Brookman v Minister for Fisheries

[2001] NSWADT 168

CITATION:	Brookman -v- Minister for Fisheries [2001] NSWADT 168
DIVISION:	General Division
PARTIES:	APPLICANT Dean Kelven Brookman RESPONDENT Minister for Fisheries
FILE NUMBER:	003315
HEARING DATES:	15/01/2001
SUBMISSIONS CLOSED:	02/23/2001
DATE OF DECISION:	10/10/2001
BEFORE:	Rice S - 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 Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994
CASES CITED:	Greenaway -v- Director, Department of Fisheries [2000] NSWADT 173 Madge -v- Minister for Fisheries [2001] NSWADT 73 Stevens -v- Minister for Fisheries [2001] NSWADT 80
REPRESENTATION:	APPLICANT In person RESPONDENT C Cory, solicitor
ORDERS:	1. The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicant is not eligible for an ‘Estuary General Restricted Fishery -Trapping’ endorsement, is affirmed; 2. The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicant is not eligible for an ‘Estuary General Restricted Fishery - Mud Crab Trapping’ endorsement, is affirmed; 3. Pursuant to s88 of the Administrative Decisions Tribunal Act I make no award of costs.

1 In my view Mr Brookman is not eligible for the endorsements he seeks. The Minister’s decision is affirmed. Mr Brookman’s application is therefore unsuccessful.

Application

2 Mr Brookman owns fishing business FB129 and holds commercial fishing licence 840280. On 1 October 1996 he applied for the following endorsements on his commercial fishing licence:
· an ‘Estuary General Restricted Fishery Trapping’ endorsement, and
· an ‘Estuary General Restricted Fishery Mud Crab Trapping’.
3 The Minister advised Mr Brookman that his application had been refused, and Mr Brookman requested an internal review of that decision. The internal review was conducted by the Restricted Fisheries Review Panel.

Internal review

4 The Restricted Fisheries Review Panel recommended to the Minister that Mr Brookman’s application for the endorsements be refused. By letter dated 1 September 2000 Mr Brookman was advised of the Minister’s decision, in accordance with the Review Panel’s recommendation, to refuse the endorsements.

5 On 27 September 2000 Mr Brookman applied to the Administrative Decisions Tribunal for review of the decision to refuse the endorsements.

ADT hearing

6 The hearing of Mr Brookman’s application took place on 15 January 2001. Mr Brookman took part in the hearing by way of a telephone conference, as he lives in Wongaling Beach, North Queensland.

7 I took evidence from Mr Brookman over the phone, and the lawyer representing the Minister questioned him. As well as Mr Brookman’s evidence I have had regard to:

· the Department’s file, which contains over 200 pages of documents including extensive written representations from Mr Brookman and his father Mr Kelven Brookman
· written submissions and documents sent to the Tribunal by Mr Brookman, dated 2 January 2001
· an undated Restricted Fisheries Matrix Guide which, as a result of matters arising in the course of the hearing, I asked the NSW Fisheries (‘the Department’) to provide, and
· a complete copy of the 1997 Review of Information on NSW South Coast Estuarine Fisheries which, as a result of matters arising in the course of the hearing, I asked the Department to provide.

Reviewable decision

8 The reviewable decision for this Tribunal is the Minister’s decision, advised to Mr Brookman by letter dated 1 September 2000, to accept the review panel’s recommendation to refuse the endorsements.

Applicable law

9 Mr Brookman holds a commercial fishing licence (s102 of the Fisheries Management Act 1994 ( FMA )). He may not take fish for sale in a restricted fishery unless authorised by an endorsement on his licence: s112(1) FMA . His eligibility for an endorsement is determined in accordance with the Fisheries (General) Regulation 1995 ( FMR) : s113(2) FMA .

10 The endorsements sought by Mr Brookman are provided for in Part 8 Division 2C of the FMR. The eligibility requirements for those endorsements are in cl.191N.

11 Mr Brookman must satisfy the ‘general’ criteria for all types of endorsements (cl.191N(1)), and the specific criteria for each type of endorsement: for fish trapping in cl.191N(5), and for mud crab trapping in cl.191N(7).

