Madge -v- Minister for Fisheries
[2001] NSWADT 73
•05/14/2001
CITATION: Madge -v- Minister for Fisheries [2001] NSWADT 73 DIVISION: General Division PARTIES: APPLICANT
William Madge
RESPONDENT
Minister for FisheriesFILE NUMBER: 003249 HEARING DATES: 06/10/2000 SUBMISSIONS CLOSED: 10/06/2000 DATE OF DECISION:
05/14/2001BEFORE: 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: Fisheries Management (General) Regulation 1995
Fisheries Management Act 1994CASES CITED: Greenaway v. Director, Department of Fisheries [2000] NSWADT 173
Henderson & anor v. Minister for Fisheries [2000] NSWADT 182REPRESENTATION: APPLICANT
In person
RESPONDENT
C Cory, SolicitorORDERS: 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 'Estuary General Restricted Fishery - Mud Crab Trapping' endorsement, is affirmed.; 2. Pursuant to s88 of the Administrative Decisions Tribunal Act no award of costs.
1 In my view Mr Madge is not eligible for the endorsement he seeks. Mr Madge’s application is therefore unsuccessful.
REASONS FOR DECISION
2 Mr Madge owns fishing business FB340 and holds a commercial fishing licence. On 28 October 1996 he applied for ‘Estuary General Restricted Fishery – Mud Crab Trapping’ and ‘Estuary General Restricted Fishery – Hand Gathering’ endorsements on his commercial fishing licence.
3 The Minister advised Mr Madge that his application had been refused. Mr Madge requested a review of that decision by the Restricted Fisheries Review Panel.
4 The Restricted Fisheries Review Panel recommended to the Minister that Mr Madge’s application for the endorsements be refused. By letter dated 27 June 2000 Mr Madge was advised of the Minister’s decision, in accordance with the review panel’s recommendation, to refuse the endorsements.
5 On 24 July 2000 Mr Madge applied to the Administrative Decisions Tribunal for review of the Minister’s decision.
REVIEWABLE DECISION
6 The reviewable decision for this Tribunal is the Minister’s decision, advised to Mr Madge by letter dated 27 June 2000, to accept the review panel’s recommendation not to issue him with the endorsements.
7 At the hearing Mr Madge abandoned his application for a hand gathering endorsement, but maintained his claim to eligibility for the mud crab trapping endorsement.
APPLICABLE LAW
8 By s113(2) of the Fisheries Management Act 1994 (FM Act):
Eligibility for endorsement of commercial fishing licences is to be determined in accordance with the regulations.
9 The Estuary General Restricted Fishery – Mud Crab Trapping endorsement sought by Mr Madge is provided for in Division 2D of Part 8 of the Fisheries Management (General) Regulation 1995 (FM Reg), and the eligibility requirements for that endorsement are in cl.191N.
10 For any class of “estuary general restricted fishery” endorsement, cl.191N(1) of the FM Reg prescribes two ‘general requirements’. The first is ownership of a licenced fishing boat. The second is the submission of at least 12 estuary waters catch returns in any 4 years from 1896 to 1993, at least one of which relates to a month before 1991.
11 Clause 191N(7) then prescribes specific eligibility requirements for endorsement for mud crab trapping: by subclause (a) a fisher must fulfil the general requirements, and by subclause (b) a fisher must have
submitted to the Director a total of at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that mud crab were taken by the method of trapping and at least one of those returns relates to a month prior to January 1991.
12 As Mr Madge bought FB 340 from Mr Joseph Hyde, his eligibility for endorsement on his licence in respect of FB 340 is dependent on cl.191N(11), by which he can rely on the catch returns of the catch history associated with the fishing business he bought. Cl.191N(11) reads, relevantly:
If the Minister is satisfied that the catch history associated with a fishing business satisfies any of the eligibility criteria set out in the clause, the owner of the fishing business is taken to have satisfied the criteria, even if the owner did not personally take the fish for sale or submit any catch returns to the Director.
13 The catch history associated with FB 340 is Mr Hyde’s, transferred to Mr Madge with the transfer of the fishing business.
14 The issue in practical terms, therefore, is whether Mr Hyde’s catch returns meet the requirements of cl.191N(7)(b). When I refer to Mr Madge’s satisfying (or not) the requirements of cl.191N(7)(b), I am effectively referring to his satisfying (or not) these requirements by reliance on Mr Hyde’s catch returns.
