Luke v Minister for Fisheries

[2001] NSWADT 173

CITATION:	Luke -v- Minister for Fisheries [2001] NSWADT 173
DIVISION:	General Division
PARTIES:	APPLICANTS John Edward Luke Troy Vincent Luke RESPONDENT Minister for Fisheries
FILE NUMBER:	013007
HEARING DATES:	26/04/2001, 27/09/2001
SUBMISSIONS CLOSED:	09/27/2001
DATE OF DECISION:	10/23/2001
BEFORE:	Foster GF - 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:	Puglisi -v- Administrative Decisions Tribunal of New South Wales Appeal Panel (2001) NSWCA 298
REPRESENTATION:	APPLICANTS In person 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 Applicants are not eligible for Estuary General Restricted Fishery, Estuary General Meshing Endorsement, Estuary General Trapping endorsement and Estuary General Mud Crab Trapping Endorsement be confirmed; 2. The decision of the Minister to, accordance with the decision of the Review Panel, confirm the determination that the Applicants are not eligible Estuary General Restricted Fishery Estuary General hand gathering endorsement be set aside; 3. 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 into account the reasons of the Tribunal in these proceedings; 4. No order as to costs.

1 The Applicants, John Edward Luke and Troy Vincent Luke, make application for endorsements with respect to the Estuary General Restricted Fishery Meshing, Trapping, Mud Crab Trapping and Hand Gathering by application dated 24 October 1996.

2 The Minister for Fisheries as the administrator ("the Minister") made a decision with respect to the Applicants' application and refused to grant Estuary General Restricted Fishery Meshing, Trapping, Mud Crab Trapping and Hand Gathering endorsements and notified the Applicants of the decision by letter dated 21 February 1997.

3 The Applicants lodged an application for review of the Minister's decision on 4 April 1997.

4 The Restricted Fisheries Review Panel is the statutory review panel under the Fisheries Management (General) Regulation 1995. The Restricted Fisheries Review Panel carried out a review of the determination relating to the Applicant's eligibility and provided the Minister with a written report recommending that the Applicants be refused the Estuary General Restricted Fishery Meshing, Trapping, Mud Crab Trapping and Hand Gathering endorsements.

5 In accordance with the recommendation of the Restricted Fisheries Review Panel the Minister determined the Applicants should not be granted the endorsements and notified the Applicants accordingly by letter dated 18 December 2000.

6 The Applicants lodged an application for review of the decision to refuse the issue of the Estuary General Restricted Fishery Meshing, Trapping, Mud Crab Trapping and Hand Gathering endorsements with the Tribunal by application filed on 16 January 2001.

7 The Minister on the recommendation of the Restricted Fisheries Review Panel found that on the basis of the validated catch history requirements pertaining to the Applicant's fishing business number (FB1127) there was insufficient catch history to enable the Applicants to obtain Estuary General Restricted Fishery Meshing, Trapping, Mud Crab Trapping and Hand Gathering endorsements.

8 The Minister further found that the Applicants satisfied the general criteria for entry into the Estuary General Restricted Fishery as they own a licensed fishing boat and have 12 Estuary Catch Returns in any 4 years from 1986 to 1993 and at least one of these relates to a month prior to January 1991.

9 The Minister found that the Applicants have insufficient catch history to qualify for Estuary General Meshing Endorsement in respect of FB No. 1127 as they have none of the required 8 catch returns which list meshing as a method in estuary waters in the period 1986 to 1993 inclusive.

10 The Minister further found that the Applicants have insufficient catch history to qualify for an Estuary General Trapping Endorsement in respect of FB No. 1127 as they have only one of the required 8 catch returns which list trapping as a method in estuary waters in the period 1986 to 1993 inclusive.

11 The Minister further found that the Applicants have insufficient catch history to qualify for an Estuary General Mud Crab Trapping Endorsement in respect of FB No. 1127 as they have none of the 8 required catch returns listing that mud crabs were taken by the method of trapping in estuary waters in the period 1986 to 1993 inclusive.

12 The Minister further found that the Applicants had insufficient catch history to qualify for Estuary General Hand Gathering Endorsement in respect of FB No. 1127 as they have only 3 of the 8 required catch returns which list a catch of beachworm, pippie, cockle, yabbie, muscle or nipper in ocean or estuary waters inn the period 1986 to 1993 inclusive and further that none of these catch returns related to a month prior to January 1991.

13 The reviewable decision in these proceedings is the Minister's decision, advised to the Applicants by letter referred to above to accept the review panel's recommendation not to issue the Applicants with the endorsements applied for.

