Cootes v Director, New south Wales Fisheries
[2001] NSWADT 65
•04/27/2001
CITATION: Cootes -v- Director, New South Wales Fisheries [2001] NSWADT 65 DIVISION: General Division PARTIES: APPLICANT
Geoffrey Prout Cootes
RESPONDENT
Director, New South Wales FisheriesFILE NUMBER: 003095 HEARING DATES: On the papers SUBMISSIONS CLOSED: 01/25/2001 DATE OF DECISION:
04/27/2001BEFORE: 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 (General) Regulation 1998
Administrative Decisions Tribunal Act 1997
Fisheries Management (General) Regulation 1995
Fisheries Management Act 1994CASES CITED: Doyle v Commissioner of Police [1999] NSWADT 84
Woodward v Minister for Fisheries [2000] NSWADT 143
Foster -v- Minister for Fisheries [2000] NSWADT 175
Hirst -v- Director, Department of Fisheries [2000] NSWADT 158
Minister for Fisheries -v- Puglisi and Ors [2001] NSWADTAP 2
Greenaway-v- Director, Department of Fisheries [2000] NSWADT 158REPRESENTATION: APPLICANT
T A Jones, solicitor
RESPONDENT
C Cory, solicitorORDERS: 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 Ocean Haul Restricted Fishery - Class C (Purse Seine) endorsement, is set aside; 2. In substitution the decision is made to refer the matter back to the review panel for further consideration, together with a recommendation that the panel take account both of the reasons of the Tribunal in these proceedings, and of the panel having the power to include in its report a decision or recommendation relating to the applicant’s entitlements in a restricted fishery; 3. Pursuant to s88 of the Administrative Decisions Tribunal Act no award of costs.
DECISION
1 In my view Mr Cootes is not eligible for the endorsement he seeks. Mr Cootes’s application is therefore unsuccessful to that extent. I am of the view however that Mr Cootes should receive a non-transferable entitlement to fish using the purse seine method. The effect of this for Mr Cootes is that the review panel will consider making such a recommendation to the Minister.
- REASONS
2 Mr Geoffrey Cootes owns fishing business FB1509 and holds a commercial fishing licence. On 26 September 1996 he applied for an ‘Ocean Haul Restricted Fishery – Class C (Purse Seine) endorsement’ on his commercial fishing licence.
3 The Minister advised Mr Cootes that his application had been refused, and Mr Cootes requested a review of that decision by the Restricted Fisheries Review Panel.
4 An undated letter from the review panel to Mr Cootes, sent in October 1999, said that as Mr Cootes’s “catches total 8063kg you fail to meet the criteria requirement of 10,000kg of appropriate species”. The review panel invited Mr Cootes to address this “shortfall”. The review panel’s letter advised that it would not at that stage, because of the lack of detail provided, consider Mr Cootes’s submission that he was unable to meet the eligibility requirements because of his commercial fisheries representatives duties.
5 Mr Cootes subsequently appeared before the review panel and made submissions.
6 The review panel made a recommendation to the Minister in December 1999. It said, relevantly, “Having considered the written and oral submissions of the applicant the review panel is not satisfied that the applicant meets the eligibility criteria”.
7 By letter dated 17 December 1999 Mr Cootes was advised of the Minister’s decision, in accordance with the review panel’s recommendation, to refuse the endorsement.
8 The Minister’s letter gave no reasons for the decision. The review panel’s letter to Mr Cootes in October 1999 is the only indication on the Department’s file of what might have been the review panel’s reasons for deciding to recommend to the Minister that Mr Cootes be refused the endorsement: that he failed to meet the 10,000 kg requirement.
Internal review
9 At the time, the Minister’s decision was subject to internal review as required by s53(1) of the Administrative Decisions Tribunal Act ( ADT Act ). This requirement has since been removed by Clause 6A of the Administrative Decisions Tribunal (General) Regulation 1998.
10 Mr Cootes sought an internal review of the Minister’s decision, and was advised that the Minister’s decision to accept the review panel’s recommendation not to issue him with the endorsement was confirmed. A Statement of Reasons was provided.
11 The Statement of Reasons attributes to the review panel the view, not apparent in the panel’s report to the Minister or elsewhere on the file, that “the time spent in assisting with research was not considered as a significant reason, not attributable to the fault of the fisher, which resulted in the fisher being unable to satisfy the eligibility criteria . . . the time spent with research (was) a choice attributable to the applicant”. The Statement of Reasons makes no reference to any consideration having been given to Mr Cootes’s claim that he was unable to meet the eligibility requirements because of his commercial fisheries representatives duties, or to any other claim relied on by Mr Cootes.