Fish trapping endorsement: ‘inherited’ catch history

12 For a fish trapping endorsement Mr Brookman must show that he:
submitted to the Director at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that fish (other than eels and mud crabs) were taken using a fish trap or a hoop or lift net and at least one of those returns is for a month prior to January 1991. (cl.191N(5)(b))

13 The Minister acknowledges that Mr Brookman can show five catch returns which record that fish were taken using a fish trap: 8705, 8707, 8708, 8709, 8711. As required, ‘at least one of those returns relates to a month prior to January 1991’. These catch returns, actually recording the catch of a Mr Honeyman and a Mr Brown, became part of Mr Brookman’s personal catch history when he purchased his licensed fishing boat.

14 The issue of fact Mr Brookman raised during the course of the internal review process, and to be determined by me, is whether there are at least three further catch returns which record that fish were taken using a fish trap in the relevant period.

15 In an undated letter, to which the Department replied on 8 October 1997, Mr Brookman relied on the catch history he inherited from Mr Honeyman and Mr Brown as providing all of the necessary eight catch returns. The eight returns Mr Brookman listed were the five that the Minister has conceded, and three more from Mr Brown: October 1988, and January and February 1989.

16 In later correspondence, for example his letter of 3 June 1998, Mr Brookman acknowledges that Mr Brown did not fish in those months, but says that had he fished he would have used fish traps. While this argument is untenable – the endorsement requirement is that fish were actually taken – I mention it here to illustrate the extent to which the position that Mr Brookman took, in attempting to establish his entitlement to a fish trapping endorsement, was dependent on the inherited catch history.

17 Mr Brookman’s letter of 3 June 1998 was in reply to an invitation from the Restricted Fisheries Review Panel to prepare evidence for a Review Panel hearing. Mr Brookman strongly intimates in that letter that he will be unable to attend a hearing as he will be working in the Torres Strait. He authorises his father, Mr Kelven Brookman, to “deal with any contact from NSW Fisheries”. This is consistent with a file note on the Department’s file dated 28 May 1998 which records Mr K Brookman saying “he did not wish to formally attend a hearing”.

18 It is clear that Mr Brookman wanted a decision on his application for a fish trapping endorsement at that time: June/July 1998. In his letter of 3 June he asks the Department to “stop fussing around and give me my entitlement”.

19 It is clear too that Mr Brookman wanted the decision made on the material he had then provided. The sole basis on which he claimed, at that time, an entitlement to a fish trapping endorsement was the inherited catch history. In relation to that history he says in the letter of 3 June that he “cannot offer any more details”. This is consistent with a the Department’s file note of 28 May 1998 which records Mr K Brookman saying “no more information could be provided”.

20 If Mr Brookman’s claim for the fish trapping endorsement was decided on only the information then provided, it is clear that he would be ineligible. He was able to show only five of the necessary eight returns. But the decision was not made at that time, and Mr Brookman has since raised further and different arguments as to why he is eligible.

21 In a letter dated 19 July 1998 Mr Brookman asked the Department for a large number of documents, including all relevant catch returns. Those documents were provided.

22 In a letter dated 11 March 2000 Mr Brookman makes out a case for eligibility for endorsement on the basis that at least three of his own catch returns from 10 or 12 years previously indicate, by reason of the species and quantity caught, that he had caught fish using fish traps [my emphasis].

23 Further, in an undated document from Mr Brookman to the Department in approximately February 2000, Mr Brookman relies on a collection of Jervis Bay and Lake Illawarra fisherman’s co-op dockets to indicate, independently of the catch returns, that by reason of the species and quantity caught he had caught fish using traps in at leat three months in addition to the five conceded by the Department.

Fish trapping endorsement: personal catch history

24 Of these two arguments I look first at that based on the catch returns.

25 As the ‘Form 49’ catch return did not invite a fisher to record all the fishing methods used in a month, the Tribunal will make a reasonable inference from the catch return as a whole, assisted by any relevant evidence, as to whether a catch return indicates the use of a method (see eg Greenaway -v- Director, Department of Fisheries [2000] NSWADT 173). As I said in Madge -v- Minister for Fisheries [2001] NSWADT 73, the most usual ‘indication’ in the catch return is the recording of particular species having been caught, opening up the possible inference that a certain method was used to catch that species.

