Musumeci v Minister for Fisheries (GD)

[2003] NSWADTAP 36

Appeal Panel - Internal

CITATION:	Musumeci v Minister for Fisheries (GD) [2003] NSWADTAP 36
PARTIES:	APPELLANT Antonio Musumeci RESPONDENT Minister for Fisheries
FILE NUMBER:	029044
HEARING DATES:	12/05/2003
SUBMISSIONS CLOSED:	05/12/2003
DATE OF DECISION:	09/05/2003
DECISION UNDER APPEAL:	Musumeci v Minister for Fisheries [2002] NSWADT 162
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; Bolt M - Member
CATCHWORDS:	Fisheries Management Act - fishing licence - endorsement of licence - Fishing licence - endorsement of licence - leave to extend to the merits - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	003392
DATE OF DECISION UNDER APPEAL:	09/06/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management (General) Regulation 2002 Fisheries Management Act 1994 Interpretation Act 1987
CASES CITED:	Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298 Minister for Fisheries -v- Puglisi and Ors (GD) [2001] NSWADTAP 2.
REPRESENTATION:	APPELLANT F Corsaro SC & S Longhurst, counsel RESPONDENT T Lynch, counsel
ORDERS:	1 The decision under appeal is set aside; 2 The decision of the Minister is set aside, and the following decision is made: Pursuant to cl 187 of the Fisheries Management (General) Regulation 1995 a north zone endorsement is granted.

1 The Minister for Fisheries is responsible for issuing commercial fishing licences and granting endorsements that entitle the licence holder to take fish for sale in certain restricted fisheries. The governing legislation is the Fisheries Management Act 1994 (FMA) and the Regulations made thereunder. A fisher's eligibility for endorsements ‘is to be determined in accordance with the regulations’ (s 113(2) FMA).

2 The Minister refused the appellant (referred to in these reasons as ‘Antonio’ so as to distinguish him from other members of his family) a licensed commercial fisher, an endorsement to fish in the ocean fish trawl restricted fishery (northern zone), after internal review by the Restricted Fisheries Review Panel (the Review Panel). Antonio applied for review. The Tribunal affirmed the Minister’s decision: see Musumeci -v- Minister for Fisheries [2002] NSWADT 162 (6 September 2002).

3 Antonio appeals under s 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) as permitted by s 112(1)(b). A party is entitled to appeal on a question of law, and by leave of the Appeal Panel, the appeal may extend to the merits.

4 This appeal was heard together with a similar appeal involving a separate application by other members of the Musumeci family. That appeal is the subject of a separate decision: see Musumeci & Ors -v- Minister for Fisheries (GD) [2003] NSWADTAP 37.

5 At all times relevant for this appeal, the FMA and the Fisheries Management (General) Regulation 1995 (‘FMR 1995’) regulated commercial fishing in New South Wales waters. The Regulation has been replaced by the Fisheries Management (General) Regulation 2002. The provisions relevant to this matter are found in FMR 1995.

6 The fishing industry in New South Wales has over the last 10 years seen an intensification of regulation partly directed to conservation ends. There is now a highly detailed scheme of regulation limiting the activities of commercial fishers in New South Wales waters by reference to the boat types, catch methods and target species.

7 A fishing business must be licensed: Part 4, Division 1 of the FMA. In addition each boat must hold a licence: Part 4, Division 2. A fishery may be declared to be a restricted fishery. A licence must bear an endorsement permitting operation in a restricted fishery. A maximum number of commercial fishing licences may be endorsed in respect of a specified restricted fishery. See generally Division 3 of Part 4 of the FMA. Part 8 of the Regulation sets out the details of the regulatory scheme applying to restricted fisheries.

8 Areas which were previously 'open waters' have been converted to restricted fisheries. This is the case in relation to the northern zone of the restricted fishery the subject of Antonio’s application. He owns fishing business FB2282 and holds a commercial fishing licence 781202. As part of his business he owns and operates the fishing vessel Guiseppa. He sought an endorsement in respect of the Giuseppa.

9 This case now has a long history, the initial application for the endorsement having been made on 24 March 1997. By letter dated 28 March 1997 the Minister advised him that his application for the endorsement had been refused, as he did not have the required number of catch returns. Following a request by Antonio an internal review was conducted by the Review Panel. The Review Panel may recommend that an endorsement be granted even though the strict eligibility criteria are not satisfied. By report dated 13 September 2000 the Review Panel recommended to the Minister that Antonio’s application be refused. By letter dated 23 November 2000 Antonio was advised of the Minister’s decision made in accordance with the Review Panel’s recommendation. On 12 December 2000 he applied to the Tribunal for review of the decision. As noted earlier by decision delivered 6 September 2002 the Tribunal affirmed the Minister's decision. The appeal was heard on 12 May 2003.

