Horan v Minister for Fisheries

[2002] NSWADT 144

CITATION:	Horan -v- Minister for Fisheries [2002] NSWADT 144
DIVISION:	General Division
PARTIES:	APPLICANT Paul Horan RESPONDENT Minister for Fisheries
FILE NUMBER:	023087
HEARING DATES:	05/07/02
SUBMISSIONS CLOSED:	07/19/2002
DATE OF DECISION:	08/19/2002
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994
CASES CITED:	Micallef v Minister for Fisheries [2002] NSWADT 105
REPRESENTATION:	APPLICANT D Armstrong, agent RESPONDENT C Cory, solicitor
ORDERS:	The Minister’s decision to refuse Mr Horan’s application for eligibility for a class B (crew) endorsement for ocean haul restricted fishery is affirmed.

Background

1 On 26 April 2002, Mr Horan made an application to the Administrative Decisions Tribunal for review of the decision made by a delegate of the Minister for Fisheries (the Minister) of refusing his application for eligibility for a class B (crew) endorsement in the ocean haul restricted fishery, upon the transfer of fishing business FB1093 from Mr Johnson to Mr Horan. This fishing business consisted of two licensed fishing boats. One was a general purpose boat and the other was used for prawn trawling in the Clarence River.

2 The Tribunal’s jurisdiction derives from s.126 of the Fisheries Management Act 1994 and s.38 of the Administrative Decisions Tribunal Act 1997.

3 Mr Horan purchased FB1093 on 27 August 1996. Attached to that business was a class B ocean haul restricted fishery, estuary general restricted fishery and estuary prawn trawl fishery endorsement.

4 After he had purchased the business, Mr Horan was given the estuary general restricted fishery and estuary prawn trawl fishery endorsements, but not the ocean haul class B (crew) endorsement.

5 However, since that time Mr Horan has actively sought entitlement to this endorsement as he alleges that he had been told by an officer of the Department of NSW Fisheries that he would be entitled to it.

Preliminary Issue

6 A preliminary issue was raised, but not pressed, by Ms Cory who appeared on behalf of the Minister. This issue related to Mr Horan’s application being out of time and contrary to s.55(1) of the ADT Act and the ADT Rules, which require the applicant to make his application within 28 days of becoming aware of the administrator’s decision following an internal review. As this issue is relevant to the Tribunal’s jurisdiction I will deal with it briefly.

7 On 1 May 2000 Mr Horan applied for eligibility for a class B (crew) ocean haul restricted fishery on the basis of his purchase of FB1093 from Mr Johnson. Prior to this there had been ongoing correspondence between Mr Armstrong, on behalf of Mr Horan, and NSW Fisheries in relation to this entitlement.

8 NSW Fisheries responded to the application on 26 September 2000 and advised Mr Horan that his application had been refused because the Validated Catch History of the fishing business was not sufficient to meet the April 2000 criteria of the Director in respect of eligibility for a Class B (crew) endorsement on the transfer of a fishing business.

9 Mr Armstrong, on behalf of Mr Horan, wrote to NSW Fisheries on 22 November 2000 and made further submissions on why Mr Horan was entitled to the endorsement sought.

10 On 16 December 2001, more than one year later, NSW Fisheries responded and advised that Mr Horan was not eligible for the endorsement and that the validated catch history of FB1093 could not be reviewed.

11 On 2 April 2002 Mr Armstrong wrote seeking another review. NSW Fisheries responded on 8 April 2002 stating that the letter of 16 December 2001 had been the review decision and that they would not consider it again. An application was then lodged with the Tribunal on 26 April 2002.

12 From the material filed it would appear that Mr Armstrong, who is not legally qualified failed to understand the effect of the 16 December letter. Once informed of its effect an application was lodged within time.

13 Accordingly, I am of the opinion that the NSW Fisheries letter of 2 April 2001 is the relevant decision from which review is sought. However, if I am wrong, in my opinion the circumstances are such that Mr Horan has provided a reasonable explanation for the delay in making his application following receipt of the letter from NSW Fisheries dated 16 December 2001. I therefore would also extend the time, pursuant to s.57(1) of the Administrative Decisions Tribunal Act for the lodgement of Mr Horan’s application.

Main Issue

14 The primary issues in this case are:

(a) whether the eligibility criteria as set out in s.212F(2) of the Fisheries Management (General) Regulations apply to Mr Horan’s application for an endorsement; and

(b) whether Mr Horan, through representations made to him by an officer of NSW Fisheries, Mr Driver, at the time he purchased the business gave rise to an entitlement for the endorsement.