14 In accordance with the requirements of Section 58 of the Administrative Decisions Tribunal Act ("ADT Act") the Department lodged their file with the Tribunal.

Evidence

15 The matter was heard on 26 April 2001 and 27 September 2001 on which date the decision was reserved.

16 During the course of the hearing on 26 April 2001 the Applicant conceded that his own personal catch history was not sufficient to qualify him for general meshing, general trapping and general mud crab trapping endorsements.

17 In relation to the meshing and crabbing endorsements the Applicant gave evidence that he was undertaking other fishing activities during the period from 1989 to 1993. The decision not to undertake meshing and crabbing was a commercial decision by him in circumstances where he went about hand lining and other activities which I assume during the relevant period were more profitable to him.

18 In relation to the mud crab endorsement the Applicant gave evidence that he did not actively undertake mud crab trapping during the relevant period. He said that he concentrated on other things. He could have undertaken mud crab trapping but could only do so many things at once. He acknowledged that the decision not to mud crab during the relevant years was a commercial decision that he made so as to focus on other activities that were more profitable.

19 The Applicant acknowledged that his own catch history from 1989 to 1993 was insufficient to qualify him for the General Meshing, General Trapping and General Mud Crab Trapping Endorsements.

20 The Applicant asserted that it was his expectation that upon purchasing LFB No. 3990 from David Keith Wilson in late December 1989 that the personal catch history of that LFB would be "inherited" by him and that catch history would be able to be used by him in satisfying the requisite criteria for the various endorsements the subject of the present application.

21 However, at or about the time that LFB No. 3990 was sold to the Applicant LFB 5474, also owned by Mr. David Keith Wilson, was purchased by a Mr. Christopher Dilosa.

22 At that time in accordance with the then New South Wales Fisheries policy the personal catch history of David Keith Wilson was attached to LFB No. 5474 as it was the larger of the two vessels, was of greater value and carried a Port Jackson and Hunter River Prawn Trawl Endorsement. The departmental decision as to the "inheritance" of the personal catch history of Mr. David Keith Wilson was as a consequence of then existing departmental policy and is not the subject of this application, nor indeed can it be so.

23 The Applicant conceded that in the absence of he "inheriting" the relevant portion of the personal catch history of Mr. David Keith Wilson he was not in a position to meet the criteria for the various endorsements sought by him.

24 During the course of the hearing it was asserted by the Applicant that an agreement had been reached by him and Mr. Christopher Dilosa for Mr. Dilosa to acknowledge to the Department that the relevant personal catch history inheritance could be transferred to the Applicant for the purposes of the Applicant qualifying for the subject endorsements. Unfortunately, Mr. Dilosa did not complete any formal acknowledgement with the Department and indeed it became apparent that he had resiled from that alleged agreement prior to its implementation.

25 Accordingly, the Tribunal is satisfied that the Applicants do not meet the requisite criteria for issue of Estuary General Meshing, Estuary General Trapping and Estuary General Mud Crab Trapping Endorsements.

26 The fourth endorsement sought by the Applicant was an Estuary General Hand Gathering endorsement.

27 In support of the application for that endorsement the Applicant gave evidence and was cross-examined. The requirement to be satisfied to establish eligibility for the subject endorsement was 8 catch returns in the years from 1986 to 1993 inclusive, one of which returns must relate to a month prior to January 1991.

28 The Tribunal is satisfied that the Applicant had catch returns as follows:

April 1988
February 1992
January 1993
February 1993

However, such catch returns only comprise 4 of the requisite 8 returns but they do satisfy the requirement that 1 return be for a month prior to January 1991.

29 In relation to his hand gathering activities the Tribunal is satisfied that the Applicant was engaged in hand gathering activities until approximately February 1993. In the course of those activities the Applicant was using an old 1961 model Land Rover. He purchased that vehicle in September 1992 from Gamers Motor Auctions at Newcastle. The Applicant purchased that vehicle specifically for the purposes of getting onto the beach to undertake hand-gathering activities. Subsequent to February 1993 the motor in the old Land Rover used by the Applicant for his hand gathering activities blew up.

30 The Applicant did not return to hand gathering activities until January 1994.

31 The Applicant gave evidence and I accept that evidence that if the engine of the Land Rover had not blown up he would have continued his pippie gathering activities throughout the remainder of 1993. The Applicant gave evidence and I accept that evidence that his pippie gathering activities would have intensified through the winter months when the Hunter River closes for several months for any prawning activities. Had he continued working throughout the remainder of 1993, particularly the winter months, his pippie gathering would have been a substantial source of his income.