Reviewable decision
12 The reviewable decision for this Tribunal is the Minister’s decision, advised to Mr Cootes by letter dated 17 December 1999, to accept the review panel’s recommendation not to issue him with the endorsement.
Proceedings before the Tribunal
13 On 4 April 2000 Mr Cootes applied to the Administrative Decisions Tribunal for review of the Minister’s decision. The Application was supported by a one page document headed ‘Reasons for Application’.
14 In accordance with the requirements of s58 of the Administrative Decisions Tribunal Act (ADT Act), the Department lodged their file with the Tribunal.
15 At a Directions Hearing on 28 July 2000 the parties agreed to make written submissions and to have the matter dealt with ‘on the papers’. Mr Cootes filed submissions on 9 August 2000, and the Department on 11 August. In light of material referred to by the Department, Mr Cootes filed further submissions on 29 August.
16 On 5 December 2000 I made directions for the filing of further material. That material was filed by both parties by 25 January 2001.
Applicable law
17 By s113(2) of the Fisheries Management Act 1994 (FM Act):
Eligibility for endorsement of commercial fishing licences is to be determined in accordance with the regulations.
18 Section 113(2) is the source of authority for allowing access to an endorsement. It provides that eligibility for endorsement is to be determined only in accordance with the regulations; the regulations are the provisions of the Fisheries Management (General) Regulation 1995 (FM Reg).
19 The Ocean Haul Class C endorsement sought by Mr Cootes is provided for in Division 4A of Part 8 of the FM Reg, and the eligibility requirements for that endorsement are in cl.212F(2A).
20 Clause 212F(2A) provides that:
A person is eligible for a class C endorsement if the Minister is satisfied that:
- (a) the person owns a licensed fishing boat, and
(b) the person owns a purse seine net that was registered in the name of the person before 1 January 1991 and the net was used to take fish for sale in at least one of the years from 1991 to 1994, and
(c) the person has taken for sale at least 10 tonnes of pilchard, anchovy, whitebait, mackerel, yellowtail or Australian salmon, or at least 10 tonnes of any combination of those fish, in the years 1986 to 1990 (inclusive) using a purse seine net, and
(d) the person submitted at least 3 catch returns to the Director in the years from 1991 to 1994 that record purse seining as a catch method.
22 The point to be made is that Mr Cootes’s eligibility for endorsement is decided only by reference to the provisions in s113 of the FM Act and clauses 212F and 214C of the FM Reg.
Policy
23 By s64 of the ADT Act I am obliged to give effect to any relevant Government policy except to the extent that the policy is contrary to law or produces an unjust decision in the circumstances of the case. However, as I said in Micallef-v-Minister for Fisheries [2001] NSWADT 1 , that obligation does not empower me to consider an entitlement according to requirements which are not found in the FM Act or the FM Regulation . I must give effect to policy, but not inconsistently with law.
24 Mr Cootes has referred to Government policy which, he says, should apply to give him an endorsement. He refers to a document entitled Ocean Haul Fishery dated February 1999.
25 Mr Cootes says that the eligibility criteria in the FMR are inappropriate in light of that policy. He says that the policy is to preserve fish stocks but that the use of purse seine nets is no threat to stocks. He says that the policy is only to prevent increase in fishing effort but that the effect of the eligibility criteria is actually to reduce fishing effort. Further, Mr Cootes says that the eligibility criteria for purse seine netting should as a matter of policy distinguish between northern and southern waters.
26 I do not mean to set out all Mr Cootes’s concerns in detail, but simply to show the nature of his concerns regarding inconsistency between the eligibility criteria and policy.
27 Even if there is inconsistency between policy and the eligibility criteria, I have, as I said above, no power to give effect to policy rather than to legislation. For purposes of assessing Mr Cootes’s eligibility for endorsement I am confined to clauses 212F and 214C of the FMR, and to policy which is not inconsistent and which guides or gives assistance in arriving at the preferable decision.
28 If Mr Cootes is suggesting that I should inquire into the validity of the eligibility criteria in the FMR then I decline to do so. I respectfully agree with the reasoning of this Tribunal, differently constituted, in Doyle v Commissioner of Police [1999] NSWADT 84 where, after lengthy analysis, the Tribunal said that:
this Tribunal should only proceed to examine closely the validity of subordinate legislation where a compelling case can be demonstrated by the applicant rather than one which is merely arguable.
29 I have not invited the applicant to make out a case as to why I should question the validity of the FMR in light of policy. The clear provisions of the FMR are lawfully made and within power. I can see no indication of a plausible case, let alone a compelling one, that the FMR should be disregarded because of a later document reflecting government policy which is only arguably inconsistent with the regulation, and which has not been given effect to in any legislative form.
