Henderson v Minister for Fisheries

[2000] NSWADT 182

CITATION:	Henderson & anor -v- Minister for Fisheries [2000] NSWADT 182
DIVISION:	General Division
PARTIES:	APPLICANTS Graham Leslie Henderson Gregory John Henderson RESPONDENT Minister for Fisheries
FILE NUMBER:	003252; 003253
HEARING DATES:	07/11/2000
SUBMISSIONS CLOSED:	11/07/2000
DATE OF DECISION:	11/07/2000
BEFORE:	Smith MB - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Fisheries Management Act 1994
CASES CITED:	Woodward v Minister for Fisheries [2000] NSWADT 143 Greenaway v Director, Department o Fisheries [2000] NSWADT 173
REPRESENTATION:	APPLICANTS G J Henderson RESPONDENT C Cory, solicitor
ORDERS:	In each matter, the decision under review in relation to the demersal fish trap endorsement is set aside, and in substitution it is decided that the matter is referred to a review panel for further consideration taking into account the Tribunal’s reasons for decision.

1 In this matter, I heard two applications together. They involve twin brothers who have been conducting fishing operations together. Mr Gregory Henderson represented both himself and his brother, Graham. At the conclusion of the hearing, I indicated my decision and gave brief reasons, stating that I would provide a fuller written statement of reasons.

2 As will appear, the decisions under review concerned the applicants’ joint operations, and were to the same effect. By reason of a procedural divergence, Graham Henderson’s application to the Tribunal required an order extending time. I granted this extension for reasons which sufficiently appear in the transcript of the hearing.

3 Each of the applications sought review of decisions taken by the Minister on 1 December 1999 (Exhibit 2 page 46), in which the Minister received a submission recommending his adoption of reports from the Restricted Fisheries Review Panel, including reports concerning the two applicants in relation to the present endorsements. The reports from the Review Panel were dated 24 August 1999 (see Ex 1 p. 7, and Ex 2 p.48) and are in the same brief terms:

“The Review Panel is not satisfied the applicant meets the eligibility criteria for an Ocean Trap and Line Restricted Fishery demersal fish trap endorsement and recommends to the Minister that the endorsement be refused.”

4 The eligibility criteria for this endorsement are found in Fisheries Management (General) Regulation 191E(1), which provides:

“ (1) Demersal fish trap endorsement . A person is eligible for a demersal fish trap endorsement if the Minister is satisfied that the person submitted to the Director at least 6 ocean waters catch returns in the years 1986 to 1990, and 4 ocean waters catch returns in the years 1991 to 1993, that indicate that fish were taken using a fish trap of a kind known as a bottom or demersal fish trap.”

5 The evidence before the Review Panel showed that they had been fishing together since the early 1980’s in both estuary and ocean waters in the vicinity of Lake Macquarie, Myall Lakes, and the Hunter, using a wide variety of methods. Their fishing returns between 1986 and 1993 did not readily satisfy the criteria for the various endorsements which they were obliged to seek when their fisheries became restricted under the 1997 regulations. However, it seems that they were able to persuade the Review Panel to recommend endorsements in the Estuary General Fishery for prawning, for fish, eel and mud crab trapping, and for hand gathering, as well as a line fishing (western zone) endorsement in the Ocean Trap and Line fishery. These recommendations were accepted by the Minister.

6 Their difficulty in obtaining the ocean waters fish trap endorsement appears to have been in persuading the Panel that they had used trapping method when taking catches which are shown in their returns, but whose species might have been caught in either estuary or ocean waters and either in a trap or on a line. The Department’s submission to the Review Panel seems to have been that the use of ocean trapping was established only by references to this method in two monthly returns: for February 1989 and December 1992. Although the method was also referred to in some other returns, the Department’s submission was that they should be discounted as mistaken references to catches taken by estuary trapping. I must assume that the Review Panel accepted the Department’s submissions.

7 Between the time that the Review Panel reported in August 1999 and the Minister's decision in December of that year, Mr Gregory Henderson wrote to the Premier a long submission (Ex 1 p23-28) taking up the point on which he understood the Review Panel to be against him on, which was whether various species of fish were usually caught in the ocean or in estuaries in the areas that he fished around Lake Macquarie. It seems that these statistics had been referred to by the Review Panel at its hearing but that he had only had opportunity after the hearing to obtain and consider the publication containing them.

