 and 1991/92 fishing years. Since the early 2000s, Petromont has been aggrieved at the provisional catch history (PCH) allocations made by Parliament in a schedule to the 2004 Amendment Act and, in particular, the use of its catch in the qualifying years as the basis for those allocations. Like some other fishers, Petromont considers the way scampi stocks were managed in the early 1990s affected its ability to establish a qualifying catch history. It has, by various means, sought to challenge restrictions imposed at that time despite the 2004 Amendment Act validating the key decisions of officials within the former Ministry of Fisheries.1 Litigation first began in 1993 with a challenge to the conditions attached to a scampi fishing permit issued under the former Fisheries Act 1983 (the 1983 Act).

[5]	The genesis of this further round of litigation between the parties is a fundamental difference of view about the way the injustices suffered by Petromont in the allocation of its PCH should be remedied. The Director-General of the Ministry for Primary Industries (the Director-General), consistent with the view of the Primary Production Committee and Parliament, considers that any past wrongs should be remedied by an ex gratia payment. In contrast, Petromont considers that it has a legal

1	The Ministry of Fisheries was merged into the Ministry for Primary Industries in 2012. The term “the Ministry” is used to refer to the Ministry for Primary Industries and its predecessors (including the Ministry of Fisheries) unless context requires not to do so. The same applies for the term “the Minister”.

right, which it effectively seeks to enforce through judicial review proceedings, to the allocation of scampi quota it would have otherwise received had a “fair” allocation process occurred in the 1990s and early 2000s.

[6]	The Ministry now applies to strike out Petromont’s claim in its entirety on the basis that it is untenable and an abuse of process. The Ministry argues that Petromont is essentially seeking once again to challenge a political compromise that Parliament struck in 2004.

Principles applicable to strike-out applications

[7]	Rule 15.1(1) of the High Court Rules 2016 provides two broad grounds for strike-out:  if  the  claim  discloses  no  reasonably  arguable  cause  of  action  under r 15.1(1)(a), or where the claim is an abuse of the Court’s processes under one of the grounds in r 15.1(1)(b)–(d):

15.1	Dismissing or staying all or part of proceeding

(1)	The court may strike out all or part of a pleading if it—

(a)	discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b)	is likely to cause prejudice or delay; or

(c)	is frivolous or vexatious; or

(d)	is otherwise an abuse of the process of the court.

(2)	If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3)	Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4)	This rule does not affect the court’s inherent jurisdiction.

[8]	The applicable principles are well established.2 A Court will assess the claim on the assumption the pleaded facts are true, unless there is plain evidence they are

2	Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267; and Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

unsupportable or entirely speculative and without foundation.3 The jurisdiction should only be exercised in clear cases, albeit this does not exclude the ability to decide difficult questions of law requiring extensive argument.4 Special caution is required where a claim involves a developing area of law.5

[9]	In respect of the first ground (under r 15.1(1)(a)), a claim will be struck out where the causes of action are so clearly untenable that they cannot possibly succeed.6 The second ground (under r 15.1(b)–(d)) requires an element of impropriety and misuse of the Court’s processes.7 Forms of impropriety can include prolix, unintelligible or scandalous pleadings;8 a collateral challenge to concluded proceedings;9 or improper motive on the part of claimants to seek a collateral advantage.10 To these forms of misuse can be added one further: proceedings which, directly or indirectly, challenge Parliamentary proceedings protected by privilege,11 or which seek to impugn or undermine an outcome that Parliament has validly enacted.12

The history of contention between the parties

[10]	The scampi fishery was managed outside the QMS until 1 October 2004. As a non-QMS species, scampi was managed using permits under the 1983 Act. Between 1991 and 1999 the Ministry of Fisheries used permit conditions as a management tool, including conditions allocating individual catch entitlements in certain fishing areas.

