Musumeci v Minister for Fisheries (GD)
[2003] NSWADTAP 37
•09/05/2003
Appeal Panel - Internal
CITATION: Musumeci & Ors v Minister for Fisheries (GD) [2003] NSWADTAP 37 PARTIES: APPELLANTS
Rocco Musumeci, Vincenzo Musumeci, Lucia MusumeciFILE NUMBER: 029043 HEARING DATES: 12/05/2003 SUBMISSIONS CLOSED: 05/12/2003 DATE OF DECISION:
09/05/2003DECISION UNDER APPEAL:
Musumeci & Ors v Minister for Fisheries [2002] NSWADT 161BEFORE: O'Connor K - DCJ (President); Montgomery S - Judicial Member; Bolt M - Member CATCHWORDS: no question of law identified - relevant/irrelevant considerations MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 003391 DATE OF DECISION UNDER APPEAL: 09/06/2002 LEGISLATION CITED: Fisheries Management (General) Regulation 1995
Fisheries Management (General) Regulation 2002CASES CITED: Vetter v Lake Macquarie City Council [2001] HCA 12
Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298
Woodside & anor -v- Director General, Department of Community Services (CSD) [2000] NSWADTAP 8REPRESENTATION: APPELLANTS
F Corsaro SC & S Longhurst, counsel
RESPONDENT
T Lynch, counselORDERS: Appeal dismissed.
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 Vincenzo Musumeci, Lucia Musumeci and Rocco Musumeci (‘the Musumecis’) own fishing business FB2265. Commercial fishing licence 890222 is issued in respect of the business. The Musumecis have together owned the fishing vessel the Illawarra Star since 1 July 1987. On 12 December 1996 the Musumecis applied for the endorsement of fishing licence 890222 to fish in the ocean fish trawl restricted fishery (northern zone). By letter dated 1 April 1997 the Minister advised the Musumecis that their application for the endorsement had been refused, and on 4 April 1997 the Musumecis requested an internal review after internal review by the Restricted Fisheries Review Panel (‘the Review Panel’). The Minister adopted the Review Panel’s recommendation dated 23 November 2000 refusing the endorsement.
3 They applied for review of the Minister’s decision refusing the application for an endorsement. The decision was affirmed by the Tribunal: see Musumeci & ors v Minister for Fisheries [2002] NSWADT 161 (6 September 2002). They appealed 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 For convenience this appeal was heard together with an appeal by Rocco’s brother, Antonio Musumeci (Antonio). Prior to 1987 the Illawarra Star was owned jointly by Vincenzo and Antonio. The change in ownership has no bearing on the question of eligibility, as the claim is based on the boat history of the Illawarra Star.
5 Antonio was also refused the same endorsement in respect of his boat, the Giuseppa. His case involved some different circumstances. The Appeal Panel has upheld his appeal, and some of the material in that decision is relevant to the present decision: see Musumeci v Minister for Fisheries [2003] NSWADTAP 36 (‘the Antonio M decision’).
6 Rocco Musumeci (who will be referred to as ‘Rocco’ in the remainder of these reasons so as to distinguish him from other members of the family) is Vincenzo’s son and skippers the Illawarra Star. He has been its skipper since 1 July 1987. We agree with the Tribunal’s reasons at [11]-[13] concluding that the proper applicant for the endorsement was Rocco, and we will proceed on that basis.
7 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.
8 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 (‘FMR 2002’). There was no dispute that Rocco M satisfied the net requirement in cl 187. Clauses 187 and 188 of the FMR 1995 are set out in the Antonio M decision. Antonio M’s case fell into category (a) [15 returns between 1986 and 1990]. This case falls into category (b).
9 As Rocco M had the required returns for the 1991-1993 period, he had to show that he had 3 returns for the 1986-1990 period. He could only produce one. In this case, in contrast to the Antonio case, there was no finding by the Tribunal that the additional returns had been lodged with the Director at the time and, by inference, misplaced.
