Patane v Minister of Fisheries, NSW Fisheries

[2006] NSWADT 50

CITATION:	Patane v Minister of Fisheries, NSW Fisheries [2006] NSWADT 50
DIVISION:	General Division
PARTIES:	APPLICANT Alf Patane RESPONDENT Minister of Fisheries, NSW Fisheries
FILE NUMBER:	043209
HEARING DATES:	10/08/2005
SUBMISSIONS CLOSED:	10/09/2005
DATE OF DECISION:	02/17/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 2002 Fisheries Management Act 1994
CASES CITED:	Horan -v- Minister for Fisheries [2002] NSWADT 144 Jewell v Director General NSW Fisheries [2004] NSWADT 295 Kioa v West (1985) 159 CLR 550 Micallef v Minister for Fisheries [2002] NSWADT 105 Searl v Director if Fisheries [2000] NSWADT 53 Southend-on-Sea Corporation v. Hodgson (Wickfield) LTD (1962) 1 QB 416
REPRESENTATION:	APPLICANT C O'Connor, Solicitor RESPONDENT C Cory, Solicitor
ORDERS:	The decision under review is affirmed

REASONS FOR DECISION

1 The Applicant is a commercial fisherman who has fished commercially since the early 1970s. He obtained his fist commercial fishing licence in 1977. From 1995 to March 1999 he was the owner of Fishing Business FB 83 ("FB 83").

2 From about 1995, the Respondent introduced the scheme of Restricted Fisheries in their regulation of fishing operations in the State. As a result of the new regulatory scheme, commercial fishers who operated in restricted fisheries were required to hold endorsements before they could take fish for sale. At that time, the Respondent also assessed FB 83's eligibility for various endorsements. As a result, FB 83 was initially determined to be ineligible, based on its Validated Catch History, to hold the following endorsements:

a. Ocean Hauling Restricted Fishery Class A - Hauling net (general purpose);

b. Ocean Hauling Restricted Fishery Class A - pilchard, anchovy and bait net (hauling);

c. Ocean Hauling Restricted Fishery Class A - garfish net (hauling).

3 The Applicant successfully appealed that determination and the Restricted Fisheries Appeals Panel subsequently granted the endorsements. FB 83 operated under those endorsements up to 1999.

4 A further appeal in March 1997 resulted in a recommendation from the Restricted Fisheries Review Panel for issue of an Estuary General Category 2 Hauling Endorsement to the Applicant's estate.

5 Between 1995 and 1997, the Applicant was involved in business dealings business with John Georgiadis of Scootmore Holdings Pty Limited ("Scootmore") trading as Royale Seafoods. A dispute between these parties subsequently resulted in the Applicant being declared bankrupt. The Applicant remained working as a commercial fisher during the time that he was an undischarged bankrupt.

6 On about 19 December 2000, FB 83 was transferred from the Estate of the Applicant to Scootmore, being a judgment creditor. The transfer was done via a Restricted Fisheries Interim Transfer Agreement ("RFITA").

7 Prior to its transfer to Scootmore, FB 83 had held, amongst others, the following endorsement: Estuary General Category 2 Hauling endorsement, and Ocean Hauling Fishery Class A: Hauling net (general purpose); Pilchard, anchovy and bait net (hauling); and Garfish net (hauling). Upon transfer to Scootmore, FB 83 lost its endorsements from the Respondent on the grounds that it allegedly failed to meet the relevant transfer criteria as set out by a transfer policy then in force.

8 During about March 2001, an application was made to the Respondent for an assessment to determine FB 83's eligibility for an Ocean Hauling Fishery Class A endorsement. The Respondent subsequently determined that the catch history of the business contained insufficient records of ocean hauling catch history to satisfy the policy for the requested endorsement. This assessment was based on a transfer policy dated 5 April 2000.

9 In December 2002, Scootmore’s administrator transferred FB 83 back to the Applicant via a RFITA. The Applicant subsequently applied to the Respondent for an Ocean Hauling Fishery Class A endorsement and he was informed that FB 83 was previously determined to hold insufficient catch history to get the requested endorsement. In March 2004 the Applicant requested the reinstatement of the Ocean Hauling Fishery Class A endorsement to FB 83. The Director-General responded that there were no provisions for reinstatement of the Ocean Hauling Fishery Class A endorsement. An internal review affirmed this decision.

