Patane v Minister for Primary Industries (GD)

[2006] NSWADTAP 46

Appeal Panel - Internal

CITATION:	Patane v Minister for Primary Industries (GD) [2006] NSWADTAP 46
PARTIES:	APPELLANT Alf Patane RESPONDENT Minister for Primary Industries
FILE NUMBER:	069014
HEARING DATES:	16/06/2006
SUBMISSIONS CLOSED:	06/16/2006
DATE OF DECISION:	09/11/2006
BEFORE:	O'Connor K - DCJ (President); Higgins S - Judicial Member; Mapperson K - Non Judicial Member
CATCHWORDS:	adequacy of reasons - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	043209
DATE OF DECISION UNDER APPEAL:	02/17/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management (General) Regulation 2002
CASES CITED:	Commissioner for Fair Trading, Office of Fair Trading v Lindfield (GD) [2004] NSWADTAP 28 Patane v Minister of Fisheries, NSW Fisheries [2005] NSWADT 50 Micallef v Minister for Fisheries [2002] NSWADT 105 Horan v Minister for Fisheries [2002] NSWADT 144 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Samad v District Court of NSW (2002) 209 CLR 140 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456
REPRESENTATION:	APPELLANT C O'Connor, Solicitor, Thomson Rich O'Connor RESPONDENT L Clegg of counsel instructed by K Mattes, Crown Solicitor's Office
ORDERS:	Appeal dismissed

REASONS FOR DECISION

1 Commercial fishing in State waters is regulated by the Fisheries Management Act 1994 (Act) and the Fishing Management (General) Regulation 2002 (FMR). The respondent, the Minister, has statutory responsibility for issuing commercial fishing licences and endorsements. Endorsements are of critical importance to the breadth of activity, and consequently commercial value and profitability, of a licensee’s fishing business. This is because they permit and regulate activity in waters declared as restricted fisheries. The endorsements attach to the licence, but they may be lost on sale or disposal of any part of the fishing business owned by the licensee.

2 The appellant appeals against a decision of the General Division of the Tribunal affirming the decision of the respondent. There is a dispute as to what precisely was under review by the Tribunal. The appellant says that he challenged the respondent’s refusal to grant him two endorsements. The respondent says only the refusal of one endorsement was formally in dispute before the Tribunal – the refusal of an Ocean Hauling Class A (Skipper) endorsement. The applicant says that he had also put in issue the refusal of an Estuary General Category 2 Hauling endorsement.

3 We will deal at this point with that contention, and another point, jurisdiction.

Whether Two Endorsements were before the Tribunal
4 In our view two endorsements were before the Tribunal. We reach this conclusion on the basis of the contents of the internal review determination, which was treated as containing the decision under review.

5 The proceedings have as their immediate context the transfer to the appellant of Fishing Business No 83 by agreement dated 5 December 2002. He had previously owned this business, which was sold by his trustee in bankruptcy, on 19 December 2000. Prior to the sale in December 2000, the business had an Estuary General Category 2 endorsement and an Ocean Hauling Class A (Skipper) endorsement together with other endorsements, which were not the subject of the appellant’s application before the tribunal.

6 It is our understanding that the appellant had acquired the Estuary General Category 2 and Ocean Hauling Class A (Skipper) endorsement following review by the restricted fisheries review panel. However, when the appellant came to re-purchase the business in 2002 the business no longer held the Estuary General Category 2 endorsement or the Ocean Hauling Class A (Skipper) endorsement. It held other endorsements which were more limited in the estuary and ocean hauling restricted fisheries. The appellant’s objection has been to have the original classes of endorsement restored by the Director.

7 (The respondent’s delegate in these matters has been the Director, NSW Fisheries, or that office’s successor, the Director-General, Department of Primary Industries. We note also that when the proceedings started the responsible Minister was the Minister for Fisheries, and it is now the Minister for Primary Industries. The party description has been amended to reflect that change: Gov. Gaz. No 25, 2006 (17 February 2006).)

8 The respondent accepts that the Ocean Hauling Class A (Skipper) endorsement was in issue before the Tribunal. In rejecting the appellant’s assertion that the Estuary General endorsement is in issue, the respondent points to the letter of application to the Director, made on the appellant’s behalf by his solicitors. We accept that the Director is right in pointing out that this letter only put in issue the Ocean Hauling Class A (Skipper) endorsement. This application was formally refused, by letter dated 4 May 2004. However, it is equally clear in our view, that the subsequent internal review determination dated 26 November 2004 covered both endorsements.