ELIGIBILITY
15 The Minister agrees that Mr HirstMr Madge satisfies the general requirements for any Estuary General Restricted Fishery endorsement in cl.191N(1).
16 Mr HirstMr Madge then needs to satisfy the particular requirement in clause 191N(7)(b)for a Category Two Haulingmud crab trapping endorsement.
17 After representations from Mr Hirst, tThe Minister acknowledges that Mr Madge can show seven catch returns which record mud crabs being taken, and that at least one of those returns is prior to 1991, but says that none of the returns records trapping as the method used. Mr HirstMr Madge, on the other hand, agrees says that these catch returns “indicate”, within the meaning of cl.191N(7)(b), that the trapping method was used.
18 If Mr Madge’s contention is accepted, he would be one catch return short of satisfying the eligibility criteria. The seven returns are those for:
February 1986
- October 1986
October 1987
January 1988
February 1988
March 1988
April 1988
IS A METHOD ‘INDICATED’ IN THE OTHER RETURNS?
20 First, Mr Madge says that evidence would show that catch returns which record catch of “Fish, unspecified estuary” included mud crabs in that catch. He says therefore that, properly understood, those catch returns “indicate” the use of the trapping method as required by the terms of cl.191N(7)(b).
21 As I discussed in Greenaway -v- Director, Department of Fisheries [2000] NSWADT 173, a catch return need not explicitly record that a particular fishing method was used to satisfy the requirement that use of a method is ‘indicated’. It is legitimate to make a reasonable inference from the catch return as a whole, assisted by any relevant evidence, as to whether the catch return does “indicate” the use of a method; I note the decision of this Tribunal, differently constituted, in Henderson & anor -v- Minister for Fisheries [2000] NSWADT 182 to similar effect. The most usual ‘indication’ in the catch return is the recording of particular species having been caught, opening up the possible inference that a certain method was used to catch that species. Whether it is reasonable to draw that inference has to be decided on the available material.
22 Except in circumstances covered by cl.214C, the catch returns must be the basis of establishing eligibility. When a catch return gives no ‘indication’ that a particular method was used, it is not permissible to rely only on other evidence to establish that that method was used: there is nothing in the catch return in relation to which that evidence could give a better understanding The other evidence might itself establish that trapping was used as a method, but unless there is an indication to that effect in the catch returns, then the terms of cl.191N(7) (and of all similarly worded provisions for eligibility) cannot be satisfied.
23 In my view catch returns which, as in Mr Madge’s case, do not record the use of trapping as a method, do not record mud crabs having been taken, and do record only “Fish, unspecified estuary”, cannot be said to “indicate” the use of trapping as a method; there is nothing in the catch returns to support an inference as to the method used. Cl.191N(7)(b) does not allow me, in the absence of any indication in that catch returns, to rely on evidence from Mr Browne and Mr Cox, and from Mr Madge as to what Mr Hyde and Mr Shepherd told him.
CAN ‘VERIFIED RECORDS’ BE RELIED ON?
24 Alternatively, Mr Madge says that he can show that a specific return is inaccurate, and should have shown the taking of mud crabs.
25 A person can establish eligibility for an endorsement other than by satisfying the eligibility requirements only in the circumstances described in cl.214C of the FM Reg. Relevantly for Mr Madge, cl.214C(2)(a) provides that a person is or should be eligible for an endorsement if:
the records relied on to make a determination whether the person is eligible for an endorsement (for example, catch history records or records of net registration) are, for reasons that are not attributable to the fault of the person, inaccurate or incomplete and, on the basis of verified records . . . the person does in fact satisfy the eligibility criteria for the endorsement
26 Mr Madge says that the catch return for February 1987 is inaccurate though no fault of his. He says that verified records show the use of the trapping method in that month, and that the catch return for that month should therefore be treated as the eighth return necessary for eligibility.
27 Clause 214C(4) says that “verified records” for purposes of cl.214C(2)(a) are those which are prescribed for s51(4) of the FM Act. They are prescribed in cl.128 FM Reg:
(1) For the purposes of section 51 (4) of the Act, the following documents are prescribed:
- (a) a verified record of a commercial fishers' co-operative,
- (b) a verified record relating to the income tax liability of a commercial fisher,
(c) a verified record of any fish processing company (whether a wholesaler or retailer).
