Phelps v Director, NSW Fisheries

[2000] NSWADT 83

CITATION:	Phelps -v- Director, NSW Fisheries [2000] NSWADT 83
DIVISION:	General Division
PARTIES:	APPLICANT Mark Alan Phelps RESPONDENT Director, NSW Fisheries
FILE NUMBER:	993248
HEARING DATES:
SUBMISSIONS CLOSED:	01/14/2000
DATE OF DECISION:	06/23/2000
BEFORE:	Skinner PM - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Jurisdiction of Tribunal
LEGISLATION CITED:	Fisheries Management Act 1994
CASES CITED:	Searl v Director General, NSW Fisheries [2000] ADT 53 Virtu v Director General, NSW Fisheries [2000] ADT 75
REPRESENTATION:	APPLICANT In person RESPONDENT C Cory, solicitor
ORDERS:	1. The Tribunal has no jurisdiction to hear the application and it is dismissed

Application

1 This is an application by Mr Michael Alan Phelps for review by this Tribunal of a decision by the respondent.

2 The decision was not described by the applicant in his Application for Review filed with the Tribunal on 8 November 1999, but he attached a copy of a letter to him from the respondent dated 3 August 1999.

3 That letter referred inter alia to the outcome of a ‘free catch validation review’ for the ‘applicant’s registered fishing business’.

4 The terms used are terms of art from the legislative and administrative scheme governing the fishing industry in NSW – see Searl v Director General, NSW Fisheries [2000] ADT 53, and Virtu v Director General, NSW Fisheries [2000] ADT 75.

5 Essentially, the applicant seeks that this Tribunal review the decision of the respondent to not allocate to him catch history which he claims he purchased from another fisherman in 1989.

6 The respondent has always denied the jurisdiction of the Tribunal in relation to this application. In the letter dated 3 August 1999 to the applicant the respondent stated:

A decision which relates to the allocation of catch history to a FB does not fall into one of these categories [of decisions reviewable by the Administrative Decisions Tribunal, as set out in s 126 of the Fisheries Management Act 1994].

7 In a directions hearing on 7 December 1999 before Deputy President Hennessy the respondent maintained its objection to the jurisdiction of the Tribunal to hear this application, on the ground as above that the decision complained of is not within s 126 of the Fisheries Management Act 1994 (‘the Act’), and also on the ground that the application in any event was out of time.

8 Deputy President Hennessy directed that the respondent file written submissions as to these grounds. The applicant had a right of reply.

9 The application was adjourned for a decision upon the submissions, and the documents filed by the respondent pursuant to s 58 of the Administrative Decisions Tribunal Act 1997, with the application to be dismissed if the respondent’s arguments were accepted, or re-listed for directions as to its further progress.

10 Submissions have been filed by both parties and the application has been allocated to me for decision upon these preliminary issues.

Catch history

11 The legislative and administrative scheme governing the fishing industry in NSW was outlined in detail in my decision in Searl, above.

12 In para 79 of Searl, above, I stated:

The policy of NSW Fisheries as per the guidelines issued by the Director and his delegates, pursuant to the authority to do so conferred by s 114 of the Act and clauses 135 and 212Y of the Regulations, is that catch history is the key element in the eligibility criteria for an endorsement …

13 Clause 3 of the Fisheries Management (General) Regulation 1995 (‘the Regulations’), which commenced at the same time as the Fisheries Management Act 1994 (‘the Act’) on 16 January 1995, defines ‘fishing business’ as follows:

fishing business means a business that the Director determines to be a separate and identifiable fishing business (including any licensed fishing boat, fishing gear and catch history that is associated with that business).

14 Part 7 of the Regulations contains provisions for licensing of fishers and their boats and other provisions as to commercial fisheries management. Division 1 deals with commercial fishing licences. Subclause 135 relevantly provides:

135 Who may hold commercial fishing licence
(1) For the purposes of section 103 (2) (c) of the Act, the following individuals are authorised to hold a commercial fishing licence:
…
(b) an individual who satisfies the Minister that he or she (either alone or together with other individuals) owns the whole of a recognised fishing operation or that he or she is the nominated fisher of a person who owns the whole of a recognised fishing operation, …

15 Subclause 135(2) defines ‘recognised fishing operation’ for the purposes of the clause.

16 Subclause 135(3) provides:

(3) The catch history associated with a fishing business is the historical takings of fish for sale by or in connection with a fishing business. The catch history is to be determined by the Director in such manner as the Director considers appropriate, having regard to the records, kept by the Director, of fish taken for sale by any person involved in the business, or of fish taken for sale by use of a licensed fishing boat operated by the business, or to a combination of both. If a fishing business is sold by a person, the catch history associated with that business is transferable only in accordance with guidelines issued by the Director from time to time.