9 The internal review determination in its heading and in the terms of its final decision refers to the appellant seeking two endorsements: Ocean Hauling Class A (Skipper) and Estuary General Category 2 Hauling. It refuses the application.

10 We disagree with the respondent that the text of the internal review determination only contains ‘superficial’ references to the Estuary General endorsement, and its real concern is the Ocean Hauling endorsement application. The determination refers to the referral from the Minister following a direction from the Tribunal as covering both endorsements, it refers to circumstances relating to both endorsements in the course of the reasons, and the formal statement of the determination refers to both endorsements. What has happened, as we see it, is that the scope of the application was treated as widened as between the original decision and the internal review decision. In principle, an applicant should be entitled to bring before the Tribunal for review the final determination of the agency.

11 The respondent did not draw our attention to the history of this matter in the Tribunal. This history explains, we think, the widening of the scope of the application. It also draws attention to a different issue of jurisdiction.

12 The applicant lodged his application for review with the Tribunal after the original decision and before any internal review had occurred, his application being filed 2 July 2004. It is clear from the statements at box 7 (reasons for application) in the application for review that the applicant was pressing for return of all his previous endorsements, including the estuary hauling endorsement.

13 The application was, on its face, premature and without jurisdiction, as no internal review had occurred: see Administrative Decisions Tribunal Act 1997 (ADT Act), s 55(1)(b). No decision was made, for example, to dispense with internal review, which would have saved the application (ADT Act, s 55(2)(c)). The Tribunal file shows that on 3 November 2004 a preliminary hearing as to jurisdiction was held.

14 The Tribunal’s record of decision states:

‘1. Remit under s 65 – new decision. Matter adjourned until 7/12/04. Note that the agency will conduct a formal internal review by 1/12/04.’
15 Section 65 provides:
‘ 65 Power to remit matters to administrator for further consideration

(1) At any stage of proceedings to determine an application for a review of a reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

(2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:

(a) affirm the decision, or

(b) vary the decision, or

(c) set aside the decision and make a new decision in substitution for the decision set aside.

(3) If the administrator varies the decision:

(a) the application is taken to be an application for review of the decision as varied, and

(b) the person who made the application may either:

(i) proceed with the application for review of the decision as varied, or

(ii) withdraw the application.

(4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:

(a) the application is taken to be an application for review of the new decision, and

(b) the person who made the application may either:

(i) proceed with the application for review of the new decision, or

(ii) withdraw the application.’

16 It is clear that the Tribunal was cognisant of the problem that there had been no internal review. On the other hand, it may not have had the power in s 65 available to it as it was not seized of a competent application for review. It may be that it should have dismissed the application with a recommendation to the respondent to undertake internal review, and leaving it to the applicant to lodge another application for review when that occurred.

17 Arguably, this proceeding may be said to be affected by the same invalidity. We have not invited the parties, in particular the respondent who may be benefited by the point, to make submissions on this point, as our ultimate decision on the appeal is favourable to the respondent. We think the practical approach is to treat the application for review as having been provided with a proper foundation once the internal review determination was made. Therefore it should be treated as having been filed with the Tribunal on the day after the internal review determination, i.e. 27 November 2004.

18 This conclusion may be seen as at variance with another Appeal Panel decision dealing with relatively similar circumstances – Commissioner for Fair Trading, Office of Fair Trading v Lindfield (GD) [2004] NSWADTAP 28.

19 The difference, as we see it, is that the Tribunal on this occasion did have regard to the jurisdictional issue (the directions hearing mentioned), took steps to cure it (which may inappropriately have utilised the procedure in s 65) and the defect was remedied before the matter proceeded any further in the Tribunal. The Tribunal did not again assert jurisdiction until there was an internal review determination. This was not the position in Lindfield. In that case the Tribunal and the parties had treated the original determination as the one before the Tribunal. As it happened, there had in that case been an internal review decision by the respondent agency, made about six weeks after the application for review had been filed in the Tribunal, but the internal review decision was never treated as the decision under notice in the proceedings.

The Appeal
20 This appeal essentially revisits the arguments as to the interpretation of the legislation which were unsuccessful before the Tribunal.