10 Mr Corsaro for Antonio submitted that, having found that Antonio did submit the required number of catch returns (his case fitted category (a) below) the Tribunal should have granted his application for review. Instead the Tribunal mistakenly had gone on to consider the case by reference to cl 214C (the powers vested in the Review Panel) and then, if relevant which he disputed, had misapplied that provision. Clause 187 of FMR 1995 provides:

‘187 Eligibility for endorsement

(1) Northern zone endorsement. A person is eligible for a northern zone endorsement if the Minister is satisfied that the person owns an otter trawl net (fish) that was registered in the name of the person at any time before 1 January 1993 and that:

(a) the person submitted to the Director at least 15 ocean waters catch returns in the years from 1986 to 1990 that indicate that the person took fish from an area designated on the return as zone 1, 2, 3, 4, 5 or 6 by the method of fish trawl, or

(b) the person submitted to the Director at least 3 ocean waters catch returns in the years from 1986 to 1990, and at least 5 ocean waters catch returns in the years from 1991 to 1993, that indicate that the person took fish from an area designated on the return as zone 1, 2, 3, 4, 5 or 6 by the method of fish trawl and that the person took not less than 20 tonnes of fish trawl species in those zones in at least 3 of the years from 1986 to 1993 by the method of fish trawl.’

11 Clause 188, as material, provides:

(3) The Minister may endorse the commercial fishing licence of a person who satisfies the eligibility requirements for the endorsement or who is the nominated fisher of a person who satisfies the eligibility requirements for an endorsement.

(4) The Minister may refuse to endorse the commercial fishing licence of a person if:

(a) the person has been convicted of an offence against the Act, this Regulation or any other regulation made under the Act, or

(b) the person has been convicted of an offence relating to theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or

(c) the person has not paid any fee due and payable in connection with the endorsement.

12 As the scheme operated in 1997, when refused an endorsement an applicant could apply for review by a Restricted Fisheries Review Panel. Antonio, as noted, did that. FMR 1995 provided:

214C. Grounds for review

(1) A panel that conducts a review may consider any circumstances that are relevant to the determination that is the subject of the review request.

(2) A panel that conducts a review may decide that a person is eligible for an endorsement in a restricted fishery, or should be eligible for an endorsement in the fishery, if the person who applied for the review satisfies the panel:

(a) that 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 produced to the panel by the person, the person does in fact satisfy the eligibility criteria for the endorsement, or

(b) that a determination as to the catch history associated with the person's fishing business is incorrect and, on the basis of verified records produced to the panel by the person, the person does in fact satisfy the eligibility criteria for the endorsement, or

(c) if eligibility is based on the person's activities in a fishery during a particular period, that:

(i) the person suffered illness or other incapacity for a significant period and the illness or incapacity substantially affected his or her ability 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 substantially 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.

(3) This clause does not limit the inclusion in a report by a panel of any other decision or recommendation relating to a person's entitlements in a restricted fishery.

(4) In this clause, "verified record" means a document prescribed for the purposes of section 51 (4) of the Act (dealing with determination of catch history).

Note. Clause 128 sets out the documents that are prescribed for the purposes of section 51 (4) of the Act.

[Section 51(4) provides: ‘(4) The catch history of a person is, subject to any appeal under this Part, to be determined by the Minister having regard to the records, kept by the Director, of fish taken by the person or such other documents as are prescribed by the regulations.’ Clause 128 FMR 1995 provided:

128. Determination of catch history

(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 Act 2001 of the Commonwealth) or that forms part of a record audited by a registered company auditor.

Note. This clause prescribes the documents which the Minister may have regard to in determining the catch history of a person (in addition to the records, kept by the Director, of fish taken by the person).]

214D. Action by Minister following review

(1) On receipt of a report by a panel, the Minister may:

(a) in accordance with the decision of the panel, confirm the determination that was reviewed by the panel or set that determination aside and substitute a new determination, or

(b) refer the matter back to the panel (together with comments or recommendations) for further consideration.

(2) The Minister may, following a review, determine that a person is eligible for an endorsement in a restricted fishery, even though the person does not satisfy the eligibility criteria for the endorsement, only if the panel decides that the person should be eligible for an endorsement. If the Minister makes such a determination, the person is taken, for the purposes of the provisions of this Part that deal with eligibility for an endorsement in the fishery concerned, to be eligible for the endorsement.

(3) A person who applies for a review under this Division is to be notified of the outcome of the application as soon as practicable after it is known.

