Forster v Minister for Fisheries

[2002] NSWADT 50

CITATION:	Forster -v- Minister for Fisheries [2002] NSWADT 50 revised - 13/08/2002
DIVISION:	General Division
PARTIES:	APPLICANT Anthony Forster RESPONDENT Minister for Fisheries
FILE NUMBER:	003195
HEARING DATES:	12/04/01
SUBMISSIONS CLOSED:	06/08/2001
DATE OF DECISION:	04/08/2002
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 (General) Regulation 1998 Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994
CASES CITED:	Virtu v Director General, NSW Fisheries [2000] NSWADT 75 Sewell v Minister for Fisheries [2001] NSWADT 124 Hirst v Director, Department of Fisheries [2000] NSWADT 158 Greenaway v Director, Department of Fisheries [2000] NSWADT 173 O'Grady v Minister for Fisheries [2002] NSWADT 48 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1970) 127 CLR 106
REPRESENTATION:	APPLICANT J Crespo, barrister 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 ocean haul restricted fishery Class C (purse seine net) endorsement, is affirmed; 2 Pursuant to s 88 of the Administrative Decisions Tribunal Act 1997 I make no award of costs.

DECISION
1 I am not satisfied that Mr Forster is eligible for the ocean haul restricted fishery Class C (purse seine net) endorsement he seeks, and his application is therefore unsuccessful.

REASONS FOR DECISION
Application
2 Mr Forster owns fishing business FB379 and holds commercial fishing licence 780789. On 15 October 1996 he applied for an ‘ocean haul restricted fishery Class C (purse seine net)’ endorsement.

3 The Minister advised Mr Forster that his application for this endorsement had been refused, and Mr Forster requested an internal review of that decision. The internal review was conducted by the Restricted Fisheries Review Panel (‘the Review Panel’) which held a hearing on 21 November 1998.

Internal review
4 On 7 December 1998 Mr Forster, through his then legal advisers, wrote to the Minister, asking the Minister or the Review Panel to consider “certain other matters” of which he had since become aware. The Minister wrote to Mr Forster on 11 February 1999 saying that further submissions would not be considered as the Review Panel had completed its hearing and made a recommendation.

5 It is not clear from the material what happened for the next seven months. It seems that other applications made by Mr Forster, and the issue of the transferability of some of Mr Forster’s other endorsements, may have been under consideration. The copy on file of the Review Panel’s report to the Minister, in which refusal of the application for purse seine net endorsement is recommended, is undated.

6 On file is a document called “Review Outcome Summary’ dated 10 September 1999 which, among other things, records that Mr Forster’s application for a purse seine net endorsement is rejected. That is the last dated document on file. None of what I recount in the following paragraph is supported by any documentation on the Department’s file; it is based solely on what I understand to be the uncontested account in the Minister’s Statement of Reasons.

7 The Minister advised Mr Forster by letter dated 16 September 1999 of his decision, in accordance with the Review Panel’s recommendation, to refuse his application for a purse seine net endorsement. Mr Forster on 30 September 1999 applied for internal review of the Minister’s decision, a necessary step until clause 6A of the Administrative Decisions Tribunal (General) Regulation 1998 removed the requirement.

8 Mr Forster, through his legal advisers, indicated he wanted to make a submission on his eligibility, and on 10 March 2000 he did so.

9 The Statement of Reasons is dated 2 May 2000 and was provided to Mr Forster under cover of a letter from the Department dated 15 May 2000. The letter confirms the Minister’s original decision not to issue a purse seine net endorsement.

10 On 6 June 2000 Mr Forster applied to this Tribunal. The matter was heard on 12 April 2001 and written submissions closed on 8 June 2001.

Reviewable decision
11 The reviewable decision for this Tribunal is the Minister’s decision, confirmed on internal review, to accept the Review Panel’s recommendation that the application for a purse seine net endorsement be refused. It seems that that decision was made on 16 September 1999.