21 We will not set out here again the account of the recent history in this State of the regulation of commercial fishing, and the summary of the contentions of the parties: see the decision under appeal, Patane v Minister of Fisheries, NSW Fisheries [2005] NSWADT 50 at [1] to [55].

22 So far as the Director was concerned, the repurchase by the appellant of FB 83 was to be dealt with under the fishing business transfer rules. FB 83 did not hold the two endorsements at the time of repurchase.

23 Applying the law he considered applicable, the Director had treated the sale by the appellant’s trustee in bankruptcy to Scootmore Pty Ltd, as bound by the fishing transfer business rules. The provision in force at the time was cl 212Y of the Fishing Management (General Regulation) 1995, not as the Tribunal assumed, the equivalent provision in the 2002 Regulation (cl 277). Sub-cl (1) provided:

‘(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 licensed fishing boat that made the person eligible for an endorsement, the person ceases to be entitled to such an endorsement.’
24 Therefore, in the view of the Director, the appellant lost his entitlement to the endorsement. Sub-cl (1) reflects the principle found in the Act at s 114:
‘ 114 Endorsements not transferable

An endorsement of a commercial fishing licence under this Division is not transferable, unless authorised by the regulations.’

25 Cl 212Y went on to provide:
‘(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 businesses issued from time to time by the Director.’
26 In respect to the Ocean Hauling endorsement the Director applied the guidelines then in force, and did not approve the grant to Scootmore Pty Ltd of a Class A (Skipper) endorsement, but approved a Class B (Crew) endorsement as the validated catch history of the business only satisfied the criteria, as set out in the guidelines, for the latter class of endorsement. It is our understanding that an Estuary General Category 2 Hauling endorsement was not granted as the validated catch history of the business also failed to meet the eligibility criteria for this class of endorsement (see [4.4] of the internal review). It is noted that even though the appellant had been granted these endorsements they were granted on discretionary grounds that were available to the restricted fisheries review panel and not as a result of that panel having redetermined the validated catch history of the business so that it met the criteria set out in the regulations in respect to these classes of endorsement (see [4.4] of internal review and page 35 of the respondent’s bundle of documents).

27 When Scootmore sold the business back to the appellant in 2002, applying the provision that had replaced cl 212Y(1) – cl 277(1), which is in the same terms – the Director treated all Scootmore’s endorsements as having ceased. The Director then applied cl 277(2), replacing cl 212Y(2), which has a slight change of wording:

‘(2) A person who acquires any part of the fishing business of another person does not by virtue of the acquisition become eligible for an endorsement in a restricted fishery, except in accordance with guidelines relating to the transfer of fishing businesses issued from time to time by the Director.’
28 Again the Director referred to the guidelines that were then in force, and was not satisfied that the appellant was entitled to have the endorsements.

29 The appellant has a deep sense of grievance over the matter, because he did have the endorsements when he last owned the business, and considers that he should be accorded the more flexible treatment that was shown to existing participants in the industry at the time when the more strict regulations of today were introduced, with the division of State waters into restricted fisheries. The appellant had won appeals to restricted fisheries review panels against decisions to refuse him these endorsements. He was able to satisfy the restricted fisheries review panels of the merits of his case for these endorsements, even though he was unable to produce a documented catch history that met the criteria. This was not an uncommon problem at the time of the change. Many participants in the industry had not kept good records, and now found themselves needing good records for a new purpose – regulation for conservation reasons of the fishing effort in the future.

Was Clause 212Y applicable in 2000?
30 The appellant’s primary submission is that the appellant did not lose his endorsement by virtue of the transfer to the purchaser (Scootmore Pty Ltd) in the year 2000. This is because the holder of endorsements only ‘ceases to be entitled’ to those endorsements if the fishing business is ‘sold or disposed of’. It is submitted that these terms carry the connotation that the owner of the business voluntarily and intentionally sold. In the appellant’s submission, his was a forced transfer which he did not wish to have happen. We agree with the Tribunal’s interpretation that no such limitation can be placed on these terms (see [39]-[41] and [57] of its reasons).

31 While the appellant may well be right that the framers of the scheme intended that cl 212Y/277 form part of a package of measures to govern the departure of current participants from the industry, in our view the words used in the clause can not reasonably be construed in the way suggested by the appellant. While conventionally sales and disposals are the intended or voluntary actions of an owner, there can be circumstances where they take place against the wishes of the owner, without the active permission of the owner or by operation of law.

