Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel

[2001] NSWCA 298

Reported Decision: (2001) 116 LGERA 194
[2001] ACL Rep 10 NSW 17
52 NSWLR 350

New South Wales

Court of Appeal

CITATION:	Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298
FILE NUMBER(S):	CA 40310/00
HEARING DATE(S):	10 August 2001
JUDGMENT DATE:	12 September 2001
PARTIES :	Mario Puglisi, Guissepe Puglisi, Grazia Puglisi, Bobby Puglisi, Augustino Puglisi and Claudio Puglisi (Appellants) Administrative Decisions Tribunal of New South Wales Appeal Panel (First Respondent) Minister for Fisheries (Second Respondent)
JUDGMENT OF:	Heydon JA at 1; Foster AJA at 65; Studdert J at 66

LOWER COURT JURISDICTION :	Administrative Decisions Tribunal of New South Wales Appeal Panel
LOWER COURT FILE NUMBER(S) :	ADT 009028
LOWER COURT JUDICIAL OFFICER :

COUNSEL:	Mr F Corsaro SC/Mr S E J Prince (Appellants) Submitting appearance (First Respondent) Mr M J Slattery QC/Mr J Crespo (Second Respondent)
SOLICITORS:	Kirkby & Associates (Appellants) Submitting appearance (First Respondent) I V Knight (Second Respondent)
CATCHWORDS:	Administrative Law - Judicial Review - Application for relief in the nature of certiorari for error of law on the face of the record - Appeal against decision of Administrative Decisions Tribunal New South Wales Appeal Panel on questions of law - Whether Appeal Panel erred in construction and interpretation of legislation relevant to an application for an authority to fish in a restricted fishery - Fisheries Management Act 1994 (NSW), ss 3(2) and 112 - Fisheries Management (General) Regulation 1995 (NSW), cll 187 and 214C - Statutory Interpretation and Construction -Construction of legislation relevant to an application for an authority to fish in a restricted fishery - Meaning and definition of "ability" - Meaning and definition of "unable" - Justiciability of question of reasonableness of commercial fishing decisions - Discussion in obiter dicta about the meaning of "fault" - Discussion in obiter dicta about the relevance of conservation purpose of enabling Act re interpretation of regulation - Fisheries Management Act 1994 (NSW), ss 3(2) and 112 - Fisheries Management (General) Regulation 1995 (NSW), cll 187 and 214C - D
LEGISLATION CITED:	Administrative Decisions Act 1997 (NSW) Fisheries Management Act 1994 (NSW) Fisheries Management (General) Regulation 1995 (NSW) Fisheries and Oyster Farms Act 1935 (NSW) Local Government Act 1903 (Vic) Resources Management Act 1994 (NSW) Supreme Court Act 1970 (NSW)
CASES CITED:	Carrington v McColl [1948] VLR 304 Daykin v SAS Trustee Corporation [2001] NSWSC 58 Leeder v The Mayor, Etc, of the Town of Ballarat East [1908] VLR 214 Thomas v Associated Galvanisers; Electricity Trust of South Australia Third Party (No 2) [1971] SASR 1
DECISION:	Appeal dismissed. Appellants to pay the costs of the second respondent.

THE SUPREME COURT
OF NEW SOUTH WALES

CA 40310/00

ADT 009028

HEYDON JA

FOSTER AJA

STUDDERT J

MARIO PUGLISI & ORS v ADMINISTRATIVE DECISIONS TRIBUNAL OF NEW SOUTH WALES APPEAL PANEL & ANOR

Administrative Law – Judicial Review – Application for relief in the nature of certiorari for error of law on the face of the record – Appeal against decision of Administrative Decisions Tribunal New South Wales Appeal Panel on questions of law – Whether Appeal Panel erred in construction and interpretation of legislation relevant to an application for an authority to fish in a restricted fishery - Fisheries Management Act 1994 (NSW), ss 3(2) and 112 – Fisheries Management (General) Regulation 1995 (NSW), cll 187 and 214C

Statutory Interpretation and Construction –Construction of legislation relevant to an application for an authority to fish in a restricted fishery – Meaning and definition of “ability” – Meaning and definition of “unable” – Justiciability of question of reasonableness of commercial fishing decisions - Discussion in obiter dicta about the meaning of “fault” – Discussion in obiter dicta about the relevance of conservation purpose of enabling Act re interpretation of regulation - Fisheries Management Act 1994 (NSW), ss 3(2) and 112 – Fisheries Management (General) Regulation 1995 (NSW), cll 187 and 214C

The appellants were a family of commercial fishers. One of the types of fish caught by the appellants was gemfish. In July 1988 the NSW government prohibited the taking of gemfish from NSW waters until January 1989. As a result, the appellants were unable to fish for gemfish north of Barrenjoey Headland, but were able to fish for gemfish south of Barrenjoey Headland. Subsequent notifications by the NSW government had the effect of periodically opening and closing the waters north of Barrenjoey Headland to gemfish fishing. In July 1990 the Commonwealth and NSW governments created a fishery for NSW gemfish. Catch and trip limits were introduced in 1991, 1992 and 1993.