Applicable law
12 A fisher’s eligibility for endorsements is governed by the: s113(2) Fisheries Management Act 1994 (FMA):

Eligibility for endorsement of commercial fishing licences is to be determined in accordance with the regulations.
13 The relevant regulation is in Part 8 Division 4A of the Fisheries (General) Regulation 1995 ( FMR) . In that Division, cl.212B declares the ocean hauling fishery to be a restricted fishery. Clause 212D makes available a Class C endorsement in that fishery. 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.
14 Clause 212F(2B) provides that
A person is also eligible for a class C endorsement if the Minister is satisfied that:
(a) the person owns a fishing business that is a recognised fishing operation (within the meaning of clause 135), and
(b) the fishing business includes a purse seine net that was registered before 1 January 1991, and that was used to take fish for sale in at least one of the years from 1991 to 1994, and
(c) the catch history associated with the fishing business of the person (determined in accordance with clause 135) satisfies the criteria set out in subclause (2A) (c) and (d).
15 Clause 212F(2B) refers to cl.135 in relation to both ‘a recognised fishing operation’ and ‘catch history associated with the fishing business’. Relevantly, cl.135 provides that
(2) For the purposes of this clause, a recognised fishing operation is a fishing business that falls into any of the following categories:
(a) the catch history associated with the business (as determined by the Director in accordance with this clause) exceeds 5 tonnes, or $10,000 in value, in at least 2 years out of the years 1986 to 1990 (inclusive) and 1 year out of the years 1991 to 1993 (inclusive),
(b) at least one of the licensed fishing boats that form part of the business may lawfully be used to take fish in any one of the following fisheries:
(i) the ocean prawn trawl restricted fishery, but only if the licence for the fishing boat authorises the use of the boat for prawn trawling in offshore waters (within the meaning of clause 174) and has an endorsement from the Director of a kind known as “P1” or “P2”,
(ii) the fishery known as the “estuary prawn trawl fishery”,
(iii) the fishery known as the “Commonwealth tuna long line fishery”,
(iv) the fishery known as the “south east trawl fishery” (but only if the quota for the taking of fish in that fishery has been imposed on the person).
(3) The catch history associated with a fishing business is the historical takings of fish for sale by or in connection with a fishing business. The catch history is to be determined by the Director in such manner as the Director considers appropriate, having regard to the records, kept by the Director, of fish taken for sale by any person involved in the business, or of fish taken for sale by use of a licensed fishing boat operated by the business, or to a combination of both. If a fishing business is sold by a person, the catch history associated with that business is transferable only in accordance with guidelines issued by the Director from time to time.
16 If an applicant fails to establish any of the requirements of cl.212F(2A) they have cl.212F(2B) to rely on in the alternative. If an applicant also fails any of the requirements of cl.212F(2B) they are ineligible for a purse seine net endorsement, unless they can satisfy the Review Panel as to what I will for convenience call the ‘extenuating circumstances’ provided for in cl.214C(2).

17 The Review Panel, on deciding a fisher’s eligibility, will report to the Minister (cl.214D) who may make a decision in accordance with the Review Panel’s decision or may refer it back with comments or recommendations. In reporting to the Minister on eligibility the Review Panel can include any other recommendation (cl.214C(3)).

Relevant material
18 I have reviewed the written material available to me from the Department’s file. I heard evidence from Mr Forster and a Mr Lloyd in the Tribunal hearing and admitted their statements into evidence. I received into evidence the Department’s file, copies of the Department’s Licensing Policies of June 1994 and November 1996, a Draft Fisheries Management Plan Discussion Paper No. 4 (1990), A Guide to Commercial Fishing Licences in NSW (1990), Restricted Fisheries Entry Criteria (undated), and a bundle of 16 statutory declarations in support of Mr Forster’s case. Both Mr Forster and the Minister were legally represented, and the legal representatives made written submissions which were filed after the hearing.