Eligibility criteria: clause 212F(2A)
30 Of the four eligibility requirements in cl.212F(2A) (a) to (d), Mr Cootes fails the requirement in sub-clause (c). Mr Cootes agrees that he did not, in the years 1986 to 1990 inclusive, take for sale at least 10 tonnes of the prescribed species of fish.
31 It appears from the material before me and my calculations set out at paragraph 80 below that he took 8,086 kg. The Department’s Statement of Reasons says that the figure is 7,996kg, although their submission to me says 8,063 kg. The review panel in undated correspondence with Mr Cootes on around 4 October 1999 refers to total catches of 8,063 kg. The letter advising of the review panel’s decision says the records show 50 kg caught by the purse seine method and “another 8603 kg of purse seine species taken in the criteria years”; I take this to be a misprint of the figure 8,063 kg in which case the total would be 8113 kg. I cannot however see any material which supports this figure. In his letter seeking an internal review Mr Cootes refers to “having caught 8t. of the 10t.”. I am satisfied that the relevant quantity is 8,086 kg.
Eligibility when criteria not satisfied: clause 214C(2)
32 Unable to satisfy the eligibility criteria, Mr Cootes relies on cl.214C which gives the review panel grounds to recommend to the Minister that a person is or should be eligible even though the eligibility criteria have not been satisfied. Clause 214C(2)(c) allows a person who applied for the review to satisfy the review panel 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, or
(ii) the person lost his or her commercial fishing boat due to accident or misadventure and the loss substantially affected his or her ability to satisfy the eligibility criteria for the endorsement, or
(iii) the person was engaged in fishing during that period and for other significant reasons (that are not attributable to the fault of the person) the person was unable to satisfy the eligibility criteria.
34 Assuming a circumstance is both ‘significant’ and ‘not attributable the fault of the person’, does the provision in (c)(iii) require a direct causal link between the circumstance and the inability to satisfy the eligibility criteria?
35 Alternatively, should and can the provision be read consistently with the provisions in (c)(i) and (c)(ii)? Those provisions clearly do not require a direct causal link between the circumstance (incapacity in (i) and misadventure in (ii)) and the inability to satisfy the eligibility criteria. In those provisions it is enough that the circumstance “substantially affected his or her ability to satisfy the eligibility criteria”. I respectfully agree with this Tribunal, differently constituted, in Woodward v Minister for Fisheries [2000] NSWADT 143 (and see Foster -v- Minister for Fisheries [2000] NSWADT 175 para 19). In Woodward the Tribunal said at para 39:
The language of “substantially affected his ability to satisfy” seems to demand less than satisfaction that incapacity in fact caused the failure to satisfy the criteria. It is enough that his ability to qualify was “substantially affected” by a period of incapacity. In effect, once this is established, an incapacitated fisherman is to be given the benefit of uncertainties as to whether other factors might also have affected his ability to qualify and as to whether in fact he would have qualified”.
36 It would not have been difficult to draft (c)(iii) in the same terms as (i) and (ii). It could, for example, have clearly provided for ‘other significant reasons not attributable to the fault of the person’ which affected the person’s ability to satisfy the criteria. Instead, it refers to ‘other significant reasons not attributable to the fault of the person ’ for which the person was unable to satisfy the criteria.
37 In my view the meaning of (c)(iii) is clear: differently from (c)(i) and (c)(ii), it requires a direct causal link to be established. The link is between a circumstance which is both significant and not attributable to the fault of the person, and the inability to satisfy the eligibility criteria. If the link is established, the circumstance would then be the ‘reason’ for the inability.
38 This aspect of cl.214C(2)(c)(iii) has not been considered previously by the Tribunal. In Hirst -v- Director, Department of Fisheries [2000] NSWADT 158 I proceeded on the basis that the provision required a direct causal link; it is the subsequent interpretation given to (c)(i) and (c)(ii) in Woodward and Foster which has caused me to reconsider my previous thinking. I have nor changed my thinking. While I agree with the view taken in those cases as to those provisions, that does not alter the view I took in Hirst as to the meaning of (c)(iii).
39 That the provisions should have different tests is explicable. On the one hand the circumstances in (c)(i) and (c)(ii) are specific, for which specific consequences are prescribed. On the other hand the circumstances which might be covered by (c)(iii) are unknown and, within whatever range is encompassed by the term ‘significant’, they may vary as to their seriousness. It is understandable that in providing for unknown circumstances in a ‘catch-all’ provision the drafting sets a higher test which requires that a direct causal link be demonstrated.
40 I note that there may be circumstances which are both significant and not attributable to an applicant’s fault, but which did not cause the inability to satisfy the eligibility criteria. Those circumstances would not, in such a case, be ‘reasons’ within the meaning of cl.214C(2)(c)(iii). I use the word ‘reason’ in this sense: it indicates the need for a causal connection link between the circumstance which is significant and not attributable to the applicant’s fault, and the inability to satisfy the eligibility criteria.