Clause 184 of the Fisheries Management (General) Regulation 1995 (NSW) (the “Regulation”) declared the “ocean fish trawl fishery” to be a restricted fishery. The method of fishing for gemfish undertaken by the appellants came under the definition of “ocean fish trawl fishery” and therefore was a “restricted fishery”.

Section 112 of the Fisheries Management Act 1994 (NSW) (the “Act”) provided that a commercial fishing licence was not sufficient to authorise the taking of fish for the purpose of sale in a restricted fishery. In addition, a licence holder needed authorisation by the Minister in the form of an endorsement on the licence. Such an authority was subject to conditions prescribed by regulations or attached by the Minister.

Clause 186 created two classes of endorsement in the restricted fishery: northern zone endorsement and southern zone endorsement. The appellants applied for both types of endorsement, but were unsuccessful in relation to the northern zone because they did not satisfy cl 187(1), which required the demonstration of certain levels of fishing in the relevant area during set periods of time. The appellants requested that a review of the Minister’s refusal of the northern zone endorsement be undertaken by the Review Panel (under cl 214A).

Clause 214C set out grounds of review as follows:

“(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 applies for the review satisfies the panel:
…….

(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.”

The appellants were unsuccessful and the Minister’s original determination was confirmed. The appellants appealed to the Administrative Decisions Tribunal (the “ADT”). The ADT referred the matter back to the Review Panel. The Director of NSW Fisheries appealed to the ADT Appeal Panel. The ADT Appeal Panel set aside the decision of the ADT and affirmed the Minister’s decision to refuse the northern zone authority. The appellants appealed to the Court of Appeal.

Held by Heydon JA (Foster AJA and Studdert J concurring), dismissing the appeal:

The ADT Appeal Panel did not err in law in reaching its conclusion that the ground of review found in cl 214C(2)(c)(iii) did not apply to the appellants.

Clause 214C(1) does not permit the Review Panel to consider factors other than those listed in cl 214C(2). The circumstances that the Review Panel is permitted to consider cannot go beyond those relevant to the ultimate issues identified in cl 214C(2)(a), (b) and (c)(i)-(iii).

2. The appellants could not invoke the ground of review within cl 214C(2)(c)(iii) because they were not “unable” to satisfy the endorsement eligibility criteria.

a. The word “ability” in cl 214C(2)(c)(i) and (ii) means capacity or

power to do.

b. The word “unable” in cl 214C(2)(c)(iii) should be construed consistently with the word “ability” in cl 214C(2)(c)(i) and (ii). Therefore, “unable” means incapable of doing or lacking power to do.

c. The language of cl 214(2)(c)(iii) is not sufficiently clear for it to be construed as requiring an examination of the reasonableness of commercial decisions in determining whether an applicant is “unable” to satisfy the criteria. In this context, the reasonableness of commercial fishing decisions is not a justiciable issue.

Leeder v The Mayor, Etc, of the Town of Ballarat East [1908] VLR 214, Carrington v McColl [1948] VLR 304 and Thomas v Associated Galvanisers; Electricity Trust of South Australia, Third Party (No 2) [1971] SASR 1, discussed and distinguished.

d. Despite the regulatory restrictions, the appellants had the capacity and power to fish for gemfish during the qualifying time period in the northern zone at a level that would have satisfied cl 187(1). However, the appellants chose not to do so for economic and commercial reasons.

1. The appeal is dismissed.

2. The appellants are to pay the costs of the second respondent.

THE SUPREME COURT
OF NEW SOUTH WALES

CA 40310/00

ADT 009028

HEYDON JA

FOSTER AJA

STUDDERT J

MARIO PUGLISI & ORS v ADMINISTRATIVE DECISIONS TRIBUNAL OF NEW SOUTH WALES APPEAL PANEL & ANOR

JUDGMENT

Background
The nature of the appeal

These proceedings commenced with the filing of a Summons in the Common Law Division, Administrative List. That Summons initiated an appeal against a decision of the Appeal Panel of the Administrative Decisions Tribunal. Section 119 of the Administrative Decisions Act 1997 confers an appeal to the Supreme Court on a question of law. By reason of s 48(1)(c)(vii) and (2)(f) of the Supreme Court Act 1970, in the circumstances of the present case in which O’Connor DCJ, the President of the Administrative Decisions Tribunal, sat on the Appeal Panel, the proceedings are assigned to the Court of Appeal: see Daykin v SAS Trustee Corporation [2001] NSWSC 58 (Dunford J).