32 The Applicant gave evidence and I accept that evidence that his financial circumstances from February 1993 to January 1994 were such that he was unable to replace or repair the Land Rover motor vehicle that had been used by him for the purposes of hand gathering.

33 The Tribunal is satisfied that the Applicant's hand gathering activities were interrupted in the months between February 1993 and January 1994 as a direct consequence of his 4 wheel drive motor vehicle no longer being available to him for that activity and the Applicant's own financial circumstances which precluded him from repairing or replacing that vehicle so that he could resume those activities. The Tribunal is satisfied that once the Applicant was able to obtain a suitable vehicle he then resumed his hand gathering activities in January 1994 and continued those activities thereafter.

34 It is conceded by the Applicant that he is unable to satisfy the catch history requirements for this endorsement sought by him.

35 Being unable to satisfy the eligibility criteria as to catch requirement the Applicant relies on clause 214C of the Fisheries Management (General) Regulation 1995 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 eligibility 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 subsequently 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.

36 The Applicant before the Tribunal relies upon the provisions of clause 214C(2)(c)(iii).

37 It is the Tribunal's view that the meaning of clause 214C(2)(iii) requires a direct causal link to be established between the significant circumstances and the inability to satisfy the eligibility criteria. If the link were established, the circumstance would then be the reason for the inability.

38 In Puglisi -v- Administrative Decisions Tribunal of New South Wales Appeal Panel (2001) NSWCA 298 the Court considered the provisions of clause 214C(2)(c) and said at paragraph 51:

"The word "ability" in clause 214C(2)(c)(i) and (ii) appears to mean "capacity" or "power". ("Incapacity" in clause 214C(2)(c)(i), by reason of its location in conjunction with "illness", refers to physical incapacity, or lack of physical power or strength, but "ability" is used more widely.) "Ability" is the quality in an agent which makes action possible. In the context of clause 214C(2)(c)(i) and (ii) to say that an applicant is unable to satisfy the identifying criteria is to say that it is not possible for that applicant to satisfy them, whether by reason of the applicant's illness or incapacity or by reason of the applicant's commercial fishing boat having been lost. To be able to do something is to have the means of doing it. The persons described in clause 214C(2)(c)(i) and (ii) lack the means of satisfying the eligibility criteria either because of their health or because they have lost their boats. Persons who have the ability to meet the criteria are persons for whom it is possible to meet the criteria in the sense that meeting the criteria is within their potential. A loss of "ability" in the sense of that term as employed in these provisions is not a condition in which illness, incapacity or loss of both makes it harder, but not impossible, to meet the criteria.

52. The word "unable" in clause 214C(2)(c)(iii) should be construed in a manner which is cognate with "ability" in clause 214C(2)(c)(i) and (ii). The meaning of clause 214C(2)(c)(iii) would not change if it read "for other significant reasons … the person lacked the ability to satisfy the eligibility criteria” To be "unable" to satisfy the eligibility criteria is to be capable of doing so or to lack power to do so. It is to lack the quality which makes satisfying the criteria possible. It is to lack the means of satisfying the criteria. It is to lack the potential to meet the criteria. It is to suffer a disability preventing one from satisfying the criteria.

39 In the present application the Applicant was unable by circumstances beyond his control, that is the breakdown of his work vehicle and his financial inability to provide an alternate vehicle to undertake hand-gathering activities from March 1993 through to December 1993. The Tribunal finds that it would be a reasonably expectation that the Applicant would have continued to undertake hand gathering activities during this period should he have had the means of doing so. He was unable to do so in that the means of undertaking those activities were not available to him through no fault of his own.

40 Under the circumstances it is the view of the Tribunal that the provisions of clause 214C(2)(c)(iii) operate in favour of the Applicant for the reasons set out above.

41 Accordingly the orders of the Tribunal are as follows:

(i) the decision of the Minister to, in accordance with the decision of the Review Panel, confirm the determination that the Applicants are not eligible for Estuary General Restricted Fishery, Estuary General Meshing Endorsement, Estuary General Trapping endorsement and Estuary General Mud Crab Trapping Endorsement be confirmed;
(ii) the decision of the Minister to, accordance with the decision of the Review Panel, confirm the determination that the Applicants are not eligible Estuary General Restricted Fishery Estuary General hand gathering endorsement be set aside;
(iii) 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 into account the reasons of the Tribunal in these proceedings;
(iv) no order as to costs.