(2) In this clause, a reference to a verified record is a reference to an original record, or a copy of a record, audited by a registered company auditor (within the meaning of the Corporations Law) or that forms part of a record audited by a registered company auditor.
29 The catch return for February 1987 shows that the following species were caught: luderick, sea mullet, and unspecified estuary fish. It does not show that any mud crabs were caught. It shows the use of a mesh net, top set.
30 Mr Madge says that the return is inaccurate. Mr Madge says that Mr Hyde was illiterate, that he was not able to complete the returns properly, and that others assisted him.
31 Mr Madge says that verified records show that mud crabs were in fact taken in that month. Mr Madge has filed with the Tribunal copies of a document which are certified to be true copies of the original document. The certification is by ‘Jennings’, accountant for the Commercial Fishermen’s Co-Operative Limited.
32 The verified record Mr Madge relies on shows receipt by the Co-Op, on 3 and 12 February 1987, of 2 kilos and 4 kilos respectively of mud crab from Mr Hyde.
33 In light of that document I am satisfied that the catch return for February 1987 is inaccurate, and that Mr Hyde did take mud crabs in February 1987. The inaccuracy is not the fault of Mr Madge. I assume that the document is a verified record as defined. I note that if Mr Madge’s eligibility turned only on acceptance of the document as a verified record as defined, I would require further material to establish that the person certifying the document is a registered company auditor within the meaning of the Corporations Law, or that the document forms part of a record audited by a registered company auditor, as required by the definition of “verified record”.
34 Relying on the verified record in lieu of the inaccurate catch return for February 1987, Mr Madge is able to point to eight catch returns which show that mud crabs were taken in the years 1986-1993, and at least one before 1991.
35 The remaining issue is whether the catch returns on which Mr Madge relies, which show mud crabs having been taken, “indicate” the use of the method of trapping.
IS TRAPPING ‘INDICATED’ BY THE RETURNS?
36 The factual issue is whether the catch returns, properly understood, indicate that mud crab traps were used. Mr Madge says that the catch returns which show that mud crabs were caught, properly understood, show that trapping was the method used to catch the crabs. The Minister, on the other hand says that the quantity of the mud crabs caught and recorded in those returns indicate that they were by-catch from the use of mesh nets, rather than that they were caught in traps.
37 This matter raises a recurring evidentiary issue in considering endorsement applications: when was a recorded quantity of species caught as by-catch from use of another fishing method, and when was it caught using the appropriate fishing method? Inferences must be drawn from the available material, and reliance is had on expert evidence when it is available. Neither an applicant nor the Minister has, in my experience in other matters, relied on expert evidence, and they do not in this matter. The Tribunal has on occasions accepted the evidence of an applicant as providing some expert guidance, although to do so is difficult at times in light of the applicant’s obvious interest in the Tribunal’s findings. In this matter I have had no difficulty accepting that Mr Madge’s evidence has been given truthfully and in good faith. As I describe below, however, little turns on Mr Madge’s own evidence as the activity was really Mr Hyde’s.
38 When Mr Madge bought the fishing business from Mr Hyde in 1994, it included 6 mud crab traps.
39 Mr Madge says that Mr Hyde sold him six traps along with the licence. Mr Madge says it was well known that Mr Hyde used mud crab traps.
40 Mr Madge relies on his recollection of statements made to him by Mr Hyde, and on written statements from Mr Barry Cox and Mr John Browne. I note that Mr Hyde is deceased.
41 Mr Madge recalls Mr Hyde saying that he did use mud crab traps during the relevant period, but stopped doing so because of thieves. He recalls a Mr Shepherd, who lived near Mr Hyde, telling him that Mr Hyde used mud crab traps.
42 In their statements, Mr Cox and Mr Browne confirm that Mr Hyde owned mud crab traps and used them in the relevant period.
43 The statements of Mr Cox and Mr Browne, and the statements recalled by Mr Madge, provide some assistance in assessing the extent to which the catch returns which show that mud crabs were caught indicate that the trapping method was used. None of that material, however, is specific in identifying the months in which the traps were used.
44 It was submitted for the Minister that the mud crabs recorded on the catch returns (and in the verified record) were not taken by trapping, but were taken as by-catch from the use of mesh netting, which is the method which was recorded on the catch returns.