26 Relying on this approach, Mr Brookman says that for some of his own catch returns I can infer, from the quantity of catch of certain species, that he did use fish traps to catch some of those species.

27 The inference can only be drawn if Mr Brookman is believed on a fundamental issue: that he used fish traps at all. If there is no issue that he did use fish traps on occasions, then the question is whether the species and quantities of fish shown on the catch returns indicate that they were caught with fish traps. When the species and quantities are as likely to have been caught as by-catch from netting, and do not of their nature and size indicate on balance that traps were used, then some independent evidence of the use of traps will be necessary. It may be that no evidence of their use is available from other than the applicant, and that is so in this case.

28 Neither I nor the Minister suggested to Mr Brookman at the hearing that his recollection, at a late stage of the application process, of his own use of traps should be disbelieved. Mr Brookman has not had the opportunity to address an argument, which in my view is clearly open on the facts, that doubt attaches to his account of having used fish traps, because of these factors: he made no mention of his own use of fish traps throughout the application process; he had in that time relied for his eligibility solely on the inherited catch history and an improbable argument that he should get the benefit of three ‘nil returns’; he repeatedly asked for his entitlement to be assessed on that inherited catch history; he did not rely on an argument that he had himself use fish traps until he had access to catch returns from which he could, and now does, argue an inference can be drawn.

29 None of what Mr Brookman has said, in statements to the Tribunal and his correspondence with the Department, has been said on oath or affirmation. I note that the Review Panel’s report to the Minister says:
The Panel is not prepared to accept the claims made in the applicant’s letters unless the information provided is subject to the legal sanctions which apply to oral evidence under oath or affidavit or statutory declaration.

30 While Mr Brookman was aware of the request to attend a hearing, which he declined to do, I can see nothing on the Department’s file which shows that Mr Brookman was ever made aware that the Panel’s acceptance of his claims was dependent on him making them under oath. The nearest I see is in the Review Panel’s letter to Mr Brookman of 12 May 2000 in which it says, obscurely in my view:
The Panel notes your comments . . . the Panel asks that if those comments are tendered as evidence that they be engrossed as an affidavit or statutory declaration.

31 I do not in the circumstances place any weight on Mr Brookman’s not having provided his material on oath or affirmation. I do not and in fairness cannot discount as untrue Mr Brookman’s account of his having taken fish using fish traps. However, in the circumstances in which he has claimed a history of using fish traps, I would require something more than his own statement to me, such as a very strong inference from catch returns, if I am to be satisfied on balance that used a fish trap.

32 My finding below, that on at least one occasion the quantity and species caught is explicable only by Mr Brookman having used traps, supports a finding that Mr Brookman did use fish traps. I find, on balance, that Mr Brookman did in fact use fish traps himself, and so I proceed to an analysis of the catch returns on which Mr Brookman relies.

33 As I discussed in Stevens -v- Minister for Fisheries [2001] NSWADT 80, catch returns submitted by a fisher do not explicitly record that fish “were taken using a fish trap” in the words of cl.191N(5). They record the fact that fish traps were used, and fact that fish were taken: it must be inferred that the traps were used to take the fish. When other fishing methods are recorded on the same returns, there is a question as to which method was used to catch which fish.

34 The catch returns Mr Brookman relies on are those which are his as a result of a shared fishing agreement with his father. Mr Brookman says that at least three – which is all he needs to show in addition to five conceded– and up to eight of those catch returns indicate that fish were taken using a fish trap.

35 In saying that the catch returns indicate that traps were used to take the fish, Mr Brookman relies on the large quantity of leather jacket and bream which were caught. Catching these types of fish in such quantities indicates, he says, that traps were used to catch them, despite the method not being recorded.

36 Clearly the question of quantity is central to any inference that I can reasonably draw. In Stevens I noted why quantity is relevant to assessing whether a certain species was caught by one method or another.