8 In the submission, Gregory developed an argument as to how these statistics should be related to his own catches, after explaining:

Because of the way we had to fill out our returns a lot of the fish that we caught were put in the wrong place and a lot of them were put in as mixed fish. I gave the fisheries a list of some of the fish that may have been caught in our traps. I left a lot of fish off the list because I couldn’t say which fish that was mixed actual was for. I did this because I thought being totally honest would help.

9 This long submission was eventually referred to the Minister for Fisheries who, in October 1999, signed a letter (Ex 1, p.17) which said:

“The recommendation from the panel for your fishing business has not yet been forwarded for my consideration. I note you have requested an opportunity to forward additional information for the Premier to view before I make a decision on the matter. Please be assured I will consider any information not previously considered by the Review Panel which you feel may assist your endorsement review. The information will be considered at the same time as the Review Panel's recommendation. You will be notified of my decision accordingly. Please forward this additional information to the following address within thirty days.

10 Mr Henderson did not send any additional material, and this appears to have led, within the Department, to the view that the Minister did not need to be told or reminded about Mr Henderson’s lengthy submission when, in December 1999, the Minister was asked to adopt the Review Panel recommendation. The Department’s file contains no examination of the merits of the points made in the submission, and no examination was presented to the Minister or referred to in the minute which baldly invited him to approve the Review Panel’s adverse recommendation (this is missing from Gregory Henderson’s file, but is found on Graham Henderson’s file, Ex 2 p46). It is unclear from Gregory Henderson’s file as to why it then took a further six months to notify him of the Minister’s decision. The letter doing so is dated 30 June 2000. Upon receiving this, he applied, within time, for review by this Tribunal.

11 Turning to the file concerning Graham Henderson’s application, Gregory Henderson also raised his concerns after the Review Panel’s hearing in August 1999 in the context of making submissions on behalf of Graham, who appears to have difficulty dealing with paper work. Graham’s file, contains a whole series of letters which they assembled during September 1999 from various Co-operatives up and down the coast, concerning what species of fish are, or are not, caught in estuaries (see Ex 2 pp 16-23, also Ex 1 p 53). It is unclear to me from the file when or how this material was received by the Department.

12 Like Gregory’s submission to the Premier, this evidence from the Co-Operatives provided prima facie relevant material which had not been addressed by a Review Panel. Like Gregory’s submission, I find no evidence on the file that its implications for the brothers’ entitlements was ever examined within the Department. Certainly, as in Gregory’s case, the Minister was not informed of the additional material when the Department invited the Minister to approve the Review Panel’s recommendation in December 1999.

13 Although, as I have said, the Minister made a decision under reg 214D concerning both applicants at the same time, the two matters subsequently diverged. As I have noted above, Gregory Henderson was notified of the decision in June 2000. Graham Henderson was notified in a letter of 14 December 1999 (Ex 2 p.44). The consequence was that Graham Henderson had to seek an internal review before coming to this Tribunal and Gregory Henderson did not, because the law was changed in the interim. Graham Henderson applied for review on 22 December 1999 (Ex 2 .38), and was notified that the original decision was confirmed in a letter dated 7 March 2000 (Ex 2 p.7).

14 I have no confidence from reading the files that the internal review process took into account the additional material which was submitted after the Review Panel report. Certainly, there is no reference to it in the reasons prepared for the internal review decision (Ex 2, pp 30 – 36), of which I only have an unsigned draft for signature by the Solicitor for the Administrator. This purports to explain the "reasoning process" that led the Administrator to the affirm the refusal of endorsement to Graham Henderson. These reasons are in the same terms as are now put forward in this Tribunal justifying the refusal of the endorsement to Gregory Henderson (see Exhibit 7). In short, it is said that:

“The Review Panel did not accept the premise that species such as silver trevally, snapper, tarwhine, bream, and leatherjacket are more likely to have been taken in ocean waters than estuary waters.”

15 This is put forward as the crux of what the Review Panel decided and, certainly, it was the crux of the argument and additional material that Mr Henderson had sought to raise after the Review Panel proceedings had come to an end.

16 The circumstances I have related above, in my mind, justify a remitter of the matter back to the Review Panel for further consideration. I consider that such a decision would be an appropriate exercise of the Minister’ power under reg 214D(1)(b). I have explained my opinions on that power in Woodward v Minister for Fisheries [2000] NSWADT 143 at [56] and following.

17 In addition to the submissions and new material raised by the applicants after the Review Panel hearing, I think there is further evidence that the Review Panel should take into account, that being evidence that has been adduced by Mr Henderson today in the proceedings in the Tribunal. I shall not attempt a complete summary of that evidence. It has been recorded on transcript and the documents tendered are available.