Eligibility for purse seine net endorsement: clause 212F(2A)
19 Mr Forster, with three partners, bought a purse seine net from Mr Lloyd in November 1991. In 1995 Mr Forster bought out the shares of his partners in the net. It is convenient and not inappropriate to refer to Mr Forster as the purchaser of the net and the owner of it from November 1991. It is of no consequence in this matter that he was in fact a joint purchaser and, for a time, joint owner.

20 The Minister says, and Mr Forster agrees, that he does not own a purse seine net that was registered in his name before 1 January 1991. It would appear therefore that Mr Forster cannot satisfy the requirement in cl.212F(2A)(b).

21 But Mr Forster says that when he bought the purse seine net from Mr Lloyd he was effectively buying Mr Lloyd’s fishing business, and so he acquired the fact of a net having been registered before January 1991. He relies on the following statement in the Restricted Fishery Entry Criteria, which I will call a statement of policy; whatever its status Mr Forster relies on it as supporting his claim that he satisfies the net registration requirement :

Where an applicant has entered the industry by buying out another fisher along with all his catch history, a net registered in the previous owner’s name is taken to satisfy the criterion of being a net registered in the current applicant’s name.
22 This policy does not in my view help Mr Forster. It does not mean what he says it does. Mr Forster relies on the policy to say ‘I bought Mr Lloyd’s net, and the effect of that was to buy him out, so I satisfy the criterion of having a net registered in the my name’. That is not the case.

23 The policy does not assist Mr Forster because he was not entering the fishing industry by way of the purchase from Mr Lloyd. That disposes of any reliance Mr Forster can place on this policy.

24 I note further, however, that Mr Forster did not actually buy out Mr Lloyd and his catch history. He argues, for a different purpose, that he should be treated as if he had done so. Mr Forster’s argument, which I address below, is not that what he did is, in law, the same as having bought out Mr Lloyd and his catch history. Rather, it is that for purposes of assessing the justness of a decision, he should be treated as if he had bought out Mr Lloyd and his catch history. Thus even if Mr Forster was entering the fishing industry by way of the purchase from Mr Lloyd, he did not do so “by buying out another fisher along with all his catch history”.

25 The requirement in cl.212F(2A)(b) is straightforward: “the person owns a purse seine net that was registered in the name of the person before 1 January 1991”. Mr Forster does not and has not owned a purse seine net that was registered in his name before 1 January 1991. The same question was answered simply, with the same simple consequence, in Virtu v Director General, NSW Fisheries [2000] NSWADT 75 at paragraph 54:

. . . I am satisfied easily that the applicant does not meet the criteria as set out in paragraph (b) of subclause 2A. The purse seine net central to this case was not registered in the applicant's name until 1993.
26 Mr Forster cannot comply with a necessary eligibility criterion in cl.212F(2A). He must then pursue the alternative route to eligibility through cl.212F(2B).

Eligibility for purse seine net endorsement: clause 212F(2B)
27 The Department concedes that Mr Forster owns a owns a fishing business that is a recognised fishing operation as required by cl.212F(2B)(a).

28 Further, the Department concedes that his fishing business includes a purse seine net that was registered before 1 January 1991 as required by cl.212F(2B)(b). Unlike the requirement in (2A), the purse seine net need not have been registered in the fishing business owner’s name prior to 1 January 1991.

29 Further, the Department concedes that the net was used to take fish for sale in at least one of 1991, 1992, 1993 and 1994 as required by cl.212F(2B)(b).

30 But the Department says that the historical takings of fish for sale by or in connection Mr Forster’s fishing business do not, as required by cl.212F(2B)(c) show that

i. using a purse seine net he took for sale either 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 period 1986 to 1990 inclusive, and
ii. he submitted at least 3 catch returns to the Director in the period from 1991 to 1994 that record purse seining as a catch method.
31 Mr Forster says that he can meet these requirements by relying on the catch history which he acquired when he purchased the purse seine net.