37 Mr Brookman relies on Table 3.2 in the 1997 Review of Information on NSW South Coast Estuarine Fisheries (South Coast Review), which shows that the average annual catch of leatherjacket from south coast estuaries in the period 1990 to 1996 was 6,513 kilograms. Against this figure, a catch of 1031 kg of leatherjacket in January 1990 alone is very high. (For the sake of completeness, and not because it bears on the reasoning, I note that that catch was shared between Mr Brookman and his father, and on Mr Brookman’s catch return his accredited share of the catch is 80% or 825 kg).

38 I am aware however from a close reading of the South Coast Review that ‘South Coast Estuarine Fisheries’ are those south of the Shoalhaven River. Mr Brookman fished north of there, in Lake Illawarra, and the figures in the table are therefore of limited relevance. Nevertheless, the size of Mr Brookman’s catch in January 1990 is clearly significant, and substantially disproportionate to the size of his leatherjacket catch in any other month.

39 Mr Brookman gave me a detailed description of that occasion. He and his father saw the water “boiling with mullet”. They threw out their mesh net and 2 traps. Having pulled in a big catch of mullet in the net they went to the traps and found them full of leatherjacket. Mr Brookman recalls that there was a big tide running at the time.

40 The quantity of leatherjacket caught in January 1990 is such that I find that fish traps were used on that occasion. In making this finding I accept Mr Brookman’s own statement to me as to the very low likelihood of catching that amount of that species in a mesh net, supported as that view is by his detailed account of the particular occasion, and by the concession made in a Departmental file note of 17 April 2000 that “significant quantities of leatherjackets may be indicative of estuary trapping”.

41 If, as I find to be the case, Mr Brookman used a fish trap to take fish in January 1990, then it is possible that he used fish traps on other occasions. In only three of Mr Brookman’s catch returns do I see quantities of relevant species such that there might reasonably be an inference that fish traps were used. In February 1986, February 1987, and April 1988 the quantity of bream caught is substantially larger than in any other month: 720 kg, 900 kg and 844 kg respectively.

42 It is difficult to know what single inference this material can reasonably support. Considerations arising from all the material include:

· The quantities may not be as substantial as they appear: bream is considerably more prevalent than leatherjacket – by a factor of 10 in the south coast estuaries – and the quantity of bream recorded in any of those three catch returns is less than the large catch of leatherjacket in January 1990. On the other hand, bream is accepted by the Department as an indicator species for the use of trapping - Restricted Fisheries Matrix Guide (undated) at page 5.
· Mr Brookman told me he used to use the traps about four days a month, dropping them at the top of the channel to catch fish on the incoming tide. On the other hand, I am inclined to give less weight to his account of using traps than I might, for the reasons I described above concerning the time at which he commenced relying on this basis for eligibility.
· While blue swimmer crabs are also accepted by the Department as an indicator species for the use of trapping, in only four months in 8 years do Mr Brookman’s catch returns show catch of blue swimmer crabs. On the other hand, one of those catch returns showing 4kg of blue swimmer crab is for February 1996, which is a month Mr Brookman relies on as showing 720 kg of bream was caught.
43 Taking account of all the material before me, and the considerations I have described above, I am satisfied that six catch returns in the relevant years indicate that fish were taken using a fish trap – five from the inherited catch returns and one from Mr Brookman’s. On balance I am not satisfied as to at least two more. I am therefore not satisfied that at least eight estuary waters catch returns in the relevant years indicate that fish were taken using a fish trap.

Fish trapping endorsement: co-op dockets

44 I turn to Mr Brookman’s argument that the receipts from Jervis Bay and Lake Illawarra co-operatives indicate, independently of the catch returns, that by reason of the species and quantity caught he had caught fish using traps.

45 Mr Brookman says that the dockets show catches of fish which are not shown on the monthly catch returns. He wants the dockets to be considered in their own right as establishing eligibility.

46 The dockets are not relevant material in their own right for assessing eligibility for endorsement under cl.191N(5)(b), as eligibility under that clause is to be assessed by reference only to catch returns. What was caught and sold at a co-op should have been recorded in the monthly catch return, and the dockets could have relevance only if they assist in understanding what the catch returns indicate.