[11]	Petromont was first issued a permit to take scampi under s 63 of the 1983 Act on 1 April 1992 (for what remained of the 1991/92 fishing year). It received a subsequent permit on 29 September 1992 for the 1992/93 fishing year. That permit

3	North Shore City Council v Attorney-General [2012] NZSC 49, [2012] 3 NZLR 341 at [146], citing Attorney-General v Prince and Gardner, above n 2, at 267; and R v Imperial Tobacco  Canada Ltd [2011] 3 SCR 45 at [21] per McLauchlin CJ.
4	Attorney-General v Prince and Gardner, above n 2, at 267.
5	Couch v Attorney-General, above n 2, at [33].
6	Attorney-General v Prince and Gardner, above n 2, at 267.
7	This ground was summarised by the Court of Appeal in Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].
8	At [89].
9	Hunter v Chief Constable of the West Midlands [1982] AC 529 (HL) at 541.
10	Air National Corporate Ltd v Aiveo Holdings Ltd [2012] NZHC 602 at [30]–[32]; adopted in
Burchell v Auckland District Court [2012] NZHC 3413, [2013] NZAR 219 at [18]–[19].
11	For example, the Courts will not restrain a minister from introducing a Bill to the House;
Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA) per Cooke P.
12	Rothmans of Pall Mall (NZ) Ltd v Attorney-General [1991] 2 NZLR 323 (HC) at 330, cited in
Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154 (CA) at 157.

authorised Petromont to take scampi in areas 1–9 subject to certain conditions imposed. In particular, it was limited to taking specific amounts of scampi in some areas.13 On 25 May 1993, the permit was revoked in respect of all but one area under s 63(13) of the 1983 Act. Petromont successfully challenged the Director-General’s decisions to impose some of the permit conditions and revoke the permit in the High Court.14 The Director-General then reconsidered the decision to impose conditions in light of the Court’s judgment and notified Petromont of his decision to re-impose virtually the same conditions. Permits were then issued for subsequent fishing years.

[12]	Section 329 of the 1996 Act came into force on 1 October 1996. Section 329(2) validated decisions of the chief executive made under ss 63 and 64 of the 1983 Act on or after 1 October 1992 and before 1 October 1996, subject to limited exceptions in  s 329(4), including extant court challenges or statutory reviews requested not later than 1 October 1997. On 1 October 1997, Petromont requested an administrative review of decisions and purported decisions of the Director-General. The Court of Appeal has since held that the Director-General’s personal decisions were not amenable to statutory review.15

[13]	The Primary Production Committee inquired into the management of the scampi fishery and reported on its findings to Parliament on 2 December 2003.16 Petromont was actively involved in the inquiry. The Committee recommended scampi be introduced into the QMS as of 1 October 2004 using catch history as the basis of quota allocation. The Committee also identified certain fishers with justified grievances and recommended they receive ex gratia payments from the Ministry.17 Petromont was not one of the fishers identified by the Committee in relation to an

13 The other fishing areas covered by the permit were “competitive”, in that they did not involve individual fisher quotas, but rather a total allowable catch for the area which, once met, would bring an end to fishing in that area for the season.
14       Petromont Holdings Ltd v Director-General of Agriculture & Fisheries HC Auckland M986/93, 7 September 1993. Counsel referred the Court to the later decision of the Court of Appeal in Westhaven Shellfish v Chief Executive of the Ministry of Fisheries [2002] 2 NZLR 158 (CA) at [55]–[68] which found that s 63(9) of the 1983 Act did not apply to stocks outside the QMS, which would likely have resulted in the 1993 Petromont decision being determined differently.
15 Petromont Holdings Ltd v Director-General of the  Ministry  for  Primary  Industries  [2021] NZCA 567 at [36]. See also Petromont Fishing Company Ltd v Director-General of the Ministry of Primary Industries [2018] NZCA 422.
16 Primary Production Committee Inquiry into the administration and management of the scampi fishery (2 December 2003).
17 At 12.

ex gratia payment. This is likely because Petromont’s position before the Committee was that the unfairness it had encountered in its treatment by Fisheries officials ought to be addressed through the provision of additional quota.