17 The relevant guidelines for the purposes of transfer of catch history, as referred to in clause 135(3) of the Regulations, and in respect of the whole regime of restricted fisheries which came into effect on 1 March 1997, are those published by the respondent in a pamphlet entitled November 1996 Policy, as supplemented from time to time – see Searl, above, paras 51–58.

18 The November 1996 Licensing Policy sets out on p 6 the following:

OBJECTIVES
The objective of the licensing policy is to prevent increases in commercial fishing effort and in particular to:
1. Provide transitional arrangements which do not pre-empt future management whilst longer term management arrangements are being developed.
2. Provide a mechanism which allows existing fishers with catch history to identify and subsequently dispose of their fishing business.
3. Allow new entrants into the industry in a manner which ensures that real fishing effort is being replaced.
4. Provide a mechanism for the consolidation of smaller fishing businesses.

19 The November 1996 Policy includes in the first paragraph of Section 7.0 the following:

The Review into Share Management Fisheries recommended the staged implementation of Restricted Fisheries for all commercial fisheries. Entry into the future Restricted Fisheries will be based on the validated catch history of fishers meeting the participation criteria for each fishery.

20 Prior to the commencement on 1 March 1997 of the new regime of restricted fisheries NSW Fisheries contacted all licensed fishers and the process of determining their catch histories, pursuant to Regulation 135(3), was commenced. A finalised allocation of catch history to a fishing business by the Department, upon review of all the appropriate records, was called a ‘validated catch history’.

Relevant facts

21 The respondent has filed with the Tribunal a full copy of the catch history file for the applicant. That file reveals the following relevant facts.

22 On 15 March 1995 Mr Phelps filed an Application for Catch Validation with NSW Fisheries.

23 The Department conducted an assessment of the applicant’s catch history and on 25 September 1995 sent the applicant a Draft Catch Validation Agreement for his approval. The applicant was advised of his rights to review the assessment. His catch history was allocated the number 444.

24 By letter dated 30 September 1995 to the respondent, supported by material enclosed with that letter, the applicant sought a review of his catch history assessment. He referred to the purchase by him in 1989 of a licensed fishing boat from a Mr Mitchell. He then referred to his exchange with another fisherman, Mr Chalkley, of that boat licence for another licence, to do that man a favour. Apparently the licence Mr Phelps received from Mr Chalkley suited his length vessel just as well as that from Mr Mitchell, but Mr Chalkley needed the extra length allowed for by Mr Mitchell’s licence. Some time subsequently, according to the applicant, Mr Chalkley in turn swapped the first licence with yet another fisherman, Mr Farley.

25 The boat licence of Mr Mitchell was actually registered by the Department as leaving his name straight into Mr Farley’s name. The Department had no record of the intervening swaps.

26 The Department’s file reveals its knowledge that these sort of licence swaps did generally happen in the industry at the time, and that there was not necessarily anything untoward about them. However the assessment and validation of catch history by the Department in the lead up to 1 March 1997 proceeded on the basis of tracing catch history attached to boats by reference only to registered transfers of boat licence.

27 A note to file by an officer of the Department dated 16 November 1995 reveals that if the Department were to accept the applicant’s history of licence swaps and agreements between the respective fishermen in 1989, and accept that as valid within the guidelines, Mr Farley had been allocated some catch history which he should not have been. On Mr Phelp’s version Mr Farley had been allocated some history that should have gone to Mr Phelps.

28 Despite reservations as to these arrangements as coming within it guidelines, it is clear from the file that the Department was inclined to accept them as a fait accompli if all parties agreed, particularly Mr Farley. Obviously the Department was looking for corroboration of the facts alleged by the applicant as to the boat licence swaps, together with agreement by Mr Farley to the re-allocation of some catch history from him to the applicant.

29 The respondent, through the officer handling the file, therefore wrote to the applicant on 28 November 1995 in the following terms:

I am writing in relation to your claim that you are entitled to additional catch history through the purchase of Licensed Fishing Boat (LFB) 491, from Mr Douglas Mitchell.

This LFB was transferred from Mr Mitchell to Mr Raymond Farley on 30 October 1989. As this transfer signalled the close of Mr Mitchell’s fishing operation Mr Farley inherited Mr Mitchell’s personal history. The Department recognises inheritances of personal history through licence transfers, not through purchases of LFBs that were not approved by NSW Fisheries.

However, as there are extenuating circumstances surrounding the transfer of this LFB your claim may be reviewed if an agreement is secured from Mr Farley stating the inheritance of Mr Mitchell’s catch history may be allocated to you.