2 The proceedings were also said to be for relief in the nature of certiorari for error of law on the face of the record pursuant to s 59 of the Supreme Court Act. Nothing turns on any difference between the proceedings considered as an appeal and the proceedings considered as review proceedings, since it was common ground that the essential controversy turned on questions of law. The only active respondent was the second respondent, the Minister for Fisheries.

3    The appeal papers do not contain a complete collection of the relevant documents, but from what materials are to hand it seems that the history of events is substantially as follows.

The appellants

4    Mr Mario Puglisi is the eldest of four brothers who, with other family members, operated and operates a fishing vessel called the “Gracie P”. He is a director of Charissa Pty Ltd, which operates a fishing vessel called the “Charissa”. He has worked as a commercial fisherman since leaving school in 1960. Initially he did this with his father and later with his brothers, each of whom, as he left school at the age of 14 or 15, began to work as a commercial fisherman.

5    The “Charissa” has operated since about 1973 and the “Gracie P” has operated since about 1980 in succession to earlier vessels. Their home port is Ulladulla on the south coast of New South Wales, but they have been used to catch fish in South Australian, Victorian and Tasmanian waters.

6    One of the types of fish which the appellants attempted to catch was gemfish. In the period July-September gemfish move from Victorian waters to spawning grounds off the northern New South Wales coast. Later a smaller return run takes place. In July-September the Puglisis would move with the gemfish into waters north of Barrenjoey Point and trawl for them, catching minnow, dory, prawns and redfish as well.

7    On 29 April 1998 the Commonwealth Minister for Primary Industries announced a restriction of 300 tonnes on the total allowable gemfish catch from the eastern sector of the south eastern trawl fisheries. A quota system was introduced.

8    On 1 July 1988 the New South Wales Minister for Agriculture and Rural Affairs published a notification in the Gazette, pursuant to s 18 of the Fisheries and Oyster Farms Act 1935, prohibiting the taking of gemfish from New South Wales waters until 1 January 1989.

9    In order to understand the effect of this and other notifications, it must be remembered that (according to what the court was told by the appellants without objection from the second respondent) “New South Wales waters” means, in the area south of Barrenjoey Headland, the waters within three miles of the coast, and in the area north of Barrenjoey Headland, waters up to a depth of 4,000 metres. The effect of the 1 July 1988 notification was to inhibit the appellants from fishing for gemfish north of Barrenjoey Headland, but to enable them to fish for gemfish south of Barrenjoey Headland, because gemfish ran outside the three mile limit but within waters less than 4,000 metres deep. The effect of subsequent notifications was on occasions to open the waters north of Barrenjoey Headland to the possibility of fishing for gemfish, but from time to time to close them again.

10    On 7 April 1989 the New South Wales Minister for Agriculture and Rural Affairs published a notification in the Gazette pursuant to s 18 prohibiting the taking of gemfish for sale from New South Wales waters from 1 May 1989 to 30 September 1989.

11    In the following year the New South Wales Minister for Agriculture and Rural Affairs published a notification in the Gazette pursuant to s 18 prohibiting the taking of gemfish for sale from New South Wales waters from 1 May 1990 to 31 October 1990.

12    On 25 July 1990 the Commonwealth and New South Wales entered an Arrangement creating a fishery for, inter alia, gemfish, in New South Wales waters. It was agreed that the fishery be managed in accordance with the law of New South Wales.

13    In each of the years 1991, 1992 and 1993 the New South Wales Minister for Natural Resources published notifications in the Gazette under s 18 limiting the size of catches of gemfish on particular trips and limiting the number of trips per day. The 1993 “trip limit” expired on 31 August 1993, but was reimposed on 1 October 1993.

14    The reason for these closures and trip limits was that the stocks of gemfish were dwindling and over-exploited, and the authorities wished to conserve them.

The Fisheries Management Act 1994

15    The Fisheries Management Act 1994, s 102(1), prohibited, under penalty, persons from taking fish for sale from waters to which the Act applied unless the person was authorised to do so by a commercial fishing licence. Section 107(1) provided that a boat could not be used to take fish for sale without a licence. Section 111(1) provided that the regulations may declare that a fishery (not being a share management fishery) is a restricted fishery for the purposes of the Act during the period specified in the declaration. Section 112 provided:

“(1) 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, by an endorsement on the licence, to do so.
(2) The authority conferred by such an endorsement is subject to such conditions as are prescribed by the regulations or attached to the endorsement by the Minister.”