13 Antonio was only able to produce 11 catch returns. He asserted that he lodged the other four that were required in the relevant period, and therefore satisfied cl 187(a), and was eligible for an endorsement. The Tribunal found in his favour on this point. The Tribunal found on the evidence that Antonio had lodged returns for the 14 months of June 1986 to July 1987 and the 9 months from April 1989 to December 1989. The Tribunal stated at para [32] of its reasons: ‘I am satisfied, on this evidence, that catch returns were lodged for the Guiseppa for the months of 8904-8912 and for the months of 8606-8707.’ This finding was not challenged by the Minister on appeal. There is a 23 month period at the relevant time for which the Director can not produce catch returns.

14 In that regard the Tribunal said earlier in its reasons:

‘23 The Minister says that the Department has no record of those catch returns ever having been submitted. He says, therefore, that the records relied on are a complete record of Antonio’s catch history.

24 The Minister’s cross-examination of [Mr Musumeci’s family members] did not, however, dispute their evidence that the returns had been submitted, and did not dispute the witnesses’ account of law and Departmental practices which support the likelihood that the catch returns were submitted. The Minister instead challenged the probative value evidence of other witnesses who say they saw the Guiseppa fishing at the relevant times.’

15 Nonetheless the Tribunal went on to consider cl 214C, reflecting the way the Review Panel had dealt with the question before it. The Tribunal dealt at length with submissions as to the interpretation of cl 214C including considering the Court of Appeal decision in Puglisi v Administrative Decisions Tribunal of New South Wales [2001] NSWCA 298 affirming the Appeal Panel’s decision (for different reasons) in Minister for Fisheries -v- Puglisi and Ors (GD) [2001] NSWADTAP 2. The Tribunal concluded

‘51 I find that Antonio Musumeci is unable to establish eligibility for Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsement. He is unable to satisfy the eligibility criteria in cl.187(1) FMR. He has brought himself within the circumstances described in cl.214C(2)(a) FMR, but he has not satisfied the eligibility criteria in the manner required by that provision. His circumstances are not within those described by cl.214C(2)(c)(iii) FMR.’

16 Mr Corsaro’s primary criticism was that it was not necessary for the Tribunal having found that Antonio submitted the required number of returns to go on and apply cl 214C to the circumstances. The issue is one of statutory construction.

17 The Appeal Panel in Puglisi discussed the objects of the Act and noted that the primary rule for being able to continue operating in this fishery is the presence of a catch history showing a significant level of activity in the area prior to the new scheme commencing. The provisions in issue in this case were developed to deal with the claims of existing fishers seeking to retain the ability to operate in waters where they had previously been active. The requirement for at least 15 ocean waters catch returns between 1986 and 1990 is one intended to prove that type of claim, and the legislation must be construed by reference to that being the purpose of the provision. We agree with Mr Corsaro’s submission that an approach that promotes those objects and purposes of the legislation should be adopted.

18 The Interpretation Act 1987 provides guidance as to the proper approach to statutory construction. An approach which promotes the object or purpose underlying the Act or statutory rule is to be preferred to a construction that would not promote that purpose or object: s 33. Against that background, the first step is to ascertain the ordinary meaning of the text in issue.

19 Antonio is seeking to retain the right to operate in waters where he asserts that he had previously been active. The rights affected by this provision are of a proprietary nature and it is our view that cl 187(1)(a) should be read so as to ensure that proprietary rights are not unreasonably restricted. We find support for a wide construction of cl 187(1)(a) in the fact that the capacity to obtain endorsements was limited to applications made before 31 December 1997, in circumstances where the legislature sought to close off access to particular aspects of an industry.

20 Clause 188(3) and (4) make it clear that in circumstances where cl 187 is satisfied the Minister only has limited bases on which to refuse to grant an endorsement. None of the bases listed there were relied upon in this case.

21 Clause 187 merely requires that the fisher have ‘submitted’ the catch returns. This was proven to the satisfaction of the Tribunal. In the course of its reasons the Tribunal referred to the ‘verified records’ requirements found in cl 214C in particular. There is nothing in cl 187 or cl 188 FMR which requires the fisher to produce ‘verified records’. That is not surprising. The ‘verified records’ issue can arise if it is necessary to apply cl 214C to the facts. As the Minister had found that cl 187 did not apply, Antonio and the Review Panel had, not surprisingly, moved to consider Antonio’s application in terms of cl 214C. But here, in contrast to the Minister, the Tribunal’s primary finding meant that cl 187 was satisfied - despite the language the Tribunal below used on that point in para [51] of its reasons.