Application of cl.214C(2)(c)(iii) in the circumstances
41 Mr Cootes was engaged in fishing during the relevant period, and is unable to satisfy the eligibility criteria. In his appeal to the review panel dated 27 February 1997, Mr Cootes says “I wish to have a purse seine endorsement . . . even though I do not meet the 10 tonne requirement”.
42 Mr Cootes relies on cl.214C(2)(c)(iii) and circumstances which he says are reasons why he is unable to meet the 10 tonne requirement.
43 In his appeal to the review panel Mr Cootes referred to a range of circumstances. In the submissions made to me Mr Cootes relies on only three such circumstances. As I am engaged in an exercise of merits review, taking account of all relevant material, I address briefly the other circumstances which Mr Cootes raised previously.
44 Mr Cootes says that “own use trap bait figures were not recorded in those days but if included would have increased the tonnage caught figure significantly”. Mr Cootes relies on this as a reason for not being able to satisfy the requirement. It is clear however that the eligibility criteria take account only of fish “taken for sale”. Fish caught for “own use trap bait”, even if the catch could be established by reference to verified records, could not count towards eligibility. I return below to whether that catch may have a bearing on the making of some other recommendation to the Minister.
45 Mr Cootes gives as a another reason for not being able to satisfy the requirement that he could have caught more fish but for the cost of returning to Sydney with them from a long distance out at sea, in combination with the low market value of the fish “in those days”, ie 1986 to 1990. As well, he says, low prices and “problems with access on the river bar made purse seining secondary to my trapping business”. The eligibility criteria do not take account of fish which have not been caught unless the fact that were not caught was due to “significant reasons” within the meaning of cl.214C(2)(c)(iii). As I explain more fully below at paragraphs 52 to 54 a commercial decision, such as this one made by Mr Cootes, is a circumstance falling outside the term “significant reasons”.
46 Mr Cootes gives as a another reason for not being able to satisfy the requirement that the eligibility criteria take account only of fish caught between 1986 and 1990 inclusive, and he had been catching purse seine species (yellowtail) as early as May 1983. Mr Cootes believes this to be unfair, and has objected to the period being limited in that way. That, however, is how the period has been limited, and I cannot ignore that limitation. I return below to whether fish caught before 1986 may have a bearing on the making of some other recommendation to the Minister.
47 Of the three further reasons relied in submissions to me for Mr Cootes’s inability to satisfy the eligibility criteria, the first is that he “would have caught the required quantity of fish if he had not assisted NSW Fisheries in their research project” approximately 2 days every second months during the relevant period.
48 The second is that he undertook a significant workload as a director of Wooli Fisherman’s Co-Operative Ltd during the relevant period.
49 The third is that he lost 10 weeks of fishing in the months of March, April and May 1989 due to a critical refit of his boat.
Meaning of “other significant reason”
50 If Mr Cootes’s inability to satisfy the eligibility criteria was caused by any of these three circumstances, then that circumstance is a ‘reason’ within the meaning of cl.214C(2)(iii)(c). But it would still be necessary for me to be satisfied that that reason is a ‘significant reason not attributable to Mr Cootes’s fault’ within the meaning of cl.214C(2)(c)(iii).
51 The phrase “other significant reasons (that are not attributable to the fault of the person)” was considered by the Administrative Decisions Tribunal Appeal Panel in Minister for Fisheries -v- Puglisi and Ors [2001] NSWADTAP 2, published on 4 August 2000 (Puglisi). I was a member of that Panel. At paragraph 50 the Panel said:
Our conclusion is that the words in parenthesis in sub-para (iii) of para (c) confine the scope of 'other significant reasons' to explanations that relate to circumstances that lie beyond the personal control or conduct of the applicant.
52 In Puglisi the applicant could not show the necessary catch history because of his decision, made for commercial reasons, not to fish in the relevant area during the relevant period. The issue was whether that decision would be covered by the phrase in cl.214C(2)(c)(iii) “other significant reasons (that are not attributable to the fault of the person)”.
53 I set out below the reasoning of the Appeal Panel on the meaning to be given to that phrase:
- 44 . . . if the only words in issue in the statutory rule were 'other significant reasons' the likely conclusion would be that . . . these are words intended to be of general application, allowing for a wide range of factors to be taken into account by the review panel. But in this instance the words 'other significant reasons' are qualified by the words '(other than ones attributable to the fault of the applicant).' Clearly the words in parenthesis seek to cut back the scope of 'other significant reasons.'