32 This claim – that he received the fisher’s catch history with the purchase of the fisher’s net – is contrary to clear government policy. Part 9.0 of the 1996 Licensing Policy says:

Catch history may not be transferred with a net registration.
33 Part 6.2 of the same policy limits the transfer of catch history to the transfer of a fishing business. In Virtu v Director General, NSW Fisheries [2000] NSWADT 75, the Tribunal said, in answer to a claim that catch history transferred with the transfer of net registration:
59. . . . there has been no transfer of catch history recognisable by the legislative and administrative scheme that created and regulates the concept, such that the applicant can satisfy the criteria set out in subclause 212F(2A)(c) of the Regulations.
. . .
64. . . . the transaction . . . in no way constituted the transfer of a 'fishing business' within the meaning of the Regulations, and the legislative and administrative scheme is clear . . . that catch history can only be transferred with and as part of a transfer of a fishing business, not just a transfer of fishing gear.
34 In my view this would be the effect of the policy if applied to Mr Forster’s circumstances.

35 Section 64(1) of the Administrative Decisions Tribunal Act (‘ADT Act’) provides that in determining an application for review

the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case
36 There is no argument that the policy was in force when the Minister made the reviewable decision in 1999. Mr Forster’s submission, however, is that to give effect to it would produce an unjust decision in the circumstances of the case.

Would the policy produce an unjust decision?
37 First, Mr Forster relies on his purchase of Mr Lloyd’s net equating, in the circumstances, with the purchase of Mr Lloyd’s fishing business. Secondly, he relies on the parties’ intentions, reflecting their genuinely and reasonably held belief that catch history would pass with the transfer of net registration.

38 As to the first of these reasons, Mr Forster says that he should be deemed to have ‘bought out’ Mr Lloyd, and therefore to have received his catch history, because when Mr Forster bought the net Mr Lloyd did in fact leave the industry. Mr Lloyd says in his affidavit:

19. After I sold the net to Mr Forster I relocated to the Northern Territory and Queensland.

20. My boat the ‘Aries’ sat idle for one year as I could not sell it as it needed much repair work. The ‘Aries’ was subsequently burned and buried in a quarry on the South Coast.

21. After I left the commercial fishing industry, I handed back my boat licence to NSW Fisheries.

22. I did not renew my commercial fishing licence with NSW Fisheries.

39 Mr Forster relies on the fact that the Restricted Fishery Entry Criteria refers to “buying out another fisher”. It was put in submissions for Mr Forster in this way: “the [combined] effect of the sale of the purse seine net to the Applicant and Mr Lloyd leaving the industry is equivalent to “buying out another fisher along with all his catch history”.

40 It is not submitted that the circumstances actually do satisfy the requirement that a fishing business be bought if catch history is to be transferred. Mr Lloyd’s fishing business was not bought, there is no doubt about that. It is submitted however that the position in terms of fishing effort, after Mr Lloyd’s sale of his net and abandonment of his boat, could be said to be the same as if Mr Lloyd had sold his fishing business.

41 Mr Forster says that he read the Draft Fisheries Management Plan Discussion Paper No. 4 (1990) and saw that the policy was “one in, one out”. He concluded that there would be no increase in fishing effort were he to receive Mr Lloyd’s catch history because Mr Lloyd was “getting out” of the fishing industry. Mr Forster says that if he is not considered to have received Mr Lloyd’s catch history then no-one has received it; it would have to be treated as having lapsed with the surrender by Mr Lloyd of his licence and his abandonment of his fishing business. In the Department’s view this is in fact what happened.