[14]	Scampi was made subject to the QMS by the 2004 Amendment Act in order to ensure introduction of the stock in a timely fashion (given the negative impacts of managing the scampi fishery outside the QMS and the likelihood that fishers would seek to delay introduction and relitigate).18 Schedule 14 of the 2004 Amendment Act set out the PCHs for scampi fishers in specified “quota management areas” based on the fishers’ catch history in the qualifying years  (commencing 1 October 1990 and  1 October 1991).19 The PCHs then formed the basis for the allocation of quota.20

[15]	Petromont objected to the PCH allocations and changes to the scampi fishing areas in the Bill that became the 2004 Amendment Act,21 and submitted to the Primary Production Committee on its objections and its view that catch histories from the 1992/93 fishing year should be used for areas 3 and 6B. The Committee did not amend the Bill as result of Petromont’s submissions.

[16]	The 2004 Amendment Act inserted s 369R into the 1996 Act, which provided a limited right of appeal to the Catch History Review Committee against the allocation of PCH. Petromont filed appeals on 8 September 2004 in relation to all PCH allocated in  quota  management   areas   SCI1,   SCI2,   SCI3,   SCI4A   and   SCI6A.   On   10 November 2004, the High Court determined that Petromont’s appeal against allocations to other fishers was declared a nullity because the 1996 Act only provided for a fisher to appeal their own PCH allocation.22 Petromont wrote to the Ministry withdrawing the appeal against its own allocations on 16 September 2005.

18 Ministry of Fisheries Introduction of scampi into the quota management system (11 December 2003) at [42].
19      See also Minister of Fisheries v Pranfield Holdings Ltd [2008] NZCA 216, [2008] 3 NZLR 649  at [22]; Goodship v Minister of Fisheries HC Wellington CIV-1997-485-13, 19 December 2006 at [203]; and Simunovich Fisheries Ltd v Executive of the Ministry of Fisheries HC Wellington CIV-2004-485-1987, 10 November 2004 at [6].
20 Fisheries Act 1996, s 47. The PCH allocation method applied to the allocation of scampi quota without modification pursuant to cl 5 of the Fisheries Amendment Act (No 2) 2004, which introduced s 369R(2) into the 1996 Act.
21 Fisheries Amendment Bill (No 4) 2004 (109-2A).
22 Simunovich Fisheries Ltd v Executive of the Ministry of Fisheries, above n 19, at [27] and [33].

[17]	As noted above, on 1 October 1997 Petromont sought an administrative review, just in time to gain the protection of s 329(4)(b)(ii).23 As Clark J noted in a decision of this Court in 2018:24

Despite the passage of 20 years the review is still not underway. There are several explanations for the astonishing delay including the failure over time to agree the scope and nature of the review process.

[18]	Her Honour went on to note that a delay of over 20 years before an administrative review was even commenced, much less concluded, “might be thought inexcusable without some explanation of the influences on the process”.25

[19]	Her Honour then set out in detail the unsatisfactory process which followed between 1997 and 2016, by which time Petromont had filed judicial review proceedings challenging the Ministry’s view of the scope of the s 369 review.26

[20]	Clark J ultimately dismissed Petromont’s challenge to the scope of the s 329 review. She also found that s 308 of the 1996 Act immunised the Minister and Ministry from liability for decisions validated under s 329. In particular she held:27
I have determined s 329 does not authorise internal reviews or “effect” reviews. Section 329 is a validating provision, one that extinguishes rights. Section 308 protects the Crown from liability for that extinguishment of rights. Immunisation for liability is, however, a different proposition from the freedom which chief executives and ministers have to pay (consistent with Cabinet authority) compensation or damages in settlement of claims or to make ex gratia payments.

[21]	Petromont then appealed to the Court of Appeal. By then the sole issue was whether the scope of review in s 329 of the 1996 Act was confined to decisions made by delegates of the Director-General, but not personal decisions of the Director- General.28 The Court of Appeal found that right of review under s 329 was limited to

23	Petromont Fishing Company Ltd v Director-General of the Ministry for Primary Industries, above n 15, at [10].
24	Petromont Fishing Company Ltd v Ministry of Primary Industries [2018] NZHC 676, [2018] NZAR 740 at [2].
25	At [16].
26	At [17]–[42].
27	At [100] (footnotes omitted).
28	Petromont Fishing Company Ltd v Director-General of the Ministry for Primary Industries, above n 15, at [1].

the statutory right of review contained in s 63(11) of the 1983 Act.29 Accordingly, Petromont’s judicial review challenge faltered; it was seeking to challenge decisions not of the Director-General’s delegate, but of the Director-General himself. This appears to have brought an end to the first judicial review challenge to the Ministry’s view of the scope of the right of administrative—or internal—review.