45 The difficulty that is presented is this. The first two sub-paras of para (c), (i) and (ii), clearly seek to protect the position of an applicant who has suffered a misfortune that is out of his or her control and which has led to that person being unable to meet the eligibility requirements. It could be said that these provisions seek to give a benefit to an applicant who, to use a common saying, 'through no fault of his/her own' has been prevented from obtaining the necessary catch history - a supervening factor has intervened. Viewed in this way, the phrase 'other significant reasons (that are not attributable to the fault of the person)' would carry the meaning of significant reasons 'beyond the control of the applicant', which reasons are analogous to the ones mentioned in sub-para (i) and (ii).
46 On this construction what the maker of the regulations was seeking to achieve was a catch-all provision that allowed for mishaps other than the ones enumerated in sub-para (i) and (ii) to be allowed for by the review panel.
. . .
48 This interpretation of 'fault' - i.e. beyond the control of the individual - stands uneasily with the usual meaning attributed to 'fault' in the standard dictionaries. For example the Concise Oxford Dictionary, 1987, gives as meaning no 1, 'defect, imperfection, blemish, of character or structure, appearance, etc.' The Macquarie Dictionary, 3rd ed 1997 , gives as meaning no 1, 'a defect or imperfection; a flaw; a failing.' Other meanings connect the meaning of the word to the connotation of an act that involves wrongdoing, carelessness or moral blame. Meaning no 2 in the Macquarie Dictionary perhaps comes closer to the intended meaning of the Regulation, defining 'fault' as an 'error or mistake.' . . .
49 When the phrase in issue is first used in the provision, at para (a), it appears in the context of a rule relating to reliance on inaccurate or incomplete records. The rule permits a person to produce in substitution verified records provided that the reasons for the original records being incomplete or inaccurate is 'not attributable to the fault of the person', (though there is no reference here to the reason having to be 'significant').
50 Our conclusion is that the words in parenthesis in sub-para (iii) of para (c) confine the scope of 'other significant reasons' to explanations that relate to circumstances that lie beyond the personal control or conduct of the applicant.
51 We are supported in reaching that conclusion by an examination of the purposes and objects of the statutory scheme within which the rule operates. The 1994 Act, which commenced operation on 16 January 1995, is the cornerstone of the new scheme for the regulation of fishing in New South Wales. The objects clause, s 3 provides in sub-s (1) 'The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations.'
52 In sub-s (2) more specific objects are listed:
'In particular, the objects of this Act include:
- (a) to conserve fish stocks and key fish habitats, and
(b) to conserve threatened species, populations and ecological communities of fish and marine vegetation, and
(c) to promote ecologically sustainable development, including the conservation of biological diversity,
and, consistently with those objects:
(d) to promote viable commercial fishing and aquaculture industries, and
(e) to promote quality recreational fishing opportunities, and
(f) to appropriately share fisheries resources between the users of those resources.'
54 It is in that policy context that the creation of restricted fisheries must be seen. As noted, restricted fisheries are the subject of detailed regulation in Part 8 of the Regulation.
. . .
57 As noted, the panel can look behind any apparent failure by a fisher to meet the catch history requirements. It may consider independently verified records that the catch returns initially relied on are not accurate: see paras (a) and (b) of s 214C. But para (c) goes (at least in sub-paras (i) and (ii)) to an applicant's inability to satisfy the eligibility criteria. Sub-paras(i) and (ii) deal with situations of mishap that had the effect of preventing the fisher from reaching the levels.
58 While sub-para (iii) is broader, it would, we consider, greatly distort a scheme of this kind to interpret it as permitting fishers to come forward with a minimal catch history or none at all, and seek to be allowed in to the restricted fishery in circumstances where they had consciously chosen not to be involved in the area now comprising the restricted fishery, and as a result did not have any or any sufficient catch history. Such an interpretation would weaken considerably the force of the central rule for being permitted to remain in a restricted fishery (prior participation to an extent that meets the catch history rules).
59 We consider that the restricted fisheries review panel was correct, and consequently the Minister was correct, in excluding from its formal consideration the commercial factors relied upon by the respondents for not meeting the catch history requirements. There must be a persuasive reason, going beyond mere commercial choice, for not having a demonstrable catch history that would otherwise entitle a fisher to continue to operate in a (now restricted) fishery.
60 The policy framework supports the conclusion that the words in parentheses in cl 214C(2)(c)(iii) - 'that are not attributable to the fault of the person' - are intended to exclude from consideration as 'other significant reasons' explaining an inability to produce a satisfactory catch history conscious decisions made by fishers in the past leading them not to participate significantly, or at all, in the restricted fishery.
‘Significant reason’ – assisting the Department
54 The Minister does not contest that Mr Cootes assisted NSW Fisheries in its research.
55 Before assessing how much fishing time Mr Cootes lost by reason of the research project, and what fish might have been caught in that time, I consider whether Mr Cootes’s engaging in the research work is a ‘significant reason not attributable to his fault’.