18 The central issue for the Panel is whether it is satisfied that 6 of the applicants’ ocean catch returns between 1986-90 and 4 of their monthly ocean catch returns between 1991-93 “indicate” that fish were taken by fish trap.

19 When deciding what is required in this respect, it is important to bear in mind the formal and practical limitations of fishing returns over the relevant years. As was recently pointed out in Greenaway v Director, Department o Fisheries [2000] NSWADT 173, between 1986 and May 1989 the form of returns was prescribed as “form 49” under the Fisheries and Oyster Farms (General) Regulation 1936. From May 1989 until 1993, the form was prescribed as “form 19” under the Fisheries and Oyster Farms (General) Regulation 1989. Notwithstanding the making of a new set of regulations in 1989, my, not complete, researches suggest that no change was made to the form prescribed between 1986 and 1993. However, a difficulty arises because, at some point in the period, the Department produced more elaborate versions of fishing returns which, although purporting to be a “form 19”, in fact contained changes which were not gazetted.

20 Thus, at the start of the criteria period, the form which appears to have been both used and prescribed was a four page combined ocean and estuary return. On page 1 the fisher was invited to enter details of himself, his crew, his method of disposal of catch and also to “indicate main fishing method by an “X”” next to one of 12 boxes, of which box 7 was “trapping”. On pages 2 and 3, a fisher was requested separately to show the weight of catches taken from “sea beaches and ocean waters” and from “estuaries, tidal rivers, bays, tidal lakes or tidal inlets” respectively. The categories of “fish” shown on both of these pages included an item for “Other fish (mixed)”. Page 4 consisted of a map showing the ocean fishing zones and estuaries, so as to provide references for insertion on pages 2 and 3.

21 This form of fishing return was still found as “form 19” in the January 1992 reprint of the 1989 Regulations, and, so far as I can detect, was not amended by any regulation made before 1994. However, it is apparent from returns tendered in this and other cases that the Department changed the form from time to time without formally amending the prescribed form. Thus, exhibit 8 before me in the present matter consists of copies of two separate returns lodged by Gregory Henderson in October 1990. These are two page documents dealing respectively with ocean waters and beaches, and estuarine waters. The first page of each invites the fisher to show “fishing method/s used in this zone this month” by reference to number of days used on various methods, including “fish trap”, and also contains a box for “days when more than one method used”. I do not know, whether from the evidence in the present or in other cases before the Tribunal, when this particular change was made to the form.

22 As Gregory Henderson pointed out to me, under the prescribed form which inquired only as to the “main fishing method used” over one month, the returns of fishermen who used a variety of methods covering both estuary and ocean waters necessarily did not “indicate” all the methods they had used in the sense of “specify”. Moreover, fishermen who in some months combined complimentary methods, such as droplining while attending a line of fishing traps, were forced to describe one of those methods as the “main” method. I can understand that the nuances of the change to “numbers of days” for each method may well have been overlooked by some fishermen, who may have continued to think that “main methods” were still being inquired about. Moreover, the forms still left room for uncertainty where two methods were combined on the one day. Finally, it is reasonable to bear in mind the likely differing capacities and enthusiasm of fishermen to itemise at the end of each month the exact number of days on which a variety of methods had pursued, in a process which at the time would not have seemed likely to govern their future livelihoods.

23 It is, in my opinion, therefore essential to construe the 1997 Regulations which require judgment on what old fishing returns “indicate” in the light of the above history of their form and the actual or likely responses of the people who were required to complete them. In semantic terms, I consider that the word “indicate” takes meanings of “point to” or “allow a conclusion that”, rather than “state” or “specify”. Moreover, the above points as to the ambiguous information provided by some parts of the returns make it clear, certainly in relation to criteria addressing fishing methods, that the Regulations envisage a process of interpretation of the old returns in the light of extrinsic evidence explaining how they were completed, rather than by a strict or mechanistic analysis of how they were actually marked.

24 In this respect, I agree with what was said by the Tribunal in Greenaway (supra) at [55] that in disputed cases such as the present it may become necessary to examine the actual returns so as not only to verify the accuracy of the Department’s computer summary of fishing returns, but also to check and extend what has plainly at times been a process of inference from the contents of returns rather than transcription of their contents. I also agree with Greenaway at [81] that: “assessing eligibility involves both interpretation of the whole catch return and, as the Department acknowledges, consideration of other material which will assist an understanding of what the form indicates.”