Relevant Legislation

15 Section 64 of the Administrative Decisions Tribunal Act, 1997, makes provision for the application of Government policy in determining an application for a review of a reviewable decision by the Tribunal. So far as is relevant, that section provides as follows:

“64(1) In determining an application for a review of a reviewable decision, 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 circumstance of the case.

….

(4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

In this section:

Government policy means a policy adopted by:

(a) the Cabinet, or

(b) the Premier or any other Minister, and

that is to be applied in the exercise of discretionary powers by Administrators”.

The FM Act has been in operation since 16 January 1995 and its objects are contained in s. 3 of the Act, which provide:

“3(1) The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of the present and future generations.

(2) In particular, the objects of the Act include:


(a) to conserving fish stocks and key fish habitats, and

(b) to conserving 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 aqua-culture industries; and

(e) to promote quality recreational fishing opportunities, and

(f) to appropriately share fisheries resources between the users of those resources.

16 In accordance with these objectives the FM Act provides a comprehensive licensing scheme for commercial fishers and commercial fishing boats.

17 Section 112(1) of the FM Act provides that a commercial fishing licence does not authorise a person to take fish for sale in a restricted fishery unless the holder is authorised by the Minister, by an endorsement on the licence to do so.

18 Subsection 113(2) of the FM Act provides that the eligibility for an endorsement of commercial fishing licences is to be determined in accordance with the regulations.

19 Section 114 of the FM Act provides that an endorsement of a commercial fishing licence under Division 3 of Part 4 (relating to restricted fisheries) is not transferable, unless authorised by the regulations.

20 Paragraph 116(a) of the FM Act provides that the regulations may make provision for, or with respect to, the endorsement of commercial fishing licences and the cancellation, suspension or transfer of those endorsements.

21 Division 4A of Part 8 of the FMG Regs contains provisions creating and regulating the ocean haul restricted fishery. This division was inserted into the FMG Regs on 1 March 1995. The provisions in this Division defines what ocean haul fishery is for the purpose of the Division, the types of endorsements (class A, class B and class C) in such a fishery and the eligibility for each type of endorsement.

22 Under Cl.212F(2) of the FMG Regs, a person is eligible for a class B endorsement if the person demonstrates to the satisfaction of the Minister that the person has participated in the ocean hauling fishery at any time after 1 January 1986.

23 Clause 212F(4)(a) of the FMG Regs provides that the relevant year in subclause (1) is a reference to the years 1986, 1987, 1988, 1989 or 1990.

24 Clause 212G of the FMG Regs provides that an endorsement remains in force for the period specified in the endorsement, except to the extent that its duration is affected by suspension, or unless it is cancelled.

25 Clause 212Y of the FMG Regs sets out what effect the sale or disposal of a fishing business (in whole or part) has on the seller’s and buyer’s eligibility for any endorsement in a restricted fishery that is attached to the fishing business. That section provides as follows:

“212Y(1) A person ceases to be entitled to an endorsement in a restricted fishery if any part of the fishing business that made the person eligible for the endorsement is sold or disposed of. For example, if a person sells the licenced fishing boat that made the person eligible for an endorsement, the person ceases to be entitled to such an endorsement.

212Y(2) A person who acquires any part of the fishing business of another person does not thereby become eligible for an endorsement in a restricted fishery, except in accordance with guidelines relating to the transfer of fishing business issued from time to time by the Director.”

26 Clause 212Y was inserted into the FMG Regs on 28 February 1997. Prior to this, the FMG Regs did not contain any provision for the transfer of an ocean haul restricted fishery endorsement pursuant to paragraph 116(a) of the FM Act .

27 However, the Tribunal was informed that, in March 1995, when the provisions in relation to ocean haul restricted fishery was inserted into the FMG Regs, the Minister had introduced a restricted transfer policy for class A and class B endorsements. That policy prevented the transfer of endorsements to any new owner of the fishing businesses, except where the transfer was for a class A (Skipper) endorsements and the previous owner of the fishing business had died or demonstrated serious illness.

28 As mentioned above, in April 2000, the Minister approved new criteria for the transfer of class A and class B endorsements in the ocean haul restricted fishery. The effect of these new criteria was that a class B (crew) endorsement, which had been issued by the Minister in accordance with clause 212F(2) of the FMG Regs, could only be transferred if the person’s validated catch history of the fishing business for the relevant years (1986 to 1990) contained a minimum of 6 ocean catch returns between 1986 and 193 and at least one of those returns occurred prior to January 1991. The new criteria were significantly higher than the eligibility criteria provided for in clause 212F(2) of the FMG Regs.