56 Mr Cootes submitted that the research time is a ‘significant reason’. I agree, but as the Appeal Panel said in paragraph 44 of Puglisi,
if the only words in issue in the statutory rule were 'other significant reasons' the likely conclusion would be that . . . these are words intended to be of general application, allowing for a wide range of factors to be taken into account by the review panel. But in this instance the words 'other significant reasons' are qualified by the words '(other than ones attributable to the fault of the applicant).' Clearly the words in parenthesis seek to cut back the scope of 'other significant reasons.'
57 Mr Cootes’s decision to assist was a voluntary one, within his control. I agree with the Fisheries Review Panel which considered “the time spent with research as being a choice attributable to the applicant”.
58 The reason Mr Cootes lost fishing time – assisting in research – though significant, is not one that is “not attributable to the fault of the person” according to the reasoning of the Appeal Panel in Puglisi.
59 Mr Cootes is therefore unable to rely on fishing time lost because of time spent on research as a basis for establishing his eligibility through the exception in cl.214C(2)(c)(iii).
60 It is clear from his correspondence, and it is quite understandable, that Mr Cootes is aggrieved that his willingness to assist the Department in their research may have rendered him unable to establish his eligibility to fish. It does appear to be unjust that the statutory exception for a person’s inability to meet the eligibility criteria is not worded so as to cover Mr Cootes’s voluntary contribution to the Department’s research towards preserving fish stocks.
61 If s214C(2)(c)(iii) was intended to make allowance for such a voluntary contribution then, in light of the decision in Puglisi, it fails to do so. Such a clear disincentive to fishers to assist the Department is regrettable, and the Minister might consider whether that situation might be addressed.
‘Significant reason’ – director’s duties at the Co-Op
62 Mr Cootes has provided material to support his claim that he lost time fishing by reason of his Director’s duties at the Co-Op.
63 Before assessing how much fishing time Mr Cootes lost by reason of his director’s duties, and what fish might have been caught in that time, I consider whether Mr Cootes’s engaging in director’s duties is a ‘significant reason not attributable to his fault’.
64 Based on the meaning of that phrase as described by the Appeal Panel Puglisi, the answer must be ‘No’. The same reasoning I set out above in relation to Mr Cootes’s assistance with the research applies here. His decision to be a director was a voluntary one, within his control.
65 Mr Cootes is therefore unable to rely on fishing time lost because of time spent as a director of the Co-Op as a basis for establishing his eligibility through the exception in cl 214C(2)(c)(iii).
66 Also applicable here are the comments I made above concerning the consequent regrettable disincentive for fishers to assist in the management and regulation of the industry.
67 I note that Mr Cootes provided the documents relating to his time at the Co-Op at my request. It was the subsequent decision in Puglisi which has effectively rendered the documents irrelevant to my decision.
‘Significant reason’ – refit of his fishing boat
68 Mr Cootes has provided material to support his claim that he lost 10 weeks of fishing in the months of March, April and May 1989 by reason of a critical refit of his boat.
69 This reason was not raised at any time during the process of application, review by the review panel, internal review or application to this Tribunal. It was not raised in the submissions filed on 9 August 2000 or 29 August 2000. It was not raised when further material was filed on 22 January 2001. It was first raised in submissions filed on 29 January 2001.
70 I might be concerned with the lack of reference to this argument in the years preceding its first appearance except that the material supporting the occurrence of the refit is persuasive, and I do not doubt that the event occurred.
71 Before assessing how much fishing time Mr Cootes lost by reason of the refit, and what fish might have been caught in that time, I consider whether Mr Cootes’s undertaking the refit could be said to have been a ‘significant reason not attributable to his fault’?
72 Based on the meaning of that phrase as described by the Appeal Panel Puglisi, in my view the answer is ‘Yes’.
73 Mr Cootes says in his statement:
- 4 During part of March and all of April and May 1989 I carried out a major refit of my boat the ‘Harpy’.
5 The work consisted of replacing the engine and propulsion unit and necessary modifications to the hull.
6 The work was necessary as the propulsion unit was badly corroded and was likely to fail.
7 The corrosion was due to electrolysis and was not caused by any lack of maintenance or other fault of mine.
8 The propulsion and engine units were the original unit fitted to the boat when it was built in about 1978.
9 This was not part of a regular maintenance program but was a major overhaul that is only required once every ten to fifteen years.
Fishing time lost due to the refit
75 The question then is one of a causal connection. Would Mr Cootes have had the necessary catch history but for the refit?. I first consider the period covered by the refit, and then the likely activity in that period in terms of fishing methods used and fish caught.
