Southern Storm (2007) Ltd v The Chief Executive, Ministry of Fisheries Hc Wn

JurisdictionNew Zealand
JudgeMallon J
Judgment Date08 February 2013
Neutral Citation[2013] NZHC 117
Docket NumberCIV-2011-485-1670
CourtHigh Court
Date08 February 2013

UNDER The Judicature Amendment Act 1972

IN THE MATTER OF an application for judicial review

BETWEEN
Southern Storm (2007) Limited
Applicant
and
The Chief Executive, Ministry of Fisheries
Respondent

[2013] NZHC 117

CIV-2011-485-1670

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Counsel:

R B Squire QC and M Sullivan for the Applicant

A Powell for the Respondent

JUDGMENT OF Mallon J

Contents

Introduction

[1]

The Fisheries Act/Regulations

[4]

The facts

[11]

The background

[11]

Preparations for search

[15]

The search

[23]

Items seized

[32]

Review of items seized

[34]

Subsequent events

[36]

Privileged information

[44]

Current status of seized material

[45]

Whether judicial review appropriate

[47]

Scope of search

[60]

Submissions

[60]

My assessment

[64]

Legal professional privilege

[72]

Submissions

[72]

Discussion

[74]

Result

[86]

Introduction
1

Southern Storm seeks judicial review of a search and seizure conducted by the Ministry of Fisheries at its business premises. The search and seizure was conducted as part of the Ministry's investigation into alleged “dumping” of quota fish from the vessel Oyang 75 during two fishing trips in 2011. Southern Storm is the permit holder for that vessel's fishing operations. Charges have since been brought and determined against five officers of the Oyang 75. The Ministry has not yet determined whether charges will be brought against Southern Storm.

2

Southern Storm seeks declarations that the search and seizure was unlawful under the Fisheries Act 1996 and unreasonable in breach of s 21 of the New Zealand Bill of Rights Act 1990 (“NZBORA”). It also seeks an order that the Ministry return the documents seized and copied. The grounds on which it seeks this relief are that:

  • (a) the search and seizure is said to have been more extensive than permitted by s 199 and s 207 of the Fisheries Act because information irrelevant to the investigation into dumping was taken from the premises; and

  • (b) no proper steps were put in place to protect legally privileged material.

3

The Ministry opposes Southern Storm's application. It says that judicial review is not appropriate at this stage of the investigation. It also says that the search and seizure was lawful and executed in a reasonable manner.

The Fisheries Act/Regulations
4

Permit holders have certain reporting obligations under the fisheries regulatory regime. Permit holders such as Southern Storm must complete and provide trawl catch, effort, and processing returns (“TCEPRs”) 1 and catch landing

returns (“CLRs”). A separate TCEPR must be completed for each day's fishing. 2 A CLR must be completed at the end of each fishing trip. 3
5

Under the regulatory regime, it is an offence for any commercial fisher to return to or abandon in the sea any fish of legal size, or for which no legal size is set, that is subject to the quota management system (known as “dumping”). 4 Dumping may occur either because the fisher wants to maximise the quality of the return, or to dispose of non-targeted species which takes up room in the hold. The practice maximises the return for the fisher/permit holder. It also means fish taken from the sea is under-reported, which may result in the setting of a wrong Total Allowable Commercial Catch (TACC) increasing the risk that a species will be over-fished.

6

It is also an offence for any person to make a false or misleading statement in a TCEPR. 5 Although the obligation for completion and filing of the returns is imposed on the permit holder, the day to day completion of TCEPRs is undertaken by officers of the vessel usually on each day while the vessel is at sea. Any acts or omissions of the crew of vessels registered in the name of a body corporate are deemed to be acts or omissions of a body corporate. 6

7

Fishery officers have the power to carry out searches without a warrant in the investigation of an offence. That power is in these terms:

199 Powers of entry and search
  • (2) If a fishery officer believes, on reasonable grounds,—

    • (a) That an offence is being or has been committed against this Act; and

    • (b) That—

      • (ii) Any record or information required by or under this Act to be kept, completed, or provided; or

  • (iii) Any article, record, document, or thing which there is reasonable ground to believe will be evidence as to the commission of an offence against this Act,—

  • may be concealed or located or held in any vessel, vehicle, conveyance of any kind, premises, place, parcel, package, record, or thing—

  • then, for the purpose of the enforcement of this Act, that officer may at any reasonable time enter or pass across any land in order to enter, examine, and search any such premises or place, or any such vessel, vehicle, or conveyance of any kind (by stopping or opening where necessary), and may examine and search (by stopping or opening where necessary) any such parcel, package, record, or thing.