47 The dockets, or indeed any other document, can be relevant to assessing eligibility in their own right only in the circumstances described in cl.214C FMR. Relevantly, cl.214C(2)(a) gives a person the opportunity to show that the catch history records:

are, for reasons that are not attributable to the fault of the person, inaccurate or incomplete and, on the basis of verified records produced to the panel by the person, the person does in fact satisfy the eligibility criteria for the endorsement,

48 By cl.214C(4) ‘verified record’ is given the same meaning as ‘verified record’ prescribed for purpose s 51 (4) of the FMA. The prescribed meaning is in cl.128 FMR:
(1). . .

(a) a verified record of a commercial fishers' co-operative,
(b) a verified record relating to the income tax liability of a commercial fisher,
(c) a verified record of any fish processing company (whether a wholesaler or retailer).
(2) In this clause, a reference to a verified record is a reference to an original record, or a copy of a record, audited by a registered company auditor (within the meaning of the Corporations Law ) or that forms part of a record audited by a registered company auditor.

49 If I am to take account of the co-op dockets Mr Brookman must show that for reasons that are not attributable to his fault the catch returns for the relevant months are inaccurate or incomplete. And he must show that the dockets are ‘verified records’ as defined.

50 The dockets are not within the definition in cl.128: they are not ‘verified records’ as defined. It may be that Mr Brookman was not aware of the requirement that the dockets be audited. The Review Panel’s letter to Mr Brookman of 12 May 2000 did not advise him of this requirement and may have misled him had he acted on it:
The panel . . . would be assisted by evidence from yourself or from the business or organisation which issued the dockets and verifying the accuracy of the contents.

51 There is however nothing to be gained by giving Mr Brookman the opportunity now of having the dockets audited and possibly raised to the status of ‘verified records’, as I am not satisfied as to the necessary threshold issue: that for reasons that are not attributable to his fault the catch returns are inaccurate or incomplete.

52 In providing the dockets to the Department and relying on them Mr Brookman, in his undated document to the Department in approximately February 2000, said:

I cannot show you catch returns . . . but I can show you marketing dockets.
This is all above board and quite legal the only error of judgement I have made is that I did not pick up my marketing dockets at the shop and fill out my catch returns at the end of the month.
of which [sic] I have paid dearly as this product as well as other products appearing on those dockets are not included on my catch validation print out . . .”.

53 Mr Brookman is clearly saying that his monthly catch returns are both inaccurate and incomplete. He is not saying that they are inaccurate and incomplete for reasons that are not attributable to his fault. To the contrary, he gives a clear indication in the passage I have quoted that their status is due to his own ‘fault’ – to his “error of judgment”.

54 Accordingly Mr Brookman cannot rely on the dockets themselves to support his claim for eligibility for endorsement. He can rely only on the catch returns, and on what they indicate. I have already said that there is an insufficient number of catch returns to support Mr Brookman’s claim for eligibility.

FINDING – fish trap endorsement

55 Having regard to Mr Brookman’s reliance on the inherited catch history, and Mr Brookman’s own history of using traps as indicated by his catch returns, I am satisfied that Mr Brookman did catch fish using use fish traps on at least one occasion. But I cannot be satisfied that he did so on at least two others. There is in my mind real doubt as to the extent to which Mr Brookman used fish traps at all, and it is on the available material at least as open to infer that the catch he claims was from trapping was actually by-catch from nets. I am not satisfied that at least 8 returns indicate that fish were taken were taken using traps.

56 Having regard to the relevant factual material and the applicable law, I am of the view that Mr Brookman is not eligible for an ‘Estuary General Restricted Fishery –Trapping’ endorsement.

Mud trapping endorsement

57 For a Mud Crab Trapping endorsement Mr Brookman must show that he:
submitted to the Director a total of at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that mud crab were taken by the method of trapping and at least one of those returns relates to a month prior to January 1991. (cl.191N(7)(b))

58 The Minister says that Mr Brookman can show none of the necessary eight catch returns which record that mud crabs were taken by the method of trapping.

59 The comments I made at paragraph 25 above are relevant here: Form 49 did not invite Mr Brookman to record crab trapping as a method, only the ‘main method’ used in the month.