45 At my request the Minister provided records for other fishers which might assist, by way of a comparison, in determining what Mr Hyde’s records indicate. The records provided are described in the affidavit of an officer of the Department, Rebecca Keech, as “all catches of mud crabs recorded by fishers, taken by any method, in the 8 months for which Mr Joseph Hyde . . . has recorded catches of mud crabs, relating to Region 2095 (Port Stephens, Karuah River, Larpent River) only”.
46 In September 1986 Mr Hyde took 9 kilos of mud crabs in 12 days fishing, recording mesh netting but not trapping as a method. Licence holder 781496 took 4 kilos of mud crabs in 7 days fishing, and recorded both trapping and prawn netting as methods. Licence holder 772225 took 15 kilos of mud crabs in 12 days fishing, and recorded only trapping as a method.
47 In October 1986 Mr Hyde took 19 kilos of mud crabs in 11 days fishing, recording mesh netting but not trapping as a method. Similarly licence holder 770923 took 24 kilos of mud crabs in 10 days fishing, and recorded both trapping and mesh netting as methods; licence holder 810269 took 15 kilos of mud crabs in 10 days fishing, and recorded both trapping and mesh netting as methods; licence holder 850340 took 12 kilos of mud crabs in 15 days fishing, and recorded both trapping and mesh netting as methods.
48 These comparisons for September and October 1986 lend some weight to a claim that Mr Hyde in these months used the trapping method but did not record it. In other months, however, the comparison does not support such a claim.
49 In February 1987 Mr Hyde took 6 kilos of mud crabs in 12 days fishing, recording mesh netting but not trapping as a method. That was the lowest quantity taken among 9 fishers; the next lowest were 18 kilos in 12 days’ fishing and 20 kilos in 15 days’ fishing. For one of those, only trapping is recorded as a method, and for the other both trapping and mesh netting and recorded as methods. These quantities look very low compared to catches among the other fishers in the same month: 258 kilos in 14 days recording only trapping as a method, 298 kilos in 16 days recording both trapping and mesh netting as methods, and 150 kilos in 16 days recording both trapping and mesh netting as methods.
50 How is it that 5 fishers, two on the one hand and three on the other, using a combination mesh nets and trapping in the same period for a similar number of days, catch such a starkly different number of crabs? Possible explanations for the two fishers taking low quantities include spending less time targeting crabs with traps, using fewer traps, being unlucky with traps, or by-catch from mesh nets.
51 The same disparities occur in January February and April 1988, and to a lesser degree in October 1987 and March 1988. Mr Hyde is always among the lowest of the takes for mud crabs, never having taken more than 11 kilos and always recording only the mesh netting method. Some fishers took as much as 81 kilos while recording only the mesh netting method, and some took as much as 193 kilos while recording the trapping method.
52 In each month the same explanations for the disparity are possible. Nothing indicates that by-catch from the mesh netting method is less likely than any other explanation for Mr Hyde’s low quantities of mud crabs.
53 None of the evidence available to Mr Madge alters this. Mr Madge’s own evidence is that it is not worth putting traps out for 9 days to take only 11 kilos. Traps, he says, are used if there are a lot of crabs about.
54 In the absence of a method being specified, the only information on the catch returns from which I could infer the method used is the quantity of mud crabs taken. None of the available material leads to the inference, to my satisfaction, that the quantity of mud crabs taken by Mr Hyde were taken using the method of trapping. It is at least as likely that for at least one of the returns, and possibly more, the mud crabs were by-catch from mesh-netting.
FINDING
55 I am not satisfied that the catch returns relied on by Mr Madge indicate that the mud crabs which were taken in those months were caught using the trapping method.
56 Having regard to the relevant factual material and the applicable law, I agree that Mr Madge is not eligible for an ‘Estuary General Restricted Fishery – Mud Crab Trapping’ endorsement.
57 Accordingly the correct and preferable decision is that the Minister’s decision to accept the review panel’s recommendation be affirmed.
ORDERS
58 I make the following orders pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act:
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 ‘Estuary General Restricted Fishery – Mud Crab Trapping’ endorsement, is affirmed.
2 Pursuant to s88 of the Administrative Decisions Tribunal Act I make no award of costs.
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