Section 113(2) provided:
“Eligibility for endorsement of commercial fishing licences is to be determined in accordance with the regulations.”
The Fisheries Management (General) Regulation 1995: eligibility criteria

16 On 28 February 1997 Part 8 Div 2A of the Fisheries Management (General) Regulation 1995 came into force. Clause 184 declared the “ocean fish trawl fishery” to be a restricted fishery. Clause 185 provided:

“The ocean fish trawl fishery consists of the use of an otter trawl net (fish) to take fish from the following waters:
(a) ocean waters that are north of a line drawn due east from Barrenjoey Headland (other than the waters in which use of an otter trawl net (fish) is prohibited under clause 35),
(b) ocean waters that are not more than 3 nautical miles from the natural coast line (as defined in Schedule 1) and are south of a line drawn due east from Barrenjoey Headland.”

Clause 186 provided that two classes of endorsement were available in the restricted fishery: northern zone endorsement and southern zone endorsement. As will be seen, the appellants applied for both types of endorsement. They failed in relation to their applications for northern zone endorsement, but succeeded in relation to southern zone endorsement. It is accordingly not necessary to set out the provisions in relation to southern zone endorsement. Clause 186 provides in part:
“(1) The following classes of endorsement are available in the restricted fishery:

· Northern zone endorsement. This endorsement authorises the holder to use an otter trawl net (fish) to take fish (other than prawns) for sale from ocean waters that are north of a line drawn due east from Barrenjoey Headland (other than the waters in which use of an otter trawl net (fish) is prohibited under clause 35).

(2) For the purpose of section 112(2) of the Act, it is a condition of an endorsement that the holder of the endorsed licence does not take fish for sale in the restricted fishery except as authorised by the class or classes of endorsement on his or her commercial fishing licence.”

Clause 187(1) provided:
“ Northern zone endorsement . A person is eligible for a northern zone endorsement if the Minister is satisfied that the person owns an otter trawl (fish) that was registered in the name of the person at any time before 1 January 1993 and that:
(a) the person submitted to the Director at least 15 ocean waters catch returns in the years from 1986 to 1990 that indicate that the person took fish from an area designated on the return as zone 1, 2, 3, 4, 5 or 6 by the method of fish trawl, or
(b) the person submitted to the Director at least 3 ocean waters catch returns in the years from 1986 to 1990, and at least 5 ocean waters catch returns in the years from 1991 to 1993, that indicate that the person took fish from an area designated on the return as zone 1, 2, 3, 4, 5 or 6 by the method of fish trawl and that the person took not less than 20 tonnes of fish trawl species in those zones in at least 3 of the years from 1986 to 1993 by the method of fish trawl.”

Zones 1-6 encompass all New South Wales waters north of Botany Bay. Clause 187(6) provided:
“The catch history associated with a fishing business is to be determined in accordance with clause 135(3).”

Clause 135(3) provided:
“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.”

The provision empowering the Minister to endorse the relevant commercial fishing licence is Clause 188(3):
“The Minister may endorse the commercial fishing licence of a person who satisfies the eligibility requirements for the endorsement or who is the nominated fisher of a person who satisfies the eligibility requirements for an endorsement.”
The appellants’ applications and their fate

17 Though the relevant provisions did not come into force until 28 February 1997, the appellants applied for various endorsements in or about September-October 1996, including a northern zone endorsement for both their vessels. The Minister refused to endorse the relevant commercial fishing licence for the northern zone, and so advised the appellants. The reason for the refusal, according to the member of the Administrative Decisions Tribunal which examined the decision of the panel which reviewed the Minister’s decision, was (Red 18L-M):

“the failure to have submitted at least five Ocean Waters Catch Returns in the years from 1991 to 1993 that would indicate that the person took fish from the designated area and took fish to a notified amount.”

This account of the reasons was amplified in the Appeal Panel’s reasons for decision from which this appeal is brought. The Appeal Panel said (Red 47K-Q):
“The eligibility criteria [in clause 187(1)] allowed for two ways of satisfying this requirement: either by showing (a) a catch history for the period 1986 to 1990 made up of 15 ocean waters catch returns indicating that the method of fish trawl had been used in specified zones; or (b) that 3 returns had been submitted in the period 1986-1990 and at least 5 returns had been submitted in the period 1991-1993 together with a requirement as to the tonnage of fish trawl species taken in three of the years between 1986 and 1993.
In the case of Gracie P , there were three returns for the 1986-90 period but none for the 1991-93 period so neither of the criteria could be satisfied. In the case of the Charissa there were two returns for the 1986-90 period and none for the 1991-93 period, so again neither of the criteria could be satisfied.”

The appellants do not dispute the proposition that they did not satisfy the Clause 187(1) criteria.