  • (3) A fishery officer may detain any vessel, vehicle, conveyance of any kind, parcel, package, record, document, article, gear, apparatus, device, container, fish, aquatic life, seaweed, or thing for such period as is reasonably necessary to enable the fishery officer to carry out an examination or search under this section.

8

A fishery officer also has the power to take copies of documents. That power is in these terms:

206 Power to take copies of documents

  • (1) In exercising powers under this Act, a fishery officer may—

    • (a) Make or take copies of any record or document, and for this purpose may take possession of and remove from the place where they are kept any such record or document, for such period of time as is reasonable in the circumstances:

    • (b) If necessary, require a person to reproduce, or assist the fishery officer to reproduce, in a useable form, information recorded or stored in a document.

9

A fishery officer also has the power to seize documents. That power is as follows:

207 Powers of seizure

  • (1) A fishery officer may seize—

    • (c) Any article, record, document, or thing which he or she believes on reasonable grounds is evidence of the commission of an offence against this Act.

10

Charges in respect of offences under the Fisheries Act must be brought within two years of the date on which it is alleged the offence occurred. 7

The facts
The background
11

Southern Storm is currently the permit holder for the fishing activities of the Oyang 75 and Oyang 77. It charters those boats from Sajo Oyang. It had previously chartered the Oyang 70 but that vessel sank in August 2010. Oyang 75 embarked on its first fishing expedition in New Zealand waters on 8 March 2011 (“trip 1”). It embarked on its second fishing expedition in May 2011 (“trip 2”).

12

The investigation into the fishing activities of the Oyang 75 was triggered in May 2011. A Ministry observer was onboard the vessel on trip 2. The observer reported concerns about dumping to headquarters when the Oyang 75 entered port on 30 May 2011. The Ministry decided to investigate the matter. The investigation was led by Mr Burns.

13

In June 2011 the Indonesian crew of the Oyang 75 walked off the vessel because of a dispute over their pay and conditions. Mr Burns understood that their return to Indonesia was imminent. The Ministry therefore moved to interview each of the 32 Indonesian crew in early July 2011. Affidavits were then obtained from 19 of the crew. Each of those 19 crew confirmed that dumping had occurred on the Oyang 75 on trips 1 and 2.

14

Mr Burns then carried out a preliminary inspection of the catch returns for trip 1. He identified issues with these returns. He considered that Southern Storm had not been diligent in checking the returns. He decided that the investigation should move to its “termination phase”. That was to involve a search of the Oyang 75 and the business premises of Southern Storm.

Preparations for search
15

Mr Robinson, a senior fisheries investigator, was tasked with preparing the operational orders and the scope of the search for the search team. Mr Robinson's evidence about the necessary scope of the search was as follows:

It was clear to me that the search at Roydvale Avenue would need to be more comprehensive than just the period (March – June 2011) the Oyang 75 had been fishing in New Zealand waters. In my view the search needed to determine [Southern Storm] structure, financial structure, was there a financial imperative to dump, who were the decision makers, what Compliance measures were in place, crew movements between the three company vessels, the impact of the loss of the Oyang 70 at sea, market issues, ACE cost considerations and issues such as that. I also had to bear in mind that [Southern Storm] liability was in respect of all three vessels and not just the Oyang 75. I had to also consider that if [Southern Storm] was offending in respect of the Oyang 75 then the Company may also be offending or have offended in regard to the other two vessels, but that was a separate issue. It was important for me to consider that the three vessels and [Southern Storm] were all intertwined.

The information required for an investigation of this size and nature can be very broad but I felt my search instructions (which I discussed with FI Backhouse) were both focussed and purposeful. The core of the search was in relation to the Oyang 75 but I had to consider all the wider issues at play.

The use of s 206 allowed us to look at these peripheral issues which may not have been direct evidence of dumping but were certainly important to better understand [Southern Storm] and its fishing activities.

16

The “mission” of the search was set out in Mr Robinson's operational orders as follows:

To gather evidence of...

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2 cases
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