Power of the Minister to grant endorsements

10 The Fisheries Management Act 1994 ("the Act") governs the legislative scheme that deals with the grant of endorsements in restricted fisheries. The history of the legislative scheme in respect of ocean haul restricted fishery is set out in various decisions of this Tribunal, including Micallef v Minister for Fisheries [2002] NSWADT 105. It serves little purpose to restate it other than to note that the Fisheries Management (General) Regulation 1995 has been replaced by the Fisheries Management (General) Regulations 2002 ("the FMR") and the numbering of relevant provisions has altered accordingly. Where applicable, I will also refer to relevant provisions of the Act. The objects of the Act are stated in Section 3:

3 Objects of Act

(1) The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations.

(2) In particular, the objects of this Act include:

(a) to conserve fish stocks and key fish habitats, and

(b) to conserve threatened species, populations and ecological communities of fish and marine vegetation, and

(c) to promote ecologically sustainable development, including the conservation of biological diversity,

and, consistently with those objects:

(d) to promote viable commercial fishing and aquaculture industries, and

(e) to promote quality recreational fishing opportunities, and

(f) to appropriately share fisheries resources between the users of those resources, and

(g) to provide social and economic benefits for the wider community of New South Wales.

11 Section 112(1) of the Act provides that a commercial fishing licence does not authorise a person to take fish for sale in a restricted fishery unless the holder is authorised by the Minister via an endorsement on the licence to do so. Subsection 113(2) of the Act provides that the eligibility for an endorsement of commercial fishing licences is to be determined in accordance with the regulations.

12 Part 4 of the Act relates to licensing and other commercial fisheries management. Division 3 of Part 4 is headed ‘Exploratory, developmental and other restricted fisheries’. Section 114 of the Act provides that an endorsement of a commercial fishing licence under Division 3 of Part 4 is not transferable, unless authorised by the regulations.

13 Section 116(a) of the Act provides that the regulations may make provision for, or with respect to, the endorsement of commercial fishing licences and the cancellation, suspension or transfer of those endorsements.

14 Section 34T(1) of the Act states:

34T Fishing business transfer rules

(1) The regulations or the management plan for a fishery (or both) may make provision for or with respect to the transfer of a fishing business (or components of a fishing business) and provide for the recognition, or restriction, of fishing rights following any such transfer. Such provisions are referred to as "fishing business transfer rules".

15 Division 10 of Part 8 of the FMR contains provisions creating and regulating the ocean haul restricted fishery. These provisions define the term ‘ocean haul fishery’ for the purpose of the Division, the types of endorsements in such a fishery and the eligibility criteria for each type of endorsement.

16 Clause 258(4) of the FMR confers power on the Minister to endorse the commercial fishing licence of a person who satisfies the eligibility requirements for endorsement. That clause provides:

“258 Application for endorsement

…

(4) 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 the endorsement.”

17 Clause 259(1) of the FMR prescribes the eligibility criteria for a class A (skipper) endorsement as follows:
“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.”

18 Clause 259(9)(a) provides that a reference to a relevant year in subclause (1) is a reference to the years 1986, 1987, 1988, 1989 or 1990.

19 Clause 277 of the FMR sets out the effect of sale or disposal of a fishing business and the eligibility requirements where a person acquires a fishing business.

“277 Effect of sale or disposal of fishing business on eligibility

(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.

(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.”

20 As provided for by clause 277(2) of the FMR, guidelines relating to the transfer of fishing businesses were approved by Director specifically for Ocean Haul. The Policy in relation to transferability of Ocean Haul Restricted Fishery endorsements was developed in consultation with industry. The Policy provides that a buyer of a fishing business will only be eligible for a class A (skipper) endorsements where the catch history nominated by the fisher and agreed by the Respondent contains a minimum of 7.5 tonnes of the relevant fish caught and a minimum of 8 ocean catch returns during 1986 and 1990. The Policy also provides that once agreed, a catch history cannot be altered in the future.

21 The current policy in relation to the issue of commercial fishing licences is set out in the NSW Fisheries Licensing Policy, Version 2 of November 1996. This is a revised version of the Policy of 9 June 1994 which was introduced in consultation with industry to provide a system of allowing the existing fishers to leave the industry and new fishers to enter the industry in an orderly manner without increasing fishing effort or pre-empting future fishery management options.