18 The appellants requested a review of the Minister’s determinations in relation to the northern zone endorsement. They were entitled to do this under Clause 214A of the Regulation so long as they did so before 31 December 1997. Clause 214B obliged the Minister to establish a panel to conduct the review. Clause 214C set out the grounds for review as follows:

“(1) A panel that conducts a review may consider any circumstances that are relevant to the determination that is the subject of the review request.
(2) A panel that conducts a review may decide that a person is eligible for an endorsement in a restricted fishery, or should be eligible for an endorsement in the fishery, if the person who applied for the review satisfies the panel:
(a) that the records relied on to make a determination whether the person is eligible for an endorsement (for example, catch history records or records of net registration) are, for reasons that are not attributable to the fault of the person, inaccurate or incomplete and, on the basis of verified records produced to the panel by the person, the person does in fact satisfy the eligibility criteria for the endorsement, or
(b) that a determination as to the catch history associated with the person’s fishing business is incorrect and, on the basis of verified records produced to the panel by the person, the person does in fact satisfy the eligibility criteria for the endorsement, or
(c) if eligibility is based on the person’s activities in a fishery during a particular period, that:

(i) the person suffered illness or other incapacity for a significant period and the illness or incapacity substantially affected his or her ability to satisfy the eligibility criteria for the endorsement, or

(ii) the person lost his or her commercial fishing boat due to accident or misadventure and the loss substantially affected his or her ability to satisfy the eligibility criteria for the endorsement, or
(iii) the person was engaged in fishing during that period and for other significant reasons (that are not attributable to the fault of the person) the person was unable to satisfy the eligibility criteria.
(3) This clause does not limit the inclusion in a report by a panel of any other decision or recommendation relating to a person’s entitlements in a restricted fishery.
(4) In this clause verified record means a document prescribed for the purposes of section 51(4) of the Act (dealing with determination of catch history).”

The appeal centred on the correct construction of Clause 214C(2)(c)(iiii). That question poses very considerable difficulties, particularly taking into account the subject matter to which the provision is to be applied.

19    Clause 214D provided:

“(1) On receipt of a report by a panel, the Minister may:
(a) in accordance with the decision of the panel, confirm the determination that was reviewed by the panel or set that determination aside and substitute a new determination; or
(b) refer the matter back to the panel (together with comments or recommendations) for further consideration.
(2) The Minister may, following a review, determine that a person is eligible for an endorsement in a restricted fishery, even though the person does not satisfy the eligibility criteria for the endorsement, only if the panel decides that the person should be eligible for an endorsement. If the Minister makes such a determination, the person is taken, for the purposes of the provisions of this Part that deal with eligibility for an endorsement in the fishery concerned, to be eligible for the endorsement.
(3) A person who applies for a review under this Division is to be notified of the outcome of the application as soon as practicable after it is known.”

20 These provisions had one curious feature: they enabled the panel to widen the prospects of an applicant for endorsement. While the Minister could only make a decision favourable to an applicant for northern zone endorsement if the applicant satisfied the limited criteria set out in Clause 187(1), the panel had power to make a report on the wider grounds in Clause 214C and this could lead to a determination by the Minister under Clause 214D(2) that an applicant is eligible for endorsement, even though that person did not satisfy the grounds of eligibility for endorsement, provided that the panel decides that the person “should be eligible for an endorsement”.

21    On 31 August 1998 the Review Panel said (Red 19H-P):

“The Review Panel is not satisfied that the applicant meets the established criteria for the allocation of the Ocean Fish Trawl Restricted Entry - Northern Zone endorsement and recommends to the Minister that the application be refused.
The Review Panel wishes to draw the attention of the Minister that it is satisfied, on the evidence presented, that the applicant historically participated in the gem fish run up the Eastern Coast of South Eastern Australia and in doing so, trawled waters north of Barrenjoey Headland during the months of July, August and September until 1987.
The Panel is also satisfied on the evidence that the imposition of trip limits on gem fish catches rendered Northern Zone fish trawling uneconomic for this applicant, which state that it is only desirous of targeting gem fish should an increase in stocks enable an increase in trip limits to an economically viable level.
To that extent the applicant is a victim of circumstance brought about, in part, by the determination of the criteria for fishery.”

The Minister, pursuant to Clause 214D, confirmed the determination which the Review Panel had reviewed.

22    Mr Mario Puglisi then applied to the Administrative Decisions Tribunal to review the Minister’s decisions to confirm his determinations in relation to the “Charissa” and he and the other appellants applied to review the decision in relation to the “Gracie P”.

23    On 4 August 2000 the Administrative Decisions Tribunal (Mr K Wilson, Judicial Member) made the following order (Red 17R-T):

“That the Minister refer this matter back to the Panel together with instructions that the Panel take into account that commercial and economic factors are significant reasons for the purpose of the Regulation and that the Panel also be instructed that the endorsement of licences is not the primary tool for regulating the resource of fish in the zones.”

24    The Director of NSW Fisheries then appealed against Mr Wilson’s decision to the Appeal Panel of the Administrative Decisions Tribunal. In due course the Minister for Fisheries was substituted as appellant.