Evidence

29 Ms Cory, on behalf of NSW Fisheries, relied on the material that had been filed on behalf of the Minister and an additional document, which was the Ministerial Briefing concerning Ocean Handling Transferability Criteria, signed by the Minister some time in 1999. This document set out the Ocean Hauling Transferability Criteria that came into force in April 2000.

30 Mr Armstrong called Mr Horan to give oral evidence and tendered into evidence a letter dated 4 July 2002 signed by Peter Horan, the father of Mr Horan. Mr Armstrong advised that Peter Horan was not available to give evidence because he was looking after a relative who was seriously ill in hospital. In that letter Mr Peter Horan states:

“…I understood from the conversation with Mr Driver that Paul would be entitled to the endorsement in question, i.e. the beach haul endorsement was already on the Arrawarra at the time of purchase, if the endorsement went through the proper authorities.”
31 Mr Horan in his evidence stated:
(a) prior to purchasing FB1093 from Mr Johnson he had not been involved in the fishing business. He had been a glazier by profession and wanted a change. His father had been involved on and off in the fishing business and Mr Horan bought Mr Johnson’s fishing business so that he could enter the industry.

(b) He saw an advertisement for FB1093 at the local fishing co-op. The advertisement stated that the fishing business had entitlements to prawn trawling, all trapping pocket netting, meshing and beach or ocean hauling class B endorsement.

(c) He was particularly interested in this business because it was a “multi-disciplinary” fishing business which enabled him to fish all year round. The beach/ocean hauling was a profitable business, but only operated during 3 months of the year from about May to July.

(d) He met with Mr Johnson and he knew that he was a well known fisherman in the area and he thought he would be buying what Johnson had, which included his entitlements. At the same time he had already lined up a job as a crew member for ocean hauling.

(e) On 27 August 1996 he met Mr Johnson at the McLeay offices of NSW Fisheries. The meeting had been arranged by Mr Johnson and it was Mr Horan’s understanding that the transfer of the fishing business had to take place at the NSW Fisheries office.

(f) Mr Horan was accompanied by his father and present at the meeting was Mr Johnson and Mr Driver, an officer of NSW Fisheries at that time. Mr Horan had not previously met Mr Driver, but he clearly recollects him being dressed in a NSW Fisheries uniform on that day and appearing to act in his official capacity.

(g) Mr Driver and Mr Johnson appeared to have known each other very well and Mr Driver handed Mr Horan documents to sign. Mr Driver took an identity card from Mr Johnson, which Mr Horan understood was Mr Johnson’s endorsement for ocean haul restricted fishery. When taking the card Mr Driver said words to the effect:

“I cannot transfer the beach haul endorsement. I have known Donald for years, he always fishes in this area and you should get it back.”
Mr Horan then said:
“How will we be able to get it back?
To which Mr Driver responded:
“You will have to go through the system.”
32 After all the documents were signed Mr Driver stapled Mr Johnson’s identity card to the papers and put them all into a manilla folder, which he said would be sent to Sydney.

33 During cross examination Mr Horan also stated:

(a) He did not read the documents that were put in front of him. He had faith in what Mr Driver told him was true and correct as he appeared to be acting in his official capacity.

(b) He had not seen the 1994 Licensing Policy of NSW Fisheries before or at the time he purchased the business.

(c) He had not seen any warnings issued by NSW Fisheries that persons wishing to purchase a fishing business should seek advice in writing.

(d) He did not recollect what the documents were that he signed on this day. These were all taken by Mr Driver and put into his manilla folder.

(e) At the time he purchased the business he did not know what the validated catch history of a fishing business was and he did not know that it could not be re-assessed;

(f) After he purchased the fishing business he worked as a spotter for ocean haul fishers and also worked carrying the fish from the boat to the co-op;

(g) He was not informed about the 1997/1998 proposals that were being discussed for eligibility criteria for new entrants to the ocean haul restricted fishery. He said he was not recognised by NSW Fisheries as having these entitlements so he received no information;

(h) On 31 March 1997 he signed the application for appeal against the NSW Fisheries decision to refuse him entry to the estuary general restricted fishery for which Mr Johnston held an endorsement. Mr Horan explained that NSW Fisheries had forwarded the particular form to him and that his wife had completed the details. He stated that he had sent the form in because the Department had decided to “take away” his meshing endorsement. In that application he has stated:

“As Beach Haul was already refused on the transfer of the RFO on purchase, I find it unfair now NSW Fisheries refuses to renew the meshing endorsement which was successfully transferred to my name (emphasis added).”
(i) He was successful in his appeal and obtained an endorsement for estuary general restricted fishery.
Findings and Reasoning

34 In respect of Mr Horan’s eligibility for the class B (crew) endorsements on the basis of the criteria set out in clause 212F(2) of the FMG Regs, I recently considered the same issue in respect of a class A (skipper) endorsement in my decision in Micallef v Minister for Fisheries [2002] NSWADT 105. In that decision I set out the history of the legislative scheme in respect of ocean haul restricted fishery and found that the eligibility criteria as set out in clause 212F(1)(a) of the FMG Regs applied to the original entrants/applicants to this restricted fishery, which was created in March 1995. I also found that clause 212Y(2) of the FMG Regs provided the means by which new entrants, who had acquired a fishing business and its validated catch history, were eligible for an endorsement to this restricted fishery.

35 In my opinion the same construction of the legislative provisions applies to a class B (crew) endorsements. That is, where a fishing business, which had attached to it a class B (crew) endorsement, is transferred to a new owner, the new owner will be eligible for a class B (crew) endorsement if the validated catch history of that fishing business satisfies the criteria contained in the April 2000 policy of the Director of NSW Fisheries, as agreed to by the Minister. This new criteria requiring the validated catch history of the business to have 6 ocean hauling catch returns in the period 1986 to December 1993, with at least one return prior to 1 January 1991.

36 In his letter to NSW Fisheries dated 6 May 1999, Mr Armstrong, on behalf of Mr Horan, stated that:

“The fishing business purchased by Mr Horan from Donald Johnson shows beach hauling as one of the fishing methods being employed for a total of 7 months within the catch validation period 1986-1993 with many sea mullet entries prior to 1991 which although are not recorded as such are believed to have been caught for sale by the beach hauling method.”
37 He went on to state that Mr Johnson was prepared to give a statutory declaration to this effect. No such declaration was tendered into evidence and Mr Armstrong conceded during the hearing that the catch history of FB1093, even if it were able to be re-assessed, would not satisfy the April 2000 criteria.

38 Accordingly, there is no basis on which Mr Horan is able to claim a legislative entitlement to being eligible for a class B (crew) ocean haul restricted fishery. Clause 212F(2) of the FMG Regs does not apply as he is not the original entrant/applicant to this restricted fishery and he does not satisfy the criteria set out in the April 2000 policy of the Director, which was made pursuant to clause 212Y(2) of the Regulations.

39 In respect of the representations made by Mr Driver on 27 August 1996, I accept the evidence or Mr Horan. That is, I accept that Mr Driver said words to the effect that Mr Horan “should” get the ocean haul endorsement and that Mr Horan relied on this information when he purchased the business. Mr Horan used “should” on several occasions in his evidence and I do not accept that this statement amounted to a promise or guarantee that he would be issued it.

40 The evidence of what was said does not go this far and Mr Horan’s evidence of Mr Driver taking Mr Johnson’s entitlement card and saying “I cannot give this to you….” And that he would have to go through the system is inconsistent with a representation that he was guaranteed this entitlement.

41 Furthermore, Mr Horan’s statement in his application of 31 March 1997 for the estuary general restricted fishery endorsement is consistent with being told that he had been refused the ocean haul restricted fishery endorsement that had been attached to Mr Johnson’s fishing business.

42 Even if I am wrong, at the time Mr Horan acquired the fishing business there was no legislative provision for the transfer of an endorsement from one person to another. This did not change until 1997 when Cl.212Y of the FMG Regs was inserted, however this provision was subject to the Director issuing guidelines in this regard. Such guidelines were not issued until April 2000 in respect of ocean haul fishery.

43 Accordingly, Mr Driver had no authority to make a promise as alleged by Mr Horan. In any event, I find that no promise was in fact made. Mr Driver’s conduct was consistent with the legislative provisions and policy that applied at that time.

44 For these reasons, I am of the opinion that the Minister’s decision to refuse Mr Horan’s application for eligibility for a class B (crew) endorsement for ocean haul restricted fishery pursuant to a transfer of a fishing business is the correct and preferable decision.

ORDER

I order that the Minister’s decision to refuse Mr Horan’s application for eligibility for a class B (crew) endorsement for ocean haul restricted fishery is affirmed.