The Applicant’s case

22 The Applicant’s chronology of events is not generally disputed. His evidence is that prior to 1995, and including the criteria years of 1986-1990, he was fishing predominantly in the area on the border of NSW and Queensland, and he sold his catch to buyers in both states. With the majority to the latter. Around that time, the Applicant was also fishing, from time to time, near the Central Coast of New South Wales.

23 During the years before 1995 the Applicant followed a yearly fishing pattern, whereby particular months of the year were dedicated as the travelling season, during which time the fishers would fish and travel up north, following schools of fish that were heading for warmer waters. During the non-travelling season, the Applicant would confine his fishing activities around a particular area.

24 During the travelling season, the Applicant's usual routine of fishing was to start from Terrigal NSW in about March of every year. He would then move his boat north to fish at Port Stephens, Swansea, Crowdy Head, Coffs Harbour, Clarence River and Tweed Heads and then into Queensland waters. He would continue to travel north to Fraser Island until the end of travelling season around August of each year. During the travelling season, it was common industry practice that trucks from the Applicant's purchasers would follow his boat as he headed north and he would unload his catch onto them as soon as the boat became full.

25 As a result, even though the Applicant may have been fishing in NSW for some time during the season, the majority, if not all of his catch went to buyers in Queensland.

26 Outside the travelling season, the Applicant often stayed at Tweed Heads and would go bait fishing for pilchards, anchovies and sea garfish. Again, this catch went to buyers in Queensland such as Sea World and other major fish exporters located in that state.

27 As a result of the Applicant's catch being sold, mostly for cash, the Applicant did not often submit formal returns to NSW Fisheries. The Applicant says that therefore his official catch history did not capture a substantial portion of his fishing activity during the criteria years of 1986 to 1990.

28 The Applicant submits that the Minister's power to grant endorsements is conferred by clause 258(4) of the FMR and that use of the words "the Minister may" indicates that such a power is discretionary in nature. The Applicant further submits that, given the wording of clause 258(4), the satisfaction of eligibility requirements is a precondition to the Minister's exercise of discretion.

29 However, he submits, the Minister's discretion cannot be ousted by either clause 259(1) nor clause 277, these provisions only serve to modify the Minister's exercise of discretion under clause 258(4). He submits that the eligibility requirement as referred to in clause 258(4) turns on criteria under clause 259; clause 277; and any guidelines issued under clause 277.

30 Mr O’Connor for the Applicant referred to the objectives of the Act and the objectives of the NSW Fisheries Commercial Licensing Policy. The overall purpose of this policy is to prevent increase in commercial fishing effort by licensing commercial fishing fairly and consistently. He argues that the policy is concerned with maintaining sustainability of the fisheries by limiting entry and maintaining a consistent level of fishing activity. Thus, it is important to draw the distinction between original participants and new entrants, as the restriction to entry only applies to the latter.

31 Mr O’Connor contends that in the case of an original participant, the criteria under clause 259 of the FMR alone should be applied. However, in the case of a new entrant, clause 277 of the FMR and any guidelines made pursuant to it would be applied. The difference between the two categorizations can be immense. He submits that a decision to categorize an applicant into either of the categories should be the first substantive decision made by an administrative officer in determining the grant of an endorsement.

32 Mr O’Connor referred to the decision in Horan -v- Minister for Fisheries [2002] NSWADT 144 where Judicial Member Higgins stated:

“34 In respect of Mr Horan’s eligibility for the class B (crew) endorsements on the basis of the criteria set out in clause 212F(2) of the FMG Regs, I recently considered the same issue in respect of a class A (skipper) endorsement in my decision in Micallef v Minister for Fisheries [2002] NSWADT 105. In that decision I set out the history of the legislative scheme in respect of ocean haul restricted fishery and found that the eligibility criteria as set out in clause 212F(1)(a) of the FMG Regs applied to the original entrants/applicants to this restricted fishery, which was created in March 1995. I also found that clause 212Y(2) of the FMG Regs provided the means by which new entrants, who had acquired a fishing business and its validated catch history, were eligible for an endorsement to this restricted fishery.