25    On 26 February 2001 the Appeal Panel set aside Mr Wilson’s decision and affirmed the Minister’s decision. The primary argument advanced to the Appeal Panel was that Mr Wilson had misconstrued Clause 214C(2)(c)(iii). The Appeal Panel posed the following questions as relevant (Red 51T-52D):

“Is it is [sic] permissible for the review panel (and consequently the Minister and the Tribunal on external review) to take into account in applying the discretion conferred by cl 214C to a case where the fisher is unable to satisfy the eligibility criteria an explanation that the fisher had deliberately chosen as a matter of commercial judgment not to operate in the restricted fishery during a relevant period? Does the ordinary meaning of the phrase ‘other significant reasons (that are not attributable to the fault of the person)’, read in the context of the provisions and the legislation generally, preclude any consideration of such an explanation?”

26    The central part of the Appeal Panel’s reasoning was (Red 53Q-55E):

“In the present instance, if the only words in issue in the statutory rule were ‘other significant reasons’ the likely conclusion would be that favoured by the Tribunal: that these are words intended to be of general application, allowing for a wide range of factors to be taken into account by the review panel. But in this instance the words ‘other significant reasons’ are qualified by the words ‘(other than ones attributable to the fault of the applicant).’ Clearly the words in parenthesis seek to cut back the scope of ‘other significant reasons.’
The difficulty that is presented is this. The first two sub-paras of para (c), (i) and (ii), clearly seek to protect the position of an applicant who has suffered a misfortune that is out of his or her control and which has led to that person being unable to meet the eligibility requirements. It could be said that these provisions seek to give a benefit to an applicant who, to use a common saying, ‘through no fault of his/her own’ has been prevented from obtaining the necessary catch history - a supervening factor has intervened. Viewed in this way, the phrase ‘other significant reasons (that are not attributable to the fault of the person)’ would carry the meaning of significant reasons ‘beyond the control of the applicant’, which reasons are analogous to the ones mentioned in sub-para (i) and (ii).
On this construction what the maker of the regulations was seeking to achieve was a catch-all provision that allowed for mishaps other than the ones enumerated in sub-para (i) and (ii) to be allowed for by the review panel.
In this matter the respondents’ decision not to fish actively in the area now constituting the northern zone in the years 1991 and 1993 could not reasonably be described as an event that was beyond their control. It was their ‘fault’ in the sense that they made a decision over which they had control, i.e. a business decision to use the boats more productively in other waters. Of course, they could not at that time have factored in the possibility that might be barred in future from that zone.
This interpretation of ‘fault’ - i.e. beyond the control of the individual - stands uneasily with the usual meaning attributed to ‘fault’ in the standard dictionaries. For example, the Concise Oxford Dictionary , 1987, gives as meaning no 1, ‘defect, imperfection, blemish, of character or structure, appearance, etc.’ The Macquarie Dictionary , 3rd ed 1997, gives as meaning no 1, ‘a defect or imperfection; a flaw; a failing.’ Other meanings connect the meaning of the word to the connotation of an act that involves wrongdoing, carelessness or moral blame. Meaning no 2 in the Macquarie Dictionary perhaps comes closer to the intended meaning of the Regulation, defining ‘fault’ as an ‘error or mistake.’ In this instance a commercial decision to limit fishing in northern zone waters after 1986 and not to fish at all between 1991 and 1993 could now be said to have been an error on the respondents’ part.
When the phrase in issue is first used in the provisions, at para (a), it appears in the context of a rule relating to reliance on inaccurate or incomplete records. The rule permits a person to produce in substitution verified records provided that the reasons for the original records being incomplete or inaccurate is ‘not attributable to the fault of the person’, (though there is no reference here to the reason having to be ‘significant’).
Our conclusion is that the words in parenthesis in sub-para (iii) of para (c) confine the scope of ‘other significant reasons’ to explanations that relate to circumstances that lie beyond the personal control or conduct of the applicant.”

27 The Appeal Panel said that it was supported in its conclusion by s 3(2) of the Fisheries Management Act 1994. Section 3(2) stated the particular objects of the Act. The Appeal Panel found in the objects an emphasis on conservation and economically sustainable development. The Appeal Panel concluded (Red 56L-57G):