30 On the evidence, the applicant did not respond to this letter or revisit the issues until 1997. The applicant has still not got an agreement from Mr Farley.

31 The next correspondence revealed on the file is a request made on 30 July 1996 by a boat broker, on behalf of the applicant, for the Department’s approval to the purchase by the applicant of a new fishing operation.

32 There are notes on the Department’s file revealing discussions in August and September of 1996 with Mr Phelps about this new application, and about a claim by him that he had purchased yet another fishing operation from a Mr Crittenden. There is no note of a discussion at this time about the Mitchell/Farley situation.

33 On 20 October 1996 the applicant applied for an endorsement allowing him access to two categories in the Ocean Trap and Line and six categories in the Estuary General restricted fisheries. Mr Phelps noted on the form: ‘in addition to my own catch history (catch history 444) purchased catch histories included are David Crittenden … and … Geoffrey Patterson’. There is no mention of catch history coming from Mr Mitchell.

34 By letter dated 17 February 1997 the applicant was advised of the results of his applications. He was successful in some only.

35 There is a note on the file dated 13 March 1998 signed by a Departmental Officer entitled Catch Validation Review. That note states: ‘Mr Phelps applied for a review of his catch validation on 19.9.97.’ However there is nothing else on the file as to that application, and no evidence otherwise before me as to its progress.

36 The 13/3/98 file-note continues with a brief review of the history of the Mitchell/Farley claims by the applicant and includes the recommendation that: ‘…due to the extenuating circumstances of the case, it should be referred to the restricted fisheries review panel. The restricted fisheries review panel have[sic] greater discretionary powers to consider the catch history discrepancies raised in the free catch validation review application’.

37 However the closing date to apply for a review of a determination of a person’s catch history relevant to a particular restricted fishery was 31 December 1997 – see clause 214A(3) of the Regulations. A letter was sent to Mr Phelps advising him of that on 25 March 1998. That letter also stated:

The Department encouraged all free catch validation review applicants in a letter dated 18 August 1997 and in a subsequent letter dated 8 December 1997 to apply for a restricted fisheries review.

38 There are no copies of the letters referred to in the file tendered by the respondent in this application.

39 On 8 July 1999 a letter was received by the Department from Mr Phelps, referring to telephone conversations ‘with your office’ (the occurrence of which seems to be supported by a handwritten note in the file) and indicating now a ‘wish to appeal this decision through the proper channels’. The applicant indicated that he had been made aware of the Administrative Decisions Tribunal as a ‘means of appeal’ and indicated an intention to apply to it. However he enquired whether there was in fact an internal review process available first.

40 In response the applicant received the letter from the respondent dated 3 August 1999, a copy of which he attached to his Application for Review filed to commence these proceedings.

41 As noted above, the respondent in that letter advised the applicant of the Department’s opinion that he had no right of review by this Tribunal of the decision as to his catch history.

Rights of review

42 This application is for the review of what is said to be a reviewable decision as defined in the Tribunal Act. The Tribunal has jurisdiction in that regard only as is conferred upon it by an Act of Parliament or a statutory rule – see ss 8 and 38 of the Tribunal Act.

43 The only jurisdiction conferred in relation to decisions in respect of the fishing industry in New South Wales is under Division 6 of Part 8 of the Act, ss 125 and 126.

44 Division 6 of Part 8 of the Act is as follows:

Division 6

Reviews by Administrative Decisions Tribunal
125 Definition of "relevant authority''

In this Division, relevant authority means:
(a) a commercial fishing licence, or
(b) an endorsement on a commercial fishing licence, or
(c) a fishing boat licence, or
(d) the registration of a member of the crew of a boat, or
(e) a fish receiver's registration.

(1) A person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned:
(a) the refusal to issue a relevant authority to the person or to renew the person’s relevant authority,
(b) the imposition of conditions on the person's relevant authority (otherwise than by regulation),
(c) the suspension or cancellation of the person's relevant authority.
(2) For the purposes of this section, an application for the issue or renewal of a relevant authority is taken to have been refused if the authority is not issued or renewed within 60 days after the application was duly made.

45 In my opinion, the decision of which the applicant complains, not to accept his claims as to catch history, does not come within or otherwise enliven s 126. I can see no way that catch history, and therefore the respondent’s decision in relation to the applicant’s catch history, comes within the relevant definitions of ss 125 and 126.

46 Therefore, in my opinion this Tribunal has no jurisdiction to hear this application. It is not necessary for me to consider the submissions raised by the respondent as to the timeliness of this application.

Orders

47 I formally order:

1. The Tribunal has no jurisdiction to hear the application and it is dismissed.

48 I make no award as to costs.