35 In my opinion the same construction of the legislative provisions applies to a class B (crew) endorsements. That is, where a fishing business, which had attached to it a class B (crew) endorsement, is transferred to a new owner, the new owner will be eligible for a class B (crew) endorsement if the validated catch history of that fishing business satisfies the criteria contained in the April 2000 policy of the Director of NSW Fisheries, as agreed to by the Minister. This new criteria requiring the validated catch history of the business to have 6 ocean hauling catch returns in the period 1986 to December 1993, with at least one return prior to 1 January 1991.”

33 The Applicant submits that on this issue, the view expressed by Higgins JM in Horan should be accepted as a correct interpretation of the law. The “criteria set out in clause 212F(2) of the FMG Regs” are now in clause 259(1)] of the FMR. The provisions of clause 212Y(2) are now in clause 277(2) of the FMR.

34 Mr O’Connor contends that the Applicant is correctly categorised as an original participant and not a new entrant to the industry and is therefore to be assessed in relation to the criteria in clause 259 of the FMR. The Applicant gave evidence to show how he satisfies that criteria.

35 Mr O’Connor presented detailed argument in support of his contention that the Applicant has not ‘sold or disposed of’ that FB 83 for the purposes of clause 277(1) of the FMR.

36 Section 34P of the Act defines “transfer” of a fishing business or a component of a fishing business to mean the transfer, transmission, conveyance or assignment of a fishing business or component of a fishing business, and includes any other dealing in a fishing business or component of a fishing business of a kind prescribed by the regulations.

37 The Applicant submits that section 34P of the Act defines a transfer in such broad terms as to encompass the specific transfer as it relates to the Applicant at the material time. In other words it encompasses a transfer as a consequence of bankruptcy.

38 Furthermore, section 114 of the Act provides that an endorsement of a commercial fishing licence under Division 3 of Part 4 (relating to restricted fisheries) is not transferable, unless authorised by the regulations. Therefore, the Applicant submits, delegation of legislative authority to the Respondent in the terms, "authorised by the regulations", requires the Respondent to authorise specific situations where endorsements are transferable.

39 The Applicant submits that the Respondent exercised that authority in clause 277(1) of the FMR where it sets out that 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. The Applicant further submits that when the use of the expression "sold or disposed of" in clause 277(1) of the FMR is to be contrasted with the broad definition in section 34P of the Act. He says that this is prima facie evidence that the legislature put its mind to only situations of sale or disposal which as a matter of statutory interpretation, and by the plain meaning of the words, means that there must be a requisite intent from owner of the fishing business to dispose of his or her property.

40 Mr O’Connor referred to the Merriam-Webster dictionary definition of ‘sale’ as meaning "the act of selling; specifically: the transfer of ownership of and title to property from one person to another for a price", and its definition of ‘disposal’ to mean, “the power or authority to dispose or make use of as one chooses" and "the act or process of disposing: as a : orderly placement or distribution." He submits that these dictionary meanings of these words require an act and require authority to act and these words have no meaning without intent of the party seeking to sell or dispose of the property.

41 The Applicant submits that FB 83 was transferred without the requisite intent on his part to satisfy the meaning of ‘sold or disposed of’ in clause 277(1) of the FMR. He concedes that the taking of his business by the trustee in bankruptcy comes under the definition of transfer in Section 34P but not under the definition of ‘ sold or disposed of’ in clause 277, resulting in a transfer of the fishing business but not a transfer of the endorsement. In other words the FMR definition of transfer does not act to cease the entitlement of the Applicant in the endorsement upon the transfer of the Applicant's fishing business to the trustee in bankruptcy, as it does not encompass such a situation.

42 The Applicant submits that the Respondent, when informed by the trustee in bankruptcy that a transfer occurred, exercised this discretion ultra vires under clause 277(1) of the FMR in respect of the sale or disposal as the Respondent was not authorised under this clause to extinguish the endorsement. The Applicant further submits that there was a conversion by the Respondent when it extinguished the endorsement.

43 The Respondent is the authority to enforce endorsements, and additionally represented to the Applicant that the endorsement was extinguished. Therefore, the Applicant was unable to exercise his proprietary rights in the endorsement, and in particular his discretion to renew the endorsement at the end of each annual period.

The Respondent’s case

44 The Respondent submits that clause 277 of the FMR is the only reference to transfers of endorsements in the Regulations and clearly allows for a different regime to that of initial eligibility criteria. It states that on transfer a person does not thereby become eligible for an endorsement except in accordance with guidelines relating to transfer of fishing businesses issued from time to time by the Director.