“As noted, the panel can look behind any apparent failure by a fisher to meet the catch history requirements. It may consider independently verified records that the catch returns initially relied on are not accurate: see paras (a) and (b) of s 214C. But para (c) goes (at least in sub-paras (i) and (ii) to an applicant’s inability to satisfy the eligibility criteria. Sub-paras (i) and (ii) deal with situations of mishap that had the effect of preventing the fisher from reaching the levels.
While sub-para (iii) is broader, it would, we consider, greatly distort a scheme of this kind to interpret it as permitting fishers to come forward with a minimal catch history or none at all, and seek to be allowed in to the restricted fishery in circumstances where they had consciously chosen not to be involved in the area now comprising the restricted fishery, and as a result did not have any or any sufficient catch history. Such an interpretation would weaken considerably the force of the central rule for being permitted to remain in a restricted fishery (prior participation to an extent that meets the catch history rules).
We consider that the restricted fisheries review panel was correct, and consequently the Minister was correct, in excluding from its formal consideration the commercial factors relied upon by the respondents for not meeting the catch history requirements. There must be a persuasive reason, going beyond mere commercial choice, for not having a demonstrable catch history that would otherwise entitle a fisher to continue to operate in a (now restricted) fishery.
The policy framework supports the conclusion that the words in parenthesis in cl 214C(c)(iii) - ‘that are not attributable to the fault of the person’ - are intended to exclude from consideration as ‘other significant reasons’ explaining an inability to produce a satisfactory catch history conscious decisions made by fishers in the past leading them not to participate significantly, or at all, in the restricted fishery.”
The appellants’ arguments on appeal

28    The appellants submitted first that the Review Panel erred in limiting the application of Clause 214C(2)(c)(iii) to inability arising from mishap or misfortune.

29 Secondly, they submitted that the Review Panel erred in not construing the word “unable” in Clause 214C(2)(c)(iii) as including a practical inability arising from economic rationality as distinct from complete impossibility. They submitted that a person who by reason of economic factors rationally and logically decides to fish at a level having the result that the catch history required by Clause 187(1) is not achieved is not able to achieve that catch history. They submitted that their fishing business from 1 July 1988 on, that is, for the bulk of the qualifying period referred to in Clause 187(1) commencing in 1986 and extending to 1990 or 1993, was in a practical sense debarred from any significant participation in fishing for gemfish north of Barrenjoey Headland, because while there were intervals when the prohibitions were lifted, for much of the period they were in force.

30 Thirdly, they submitted that it was very difficult to give Clause 214C(2)(c)(iii) any content unless the inability referred to included practical inability. Clause 214C(2)(c)(i) referred to the applicant’s physical incapacity. Clause 214C(2)(c)(ii) referred to incapacity caused by loss of the applicant’s commercial fishing boat whether by reason of physical destruction or seizure in execution to pay a debt. Clause 214C(2)(c)(iii) might cover inability to have a competent crew. Another possible application might arise where necessary equipment was unprocurable. But Clause 187(1)(a) looks to a five year period and Clause 187(1)(b) looks to an eight year period. Failure to meet the criteria over such long periods would call for substantial inactivity. It would be strange if the only application of Clause 214C(2)(c)(iii) was where inability to obtain a crew or equipment was the only possible cause of such substantial inactivity. There was no vice in that reading, because it remained necessary for the applicant to have been “engaged in fishing” during the relevant period: hence persons who decided to leave the industry and then return were excluded.

31    The appellants submitted that the Appeal Panel erred in construing the words “fault of the person” in Clause 214C(2)(c)(iii) as meaning “within the control of the person” or “error of the person”.

32 The appellants next submitted that s 3(2) of the Act did not, as the Appeal Panel suggested, divide the objects of the Act into primary objects such as conservation and secondary objects such as promoting viable commercial fishing industries; and even if it did divide them up first to make conservation paramount, that did not exclude the correctness of construction of Clause 214C as giving a wide discretion to the Review Panel to take into account any relevant factor, and in particular a construction of Clause 214C(2)(c)(iii) as identifying as a relevant factor practical commercial reasons for inability to satisfy eligibility criteria.

The second respondent’s arguments on appeal

33    First, the second respondent submitted that the words in Clause 214C(1) “may consider any circumstances that are relevant to the determination that is the subject of the review request” merely gave the Review Panel capacity to consider any relevant circumstances in determining or inquiring into the grounds of review otherwise provided by Clause 214C and subject to the restrictions and limitations in it. Clause 214C(1) did not support a wide-ranging approach to the construction of Clause 214C(2). Rather it merely ensured that while the Review Panel was in the process of making a determination on any of the grounds set out in Clause 214C(2), that it was able to consider all circumstances that were relevant on a proper construction of each such ground.

34    The second respondent then submitted that “fault” in s 214C(2)(c)(ii) referred to “some conscious decision making process”; or, alternatively some process of “culpability” in the sense of “accountability”. The appellants were said to have been at “fault” in that they were blameworthy in the sense of being responsible or culpable for making a decision to fish in the more economically profitable southern zone as distinct from the northern zone. They were “culpable” in that the decision they made was not forced on them by some other factor and they could not deny responsibility for it.