10 The Antonio case turned on the interpretation of cl 187. This case, in contrast, is a case where the ‘relief measure’, as we have described it in the Antonio decision, provided by the FMA and the FMR came into play, i.e. the Restricted Fisheries Review Panel. Clause 214C of the FMR was properly applied by the Review Panel and by the Tribunal. It provides:
- ‘ 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.
(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.’
11 At relevant times Rocco suffered a thyroid and sinus related condition that amounted to an ‘illness’ or ‘other incapacity’ within the meaning of cl 214C(2)(c) and Vincenzo had a heart condition. He maintained that between having regard to the circumstances that befell him and the members of his family during the relevant period they met the requirements of cl 214C(2)(i) and (iii). Rocco’s referred to these circumstances: he had had a severe thyroid and sinus condition that substantially affected his ability to take fish in the zone; Vincenzo had had a heart condition; and Rocco’s wife had suffered complications following the birth of their children.
12 The issues that the Tribunal had to determine were:
- (a) did the word ‘person’ in cl 214C(2) refer to all of these people, or only to the licence holder, and whose illness is relevant to sub-clause (i)?
(b) was the illness in question such as to substantially affect that person's ability to satisfy the eligibility requirements under the Regulation; and
(c) was the relevant applicant or applicants ‘unable’ to satisfy the eligibility criteria for significant reasons, within the meaning of cl 214C(2)(c)(iii)?
13 With respect to the matters of the health of Vincenzo and Rocco’s wife, the Tribunal stated at paras [38] and [39] of its Decision:
- ‘38 Vincenzo did not hold the licence of which the endorsement was sought, was not nominated as the person to take fish for sale, and did not work the boat on whose history eligibility for the endorsement depended. He has no standing to apply for the endorsement, or to apply for consideration under an exception to the requirements for an endorsement. Consequently his illness can have no relevance to sub-clause (i). It is the illness of the person who had an ability to satisfy the eligibility criteria for the endorsement to which sub-clause (i) is directed. Vincenzo was not that person. Only Rocco was.
39 In my view Vincenzo’s illness cannot be relied for a claim under sub-clause (i). I make no further reference to the concerns regarding the health of Vincenzo or Rocco’s wife in considering Rocco claim under sub-clause (i). The only factor of which account can properly be taken under sub-clause (i) is Rocco’s health: not the health of another person, nor Rocco’s concern for the health of another person.’
14 The Tribunal dealt with the issue of Rocco’s health at paras [40] to [50] of its Decision in the following terms:
- ‘40 There is no issue as to Rocco’s ability to use the fish trawl method. None of his evidence suggested that his illness affected his ability to trawl for fish. He trawled for fish consistently and successfully in zone 7 throughout the relevant period, and he trawled on occasions for fish in zone 6. The eligibility criterion with which he says his ability to comply was affected, was that he take fish in zone 6.
41 Unless Rocco’s ability to go into zone 6 was substantially affected by his own health or incapacity sub-clause (i) is not satisfied. No reason other than his own health or incapacity is relevant to sub-clause (i).
42 Between 1986 and 1990 Rocco went into zone 6 in four different months: 9002, 9005, 9006, 9009, and used the fish trawl method in one of those months: 9009. Between 1991 and 1993 he went into zone 6 in nine different months: 9102, 9103, 9110, 9111, 9112, 9201, 9203, 9205, 9206, and used the fish trawl method in six of those months: 9110, 9111, 9112, 9201, 9203, 9205. He caught more than 20 tonnes of fish in one of the eight years 1986-1993: 1991.
43 For cl.187(1)(a) the question is: why in 1986-1990 did Rocco not go into zone 6 and use the fish trawl method in 14 of the other 59 months? For cl.187(1)(b) the questions are: why in 1986-1990 did Rocco not go into zone 6 and use the fish trawl method in only 4 of the other 59 months? And in 1986-1993 why did he not take more than 20 tonnes of catch in two of seven years? Only one answer can bring Rocco within sub-clause (i): because his illness substantially affected his ability to do so.
