Drew v Minister for Fisheries

[2001] NSWADT 88

CITATION:	Drew -v- Minister for Fisheries [2001] NSWADT 88
DIVISION:	General Division
PARTIES:	APPLICANT Peter Lawrence Drew RESPONDENT Minister for Fisheries RESPONDENT C Cory, solicitor
FILE NUMBER:	003152
HEARING DATES:	25 July 2000
SUBMISSIONS CLOSED:	07/25/2000
DATE OF DECISION:	06/01/2001
BEFORE:	Skinner PM - Judicial Member
APPLICATION:	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:	Rosenberg v Percival [2001] HCA 18
REPRESENTATION:	APPLICANT In person RESPONDENT C Cory, solicitor
ORDERS:	1. The reviewable decision is affirmed.

The application

1 This is an application by Mr Peter Lawrence Drew for review by this Tribunal of a decision by the Minister for Fisheries.

2 By application filed with the Department of Fisheries on 21 October 1996, pursuant to the provisions of the Fisheries Management Act 1994 (‘the Act’) Mr Drew applied for two endorsements on his commercial fishing licence in respect of the ‘Estuary General Restricted Fishery’ – a ‘Mud Crab Trapping Endorsement’ and ‘Category One Hauling Endorsement’.

3 The Minister for Fisheries, as the administrator charged with the decision, refused to grant the endorsements and the applicant was notified of that decision by a letter dated 17 February 1997. He was advised in that letter that there was an ‘appeals’ process and forms to commence same were enclosed.

4 On 8 April 1997, the applicant lodged an application for review of the respondent’s decision to refuse him the two endorsements.

5 Pursuant to the provisions of Division 6 of Part 8 of the Fisheries Management (General) Regulation 1995 (‘the Regulations’) the review was carried out by an appropriately constituted review panel.

6 The review panel considered the papers and wrote to the applicant on 13 September 1999 advising that it was not satisfied that it should recommend allocation of the two endorsements ‘at this stage’. Mr Drew was invited to forward any further evidence or submissions in support of his appeal within 30 days for consideration by the panel.

7 Under cover of a letter dated 28 September 1999, Mr Drew sent to the review panel further documents, being catch dockets from his co-operative and net registrations, to support his contentions that he met the eligibility requirements for the two endorsements, as prescribed by clause 191N of the Regulations.

8 Upon consideration of this further material, the review panel wrote to the applicant advising that it was still not satisfied but that there were matters possibly open to further clarification in a hearing ‘[at] which you can attend, give evidence, call witnesses and present any further material or submissions in support of your claim’.

9 The applicant was invited to attend a hearing before the panel, on 2 December 1999 at Maclean Courthouse, Maclean.

10 The hearing was duly conducted. The applicant gave evidence to support the documents that he had filed, but the review panel was not satisfied that he met the eligibility criteria required for the two endorsements and accordingly recommended to the respondent that the endorsement applications be refused.

11 On 13 April 2000 the respondent, through his delegate the Director of Fisheries, wrote to the applicant advising that in accordance with the recommendations of the review panel the application for the two endorsements was refused. In doing so, the respondent acted under clause 214D of the Regulations.

12 On 11 May 2000 the applicant applied for review of that decision to this Tribunal, as he is entitled under the Act.

13 On 6 June 2000 the President of this Tribunal, Judge O’Connor, set the matter down for hearing on 25 July 2000 and directed that the applicant was to file and serve any further statements and submissions on which he wished to rely by 27 June 2000, with the respondent to reply to same in similar fashion by 11 July 2000.

14 The matter came on for hearing before me on 25 July 2000.

Hearing

15 Pursuant to s 58 of the Administrative Decisions Tribunal Act 1997 (‘the Tribunal Act’) the respondent filed with the Tribunal a statement of reasons for the refusal of the endorsements together with a copy of the Department’s file. That file includes the material before the review panel and what would appear to be notes made by the chairman of the panel, Mr Leader, as to the reasoning process of the panel for its recommendation to the respondent after the hearing 2 December 1999.

16 The respondent filed submissions and appeared before me on 25 July 2000 through Ms Cory. The applicant did not appear in person, but at his request he was contacted by telephone and the hearing was conducted with him by teleconference.

17 At the conclusion of the brief hearing conducted in that way I indicated that I would proceed to decide this application upon the papers filed, subject to the applicant having a right to reply to the respondent’s submissions, which Ms Cory undertook would be sent to him.

18 However the applicant expressed the view that he really could not add anything to what he had already filed and submitted. Nonetheless he was given the opportunity to file any further submissions if he so desired.

19 No further submissions, or other material, have been received from the applicant.

Decision

20 Upon reviewing the Departmental file I find myself unable to do other than confirm the determination of the panel and the decision of the respondent.

21 The panel’s decision came down to a finding of fact as to whether the applicant had the required catch history (as there was no issue raised as to the operation of clause 214C(2)(c) of the Regulations despite there not being the requisite catch history).

22 It is clear that the catch records submitted by the applicant do not establish that, relevant to the Mud Crab Trapping Endorsement sought, in at least 8 months in the years 1986 to 1993, including at least one month prior to 1991, he trapped mud crabs in estuaries; and that, relevant to the Category One Hauling Endorsement sought, in a least 10 months in the years 1986 to 1990 he in his own right or as a member of a crew caught fish in estuaries by hauling.

23 The review panel did not accept the applicant’s oral evidence that he nonetheless had made the requisite catches, and as to why the documentation didn’t reflect that.

24 In that regard, the panel had the benefit of seeing and hearing from the applicant in person. Only very recently the High Court has again affirmed the advantage enjoyed by a tribunal at first instance in the task of fact finding – see Rosenberg v Percival [2001] HCA 18.

25 Further, I am very mindful of the specialist expertise in the review panel, which I do not enjoy.

26 I can see no procedural error in the Department’s dealing with the application or its review prior to this application to the Tribunal.

27 The applicant has put no further material to this Tribunal than that submitted to the review panel.

28 For the reasons as above I find myself unable to disturb the review panel’s findings of fact that the applicant has not established the eligibility requirements for the two endorsements. I therefore confirm the respondent’s decision, in accordance with the panel’s decision, to confirm the original determination to refuse the applicant these two endorsements.

20. The orders I formally make are:

1. The reviewable decision, to refuse the endorsements in accordance with the recommendations of the review panel, is affirmed.

29 I make no award of cost pursuant to section 88 of the Tribunal Act.