32 The Macquarie Dictionary (1st ed, 1980) defines ‘sale’ as ‘1. the act of selling’ as well as ‘5. transfer of property for money or credit’. In our view the trustee’s transaction was a sale, and the words ‘disposed of’ also used in this provision seek to pick up other forms of transfer that may not have been money’s worth or were more in the nature of a gift or bequest. This wider connotation of the term ‘disposal’ is reflected in the Macquarie Dictionary’s definition ‘2. a disposing of as by a gift or sale; bestowal or assignment’.

33 The fact that sub-cl (2) refers to the Director’s guidelines on transfer is its own indication, we think, that the references to sale and disposal were to be construed broadly and in a commercial sense, not read down as a sub-class of transfers with the result that it does not fall subject to the guidelines.

34 This regulation operates in a commercial context that of commercial fishing activity in the State waters. It is an obvious possibility that a fishing business may encounter financial difficulty, leading to bankruptcy. We do not think that there is any basis for reading down this provision, as the appellant suggests, so as to exclude the sale or disposal that might occur in a situation where control of the business has passed into the hands of a trustee. Similarly, an owner may have been forced to give up control to a guardian or financial manager because of disability. Furthermore, an acceptance of the appellant’s argument would be contrary to the well established principles of the rights acquired by the purchaser of property which is held on trust by the trustee in bankruptcy.

35 In our view the Director was correct in applying cl 212Y in 2000.

Was new Clause 277(1) applicable in 2002?
36 It follows, we think, that the Director was correct in treating Scootmore Pty Ltd as having ceased to be entitled to the endorsements it then held, and that the appellant’s case for endorsements would then be dealt with based on the guidelines relating to transfer of fishing businesses. Moreover, the transfer in 2000 and the transfer in 2002 were the subject of a form of documentation prescribed by the Director known as the Restricted Fishery Interim Transfer Agreement (RFITA). The appellant, as required, specifically acknowledged the endorsements which were approved by the Director in relation to the transfer to him dated 5 December 2002.
Application of the Guidelines
37 The current policy in relation to the general issue of commercial fishing licences is set out in the NSW Fisheries Licensing Policy , Version 2 of November 1996. It is noted that the policy in its original form had been introduced after industry-wide consultation. So far as the Ocean Hauling Restricted Fishery is concerned the relevant policy commenced on 5 April 2000 and is headed ‘Fisheries Management Act 1994 Eligibility for class A & B endorsements in the Ocean Hauling Restricted Fishery upon transfer of a fishing business’.

38 The respondent noted the provision in the ADT Act relating to the taking into account in review proceedings of government policy. Section 64 relevantly provides:

‘ 64 Application of Government policy

(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 circumstances 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.

(5) In this section:

Government policy means a policy adopted by:

(a) the Cabinet, or

(b) the Premier or any other Minister,

that is to be applied in the exercise of discretionary powers by administrators.’

39 The policy deals with the grant of skipper (class A) and crew (class B) endorsements. The policy refers in its ‘Background’ section to industry consultation, and the objectives of the restrictive transfer policy. The document states:
‘The restrictive transfer policy was necessary to prevent endorsements which were granted under an extremely low entry criteria from being issued to new owners of fishing businesses and utilised at much higher levels.’
40 The next heading in the document is ‘The Policy’. It has a series of rules, starting with the proposition:
‘Entitlements in the Ocean Hauling Fishery will only be issued to new owners of fishing businesses (or their nominated fishers) under the following circumstances.’
41 They only permit purchasers of fishing businesses to have the benefit of the seller’s endorsements on the basis of a validated catch history meeting specified criteria. There is no provision in the guidelines for concessionary treatment of situations that can not meet the catch history criteria, in contrast to the situation that applied during the era of the review panels which had now ended.

42 The respondent’s view is that it was appropriate to show some flexibility in the years immediately after 1995 to existing industry participants, but that upon transfer of their fishing businesses it was open to apply stricter rules, with the effect that some of the endorsements granted cognisant of personal circumstances could not be passed on. The respondent’s view is that this was well understood in the industry consultation.