[22]	Undeterred, Petromont commenced the current proceeding in 2019. In a judgment of 9 December 2020, Gwyn J granted the Director-General’s application for partial strike out.30 Her Honour concluded that Petromont’s amended statement of claim sought to challenge decisions made under ss 63 and 64 of the 1983 Act which had been validated by s 329 of the 1996 Act, and which did not come within an exception to validation set out in s 329. Gwyn J accepted that the relevant decisions made by delegates of the Director-General’s predecessors between 1 October 1992 and 30 September 1996 could only be challenged by way of:31

(a)	court proceedings commenced before 1 October 1996 (as a result of   s 329(4)(a)); or

(b)	administrative review under s 63(11) of the 1983 Act, lodged with the Chief Executive of the Ministry of Agriculture and Fisheries by no later than 1 October 1997 (s 329(4)(b)) or subsequent judicial review of any such administrative review.

[23]	In addition, Gwyn J struck out Petromont’s legitimate expectation claim. Petromont had argued that prior to the Court of Appeal’s decision in the first judicial review, both parties had proceeded on the shared but mistaken understanding that      s 329(4) continued a right of review of decisions made by the Director-General personally. Petromont argued that, but for this mutual assumption, it would have sought judicial review of the decision on or before 1 October 1996.32 Gwyn J observed that most recent claims for a substantive legitimate expectation in this country had

29	At [6].
30	Petromont Holdings Ltd v Director-General of the Ministry of Primary Industries [2020] NZHC 3242.
31	At [22].
32	At [54].

failed.33 But ultimately, she found the central difficulty for Petromont was that the alleged legitimate expectation was inconsistent with the statutory scheme.34 On appeal to the Court of Appeal, Brown J writing for the Court agreed with this conclusion:35

[35]	However the hurdle which Petromont faces is more fundamental than any issue relating to the identity of the alleged promisor. The point is simply that a claim of legitimate expectation cannot be invoked to undermine parliamentary sovereignty and to seek to compel public authorities to act contrary to law. A claim cannot be brought in the Courts to secure such an objective. Thus the chief executive cannot be required to conduct an administrative review of a decision of the Director-General. Nor can a judicial review proceeding filed after 1 October 1996 be entertained on the footing that such is required in order to redeem what has been discovered to be a misconceived election to pursue an administrative review.

[36]	To recapitulate, the insuperable  difficulty  for  Petromont is that  by s 329 Parliament validated the 15 September 1993 decision. Consequently any Court proceeding in respect of that decision had to be  commenced before    1 October 1996. It was not. The Director-General’s decision was not amenable to administrative review because, as this Court has held, such reviews derived from s 63(11) of the 1983 Act and only applied to delegated decisions. The 15 September 1993 decision was not such a decision.

Petromont’s third amended statement of claim

[24]	Proceedings for judicial review should be simple, untechnical and prompt.36 However, in an echo of the two decades that passed without argument between Petromont and the respondent on the terms of an administrative review, this application for judicial review has been on foot for four years but is still a long way from a final hearing. Despite the glacial pace at which it has moved, Mr Grove referred to the importance of obtaining discovery before Petromont can finally articulate its claim. An illustration of the possibility of further change is the proposed introduction of a new cause of action based on unjust enrichment. Such a claim, in the context of an application for judicial review, is to be discouraged.37

[25]	The fourth iteration of Petromont’s statement of claim pleads an extensive history dating back to the introduction of the QMS in 1986, its prior litigation against the Director-General in 1993, the introduction of the 2004 Amendment Act and its

33	At [66].
34	At [67].
35	Petromont Holdings Ltd v Director-General of the Ministry for Primary Industries, above n 15.
36	Dotcom v Attorney-General [2013] NZCA 43, [2013] 2 NZLR 213 at [39].
37	At [39]–[41] and [47]–[48]; and Orlov v New Zealand Law Society [2012] NZCA 12 at [21]–[22].

catch history, and the subsequent administrative review process which has gone nowhere.