60 Mr Brookman makes the point that even if he had wanted to record mud crab trapping, Form 49 made no provision for this. It allowed the marking of ‘Trapping’ but only as a method used for catching ‘Fish’. It allowed the marking of ‘Other’, but again only as a method used for catching ‘Fish’. Although subsequent pages of the Form anticipated that the fisher will have caught crabs, the Form made no reasonable provision for recording trapping as a method for catching them. In those circumstances a fisher can do no more to satisfy the eligibility requirements than rely on what the catch return as a whole indicates. Consequently I must engage in the now familiar exercise of drawing inferences from the catch returns supported by other relevant material.

61 The fact that numerous catch returns record that mud crabs were caught does not of itself indicate that the crabs were caught with traps. They may have been by-catch from other fishing methods. I must see what material suggests which is the more likely explanation.

Witches’ hats

62 There is a necessary qualification to my use of the terms ‘trap’, trapped’ and ‘trapping’ in the context of mud crabs in this matter. Mr Brookman’s consistent claim has been that he took mud crabs using ‘witches hats’. During the assessment by the Department of Mr Brookman’s application, an issue arose as to whether use of witches hats was a ‘method of trapping’ within the meaning of cl191N(7)(b).

63 Mr Brookman says in an undated letter, to which the Department replied on 8 October 1997, “my method of catching mud crabs is by witches hats. It seem [sic] to me that we have a problem with the words ‘trapping’ and ‘catching’”. Later in the same letter Mr Brookman refers to use of witches hats as “the old fashion way [sic]”.

64 A witch’s hat, as it was described to me, is a conical shaped wire construction – the name being descriptive – which, in effect, ‘traps’ crabs. It seems that there have been later, different constructions which are termed ‘mud crab traps’, but that Mr Brookman was not using them during the relevant period. Mr Brookman had always used the term ‘catch’ rather than ‘trap’ to describe his taking of mud crabs, distinguishing his method from the use of more recent, purpose-designed mud crab traps.

65 In his letter of 8 October 1997 the Director of the Department said, in reply to Mr Brookman’s letter, “Mud crab catches taken by witches hats will contribute toward the allocation of mud crab trapping endorsement once identified”. It is clear from the Department’s file that the Department’s officers subsequently assessed Mr Brookman’s entitlement on this basis, accepting that catching crabs by use of witches hats would satisfy the ‘trapping’ method requirement, but pointing out that such a method was not recorded on Mr Brookman’s returns.

66 Before me in these proceedings the Minister did not suggest that even if Mr Brookman were to establish that the mud crabs were not by catch from nets, but were caught in fact by the method of witches hats, that that catch would not have been by the method of trapping. That is to say, the Minister conceded, as had the Director of the Department, that use of witches hats was ‘trapping’ for purposes of eligibility for endorsement.

67 Thus, whether by way of purpose-designed mud crab traps or by witches hats, the question remains: do the catch returns indicate the taking of mud crabs by the trapping method?

68 The catch returns themselves, I noted above, explicitly state only that mud crabs were taken, and that a main fishing method was used to take a variety of species of fish. The first matter I would have regard to in deciding what the catch returns ‘indicate’ would be Mr Brookman’s own evidence to the effect that the mud crabs shown as taken were in fact trapped.

69 Differently from his claim, late in the application process, that he had used fish traps, Mr Brookman has maintained throughout the process of his application for endorsement that he “targeted this product” with witches hats; that is, he trapped mud crabs. I accept that he did.

Assessing by-catch by reference to weight

70 The Minister says that the mud crabs caught by Mr Brookman were by-catch. In saying this the Minister relies on the undated Restricted Fisheries Matrix Guide which is used by the Department when assessing a fisher’s eligibility for endorsement. The Guide addresses the process whereby the Department inspects the fisher’s catch history and records the most recent months in the relevant period which satisfy the eligibility criteria.

71 Thus for a mud crab trap endorsement the Department will look for and list the 8 most recent months’ catch returns in 1986-1993 which record mud crabs taken by trapping. If the method is not shown on a return (as will usually be the case for Form 49s when the main method in the month was other than trapping), the Department will list that return as going towards eligibility:
only if . . . the total weight of mud crabs is greater than 30kg.