22 As explained in the ‘Antonio decision’ the Review Panel operates as a relief measure for cases where the requirements as to eligibility set by cl 187 are not met. The effect of the Tribunal’s primary finding of fact (Antonio did in fact lodge 15 returns, and, by inference, the Director is not able to locate 4 of them now) is that the requirements of cl 187 are met. Had the Minister made such a finding back in 1997 the matter would never have gone to the Review Panel. In our view once it was found that Antonio had submitted the required 15 returns and with there being no basis for refusal of the kind set out in cl 188, the Minister was bound to grant the endorsement. It was not necessary for the Tribunal to involve itself in an examination of whether Antonio complied with cl 214C.

23 The Tribunal unnecessarily proceeded to determine the case before it on the mistaken basis that the Director was entitled, having misplaced the records, to call on the fisher to produce further corroborating evidence. Sometimes fishers may through oversight or a lack of sophistication in paperwork requirements have failed to put in records recording relevant fishing activity. But they may be able to show by reference to tax returns and other business records that they did in fact undertake the relevant activity. There is also clearly a danger that a fisher might manufacture records. It is important that an independent expert vouch for the records now relied upon.

24 It is to these kinds of cases, as we see it, that the ‘verified records’ mechanism is addressed. The fisher can place before the Review Panel the alternative records, verified by an appropriately qualified person. The Panel’s membership has traditionally included a retired Magistrate and experienced members of the industry. Such a group is in a good position to assess the cogency or otherwise of the records submitted in cases where none were filed at the time. The Review Panel then examines the case by reference to the various factors listed in cl 214C.

25 It follows that we do not agree with the Tribunal or the submissions from Mr Lynch for the Minister that cl 214C(2)(a) is directed to the circumstances of this matter. The Minister referred to the fact that this provision dealt with ‘incomplete’ and ‘inaccurate’ records. These words, we consider, refer to the content of a document and do not apply to documents that have been misplaced. This provision is not addressed to a situation where the Director (as found here) had a complete set of records, which became incomplete through his omission to retain them or by misplacing them. The Director should not be permitted to shift the onus back on to the fisher. This would produce an absurd result.

26 Nor is it necessary to apply cl 214C(2)(c)(iii) to the circumstances here. Clause 214C(2)(c)(iii) of the Regulation provides that a Panel that conducts a review may decide that a person is eligible for an endorsement if satisfied that the person who applied (i) was engaged in fishing during a particular period and (ii) for other significant reasons (that are not attributable to the fault of the person) the person was unable to satisfy the eligibility criteria. In relation to the meaning of the term ‘unable’, the Court of Appeal in Puglisi stated per Heydon JA at paras [52]-[53]:

‘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 incapable 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.

53 To construe the word "unable" in that way is not to give Clause 214C(2)(c)(iii) a very wide meaning. … It would not therefore be surprising if Clause 214C(2)(c)(iii) was not of frequent application. The point, however, is that even though it may not be of frequent application … it does have some content and some work to do.’

27 As stated, we do not consider it necessary to resolve this case by reference to cl 214C(2)(c)(iii). On the other hand if the Minister is right that because Antonio is not himself now able to produce a copy of the 15 returns and therefore cl 187 does not apply, then in our view cl 214C(2)(c)(iii) in the way contemplated by the Court of Appeal in Puglisi would come into play. This is because Antonio was rendered ‘unable’ to satisfy cl 187 because of the conduct of the Director in not keeping 4 of the returns belonging to the relevant period. As a result, Antonio ‘lacked the ability to satisfy the eligibility criteria’. He lacked the power to satisfy the eligibility criteria because to do so depended on production of records that the Director could not locate.

28 It will be seen that we agree in essence with the submissions of Mr Corsaro, on behalf of Antonio. He urged the Appeal Panel to adopt an approach that promotes the objects and purposes of the legislation.

29 To repeat, in our view the critical word in cl 187 is ‘submitted’. The scheme in cl 214C is directed to circumstances where the records have never been submitted or where the administrator (or the Tribunal exercising the powers of the administrator) is not satisfied by an applicant’s claim that they were submitted. The point of this case is that the Tribunal exercising the powers of the administrator has found that they were submitted. Clause 214C is not designed to protect the Director from failings of his own administration. The Director can not hide behind cl 214C so as to force the onus onto the fisher who has properly submitted returns.

30 The decision should be set aside. In light of the finding that the catch returns were submitted, it follows that Antonio should be granted an endorsement. There is no need to remit the matter. Our orders are to that effect.

Order

1. The decision under appeal is set aside.

2. The decision of the Minister is set aside, and the following decision is made: Pursuant to cl 187 of the Fisheries Management (General) Regulation 1995 a northern zone endorsement is granted.