45 Further clause 277(1) states that on disposal of any part of the business that made the Applicant eligible for the endorsement, the Applicant ceases to be entitled to such an endorsement. The Respondent submits that the Applicant therefore ceased to be entitled to any of his previous endorsements when his entire fishing business (boats, nets etc) transferred to Scootmore in 19 December 2000.

46 The Respondent submits that, as the Applicant signed a transfer agreement on 27 November 2002 and re-purchased FB 83, the Respondent properly applied section 114 of the Act and clause 277 of the FMR and that it was not open to the Respondent to apply the initial criteria in clause 259(1)(a) of the FMR. There is no indication in law or policy that preferential treatment should be given to fishers who leave the industry for whatever reason eg illness or bankruptcy and seek to re-enter at a later date.

47 The Respondent submits that the Directors Guidelines are not inconsistent with the empowering statute and that there is specific reference to ‘Guidelines’ in clause 277(2) of the FMR and ‘Fishing Business Transfer Rules’ in s34T of the Act. This gives greater weight to the application of those Guidelines/Rules, as opposed to administrative procedural policies.

48 The Respondent submits that the Tribunal must determine what is the correct and preferable decision having regard to the evidence before it and that section 64 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) requires that it must give affect 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. In Searl v Director of Fisheries [2000] NSWADT 53 the Tribunal considered the issue of transferability and found that the Licensing Policy 96 as well as the Restricted Fishery Endorsements Transfer Guidelines dated 12 July 1999 fell within the scope of section 64 of the ADT Act and were not unjust. Skinner JM stated at paragraphs 84 – 85:

“84 There is no evidence before me that strictly establishes the existence of a ‘Government policy’ within its meaning as defined in this section. The Director is not the Minister. However, such a distinction is a fine one. In any event the decision under review involved the application of policy that has been carefully struck after wide consultation with stakeholders and in respect of a resource requiring careful management for the benefit, as the Act states in its objects, of present and future generations. In reviewing such a decision I would have to be persuaded by powerful and cogent considerations if I were not to give effect to the policy of the Government where same can be clearly ascertained.

85 Such policy can be so ascertained here, and is consistent from the general to the particular and as the examination of the relevant provisions moves down the hierarchical ladder.”

49 The Respondent also refers to similar rulings were made in the cases of Micallef and Jewell v Director General, NSW Fisheries [2004] NSWADT 295.

50 The Respondent submits that this case is one of proper statutory construction and the law of Bankruptcy. The Respondent has agreed that if the Applicant’s Bankruptcy were declared to be invalid, then he would be restored to the position he was in with all his former endorsements. However, this would require a Supreme Court order. It submits that on the proper construction of the Act and of the FMR and its historical developments, it is clear that decisions have been made in accordance with the objects of the Act.

51 The Respondent asserts that with the introduction of restricted fisheries from 1995 onwards fishers were given ample warnings and opportunity to first review their catch history by a free Catch Review process in 1995 to correct any errors appearing on their Catch Returns and produce evidence of sales not recorded by audited documents. It was generally known to fishers that all future entitlements were to depend on their Catch Returns and Validated Catch History. The Respondent contends that the Applicant took part in this free catch validation process.

52 Fishers further had the opportunity to take part in statutory review panels and present further evidence to these bodies which would allow decisions that, though not strictly meeting the criteria, there were other factors that caused the fisher to be awarded endorsements for their own personal use, but not for transfer. The Respondent argues that these processes all had sunset provisions and that they are now no longer available. It is therefore unfair to now go behind what has been determined to be the' validated catch history' of a particular business, and seek to hear evidence of what happened in 1986-1993.

53 It is not in dispute that when he reacquired FB 83 on 27 November 2002 the Applicant agreed in writing to the assessment of the business and the validated catch history. The Respondent asserts that the Applicant is bound by that agreement. Further, it argues that in light of all the circumstances of this matter it could not be said that the Applicant could have held any reasonably based legitimate expectation that he would just regain his old endorsements: Kioa v West (1985) 159 CLR 550.