[26]	Under a heading “Decisions under review” the third amended statement of claim records:

On 20 December 2003 the then Fisheries Minister announced that legislation would be introduced to Parliament to introduce scampi  to the QMS from     1 October 2004.

The decision to do so was based primarily upon an enquiry into the administration and management of the scampi fishery report of the Primary Production Committee dated December 2003; and further supported by a report for the State Services Commissioner of an enquiry into fisheries management of the scampi fishery dated May 2004.

[27]	While Mr Anderson on behalf of the respondent argued that this passage indicates Petromont is essentially trying to undermine the 2004 Amendment Act, or the decisions that led to it, Mr Grove’s response was that Petromont seeks to challenge what it considers has been the failure by the Crown subsequently to comply with its obligation to provide redress for Petromont’s grievances through the allocation of scampi quota the Crown retains in a scampi fisheries area.38 This challenge is in part reliant on a complex argument that, in addition to defining catch histories in the 2004 Amendment Act, Parliament also changed the then scampi fishery area boundaries. In doing so, Petromont claims that a further injustice occurred, in that catch history which it ought to have had recognised in the 1992/93 season was effectively lost as a result of an administrative decision to change the fishery area boundaries.

[28]	The essence of Petromont’s argument is that, in order to be consistent with the PCH allocations contained in sch 14 of the 1996 Act, the PCH allocations for areas 3 and 6B should have been based on the catch history in the 1992/93 fishing year. Building on this premise, the third amended statement of claim makes the following positive allegations:

38	Referred to at the hearing as Capital Area 3 and referred to in the evidence as SCI3.

No allocation of provisional catch history relating to Areas 3 and 6B

50.	Up until 30 September 2005 the plaintiff’s provisional catch history was referred to as being PITQ being provisional individual transferable  quota.  For  reasons  unknown  to  the  plaintiff,  on    30 September 2005 the status was changed by the Ministry of Fisheries to “normal”.

51.	In calculating and setting out the fisher’s provisional catch history allocation pursuant to Schedule 14 of the Act, the plaintiff’s catch history in the 1992/1993 fishing year in Area 3 and 6B have been ignored and excluded.

52.	The result of ignoring and/or not taking into account the plaintiff’s catch histories in Areas 3 and 6B was that the plaintiff’s provisional catch history allocations in those areas were substantially, incorrectly and inconsistently reduced.

Crown quota held – Area 3

53.	Upon the passing of the Amendment Act the Crown retained 30,476,765 of the total shares for scampi fishing in Area 3. That Crown quota was held to be available for settlement with aggrieved fishers, including the plaintiff. (“The Crown Quota Area 3”).

54.	The Crown Quota Area 3 remains held by the Crown and remains so pending the conclusion of the plaintiff’s litigation.

55.	It is averred that all other aggrieved fishers’ claims have been resolved by settlement with the Crown or withdrawn. Accordingly, the plaintiff remains the last outstanding aggrieved fisher.

56.	As referred to in the Review of Sustainability Measures for the October 2018/2019 fishing year prepared by Fisheries New Zealand and described as a decision paper Fisheries New Zealand confirmed to the then Minister of Fisheries that:

“Due to a long outstanding legal dispute regarding the allocation of SCI3 quota shares, approximately 30% of SCI3 quota shares are held by the Crown.”

57.	The defendant is aware that the plaintiff’s claim as to the failure to allocate quota to it following the passing of the Amendment Act relates to both areas 6B and 3.

58.	However, the defendant continues to refuse to allocate to the plaintiff some or all of the Crown Quota Area 3 to provide the plaintiff with quota that should and could have been allocated to it based upon the plaintiff’s catch history in Areas 3 and 6B in the 1992 fishing year.

59.	Once a decision has been made to allocate provisional catch history to the plaintiff based on its catch history in Areas 3 and 6B, the provisional catch histories, the allocation (and thereafter quota allocation) to the plaintiff using the Crown Quota Area 3 should be:

(a)	Area 3 – 19,543,294 shares.

(b)	Area 6A – 2,004,176 shares.