44 Rocco’s health did not affect his ability to go to zone 6 in a total of 13 of 96 months. Nor did his health or incapacity affect his ability to use the fish trawl method in zone 6 for seven of 96 months. I am not concerned with whether he went to zone 6 on a long day from port, allowing him only one ‘shot’ rather than say three or four, or on an overnight trip of two or more days. If he was able to go to zone 6 only for short periods, allowing him one ‘shot’, that would be relevant to the quantity of catch taken, but not to whether he was able to submit catch returns from zone 6 at all.
45 There is no evidence that Rocco’s health was better in those months in which he did go to zone 6 than it was in those months when he didn’t. There is no evidence that his ability to travel to zone 6 was less “affected” in the months he went to zone 6 than in the months he didn’t. It is not Rocco’s evidence that his health fluctuated over the period. He was fairly consistently affected by the symptoms, with some easing of them after an operation in 1987. He managed the symptoms with medication; he could feel the onset of symptoms and bring them under control. I assume that this was the case at all times – there is no evidence that this regime changed at times or over time. Except that the symptoms were apparently worse in winter, I have to assume that Rocco’s health was no better on the occasions he went into zone 6 than it was during the months he didn’t go there.
46 His having worse symptoms in winter is consistent with his never having fished in to zone 6 in July or August, although in two years he did go in June. Even removing the winter months from the equation, there is no evidence that can reasonably satisfy me that for the any of the remaining months in the years 1987-1993 Rocco was any less able to go to zone 6 than in the months he did go.
47 On the evidence, the degree to which Rocco’s ability was affected by his illness appears to have been consistently the same over the years 1987-1993, having been a little worse in 1986-87. Whether there was no change from time to time, or whether Rocco’s ability was affected to different degrees at different times, the evidence shows no correlation between the effect of his illness on his ability to go to zone 6 and the actual occasions he did go to zone 6. Whatever factors influenced him to go to zone 6, he appears to have gone in spite of his illness. The evidence indicates that other factors may have included the extent to which at different times he felt more or less concerned about the health of his father and his wife, whether there was a run of fish that he felt inclined to follow further than he usually might, whether he felt like accompanying his cousin’s boat further from port, and whether the fishing in zone 7 was so poor that it was worth venturing, even for a short time, into zone 6. Rocco agrees that the income produced by his fishing principally in zone 7 was sufficient.
48 It is not possible in those circumstances to say that Rocco’s ability to go to zone 6, and thereby to satisfy the eligibility criteria, was “significantly affected” by his illness. Consequently I am not satisfied that Rocco’s ability to meet the eligibility requirements was substantially affected by illness.
Clause 214C(2)(c)(iii): inability for other significant reasons
49 Rocco was not “unable”, in the sense that the word is defined by the Court of Appeal in Puglisi [Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298, (2001) 52 NSWLR 351] to satisfy the eligibility criteria. His argument that his circumstances fall within sub-clause (i) is premised on his being ‘able’, even if only to a degree.
50 Because Rocco is not “unable”, sub-clause (iii) cannot be available to him. The most that can be said for the “other significant reasons” that he refers to – his concern for Vincenzo’s health and for his wife’s health – is that they may have affected to some extent his ability to satisfy the eligibility criteria. Only sub-clause (i) is concerned with a factor affecting ability, and the only factor it is concerned with is the applicant’s health. There is no place in cl.214C for factors such as concern for another’s health unless the applicant is “unable”. Even then there might be argument as to whether such concerns constitute “other significant reasons.’
15 The Tribunal reached its decision on the basis that Rocco’s circumstances did not come within those described by either sub-clause 214C(2)(c)(i) or 214C(2)(c)(ii) of the Regulation. The Tribunal made the following finding:
- ‘51 I find that Rocco Musumeci is unable to establish eligibility for Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsement pursuant to cl.187(1) FMR. His circumstances are not within those described by either cl.214C(2)(c)(i) or cl.214C(2)(c)(iii) FMR.’
16 The Tribunal's conclusion was that the correct and preferable decision was that Rocco is not eligible for the endorsement he seeks and accordingly the Musumecis are not eligible for an Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsement. The Tribunal affirmed the decision of the Minister to that effect.
