Beddoes v Minister for Fisheries

[2001] NSWADT 46

CITATION:	Beddoes -v- Minister for Fisheries [2001] NSWADT 46
DIVISION:	General Division
PARTIES:	APPLICANT Warren Earl Beddoes RESPONDENT Minister for Fisheries
FILE NUMBER:	003093
HEARING DATES:	13/06/2000
SUBMISSIONS CLOSED:	07/19/2000
DATE OF DECISION:	03/20/2001
BEFORE:	Skinner PM - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal (General) Regulation 1998 Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994
CASES CITED:	Woodward v Director General, NSW Fisheries [2000] NSWADT 143 Virtu v Director General, NSW Fisheries [2000] NSWADT 75 Thornton v Director General, NSW Fisheries [2000] NSWADT 131 Puglisi v Director General, NSW Fisheries [2000] NSWADT 105 Hirst v Director General, NSW Fisheries [2000] NSWADT 158 Greenaway v Director, Department of Fisheries [2000] NSWADT 173
REPRESENTATION:	APPLICANT In person RESPONDENT C Cory, general legal counsel
ORDERS:	1. The reviewable decision, to refuse the endorsement in accordance with the recommendation of the review panel, is affirmed.

REASONS FOR DECISION

Application

1 This is an application by Mr Warren Beddoes for review by this Tribunal of a decision by the Minister for Fisheries.

Original decision

2 By application filed with the Department of Fisheries on 21 October 1996 Mr Beddoes applied for four endorsements on his commercial fishing licence in respect of the ‘Estuary general restricted fishery’ - a ‘Hand lining and hauling crew endorsement’, a ‘Meshing endorsement’, an ‘Eel trapping endorsement’, and a ‘Prawning endorsement’.

3 He was granted the first three, but not the prawning endorsement, and was so notified by letter dated 17 February 1997. He was advised in the letter that there was an appeals process, and the necessary form to commence ‘an appeal’ (strictly this should have been a reference to a review) was enclosed.

4 The Estuary general restricted fishery is defined and governed by Division 2C of Part 8 of the Fishery Management (General) Regulation 1995 (‘the Regulations’).

5 Clause 191N in that Division governs eligibility for the endorsement. Relevantly to this case, subclauses 191N(1) and 191N(4) provide:
191N Eligibility for endorsement
(1) General requirements. The general requirements for an endorsement are that the person:
(a) owns a licensed fishing boat that is suitable for use in the restricted fishery, and
(b) has submitted to the Director at least 12 estuary waters catch returns in any 4 years (not necessarily consecutive) from 1986 to 1993, and at least one of those returns relates to a month prior to January 1991.
....
(4) Prawning endorsement. A person is eligible for a prawning endorsement if the Minister is satisfied that:
(a) the person fulfils the general requirements for an endorsement, and
(b) the person submitted to the Director at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that prawns were taken by methods other than prawn trawling and at least one of those returns relates to a month prior to January 1991.


6 It is common ground between the parties that the applicant does not meet the criteria under the Regulations for eligibility for a prawning endorsement in the estuary general restricted fishery. He meets the general requirements for an endorsement in the fishery, as set out in subclause 191N(1) of the Regulations but not those specific to the prawning endorsement as prescribed by subclause 191N(4).

7 It is also common ground between the parties that the applicant complied with the first part of paragraph 191N(4)(b), in that he had submitted more than 8 returns in the years 1986 to 1993, but that he did not comply with the latter part of the paragraph in that none of those returns related to a month prior to January 1991.

Review Panel


8 On 5 April 1997 the applicant lodged an application for review of the Minister’s decision to refuse him the prawning endorsement.

9 Pursuant to the provisions of Division 6 of Part 8 of the Regulations the review was carried out by an appropriately constituted review panel.

10 The review panel considered the papers, including further material filed by the applicant. Mr Beddoes provided medical evidence to the review panel that he had a heart condition restricting his ability to catch prawns by hauling nets, until the end of 1990.

11 Pursuant to clause 214C(2) of the Regulations the review panel could decide that although Mr Beddoes did not in fact meet the eligibility criteria he should be eligible for an endorsement.

12 Clause 214C(2) of the Regulations relevantly provides:
214C Grounds for review
(2) A panel that conducts a review may decide that a person is eligible for an endorsement in a restricted fishery, or should be eligible for an endorsement in the fishery, if the person who applied for the review satisfies the panel: …
(c) if eligibility is based on the person's activities in a fishery during a particular period, that:
(i) the person suffered illness or other incapacity for a significant period and the illness or incapacity substantially affected his or her ability to satisfy the eligibility criteria for the endorsement.


13 The Tribunal in Woodward v Director General, NSW Fisheries [2000] NSWADT 143 referred to this as ‘extended eligibility’. I agree with the statement in that decision (at [11]-[14]) that if the review panel were satisfied as per paragraph 214C(2)(c)(i) then its decision must be that the applicant should be eligible. Paragraph 214C(2)(c)(i) does not merely contain a threshold condition which triggers yet a further discretion.