25 In the present case, it is clear that extrinsic evidence of the applicants’ actual fishing methods needs to be taken into account before a proper conclusion can be reached as to the number of returns which “indicate that fish were taken using a fish trap of a kind known as a bottom or demersal fish trap.” Such evidence can include the testimony of the fisherman concerned, and if it is given credibly on oath there is no necessary requirement that it must be corroborated at all or in any particular way. However, of course, corroboration by a witness or contemporaneous documentation will assist a judgment on credibility.

26 Gregory Henderson has explained to me his and his brother’s methods for trapping in ocean waters in a coherent and comprehensive fashion. This involves the construction of several large wooden and mesh traps, their placement in a line, and the subsequent periodic visiting of the line to collect fish from the traps. He said that this is likely to continue over a season of several months until the traps disintegrate. On this evidence, it is reasonable at least to accept that ocean trapping is a method that is likely to occur over a period of months, since it would be foolish to set a trap, just for one month. Gregory Henderson gave evidence of a practice over several of the criteria years of setting up lines of traps, and he produced to me note books that have all the signs of authenticity in which, at least, from 1984 or 1985, he has drawn reference lines or marks for his laying of lines of traps. These notebooks show every sign of having been consulted on a repeated basis, until, as he now says, he normally does not need to refer to his note books to find his usual fishing lines for the setting of traps.

27 Gregory Henderson also explained in his evidence that two of his methods of ocean fishing are complementary. This is because it is sensible to go line fishing at the same time and in the same locations that the traps are laid, since fish congregate around the bait. It seems to me that a fishing panel could well accept the veracity of Mr Henderson, and accept his evidence as to his fishing methods, without the need for fuller corroboration. However, plainly, further corroboration would assist the applicants, if witnesses of the actual laying of fishing traps could be located with a sufficient memory going back to the criteria period.

28 There is already, in my opinion, some corroboration in terms of the acquiring of materials for making ocean fish traps (see Ex 1 p. 52). This material has gained some more substance with some recent photographs that Mr Henderson has produced today showing the structure of ocean fish traps and the materials that he accumulates at his house to do that with. But, at the end of the day, it would be necessary for the panel to decide whether it is persuaded, only on the balance of probabilities, that the applicants were laying lines of fish traps over the years in question and took fish from them in at least the requisite number of months.

29 This is not a case where I have felt it appropriate to arrive at my own conclusions on the above questions of fact, and I would prefer to remit them to the Review Panel to engage its expertise. I recommend that it should reassess all the evidence, including by allowing the applicants a further chance to produce witnesses who can verify seeing them actually taking traps out to sea, laying them, or pulling them up and taking fish out of them or landing fish from them during the period. Gregory Henderson has obtained statutory declarations which, unfortunately, are vague as to this (eg. in Ex 1 pp64, 65, 81-86, and Ex 2 pp 67-71). He has recently obtained one from an ex-fishing Officer which once again is ambiguous as to exactly what that witness could say as to the use of the method of trapping in ocean waters.

30 I therefore, propose to set aside the Minister's decisions in this case taken under section 214D. Acting on my view of the law which I have explained in Woodward and the Minister for Fisheries (supra), I take the view that the Tribunal has the power of the Minister under section 214D(1(b) to refer the matter back to the panel together with comments or recommendations for further consideration, and that this is the power that should I exercise in the present case.

31 I recommend to the Panel that, having reached a decision on whether Mr Henderson has, or should be taken to have, satisfied the eligibility criteria in regulation 191E(1) as amplified by regulation 214C, it should provide its reasons for the decision that it arrives at. I particularly note that it would very much assist the Tribunal if the matter is to return here again, if the Review Panel themselves should prepared a statement of reasons which is more than a terse conclusion, but which, for example, reveals the reasoning process of the Review Panel along the lines suggested in section 49 of the Administrative Decisions Tribunal Act 1997 (NSW). That is, that it provide a statement setting out the Review Panel's findings on material questions of fact, referring to the evidence or other materials on which those findings were based, indicating the Review Panel's understanding of the applicable law that they are applying, and indicating the reasoning process that leads the Review Panel to its conclusions. In this respect, I can understand that the Review Panel in the processes leading to matters which are currently reaching the Tribunal felt it not necessary to provide its reasoning when reporting to the Minister. However, given the limitations on the powers of the Tribunal that I have explained in Woodward, there is a prospect that matters such as the present will endlessly shuttle between the Tribunal and the Review Panel, unless at some point the fishermen and the Tribunal can be satisfied that the Review Panel has fully and properly addressed all questions of fact and the law required to be addressed by it.