Full particulars are set out in Schedule “A” hereof.

60.	The Crown shares that should have been allocated to the plaintiff as particularised in the foregoing paragraph should have been allocated to the plaintiff by way of provisional catch history in the fishing year commencing 1 October 2004. Since that time however the defendant has retained those shares and in each subsequent year has tendered them for use for economic gain to the defendant.

61.	The plaintiff has suffered losses as a result of the defendant’s conduct in not allocating the provisional catch history allocations based on the plaintiffs fishing in Areas 3 and 6B particulars of which are to be provided before trial.

[29]	Following this general pleading, Petromont advances four causes of action. The first ground of review relates to a legitimate expectation relating to the allocation of “individual catch entitlements” for quota management areas 3 and 6B. The statement of claim pleads that for the 1992/93 fishing year, quota management areas 3 and 6B were “fully developed” and that fishing year should have been used to allocate individual catch entitlements in those stocks in a consistent position with other quota management areas. However, in contrast to other areas (such as quota management areas 1, 2, 4 and 6A) where catches in years when the fishery was considered fully developed were used, it is said the respondent has refused to do so for areas 3 and 6B.

[30]	The claim concludes:

Accordingly, the plaintiff had a legitimate expectation that following the passing of the Amendment Act, including the amendment to the fishing areas, the plaintiff would subsequently receive a fair proportion of [quota] in new Areas 3 and 6A that are calculated based upon its 1992/1993 catch history in old Areas 3 and 6B.

[31]	The prayer for relief then seeks the following relief:

(a)	a declaration that the defendant must allocate the Crown  quota in  area 3, or part of it, to the plaintiff;

(b)	the allocation of compensatory quota as particularised in paragraph 60 of the pleadings (set out above at [28]);

(c)	in the alternative, an award of damages to compensate for the monetary value of quota not allocated;

(d)	damages for consequential economic loss arising from the defendant’s unlawful, unfair and prejudicial decisions, to be quantified prior to trial;

(e)	interest pursuant to the Interest on Money Claims Act 2016; and

(f)	costs.

[32]	The second ground of review relates to substantive unfairness or unreasonableness. Relying on paragraphs [57]–[61] of the pleadings (set out above  at [28]), it alleges that the “decisions and conduct” referred to there “were unreasonable, inconsistent and/or substantively unfair to the plaintiff”. The prayer for relief seeks the same orders as the first ground of review, including the allocation of compensatory quota, or alternatively damages, and interest.

[33]	The third and fourth grounds of review also appear to be based on irrationality. The third ground relates to “disproportionality of outcome” on the basis that the failure to allocate, consider or provide for PCH allocation for the plaintiff in new management areas 3 and 6A taking into account the catch history for the 1992/93 year has resulted in “a disproportionate outcome in that the plaintiff’s quota allocation has been disproportionately reduced with a resulting benefit to other fishers, principally Simunovich”. The fourth ground of review is similarly distinct but pleads a “logical fallacy” on the basis of the defendant’s “actions” as particularised in paragraph [57] to
[61] of the amended statement of claim. The nature of the logical fallacy is unpleaded and unclear, but would seem likely to be based on the allegation that the Ministry’s approach to the allocation of catch history for areas 3 and 6A was inconsistent with its approach for other quota management areas.

The defendants’ application to strike-out the pleading and Petromont’s response

[34]	The respondent argues that Petromont’s claims are both untenable and an abuse of process. In relation to the former, the Director-General submits that:

(a)	in substance, all four causes of action at their heart seek to challenge and unravel the PCH allocations prescribed by Parliament in sch 14 to the 2004 Amendment Act;

(b)	there is no basis for a legitimate expectation claim on the facts alleged;

(c)	the alleged failure to resolve Petromont’s grievances by the allocation of quota is not justiciable; and

(d)	the relief sought is not available. Compensation and damages are not available in judicial review, the mandatory orders are otherwise untenable based on the pleadings, and s 308 of the 1996 Act protects the Crown from liability.