54 The Respondent says that on statutory construction the Applicant qualified for endorsements and then transferred his business and therefore ceased to be entitled to those endorsements. He then sought to purchase a new fishing business so was considered a new entrant and required to meet the higher criteria as determined by guidelines as provided for by clause 277(2) of the FMR. The Respondent says that the Applicant is estopped from challenging the validated catch history as recorded by the Department and on that catch history he has failed to meet the required 8 ocean catch returns with the relevant method recorded. The Respondent says that even on the Applicants calculations he can only establish 7 of the required 8 returns.

55 The Respondent further submitted that the Applicant is not a reliable witness as he seeks to rely on his memory of fishing activities in the criteria years to satisfy the more stringent criteria of 8 catch returns, yet he did not recall details of repurchasing FB 83 and signing transfer forms to effect this back into his name.

Decision

56 Despite the complex argument presented by the parties, ultimately the matters in issue in this application are relatively straightforward. I agree with the argument presented on behalf of the Respondent. While I accept that it is likely that the Applicant carried out the activities that he asserts, and that the recorded catch history does not accurately reflect the true history, for the reasons argued by the Respondent it is my opinion the Applicant is bound by the recorded history.

57 I do not agree that on the proper construction of the Act and of the FMR the interpretation urged by Mr O’Connor is available. When the objects of the Act and the historical developments are considered, it is clear that it was the intention of the legislature that the entitlement to endorsements would cease on the transfer of a business and this includes the transfer of a business as a consequence of a bankruptcy. The definition of the expression ‘transfer’ in section 34P of the Act is in such broad terms as to encompass a transfer as a consequence of bankruptcy. This broad definition applies to the Fishing Business Transfer Rules. It is also stated to include ‘any other dealing in a fishing business or component of a fishing business of a kind prescribed by the Regulations’. In my view the reference to the ‘sale or disposal of’ a fishing business in clause 277 of the FMR is to be read with similar breadth.

58 The Applicant submits that a primary consideration in determining eligibility, is to determine whether the person concerned is an 'original participant' or a 'new entrant'. I agree with that approach. In the absence of a declaration that the Applicant’s bankruptcy was annulled he is in the same position as any other fisher who has disposed of their fishing business and subsequently reacquired it. Clearly the Applicant is not a new entrant to the industry generally however in the circumstances he must be seen as a 'new entrant' for the purposes of the legislative scheme that deals with the grant of endorsements in restricted fisheries. This must be the case even though he has been a professional fisher since the early 1970s, though he was one of the first commercial fishers to be licensed in NSW in 1977 and even though he has fished continuously since the early 1970s to 1994 when the restricted fishery came into existence.

59 The provisions of clause 277(2) of the FMR therefore apply. The views expressed by Skinner JM in Searl that are quoted above are equally applicable in this matter. Section 64 of the ADT Act requires that I “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”. It is therefore necessary to determine whether there are ‘powerful and cogent considerations’ which would warrant my not giving effect to the policy. I do not consider that to be the case. In my view the policy is not contrary to law. This is consistent with similar views expressed in a number of cases decided in this Tribunal. Nor does application of the policy produce an unjust decision in the circumstances of this case. I have formed this conclusion on the basis of the fact that the Applicant has agreed to the validated catch history as recorded by the Respondent and my view that he is bound by that agreement. In the circumstances I agree with the Respondent that the Applicant has not had his interests affected in a manner substantially different to any other person. I note that my view would be different if the Applicant’s bankruptcy was annulled.

60 In short, I agree with the statutory construction urged by the Respondent. Under the Act, the Applicant had held certain endorsements but he lost those endorsements when he lost FB 83. Scootmoore did not automatically receive those endorsements when it acquired the business. That is the effect of clause 277 of the FMR. To be eligible for an endorsement in its own right Scootmoore had to satisfy “guidelines relating to the transfer of fishing businesses issued from time to time by the Director”. In turn, the Applicant did not automatically receive Scootmoore’s endorsements when he reacquired FB 83. He had to satisfy the guidelines. On reacquiring FB 83 the Applicant agreed to the validated catch history as recorded by the Respondent. In my view he cannot challenge that catch history. Not only did he agree not to do so, this was a provision contained within the guidelines.

61 On the basis of the validated catch history the Applicant is not eligible for the endorsement that he seeks. In my view, if the Applicant held any expectation that the situation would be otherwise, that expectation could not have been reasonably held. Accordingly, it is my view that the correct and preferable decision is that the application should be refused. It follows that the decision under review should be affirmed.

Order

The decision under review is affirmed.