- The Appeal
17 The appeal is made under s 112 of the Tribunal Act. The notice of appeal alleged errors of law in the reasoning of the Tribunal. The questions for the appeal panel are whether the Tribunal made an error of law in the review:
- (a) on the facts as found, should the Tribunal have determined that Rocco’s illness was such as to substantially affect his ability to satisfy the eligibility requirements under the Regulation? and
(b) on the facts as found, were the applicants "unable" to satisfy the eligibility criteria for significant reasons, within the meaning of cl 214C(2)(c)(iii)?
18 The parties provided both written and oral submissions in support of their respective cases.
19 Mr Corsaro, on behalf of Mr Musumeci, urged the Appeal Panel to adopt an approach that promotes the objects and purposes of the legislation. He observed that the Tribunal found that Rocco had a serious throat condition. He suffered from recurrent ear, nose and throat conditions until an operation in 1987 for the excision of a lump in his thyroid. This swelling and associated fever affected the operations of the vessel as to navigation, engine room, operating the wheel, deck work, watching for fish and general concentration. Even after the operation he continued to have similar problems but of less severity. He continued to have wound discharge and sore throats from at least 1989 through to 1993. At that time another operation was performed and ‘a chronic sinus’ was excised from his neck. The continuation of the condition after the operation in 1987 caused him not to fish in zone 6 and therefore to stay more often in zone 7.
20 Mr Corsaro submits that in all of the circumstances, the Tribunal should have found that Rocco's illness affected him for a significant period and substantially affected his ability to satisfy the eligibility criteria for the Endorsement.
21 The evidence of Vincenzo’s health was that he had a number of illnesses and heart related problems throughout 1990 leading up to his ultimate by-pass operation in February 1991. He also had complicating diabetes, which affected him during 1992 and 1993. Mr Corsaro submits that, in the circumstances, Rocco's decision to stay a lot closer to home was understandable and logical.
22 The evidence of Rocco’s wife’s health was that she suffered complications at the time her children were born. The first child was born on 20 October 1989. The second child was born on 20 January 1992. The third was born in 1996. Mr Corsaro submits that as a matter of common sense, one can expect the concern in relation to the birth of the children to be greatest before the birth of a first child which coincides with a period of no visits by Rocco to zone 6. The Tribunal should have found this a limiting factor in 1992.
23 Mr Corsaro further submits that the acquisition of the GPS for the Illawarra Star in about mid 1990 was a significant factor in analysing the pattern of lodgment of zone 6 returns. The first zone 6 returns were lodged in September 1990 after the GPS was installed. Rocco often fished on the borderline of zone 6 near Barrenjoey Point. The introduction of GPS or ‘plotters’ appears to have allowed him to fill in these forms more accurately.
24 Mr Corsaro argues that the Tribunal should have found that Mr Rocco Musumeci satisfied the eligibility criteria based on cl 214C(2)(c)(iii) of the Regulation. He referred to the Court of Appeal decision in Puglisi, where it was held that the word ‘ability’ in cl 214C(2)(c)(i) and (ii) of the Regulation was equivalent to ‘capacity’ or ‘power’ and that the word ‘unable’ in cl 214C(2)(c)(iii) was to be construed in a manner which was cognate with ‘ability’ in cl 214C(2)(c)(i) and (ii). Heydon JA stated:
- “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.”
25 Mr Corsaro submits that the Tribunal incorrectly determined that cl 214C(2)(c)(iii) of the Regulation had no application on the facts and that the clause cannot apply when the illness and concern for others cannot amount to ‘inability’ in the relevant sense. Because of the narrow view that the Tribunal took in connection with ‘inability’ in the Regulation, the Tribunal effectively failed to give proper consideration to the ‘other significant reasons’ that existed that meant Rocco was unable to satisfy the eligibility criteria.
Question of Law?
26 Mr Lynch for the Minister submits that the first question before the Appeal Panel, as formulated, is not, and does not give rise to, a question of law. He referred in support of that submission to the High Court decision in Vetter v Lake Macquarie City Council [2001] HCA 12 (8 March 2001). He argued that this decision is authority for the principle that if the facts as found permitted the finding made below, that Rocco’s illness did not have the requisite effect, then there can be no question or error of law involved in that finding. He further submits that Mr Corsaro's submissions do not contend that the finding made was not one open on the facts as found.