14 By letter dated 10 August 1999 the review panel advised Mr Beddoes that at that stage it was not satisfied that it should recommend the grant to him of the prawning endorsement. The letter noted that Mr Beddoes had not filed one catch return for a month prior to 1991 but noted his medical condition in that period and invited further evidence and submissions.

15 Further material was provided by the applicant and assessed by the panel. It was still not satisfied that it should decide that he should be eligible for the endorsement. By letter dated 1 October 1999 the panel advised Mr Beddoes as follows:
‘The review panel has considered the letter of Dr P W Stewart regarding your fishing history during the 1986 to 1990 portion of the criteria years. The Doctor speaks of “restricted work until 1990 owing to his surgery” but does not provide a degree of restriction or specific activities from which you were restricted.
In view of your consistent history of meshing between 1986 and 1993, the review panel requires evidence that the physical effort of prawn hauling could not be undertaken by you for the 6 years between 1984 and 1990, but the physical effort required to mesh large quantities of fish in that period was not detrimental to your health.
Evidence to dispel any inference that prawn hauling was a change of fishing method connected with your improved physical health is necessary.
The review panel is of the view that your claims can best be dealt with at a hearing which you can attend, give evidence, call witnesses and present any further material or submissions in support of your claims.’


16 The applicant filed a further letter from his doctor, dated 21 October 1999. In that letter the doctor stated ‘Mr Beddoes was entirely incapable of performing prawn hauling activities of any kind by himself’ during October 1984 when he had cardiac bypass surgery until the end of 1990 but ‘[i]n contrast it was physically possible and allowable during the above period for Mr Beddoes to engage in meshing activities if he participated in this activity as part of a crew’, because of ‘the decreased level of physical exertion needed in this arrangement of work compared to that required in prawn trawling activities’.

17 On 26 October 1999 a hearing into Mr Beddoes’ application was conducted by the review panel at Byron Bay Court House. The applicant gave oral evidence at the hearing and was questioned by the panel.

18 In the Departmental file tendered to the Tribunal there is a notation, apparently in the hand of Mr Leader, chairperson of the review panel, that the ‘Panel in its experience concedes that prawn hauling as permitted by the Regulations involves greater physical effort than meshing and is prepared to accept the evidence of the doctor on that point’.

19 However it is apparent from the tapes of the proceedings, which I have listened to and which are partly transcribed in the statement of reasons in the internal review, that the panel was not satisfied that Mr Beddoes’ medical condition substantially effected his ability to file a catch return prior to 1991. It noted that he did undertake prawn hauling for some months in 1988 as part of a crew, but was of the opinion that he was not allocated any of the catch pursuant to a share fishing agreement, not because of his health.

20 Basically, the review panel was not convinced that the applicant was a participant in his own right in the fishery prior to 1991. It recommended to the Minister in a written report that he be refused the endorsement, and in accordance with that recommendation the Minister confirmed his original refusal and notified the applicant of that by letter dated 17 December 1999.

Internal review

21 On 17 December 1999 the applicant applied for an internal review of the decision to refuse him the endorsement. The applicant was entitled to such an internal review pursuant to s 53 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). Clause 6A(f) of the Administrative Decisions Tribunal (General) Regulation 1998, which would now exclude such an internal review, had not yet been enacted.

22 The applicant presented further material to the Department by way of a submission from the executive officer of the association of professional fishermen to which he belonged.

23 The applicant was notified of the result of that review in a letter to him under the hand of the Director of Fisheries, Mr Steve Dunn, dated 9 March 2000. The original decision to refuse the prawning endorsement was confirmed. Enclosed with the letter was the formal statement of reasons, dated 2 March 2000.

24 The letter then advised the applicant that an ‘appeal’ may be made to this Tribunal in accordance with s 126 of the Fisheries Management Act 1994 (‘the Act’).

Review by the Tribunal

25 As is apparent from the above, before the application for review to this Tribunal several distinct decisions were made affecting the original application by Mr Beddoes for the endorsement.

26 However, as is not unusual in the experience of the Tribunal in applications of this sort, the actual decision in respect of which review is sought is defined in the application with less than precision. The letter dated 9 March 2000 of Mr Dunn is annexed to the application, but the application also refers to the decision being reviewed as having been made on 26 October 1999. From the facts this must be a reference to the decision of the review panel.

27 The observation above is not in any way a criticism of the applicant. It is hardly surprising that fishermen such as Mr Beddoes have difficulty in pleading their applications given the complexity of the legislative and administrative scheme for the management of fisheries in this State.

28 However the jurisdiction of the Tribunal is enlivened by the nature of the decision made, see s 38 of the ADT Act. For fisheries matters applications to the Tribunal for review may be made only in respect of decisions within one of the classes set out in s 126 of the Act. The applicant invokes the jurisdiction of the Tribunal in this matter pursuant to s 126(1)(a) of the Act because there has been a refusal to issue an endorsement to him.