72 None of Mr Brookman’s catch returns in the relevant period record 30kg or more of mud crabs.

73 In my view I am not bound to give effect to this figure of 30 kg as the point below which Mr Brookman’s monthly mud crab catches must be said to be by-catch. It is not clear to me that it is Government policy to which I am bound to give effect by s64(1) of the Administrative Decisions Tribunal Act, but even if it was, in my view to give effect to it would produce an unjust decision, for the following reasons.

74 Firstly, the requirement is an inflexible one, which applies to catch returns of all fishers in all restricted fisheries estuary waters in New South Wales. But at the same time it is apparent from the South Coast Review that commercial catch of crustaceans (of which a mud crab is a type) varies from zone to zone and, within a zone, from estuary to estuary. That variation would give me reservations about the fairness of a decision which applied an unexplained, State-wide ‘30kg requirement’ to a catch from a single estuary, Lake Illawarra. This is particularly so when, as I infer from the existence and content of the South Coast Review relating to a neighbouring region, something is known of the actual average take of mud crabs in different estuaries.

75 Secondly, the South Coast Review reports that the average annual ‘commercial catch’ of mud crabs on the NSW south coast (41 estuaries), for the period 1990-1996, was 764kg, an average monthly catch of 64kg. Application of the ‘30kg requirement’ for by-catch would mean that for any fisher, anywhere on the NSW south coast, to have a monthly catch return count towards eligibility for mud crab trapping, they alone would have to have caught in that month almost half the average catch of mud crab for the 41 estuaries on the NSW south coast. Although relating to a neighbouring region and not the region in this matter, this analysis compounds my reservations about the fairness of a decision which applied an unexplained and inflexible ‘30kg requirement’ for by-catch.

76 Finally I note that the South Coast Review reports at page 47:
To date there has been no research done to quantify the by-catch of meshing . . . however it is known that the by-catch will relate to the mesh size of the nets used and how they are set.

77 I understand from its context that that comment is made for mesh netting generally, and not merely for the region covered by the report. If that is so, then a strict ‘30kg requirement’ for mud crab as by-catch, without reference to subjective factors such as the mesh size of the nets used and how they are set, would require some explanation. The absence of any explanation further compounds my reservations about the fairness of a decision based on that requirement.

78 It may be that by different reasoning I will come to the same decision that I would reach if were to give effect to the ‘30kg requirement’, but in my view the decision would be unjust in this case if it were based on the requirement.

79 Consequently, when deciding whether the quantities in which Mr Brookman took mud crabs are indicative of the trapping method or of by-catch, I do not give effect, as the Department did, to the ‘30kg requirement’.

Mr Brookman’s actual activity

80 In the hearing Mr Brookman described how he went about targeting mud crabs with his witches hats. He would put the witches hats out when he saw haul fishers throwing dead catch overboard – he knew then that mud crabs would be about. He did not put the witches hats out unless he knew he’d catch some mud crabs.

81 Ms Corey for the Minister cross-examined Mr Brookman. Mr Brookman agreed no-one but his father saw him use the witches hats. He said that his use of the witches hats was secretive. He had not asked his father to give evidence because “he’s old”. He has no photographs of the witches hats and no written record of having owned or used them.

82 Mr Brookman conceded in the hearing, as he had done in writing to the Department, that there were times when he caught mud crabs as by-catch from his net. He said however that he would often have to cut the crab from the net and throw it away – it was not saleable unless whole.

83 Mr Brookman described the mud crabs as averaging around 500-600 grams each; a good one would weigh a kilo. A catch of 10 kilos would therefore, in my estimate, usually represent between 10 and 20 crabs, more likely towards 20 than 10.

84 An examination of Mr Brookman’s catch returns, in accordance with a share fishing agreement with his father Mr Kelven Brookman, shows that Mr Brookman caught only a few mud crabs in 1986 and 1987 – 5 and 8 kg respectively – but that his catch increased noticeably after that.

85 Mr Brookman recorded 10kg or more of mud crabs – some 10 to 20 in number – in a catch return once in 1988 and 1993, four times in 1990, twice in 1991 and three times in 1992. On each occasion, that is a large number to have extricated as by-catch from nets in whole and saleable condition. It is certainly reasonable say that that number of crabs is at least as likely to have been trapped. There is in my view material to support Mr Brookman’s contention that he caught mud crabs other than by way of by-catch.