42 I note that Mr Forster’s argument that there would be no increase in fishing effort were he to receive Mr Lloyd’s catch history is consistent with a general policy objective underpinning the restricted fisheries regime in NSW: the amount of fishing effort in restricted fisheries will not be increased. I respectfully adopt on this point the observation by the President in Sewell v Minister for Fisheries [2001] NSWADT 124 at paragraph 10:

It has been government policy for some time not to increase the 'fishing effort' (as it is commonly referred to) in NSW waters. Since 1 January 1991 strict controls have applied giving expression to that policy (initially implemented 14 July 1989 and the subject of Circular 80A issued by the Director . . . on 22 January 1990). One aspect has involving (sic) seeking to ensure that no additional nets are introduced into restricted fisheries. In the case of the ocean haul restricted fishery the eligibility requirements set out in cl.212F seek to give effect to this policy.
43 As to the second reason why a decision produced by the application of the policy would be unjust, Mr Forster says that it was his intention, and Mr Lloyd’s, that Mr Lloyd’s catch history would transfer to Mr Forster with the sale of the net. Mr Lloyd said in a statutory declaration at the time “I . . . sign over all entitlements that go with this net”. Mr Forster says he paid much more than the net, as a net, was worth because he believed he was getting an additional benefit – the catch history.

44 Mr Forster says he didn’t buy the whole of Mr Lloyd’s fishing business – which effectively comprised a boat and other gear – because the boat was in very bad condition, he had no need for it, and he believed he was getting the catch history with the net. He paid much more for the net than it was worth thinking he was getting catch history with it. He declined to take a transfer of the fishing boat because he did not, and could not, know at the time that the policy which would be formulated would turn on transfer of a fishing business. If he’d known that he had to buy the boat to get the catch history he would have; he didn’t know that so he didn’t buy it.

45 The policy that the transfer of catch history depends on the transfer of a fishing boat was not in existence in 1991 when Mr Forster bought the net from Mr Lloyd. In a letter to the Department dated 11 March 1997 Mr Forster wrote “If at the time we were aware of the requirements that came in at a later date Ian Lloyd would have allowed us to take over the boat licence that was used with this purse seine net licence”.

46 Mr Forster’s belief that he would get Mr Lloyd’s catch history, and his intention therefore in buying the net, was founded, he says, having spoken to Mr Fardy, a Departmental officer in Nowra, who said words to the effect of “he [Mr Lloyd] has a history of operation”. Mr Forster relies on a statutory declaration by Mr Fardy in which he says:

I have received a request to supply a history for a Purse Seine net. Registration No 9481.
This Purse Seine net has been registered to Mr Ian Lloyd since the 18th August 1989.
Prior to that date it was owned by a Mr Athol Lester and used on the Licensed Fishing Boat , LFB 1489 from April 1987.
47 On the basis of Mr Fardy’s reference to the net having a ‘history’ and his account of that history, Mr Lloyd’s intention to ‘sign over all entitlements’, and the fact that Mr Lloyd was leaving the industry, Mr Forster genuinely believed that Mr Lloyd’s catch history would pass to him with Mr Lloyd’s net.

48 In summary, Mr Forster argues that it would be unjust if the effect of the policy were to deprive him of the catch history in circumstances where
· he acted in the genuine belief he was buying something of value
· he paid value for it
· he and the vendor intended that that would be the effect of the sale
· he had the opportunity to buy the boat with the catch history had he known what the criteria were to be
· transferring the catch history would not increase fishing effort in accordance with the objectives of the restricted fisheries regime, and
· he effectively bought a fishing business when he bought Mr Lloyd’s net and Mr Lloyd left the industry.

49 It is understandable in the circumstances that he describes that Mr Forster feels aggrieved, particularly as the policy which sets out how catch history can be transferred was not in place until some years after the net transaction.

50 In my view however further consideration of the reasons relied on by Mr Forster leads me to the view that a decision produced by application of the policy would not be unjust.

51 First Mr Forster says that his purchase of the net should be equated with having bought Mr Lloyd out. He says the result for the fishing industry is the same whether he bought the net or actually bought the business, so a decision which relies on a distinction would be unjust.