29 The decision to issue an endorsement on a commercial fishing licence allowing access to a restricted fishery must be made by the Minister, see s 112(1) of the Act, and in respect of the particular endorsement in this matter see clause 191O of the Regulations.

30 In determining a review by deciding ‘what the correct and preferable decision is’ the Tribunal may exercise ‘all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision’, see s 63(2) of the ADT Act.

31 Section 9, specifically subsection 9(2), of the ADT Act, requires that the Minister ‘is taken to be the only administrator in relation to the making of [the] reviewable decision even if some other person or body also has a role in the making of the decision’.

32 Accordingly in this case the Tribunal may exercise all of the functions of the Minister in relation to the issuing or not of the endorsement as applied for by Mr Beddoes, conferred on him by the Act and the Regulations.

33 The difficulty is that the Minister has made no less than three decisions refusing Mr Beddoes’ application for an endorsement – the original decision on 17 February 1997, the decision on 17 December 1999 made after the review panel’s review, and the decision on 9 March 2000 after the internal review.

34 In Virtu v Director General, NSW Fisheries [2000] NSWADT 75 and Thornton v Director General, NSW Fisheries [2000] NSWADT 131, I took the view that it was the ‘one overall decision making process’ of determination to refuse the endorsement that was the reviewable decision before me.

35 I proceeded in this way on the basis of a purposive interpretation of the Act and subordinate legislation and guidelines, and in the light particularly of s 73(3) of the ADT Act.

36 A difference of opinion has however been expressed by the Tribunal as differently constituted in other reviews pursuant to the Fisheries Management Act – see eg. Puglisi v Director General, NSW Fisheries [2000] NSWADT 105, Woodward , above, and Hirst v Director General, NSW Fisheries [2000] NSWADT 158.

37 Each of those decisions was to the effect that the Tribunal was constrained by clause 214D of the Regulations in considering a refusal of an endorsement, just as the Minister had been in making his decision after the review panel’s recommendation. This was so even if there had been a further internal review by the Minister after that, pursuant to s 53 of the ADT Act, because that in turn was a decision within the constraints of clause 214D.

38 There have been other decisions since to the same effect, and the Appeal Panel of the Tribunal has considered Puglisi and Woodward without comment as to them being incorrect on this aspect.

39 I have read those decisions. I agree with the comments of the Tribunal in Hirst that, at least in many cases, the constraints of clause 214D lead to delay and ‘that the process following the Tribunal’s decision will either be a waste of time and resources, or will become nonsensical’ (see at [27]-[33], particularly at [28]).

40 Nonetheless, although upon the particular facts of both Virtu and Thornton the ultimate decision would have remained the same (in Virtu I affirmed the decision to refuse the endorsement, and Thornton was a case about eligibility in fact rather than extended eligibility and therefore clause 214D(2) of the Regulations did not apply), I do not propose to follow my reasoning in those cases. I accept the reasoning of the Tribunal in the subsequent cases as noted above, and proceed on that basis. The ‘functions of the administrator’ that I may exercise pursuant to s 63(2 of the ADT Act are those prescribed by clause 214D of the Regulations.

Consideration

41 Further material has been submitted to me confirming that the applicant worked in September and December 1988 as part of a prawn hauling crew on the Richmond River with Mr Garry Anderson.

42 Also, I have received a Statutory Declaration from Mr Anderson stating that a share of prawns caught in those months and returned in formal summaries submitted to the Clarence River Fishermen’s Co-operative, to which Mr Anderson belonged, are the applicant’s share.

43 The requirements of clause 191N of the Regulations are clear that it is the submission of the required catch returns that is the basis for the eligibility for the endorsement sought by the applicant

44 In Thornton , at [32]-[38], and in Greenaway v Director, Department of Fisheries [2000] NSWADT 173 at [81]-[83] it is made clear that further material can only assist as to the question of eligibility if it permits an understanding of the catch returns, specifically in this case why the applicant did not submit a relevant return for a month prior to 1991.

45 I am not convinced by the material before me, which consists of what was before the review panel, what was subsequently submitted to the Minister in the internal review and what has further been submitted to me, that the applicant’s ability to file a catch return prior to 1991 was substantially affected by his heart condition.

46 I agree with the submissions on behalf of the Minister that it appears that it was for other reasons that the applicant did not file such a return, despite his participation in Mr Anderson’s crew in two months in 1988. I agree with the review panel that the applicant was not a participant in his own right in the fishery prior to 1991.

47 In any event, the matter was fully investigated and considered by the review panel. The applicant was afforded full procedural fairness in that review and also in the subsequent internal review. The extra material that was submitted to the Minister in the internal review and to me really adds nothing to the material before the review panel in relation to the central issue for decision.

48 I cannot see that the ‘correct and preferable decision’ should be to refer the matter back to the panel for further consideration. In my view the correct and preferable decision is the acceptance of the review panel’s recommendation.

Orders

49 Accordingly I order:
1. The reviewable decision, to refuse the endorsement in accordance with the recommendation of the review panel, is affirmed.

50 I make no award of costs pursuant to s 88 of the ADT Act.