27 With respect to the second question, Mr Lynch submits that the Tribunal below accepted that the illnesses of Vincenzo and Rocco’s wife, could be ‘significant reasons’ for the purposes of cl 214C(c)(iii). However, in accordance with the Court of Appeal’s decision in Puglisi at [51] to [53] and [61], the Tribunal directed itself that while the illnesses of Vincenzo and Rocco’s wife were matters which could affect Rocco’s motivation to fish in zone 6, they were not matters that could establish that Rocco was incapable of doing so or lacked the power to do so. Accordingly, the Tribunal concluded that Rocco could not rely on cl 214C(c)(iii).
28 Mr Lynch submits that the Tribunal’s direction as required by Puglisi was the correct one and the consequential conclusion was the only conclusion open. Accordingly, the Appeal should be dismissed.
- Construction
29 In Vetter v Lake Macquarie City Council Gleeson CJ, Gummow and Callinan JJ stated at paras [25] and [26]:
- ‘25 In his speech in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 36 Lord Radcliffe identified an error of law as arising if "the true and only reasonable conclusion contradicts the determination". Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed) discussed the matter comprehensively and stated the law on this topic in this country as follows in Hope v Bathurst City Council (1980) 144 CLR 1 at 7:
- ‘Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J in Hayes v Federal Commissioner of Taxation (1956) 96 CLR 547 at 51, where his Honour quoted the comment of Lord Parker of Waddington in Farmer v Cotton's Trustees [1915] AC 922 at 932, which was adopted by Latham CJ in Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97, that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J then said (1956) 96 CLR 47 at 51:
‘... this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The "facts" referred to by Lord Parker ... are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.’
26 Earlier in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547, Mason JA had observed at 557:
- ‘[I]t may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law.
30 We agree with Mr Lynch’s submission that this is a correct statement of the law. In our view, if different conclusions are reasonably possible on the evidence, the determination of which conclusion is the correct one is a question of fact. See also Woodside & anor -v- Director General, Department of Community Services (CSD) [2000] NSWADTAP 8 at [39-63].
31 It was open to the Tribunal below to find on the facts that Rocco’s illness was not such as to substantially affect his ability to satisfy the eligibility requirements. We therefore agree with Mr Lynch’s submission that the first question for the Appeal Panel does not raise any question or error of law.
32 We also agree with Mr Lynch’s submission with respect to the second question. In our view, the Tribunal was entitled to find on the evidence before it that Rocco’s concern for Vincenzo’s health and for his wife’s health could have affected to some extent Rocco’s ability to satisfy the eligibility criteria. They could be ‘significant reasons’ for the purposes of cl 214C(c)(iii). It is not enough that on balance an Appeal Panel might have formed a different view. The Appeal Panel must be satisfied that the error in the fact-finding process is so egregious as to amount to an area of law, for example because a critical fact was overlooked, there was no evidence or the finding was manifestly unreasonable. See further Woodside, cited earlier.
33 In accordance with the Court of Appeal decision in Puglisi, the Tribunal determined that Rocco’s concern for Vincenzo’s health and for Rocco’s wife’s health could have affected Rocco’s motivation to fish in zone 6. However, these were not matters that established that Rocco was unable to satisfy the eligibility criteria. Accordingly, the Tribunal concluded that Rocco could not rely on cl 214C(c)(iii).
34 As Heydon JA stated in Puglisi, 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.’ In our view, the Tribunal correctly applied the reasoning of the Court of Appeal in Puglisi. We do not accept that the Tribunal effectively failed to give proper consideration to the ‘other significant reasons’.
35 It was open to the Tribunal to find, on the evidence, that Rocco was not ‘unable’ to satisfy the eligibility criteria, in the sense that the Court of Appeal in Puglisi defines the word. The Appeal Panel should not lightly engage in a process that might lead to the reopening of findings in fact; and in this instance, we are satisfied that the principles that are relevant to the making of findings of fact were observed by the Tribunal. Accordingly, the Appeal should be dismissed and the decision under appeal affirmed.
- Order
1. Appeal dismissed.
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