76 Mr Cootes, in his statement of 22 January 2001, says
The boat was unusable for a period of approximately ten weeks and I was not able to fish during this period [part of March and all of April and May 1989].
77 A deckhand working for Mr Cootes on the ‘Harpy’, Steven Jordan, says
During part of March and all of April and May 1989I assisted Mr Cootes with a major refit of the ‘Harpy’.
. . .
I can clearly recall the period of time as I was without work while the boat was being repaired.
78 Mr Jordan has provided a photograph of him assisting in the repairs of the ‘Harpy’.
79 Financial records show payments in February, March and April 1989 to Lister Petter and to Waugh and Josephson; I am aware from my own inquiries that Lister Petter were suppliers of marine engines. Catch history records show that LFB 8770, the ‘Harpy’, fished only 6 days in March 1989 and none in either April or May 1989.
80 On the basis of this material I am satisfied that the period during which Mr Cootes was unable to fish due to the refit of the ‘Harpy’ was the later part of March and all of April and May 1989.
What method would have been used during time lost?
81 Would Mr Cootes have used a purse seine net in the later part of March and all of April and May 1989, when he was unable to fish because of the refit?
82 The first time in the eligibility period 1986 to 1990 inclusive that purse seine netting is shown in Mr Cootes’s catch history as the fishing method used, is July 1990. The catch history records before then show only the use of bottom/demersal fish traps, and occasional use of droplines. In no month until July 1990 is more than one fishing method shown.
83 The Form 49 catch return, which was in use until mid-1990, asked a fisher to mark only the ‘Main Method’ used in the month. I described issues relating to the different Forms and their formats in Greenaway-v- Director, Department of Fisheries [2000] NSWADT 158.
84 In Mr Cootes’s catch history records, listing of more than one method coincides with the introduction in 1990 of Form 19, which required fishers to list all fishing methods used in the month. Before then, his catch returns show only one method, usually ‘Fish trap’, as that was all that could be recorded on a Form 49.
85 Taken as a whole, however, I am satisfied that the catch returns based on the Form 49s indicate, in Mr Cootes’s case, the use of a method other than a fish trap. This indication comes from the species and quantities caught. Fish traps would not, for example, have caught 2,310 kg of pilchards in May 1986, although that is the only method shown. There are numerous other examples in the relevant period to the same effect.
86 In support of this interpretation of the catch returns Mr Cootes has provided a statutory declaration saying that he used a purse seine net in the months of April and May 1986, July and August 1987, and June 1989. I note that in those months the catch returns show respectively 520 kg of pilchards, 2,310 kg of pilchards, 2,146 kg of yellowtail, 1,140 kg of pilchards, and 1,320 kg of pilchards.
87 Mr Jordan has provided a statutory declaration saying that he used a purse seine net while working with Mr Cootes on the ‘Harpy’ in the period 1988 to 1993.
88 From this material it is reasonable to draw an inference that Mr Cootes used purse seine netting as a method from time to time, and to find that Mr Cootes used purse seine netting as a method specifically in the months of April and May 1986, July and August 1987, and June 1989.
89 But is it is possible to go further, and to infer that purse seine netting would have been used in March, April and May 1989, had Mr Cootes been able to fish?
90 In paragraph 31 above I have given an account of the various figures for the total quantity of Mr Cootes’s purse seine catch which appear throughout the material. I have drawn up the following table to set out Mr Cootes’s pattern of catching purse seine species. It is based on Mr Coote’s statutory declaration, in which he misstated downwards the quantity for April 1986 but which I have corrected, and my examination of the Department’s file and of the catch history records.
| Month | Species | Quantity – kg |
| April 1986 | Pilchards | 520 |
| May 1986 | Pilchards | 2310 |
| June 1987 | Yellowtail | 510 |
| July 1987 | Yellowtail Mackerel | 2146 90 |
| August 1987 | Pilchards | 1140 |
| 1988 | - | - |
| June 1989 | Pilchards | 1320 |
| July 1990 | Pilchards | 50 |
| Total | 8086 |
91 There is no pattern in this table, nor is there a sufficient indication from the material, for me to be satisfied that Mr Cootes is more likely than not to have used a purse seine net in part of March and all of April and May 1989.
What quantity would have been caught during time lost?
92 Mr Cootes is 1,914 kg short of being able to meet the requirement of having “ taken for sale at least 10 tonnes of pilchard, anchovy, whitebait, mackerel, yellowtail or Australian salmon, or at least 10 tonnes of any combination of those fish, in the years 1986 to 1990 (inclusive) using a purse seine net”. Records show that of these species Mr Cootes caught principally pilchards, with some yellowtail and mackerel.