[35]	In response, most of Mr Grove’s written and oral submissions for Petromont focussed not on the legal framework and identifiable decisions subject to challenge but rather the respondent’s behaviour. Mr Grove essentially argues that the apparent decisions by the respondent to redefine the quota management areas, and the decisions concerning the qualifying years for determining a PCH for quota management areas 3 and 6A, have resulted in further unfairness for Petromont. The catch history in the original area 3 was “simply ignored” and this was “illogical, inconsistent and unreasonable”. Insofar as the “new” area 6A recognised in sch 13 of the 2004 Amendment Act, Mr Grove submitted:

Again, however, at least based upon the documentation available to Petromont at this time, when PCHs were allocated in the 2004 Amendment Act, only the catch history in Area 6A was used. Petromont[‘s] catch history in the overlapping area in 6B was again simply ignored.

[36]	Central to Petromont’s claim to a legitimate expectation were statements contained within three key documents. The first is the report of the Primary Production Select Committee Report of December 2003,39 which sets out the Committee’s view that the Ministry was “consistently inconsistent” in determining whether the scampi fishery was a “developed” fishery and could therefore be turned into individual catch entitlement. The Committee found that some fishers may have anticipated that the

39	Inquiry into the administration and management of the scampi fishery, above n 16.

Ministry would have applied the same approach in relation to quota management areas 3 and 6B that it had previously taken in relation to areas 1, 2, 4 and 6A.40

[37]	The second document was a report by the State Services Commission of   May 2004 which also found that there was an inconsistency in the Ministry’s decision to introduce individual catch entitlements as between areas 3 and 6B, and other areas.41 The Ministry had concluded that its approach to areas 3 and 6B had been wrong and that the fisheries were fully developed within the catch limits after the 1992/93 year, and this should be the year used to allocate individual catch entitlements.42

[38]	The third document was a 2018 Ministry of Fisheries document that recorded that 30 per cent of the Crown held quota in area 3 was held for “settlement of a long standing dispute regarding the allocation of SCI 3 quota shares”.43 Mr Grove submits this is a clear acknowledgement that a significant proportion of quota is retained for his client’s benefit and the statement supports a legitimate expectation that the quota will be transferred to Petromont.

The first ground of review: breach of legitimate expectation

[39]	Mr Grove appeared to acknowledge that the current pleading fails to address an essential element of a legitimate expectation, namely a promise, representation or established practice from which a legitimate expectation arises. To address that difficulty, he submitted that the pleadings at [33]–[37] and [53]–[61] of the third amended statement of claim met the requirement. Those sections relate to the statements in the reports of the Primary Production Committee and the State Services Commission, and the quota held by the Crown in area 3.

[40]	I am unable to accept Mr Grove’s submission. Even taking a generous view of the pleading and its reframing by Mr Grove in argument, none of the pleaded statements (or conduct) amounts to a clear promise or unambiguous and established

40	At 7.
41	Helen Cull and David Smyth Report for the State Services Commissioner of an Inquiry into Fisheries Management of the Scampi Fisher (State Services Commission, 25 May 2004).
42	At 108.
43	Fisheries New Zealand Review of Sustainability Measures for the October 2018/19 Fishing Year
(August 2018) at [648].

practice capable of supporting a substantive legitimate expectation. While Petromont may have hoped that certain PCH allocations  would  be made to  it,  I agree with  Mr Anderson that given Petromont’s involvement in the Parliamentary process that resulted in the 2004 Amendment Act, and the legislative prescription of qualifying catch histories, Petromont could not have any expectation, legitimate or otherwise, that a catch history or quota would be allocated to it on any basis other than that set out in the legislation as the qualifying years. Petromont argued for different allocations in its submission to the Select Committee, but the relevant Bill was not changed.

[41]	Regardless, the Crown is under no obligation to allocate scampi quota to Petromont on a basis inconsistent from that set out in the 2004 Amendment Act.      A claim of legitimate expectation cannot now be invoked to compel public authorities to act contrary to law.44 It is the 2004 Amendment Act itself which provides for the relevant catch history allocations for each fisher in each management area, based on their catch history in the qualifying years. The qualifying years were themselves defined by Parliament.