86 The material is not however conclusive in my view, and a decision that the mud crabs were not by-catch is made problematic by an analysis of the catch of flathead over the same period.

87 The Minister asserts that Mr Brookman’s mud crab catch is by-catch, and in its file the Department has said, at page 62, that:
significant quantities of flathead indicate use of a bottom set net and most likely the crabs are a by-catch of this method.

88 Many of Mr Brookman’s catch returns do not show flathead being caught. When flathead are recorded there is often no record of mud crabs. But almost every time Mr Brookman’s catch returns show mud crabs, they also show flathead. Mud crabs are never, but for two months in the eight years, caught without flathead also being caught; in one of those two months a prawning net was used, and mud crabs can be by-catch from prawning nets.

89 While there are months when the mud crab catch was accompanied by a very small catch of flathead, a relatively large catch of mud crabs is always matched by a relatively large catch of flathead. In 1990, when Mr Brookman’s three consecutive catch returns show mud crab catches of 10kg, 10kg and 14 kg, the flathead catches for those months are 98kg, 57kg and 135 kgs respectively. In a month in 1991 when 20 kgs of mud crabs were taken, 220 kg of flathead were caught, and in a month in 1992 when 10 kg of mud crabs were taken 312 kg of flathead were caught.

90 The material is, ultimately, equivocal. I am satisfied that Mr Brookman did use witches hats to target mud crabs. But I cannot be satisfied that he did so other than from time to time, for example when he saw haul fisherman throwing dead fish overboard.

Completion of the Forms

91 The Minister relies on a further argument to counter any inference that Mr Brookman had been using mud crab traps at the time when Form 49 didn’t allow that fact to be recorded. The Minister points out that when Form 19 was introduced, and Mr Brookman was required by that form to record all methods for taking fish and crabs, Mr Brookman did not record mud crab trapping.

92 In answer, Mr Brookman says that even the Form 19 did not explicitly invite the recording of crab traps [my emphasis], only of traps generally. Mr Brookman was asked why he didn’t mark ‘Other’ on the Form 19, to which he said simply that he didn’t worry about it. In October 1993 the crab trap option was introduced but Mr Brookman was no longer using crab traps then.

93 In my view Mr Brookman has answered this submission of the Minister sufficiently for me to resist drawing an inference adverse to Mr Brookman from his failure to complete the Form 19 as the Minister says he should have done, and would have done, had he been using mud crab traps.

FINDING – mud crab trap endorsement

94 Having regard to all the available material I am not satisfied that at least 8 returns indicate that the mud crabs which were taken were taken with the witches hats. On the available material some indicate that that was the case, but I cannot be satisfied that “at least 8” do.

95 Having regard to the relevant factual material and the applicable law, I am of the view that Mr Brookman is not eligible for an ‘Estuary General Restricted Fishery – Mud Crab Trapping’ endorsement.

Correct and preferable decision

96 In light of my findings as to Mr Brookman’s not being eligible for either a fish trap endorsement or a mud crab trap endorsement, the correct and preferable decision is that the Minister’s decision to accept the review panel’s recommendation be affirmed.

97 From the Review Panel’s process which I noted in paragraphs 29 and 30 above, it appears to me that the Review Panel’s recommendation to the Minister was made without giving nay real consideration to material supplied by Mr Brookman, because that material was not provided on oath or affirmation.

98 It is not clear to me from the terms of the FMR that the Review Panel is obliged to consider an applicant’s material in making a recommendation to the Minister, but it would seem preferable for such consideration to form the basis of any recommendation.

99 I make it clear now, for Mr Brookman’s benefit, that my view that Minister should indeed accept the Review Panel’s recommendation, is reached after considering all the material Mr Brookman has relied on.

ORDERS

100 I make the following orders pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act :
1. The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicant is not eligible for an ‘Estuary General Restricted Fishery – Trapping’ endorsement, is affirmed.
2. The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicant is not eligible for an ‘Estuary General Restricted Fishery – Mud Crab Trapping’ endorsement, is affirmed.

3. Pursuant to s88 of the Administrative Decisions Tribunal Act I make no award of costs.