52 I disagree. I understand that Mr Forster may feel that to the effect of the policy on him is unfair, but in my view a decision which applies the policy is not an unjust one. The policy applies criteria for assessing a prospective entitlement on the basis of past conduct. All fishers are subject to these and similar criteria.

53 The complaint is common that decisions based on the criteria are unjust because the criteria rely on conduct engaged in before the criteria were developed, and the conduct was undertaken in innocent ignorance of the consequences (see eg Hirst -v- Director, Department of Fisheries [2000] NSWADT 158 paras 77-85). I agree that the application of the criteria found in the FMA, the FMR and policy will appear to Mr Forster to be unfair. It is not however any more unfair to Mr Forster than to any other fisher in his circumstances who, despite warnings of the risks of engaging in transactions at the time, did engage in such transactions. A decision which applies the policy is not an unjust one in the circumstances for this reason relied on by Mr Forster.

54 Secondly Mr Forster says that he and Mr Lloyd intended the catch history to pass with the net, and had a genuine belief that it would. It is the case however, as Mr Forster’s counsel submitted, that the fishing industry was functioning in an environment of uncertainty at the time. That was known at the time. In Virtu Mr Virtu’s application arose on very similar facts. Relevantly the Tribunal in Virtu found, at paragraph 58:

(e) . . . in June 1993 there was a great deal of uncertainty as to the future plans for management of fisheries in NSW and there had been a great deal of publicity about these uncertainties for several years
(f) On or about 1984 NSW Fisheries instituted a freeze on the issue of new boat licences.
. . .
(i) Since 1989 a number of Ministerial warnings, press releases and letters had been dispatched to licensed fishers and publicised in trade journals and the general press, about the uncertainties of future management and the need to be aware that nothing final in that regard had been decided by the government. Specific warnings had been given in respect of purse seine nets.
. . .
(j) The applicant was aware of these uncertainties and warnings. That was essentially why he approached the Department about his plans in the first place.
. . .
(l) . . . It was known in the industry by that time that the concept of catch history was proposed as a criteria for entrance to restricted fisheries . . .
55 Each of these findings can be made in Mr Forster’s matter, except that the relevant date in paragraph (e) is November 1991, and it is unclear the extent to which Mr Forster knew of the warnings. He said in his affidavit:
24. At about this time there was some talk about a concept of catch history and the need for “one out one in” in the future. At this time I had no other information or knowledge about how the future of the fishing industry would be developed or regulated.
56 While Mr Forster said in the hearing that he does not recall seeing the warnings, he agreed that he had heard that catch history “might come in”, and he did know of the uncertainty. I note that Mr Forster had however read the Draft Fisheries Management Plan Discussion Paper No. 4 (1990).

57 Mr Forster agreed, in answer to a question in the hearing put on behalf of the Minister, that when he bought the net in that environment of uncertainty in 1991 he had “speculated”.

58 I can not find in the Draft Fisheries Management Plan Discussion Paper No. 4 (1990) reference to the ‘one in, one out’ policy which Mr Forster says he read there, except possibly in a cross-reference to Ministerial warnings But I do find the following passage:

Transferability of entitlements
It was the industry view that a purse seine net could be used from any vessel and required the expertise of the fisherman so the endorsement or permit should be attached to the fisherman’s licence and be transferable to another fisherman.
59 To the extent this gives an indication of what a likely position on transfer of endorsements would be, it makes no reference to transferring entitlements with net registration, and points towards an endorsement attaching to a licence.

60 Mr Forster knew of the uncertainty, he had read material which gave no indication that catch history would transfer with nets, and he speculated. A decision which applies the policy is not an unjust one in the circumstances for this reason relied on by Mr Forster.

61 A further consideration weighing against the application of policy leading to an unjust decision is that Mr Forster’s need to use a purse seine net can, in the circumstances, be satisfied by a measure other than the grant of an endorsement.