43 The Tribunal accepted the respondent’s submissions in this regard, and we see no reason to differ from them. The Tribunal accepted that it was proper to have regard to the guidelines and the general policy. We agree.

44 The Director has taken the view that this policy is applicable to the present case because the appellant is a ‘new owner of a fishing business’. We were pressed by the solicitor who appeared for the appellant, Dr O’Connor, to adopt a view that had regard to the justice of the present situation. In his submission, the appellant should not with his long history in the industry now be treated as a ‘new owner’ and have this policy applied to him. He should not be placed in a situation where the business he had prior to bankruptcy in 2000 and now recovered by him was diminished in its value by not having returned to him the endorsements as they stood in 2000.

45 We doubt whether the Director in formulating this policy had in mind precisely the kind of situation which has arisen in this case. This is reflected in the respondent’s written submissions where it notes ‘the unique facts of this case’ (at [22]), and ‘the unusual factual circumstances of this case, including the appellant’s long involvement in the commercial fishing industry’ (at [25]).

46 Nonetheless we are of the view that the policy should be applied. The trustee in bankruptcy dealt with Scootmore on the basis that Scootmore was governed by the then transfer policy. It did not get the business precisely in the way it was conducted by the appellant. Not all endorsements were permitted to be transferred by the Director.

47 As a result it bought a somewhat devalued business. That business then became available two years later to the applicant to buy. As it happened he was the previous owner of the business.

48 He, we expect, dealt with Scootmore and the Director as overseer of these transactions on the basis that he would be granted such endorsements as were appropriate in the current policy environment. Importantly, we accept, as did the Tribunal below, that the appellant acknowledged via the terms of the RFITA that he undertook the transaction subject to the policy and subject to the discretions that surrounded the grant of endorsements. Moreover in line with the Director’s policy, he had been informed in the lead up to completing the transaction of his situation with respect to endorsements in future.

49 In our view while the appellant might not be the typical new entrant, it was proper to deal with him on the basis of this policy.

Availability of other provisions in exercising the discretion to grant endorsements in the present circumstances
50 In light of these conclusions it is not necessary to deal with the appellant’s alternative submission. But we will refer to them briefly.

51 The appellant contends that his situation should be assessed only by reference to FMR cl 210 (estuary general restricted fishery – eligibility for endorsement) and cl 259 (ocean hauling fishery – eligibility for endorsement).

52 Cl 210 provides relevantly:

‘ 210 Eligibility for endorsement

(1) General requirements

The general requirements for an endorsement are that the person:

(a) owns a licensed fishing boat that is suitable for use in the restricted fishery, and

(b) has submitted to the Director at least 12 estuary waters catch returns in any 4 years (not necessarily consecutive) from 1986 to 1993, and at least one of those returns relates to a month prior to January 1991.

…

(10) Category two hauling endorsement

A person is eligible for a category two hauling endorsement if the Minister is satisfied that:

(a) the person fulfils the general requirements for an endorsement, and

(b) the person submitted to the Director at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that fish were taken by the method of hauling and at least one of those returns relates to a month prior to January 1991.

(11) If the Minister is satisfied that the catch history associated with a fishing business satisfies any of the eligibility criteria set out in this clause, the owner of the fishing business is taken to have satisfied those criteria, even if the owner did not personally take the fish for sale or submit any catch returns to the Director. In such a case, however, the person who actually took the fish for sale or submitted the returns (for example, while working as an employee of the fishing business) does not, by having done so, satisfy the criteria.

(12) In determining a person’s eligibility for an endorsement, the Minister may have regard to the records kept by the Director (including records of net registration, licence records and records of fish taken by a commercial fisher).

(13) The catch history associated with a fishing business is to be determined in accordance with clause 143 (5).

(14) In this clause:

estuary waters catch return means a return under section 42 of the 1935 Act that relates to takings of fish in estuarine waters.

ocean waters catch return means a return under section 42 of the 1935 Act that relates to takings of fish in ocean waters.’

53 Though he has had difficulty in the past, he believes that he can satisfy the above provision if his catch history, and the explanations he can give for its shortcomings, are dealt with in a fair way in the exercise of the general discretion given to the respondent. In the case of cl 210 the respondent submits that the respondent is not bound by the catch history records (sub-cl (12)).