[42]	It follows that I also accept the Crown’s fundamental submission that the latest pleaded claims are a direct challenge to the 2004 Amendment Act now masquerading as an application for judicial review of actions or omissions of the respondent subsequent to the 2004 Amendment Act.45 It is an impermissible attack through judicial review on Parliamentary sovereignty. For these reasons the first cause of action must be struck out.

44 Petromont Holdings Ltd v Director-General of the Ministry for Primary Industries, above n 15, at [35]. See also Radhi v District Court at Manukau [2015] NZHC 3347 at [52]; and Vea v Minister of Immigration [2002] NZAR 171 (HC) at 181.
45 During the hearing I asked Mr Grove the following question: had sch 14 contained the allocations now being sought by Petromont, would there be a claim? The answer, as Mr Grove seemed obliged to accept, must be “no”. So Petromont’s claim once again comes down to a challenge to the sch 14 catch history allocations. That renders the claim of a legitimate expectation both untenable and, in my view, an abuse of the Court’s process. Petromont’s claim rests on the proposition that quota has been put aside to give to it, and therefore it has a legitimate expectation that the quota will be transferred. But whether the Crown is prepared to reach an ex gratia settlement with the plaintiff that involves either catch or quota is a matter falling within the prerogative powers. It is entirely for the Executive to determine, within the usual common law constraints, whether to address a grievance by a citizen or company and, if so, the extent of any remedy. For the reasons set out by Kós J in McLellan v Attorney-General [2015] NZHC 3218, [2016] NZAR 859 at [57]–[66], I would not be prepared to extend the boundaries of judicial review to include judicial supervision of the exercise of prerogative powers relating to ex gratia settlements in which no yardstick for the assessment of legality and reasonableness exists.

The second, third and fourth grounds of review: substantive unfairness and disproportionality of outcome

[43]	At the heart of the three remaining causes of action is the allegation that the respondent’s failure to allocate, consider or provide for PCH allocation for the plaintiff in the new quota management areas 3 and 6B on the basis of catch history for the 1992/93 years has resulted in a disproportionately detrimental outcome for the plaintiff’s quota.

[44]	While I am conscious of the high threshold required to be met before a pleading is struck out as untenable, based on the pleading as a whole I am satisfied it has been met. I am also satisfied that the remaining causes of action are a challenge to the 2004 Amendment Act or, alternatively, a challenge to the exercise of the prerogative power. In arguing that the respondent has acted unreasonably each claim is predicated on a contention that, in passing the 2004 Amendment Act, Parliament failed to act fairly in both its redefining of the quota management areas and the selection of qualifying years for identification of the relevant catch history. The relief sought—in each case mandatory orders requiring the allocation of significant amounts of quota, or damages in the alternative—leaves no room for doubt that Petromont is again seeking to unravel a political and commercial compromise that was settled by Parliament almost two decades ago.46

[45]	Finally, I reject the plaintiff’s argument that strike out must await discovery, and its attempts to join common law causes of action to its application for judicial review. While historically the courts have entertained hybrid proceedings involving both common law claims and judicial review, more recent decisions reflect a concern to ensure that judicial review, which serves an important constitutional function and is subject to special procedures, is not shackled to private law claims for damages.47

46	I would have struck out most of the prayers for relief on each cause of action given they are clearly untenable in judicial review.
47	See, for example, Attorney-General v Dotcom, above n 36, at [47]–[48]; and Wilson v Department of Corrections [2018] NZHC 2977.

Conclusion and result

[46]	In this proceeding Petromont is once again seeking to challenge Parliament’s ultimate political trade off, which recognised there was inevitable injustice to some fishers as a result of the Ministry’s previous administrative practices in the allocation of catch history. Parliament nevertheless self-consciously adopted that unfairness into the legislation, preferring to address any resulting inequity through ex gratia payments to identified fishers. The latest version of Petromont’s claim should be struck out in its entirety because it is simply a renewed challenge to the will of the House of Representatives.

[47]	The plaintiff’s proceeding is struck out as both untenable and an abuse of process.

[48]	The respondent is entitled to costs on a 2B basis together with disbursements as fixed by the Registrar.

Isac J

Solicitors:
Foy & Halse, Auckland for Applicant Crown Law, Wellington for Respondent