62 Mr Forster wrote to the Department on 27 February 1995 saying: “The original aim of purchasing this net and registration was to enable us to catch and sell bait as well as for our own use in our longlining activities.” He repeated this in his letter to the Department dated 11 March 1997, saying “This net was purchased with a the view of catching bait for our tuna longlining operation . . . ”.

63 In the course of reviewing the decision to not grant the purse seine net endorsement the Department, on 11 May 1998, recorded on file: “If Mr Forster wishes to take fish for tuna bait, Mr Forster only needs a permit not an endorsement”. The Department then referred to part 2.5 of the 1996 Policy which provides that boats with tuna longlining endorsements can obtain a ‘bait for own use’ licence.

64 I am satisfied on the material that Mr Forster’s need for some form of authority to use a purse seine net is, in the circumstances, able to be satisfied by a measure other than the grant of an endorsement. That being so, it is preferable that that measure is the means of meeting Mr Forster’s need, rather than granting an endorsement by creating an exception to the application of policy.

65 For these reasons I am not satisfied that a decision produced by the application of policy would be an unjust one. I will give effect to the policy in force at the time the reviewable decision was made.

Finding on eligibility
66 As a result I find that Mr Forster is unable to show the catch history required by cl.212F(2B)(c), which is the same as that required by cl.212F(2A)(c) and (d), by relying on catch history he claims to have acquired when he purchased the purse seine net.

67 Mr Forster, through his lawyer’s submissions, concedes: “If the Tribunal does not give effect to the transfer of Mr Lloyd’s catch history to the applicant then this [sic] criteria cannot be met”. The concession is correctly made. Mr Forster is not eligible for a purse seine net endorsement under either cl.212F (2A) or cl.212F(2B).

Observations on catch history
68 It is unnecessary therefore to consider whether the catch history, if it did transfer with the net registration, satisfies the requirements of cl.212F(2B). I make however the following observations, as that part of Mr Forster’s case was argued and addressed in submissions at some length.

69 The requirements of cl.212F(2B) are, effectively, that the historical takings of fish for sale by or in connection with Mr Forster’s fishing business show that

· using a purse seine net he took for sale either 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 period 1986 to 1990 inclusive, and

· he submitted at least 3 catch returns to the Director in the period from 1991 to 1994 that record purse seining as a catch method.

70 It is important to note that the requirements refer to the fisher’s catch history. That is, the criteria look to personal history, not boat history, as those terms are set out in part 6.0 of the 1996 licensing policy.

71 In November 1998, in a memo on file, the Department asked itself a question which assumes the state of affairs argued for by Mr Forster: “Would Anthony Forster be entitled to a personal catch history inheritance if he purchased a general purpose vessel form Mr Ian Lloyd, along with the purse seine net?”. The Department’s answer was ‘no’. The Department’s view was that Mr Lloyd had no personal catch history. He

has only operated and owned one vessel, LFB 4478 . . . an unendorsed 9.5m vessel, which was predominantly operated in ocean waters during the criteria period . . . LFB 4478 should be determined as a boat history vessel due to its size and clear ocean history . . . LFB4478 expired on the 6/9/91. If this vessel is determined as a boat history vessel, the catch history of the vessel would be surrendered.
72 I note that Mr Lloyd’s affidavit confirms that the boat, after being idle for a year was “burnt and buried”, and that he, Mr Lloyd, “handed back’ his boat licence. I note further that the Department’s analysis of the situation regarding Mr Lloyd’s boat and its being a boat history vessel is consistent with the part 6.0 of the 1996 Policy regarding catch history. I agree that the catch history would have been treated as boat history, not personal history. Consequently Mr Lloyd had no personal catch history to make available to Mr Forster, even if Mr Forster could establish that catch history passed with the sale of the net. The catch history was boat history, and was surrendered when the boat licence was surrendered.