93 Even if I were satisfied that the purse seine method would have been used, would Mr Cootes have caught the necessary 1914 kg in the later part of March and all of April and May 1989, when he was unable to fish because of the refit?
94 It is submitted for Mr Cootes that “during [April and May] in 1986 Mr Cootes caught 2,850 kg of purse seine species. If he had been able to have a similar catch in 1989 he would have met the criteria”. That is the question: would he in fact have had a similar catch? Would he have caught at least 1,914 kg of pilchards and/or yellowtail had he fished in all of March, April and May 1989?
95 In the table above there is no pattern, nor is there a sufficient indication from the material, for me to be satisfied that Mr Cootes is more likely than not to have caught the necessary 1,914 kg of purse seine catch in part of March and all of April and May 1989. In the table above the average monthly catch was 1,155 kg. Only two months are over 1,350 kg, and four are under 550 kg. The total catch of 2,830 kg in April and May 1986 is not repeated in April and May of any of 1987, 1988 and 1990.
Findings
96 Although Mr Cootes lost time fishing due to the refit of his boat, I am not satisfied that, had he fished, he would have used the purse seine method, or that had he used that method he would have taken 1,914 kg of purse seine catch. The causal link between the circumstance and the shortfall in catch is not established.
97 While in my view the lost time fishing due to the refit would be a significant reason within cl.214C(2)(c)(iii), I am not satisfied that it was in fact for that reason that Mr Cootes was unable to satisfy the eligibility criteria.
Other decision or recommendation
98 In my view Mr Cootes has not satisfied the eligibility requirements for the endorsement he seeks. I note however that cl.214C(3) provides that:
This clause [214C] does not limit the inclusion in a report by a panel of any other decision or recommendation relating to a person's entitlements in a restricted fishery.
99 Although he is not eligible for the endorsement, Mr Cootes’s circumstances are such that consideration could properly be given to recommending that he be entitled to fish on the same terms as would be provided for by the endorsement.
100 Two circumstances relevant to such a recommendation are Mr Cootes’s contribution to the Department’s own research, and Mr Cootes’s contribution as a Director of the Co-Op. Both these activities were for the benefit of the fishing industry. The research in particular was a contribution towards achieving the Department’s own conservation goals. The activities were undertaken at the expense of fishing time which might have gone towards Mr Cootes’s meeting the eligibility criteria. The eligibility criteria, however, make no allowance for such activities.
101 A further relevant circumstance is that the eligibility criteria are intended as a matter of policy to reflect an applicant’s history of participation in the particular fishery. Mr Cootes’s historical participation in purse seine netting is substantial. It extends back to 1983 but the eligibility period does not commence until 1986. He has caught a little over 80% of the necessary tonnage in the eligibility period.
102 A further relevant circumstance is that Mr Cootes took fish with a purse seine net in the relevant period, but he took it for bait, not for sale. There are records of fish taken for sale but none, or no reliable records, of fish taken for bait. Though not a relevant matter for the criteria, fish taken for bait is nevertheless some indication of a fisher’s historical effort.
103 An endorsement is transferable as provided for in the FMA, FMR and relevant policies. There is no provision for the transfer of an entitlement or any other permission to fish which is granted by way of discretion; only an endorsement achieved by meeting eligibility criteria can be transferred. This being the case, a recommendation under cl.214C(3) does not circumvent the eligibility requirements for endorsement, but enables a concession to be made to a person, when warranted by the circumstances, to enable that person to continue to fish. That is what, in my view, the review panel should consider recommending to the Minister in this case.
Correct and preferable decision
104 Having regard to the relevant factual material and the applicable law, I agree that Mr Cootes is not eligible for an ‘Ocean Haul Restricted Fishery – Class C (Purse Seine) endorsement’.
105 I have decided however that the correct and preferable decision is that, in terms of clause 214D(1)(b) of the FMR, the matter be referred back to the review panel for further consideration, together with a recommendation that when considering Mr Cootes’s eligibility for an endorsement, it take account of these reasons, and of the panel’s power in cl.214C(3) of the FMR to include in its report a decision or recommendation relating to Mr Coote’s entitlements in a restricted fishery.
ORDERS
106 I make the following orders pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act and cl.214D(1)(b) of the Fisheries Management Regulation 1995 :
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 Ocean Haul Restricted Fishery – Class C (Purse Seine) endorsement, is set aside.
2. In substitution the decision is made to refer the matter back to the review panel for further consideration, together with a recommendation that the panel take account both of the reasons of the Tribunal in these proceedings, and of the panel having the power to include in its report a decision or recommendation relating to the applicant’s entitlements in a restricted fishery.
3. Pursuant to s88 of the Administrative Decisions Tribunal Act I make no award of costs.
4
6
4