54 Cl 259 provides relevantly so far as a Class A endorsement:

‘ 259 Eligibility for an endorsement

(1) A person is eligible for a class A endorsement if:

(a) the person submitted at least one return under section 42 of the 1935 Act during a relevant year and, according to that return, the person caught mullet, bream, salmon, blackfish, pilchard or garfish using a hauling net and at the time had a fishing boat that was licensed to the person, and

(b) the Minister is satisfied that the person had a hauling net of the type in respect of which an endorsement is sought, that was registered in the name of the person, before 31 December 1990 and that the person currently has such a registered hauling net, and

(c) the Minister is satisfied that the person currently has a suitable boat for use in the ocean hauling fishery that is licensed to the person.

…

(7) In determining a person’s eligibility for an endorsement, the Minister may have regard to the following:

(a) the records kept by the Director (including records of net registration, licence records and records of fish taken by a commercial fisher),

(b) a verified record of a commercial fishers’ co-operative,

(c) a verified record relating to the income tax liability of a commercial fisher,

(d) a verified record of any fish processing company (whether a wholesaler or a retailer).

(8) The Minister may, for the purpose of determining a person’s eligibility for an endorsement, require a net to be presented for inspection by officers of NSW Fisheries.

(9) In this clause:

(a) a reference to a relevant year is a reference to 1986, 1987, 1988, 1989 or 1990, and

(b) 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.’

55 Again though he has had difficulty in the past, he believes that he can satisfy the above provision provided his catch history, and the explanations he can give for its shortcomings, are dealt with in a fair way in the exercise of the general discretion given to the respondent. In the case of cl 259 the appellant refers to the use of the word ‘may’ in sub-cl (7) as indicating that the respondent has a general discretion and is not bound simply by the matters enumerated in cl 259 in exercising his discretion.

56 We do not regard these provisions as applicable. As previously explained, we consider that it was proper for the Director to apply the fishing business transfer rules. Further, so far as s 259 is concerned, the Tribunal at Divisional level has ruled persuasively that this provision was designed only to apply to the claims of established fishers when the new restricted fisheries were introduced. See Micallef v Minister for Fisheries [2002] NSWADT 105 esp [49]-[61]; and Horan v Minister for Fisheries [2002] NSWADT 144 esp [35] ff. The same reasoning applies to the interpretation of cl 210.

57 If we are wrong and it is the case that these clauses were open to be applied, we doubt whether the Minister could go outside the considerations enumerated. We do not think the use of the word ‘may’ in cl 259 or the narrower terms used in cl 210 can be interpreted to allow consideration of the explanations that the appellant feels he can provide as to his documented catch history. In our view, the use of the term ‘may’ must be read in context. See generally, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 195 CLR 355. In the instance of each provision the scheme lays down detailed rules, and we are inclined to the view that they are the only considerations that may be taken into account: see further, Samad v District Court of NSW (2002) 209 CLR 140.

Tribunal’s Failure to Give Reasons in respect of the Estuary General Category 2 endorsement
58 In its reasons the Tribunal refers only to the Ocean Hauling Class A (Skipper) endorsement. It makes no reference to the Estuary General Category 2 Hauling endorsement. The appellant contends that this reveals an error of law in that the Tribunal failed to address the second matter, and failed to give any reasons.

59 In light of our conclusion as to the history of the matter (especially the contents of the internal review determination), we agree with the appellant that the Tribunal should have referred to the Estuary Hauling endorsement in its reasons. But we do not think the appellant suffered any particular prejudice as the result of the failure of the Tribunal to make any direct reference to it. The arguments accepted by the Tribunal apply equally and without distinction to both endorsements. They stood or fell together.

Conclusions
60 An appeal may be made on a question of law and, with the leave of the Appeal Panel, may be extended to the merits: ADT Act, s 113. The Appeal Panel’s discretion to extend to the merits is not fettered by any need to demonstrate an error of law or an arguable error of law: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456.

61 The appeal has identified one error of law of importance – the failure of the Tribunal to give any reasons for rejecting the respondent’s determination in relation to the Estuary General endorsement. But, as already explained, we do not think the omission has affected the result.

62 In our opinion, the Director was correct in applying cl 277 and the guidelines to which cl 277 refers. He did not need to have regard to cl 210 or cl 259. It would be unjust to the respondent to allow the appeal to be extended to the merits given that the result was the proper outcome of the application of the guidelines.

Order

Appeal dismissed.