73 The submissions on behalf of Mr Forster also argued that the Tribunal could have regard to material other than the catch returns to decide whether eligibility was established. Again, it is unnecessary to consider this, but I make the following observations in light of the lengthy submissions.

74 Unless the catch records themselves offer some basis for inferring what is required by the eligibility criteria, it is impermissible to go to other material, such as the statements of other fishers to establish the criteria (see eg Greenaway-v- Director, Department of Fisheries [2000] NSWADT 173 at paras 73-83, and O’Grady -v- Minister for Fisheries [2002] NSWADT 48 at para 30-34).

75 That is the situation in this matter: I can see that the catch records themselves provide no basis for inferring what is required by the eligibility criteria. It is impermissible therefore to go to other material, such as the statements of other fishers.

76 In answer to this, counsel for Mr Forster submitted that the Tribunal can look at material which the administrator could not. He submitted that under s63(2) ADT Act the Tribunal “may exercise all of the functions” of the original decision-maker [his emphasis], and that that provision does not limit the Tribunal’s powers but expresses their breadth, such that the Tribunal can look at material which the administrator was not permitted to look at. I disagree on two counts.

77 First, the use of the word ‘may’ is empowering, not indicative of a discretion (see eg Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1970) 127 CLR 106). It could not have been intended that the Tribunal, in deciding the correct and preferable decision, could choose to disregard the functions of the administrator and to exercise other functions as it saw fit. The provision merely enables the Tribunal to do as the administrator did, and does not itself give the Tribunal greater powers than the administrator had.

78 Secondly, despite the breadth of the Tribunal’s powers in s73 of the ADT Act, the rules of natural justice, which bind the Tribunal, require that the material relied on be relevant material. Relevant material is that which could rationally affect the Tribunal’s assessment of the existence or not of a fact in issue.

79 The fact in issue is what is ‘indicated’ by the catch returns. What the fisher actually did is not in issue. Material which is relevant to an assessment of what a fisher actually did, but which is not relevant to what is indicated by the catch returns, is not relevant material. To put it like this highlights the very limited basis on which the restricted fisheries regime assesses a fisher’s past activity when considering eligibility, but that is clearly the way the requirements are designed.

80 Thus in my view the necessary nexus between the catch returns and eligibility cannot be avoided by looking at other material which tells a story of fishing activity not indicated by the catch returns. That material must be relevant, and it is only relevant if it assist in interpreting what is indicated by the catch returns. When the catch returns offer no basis for any interpretation, other material is irrelevant.

81 Mr Lloyd’s catch records do not themselves offer any basis for going to other material to understand what the catch returns indicate.

Summary
82 I find that Mr Forster is unable to establish, as required by cl.212F(2A)(b), that he owns a purse seine net that was registered in his name before 1 January 1991.

83 I find that the application of policy prevents Mr Forster’s having received Mr Lloyd’s personal catch history through the purchase of Mr Lloyd’s purse seine net, and that the application of policy does not produce an unjust decision in the circumstances. I find therefore Mr Forster is unable to establish that he has the catch history required by cl.212F(2B)(c).

84 I find that even if Mr Forster could have received Mr Lloyd’s personal catch history through the purchase of Mr Lloyd’s purse seine net, Mr Lloyd had no personal catch history, as the history of his fishing activity was boat history attaching to his licensed fishing boat.

85 I find that even if Mr Forster could have received Mr Lloyd’s personal catch history through the purchase of Mr Lloyd’s purse seine net, and Mr Lloyd’s history was personal catch history, the catch records do not indicate the catch required by cl.212F.

Correct and preferable decision: category one hauling
86 Having regard to the relevant factual material and the applicable law, I find that Mr Forster is not eligible for an ocean haul restricted fishery Class C (purse seine net) endorsement.

87 I note that Mr Forster appears to be eligible for a ‘bait for own use’ licence.

ORDERS
88 Pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act I affirm 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 net) endorsement.

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

Decision revised to correct spelling of applicant's name (13 August 2002)