35 That submission was supported by a reference to the word “fault” in Clause 214C(2)(a). It was submitted that the reference in that provision was a reference to the inaccuracy or incompleteness of records which were occasioned by reasons not attributable to the culpability or blameworthiness of the applicant, that those notions included errors and mistakes, and that “fault” must be used in the same sense in Clause 214C(2)(c)(iii). A failure to catch sufficient gemfish in the years 1986-1993 was an error or mistake even though in those years it was not possible to foresee the terms of the eligibility requirements which were imposed in the Fisheries Management (General) Regulation 1995, Clause 187(1), with effect from 28 February 1997.

36    The argument based on “fault” complemented and merged with another argument. The argument was that the key integer in Clause 214C(2)(c)(i) was “illness or incapacity” and the key integer in Clause 214C(2)(c)(ii) was “accident or misadventure”. These were involuntary conditions. Further, they were conditions “substantially affecting” the applicant’s “ability to satisfy the eligibility criteria”. Since Clause 214C(2)(c)(iii), in using the word “unable”, was also referring to inability to satisfy the eligibility criteria, the key integer in that limb, namely the “other significant reasons” must refer to involuntary conditions. The second respondent submitted that limbs (i) and (ii) listed specific items and limb (iii) contained general words; limbs (i) and (ii) belonged to a class with a common genus; hence it was appropriate to interpret the general words as referring to things of the same class.

37 The second respondent then submitted that if the appellants’ construction were accepted it would invite in many cases an inquiry as to the economics of ocean trawling for a number of species. The commercial viability of trawling for any species is itself the product of a complex series of choices about the particular commercial structure for a particular trawling operation. If the voluntary and deliberate acts of an applicant could be included within Clause 214C(2)(c)(iii), then it would be difficult to separate out those which were “attributable to the fault of the person”. A wide and unintended class of applicants would have to be admitted, including persons who never had any real intention of fishing in the northern zone during the qualifying period fixed in Clause 187(1).

38    The second respondent submitted that the appellants’ construction was a very wide one, having the effect of giving a very wide class of persons the capacity to establish that they “should be eligible for endorsement” and thus in due course to create the possibility of getting an endorsement. It was submitted that such an effect was an unlikely result of a regulation made under legislation the purpose of which was conserving fishery stocks: Fisheries Management Act 1994 s 3(2).

39    The second respondent countered an argument of the appellants that to the extent that the appellants’ construction was wide it would do little mischief because the capacity to obtain endorsements was limited to applications made before 31 December 1997 by submitting that that temporal restriction was itself a guide to the narrowness of the gateway afforded by Clause 214C(2)(c)(iii).

40    The second respondent submitted that the appellants’ construction had the effect of treating as “other significant reasons” a series of decisions made by the relevant New South Wales Minister under the Fisheries and Oyster Farms Act 1935, s 18. They, together with the conscious business decisions of the appellants, produced an inability to satisfy the eligibility criteria. These decisions were obviously known to the government when Clause 214C was made. It was submitted: “the idea of a significant reason can hardly include in its ordinary meaning a reason grounded almost completely in the passing of a regulation under the pre-existing legislation”. The second respondent submitted that a “significant reason” would have to be “a significant external cause because one can assume that the [notifications excluding] gemfish fishing in the northern zone was done for a good reason, namely the preservation of … fish stocks.”

41    The second respondent submitted that the following relevant findings of fact had been made. (The appellants disputed that the first two were findings, and said that they were only “reasoning passages”: that does not appear to matter.) In relation to the “Charissa” application, the reasoning assigned to the Review Panel included the following (Red 10P-Q):

“As the Applicant was able to satisfactorily trawl for gemfish in southern waters close to Ulladulla, the total allowable catch restrictions imposed for gemfish in 1988 rendered northern zone fish trawling uneconomic for the applicant.”

In relation to the “Gracie P” application, the reasoning assigned to the Review Panel included the following (Red 15S-U):
“the applicant historically participated in the gemfish run and in doing so trawled for fish in waters north of Barrenjoey Headland during the months of July, August and September of each year until 1987. The review panel was satisfied that the imposition of trip limits on gemfish catches rendered northern zone fish trawling uneconomic for the applicants whose target was gemfish.”

The Appeal Panel quoted evidently with approval a passage appearing in the Review Panel’s recommendation which was also quoted by Mr Wilson (Red 49Q-T):
“The Panel is also satisfied on the evidence that the imposition of trip limits on gem fish catches rendered Northern Zone fish trawling uneconomic for this applicant, which states it is only desirous of targeting gem fish should an increase in stocks enable an increase in trip limits to an economically viable level.”

The second respondent submitted that these conclusions were not challenged by the appellants, and that Mr Mario Puglisi’s statement of 3 April 2000 which was tendered to Mr Wilson should not be considered. If it was to be considered, the following parts were relevant (Blue 3 para 15 and 7 para 36):
“In my fishing career, and in the careers of my brothers, we have fished extensively in zone 6 as nominated on catch returns required by NSW Fisheries and zones to the north thereof. As indicated above, we have targeted and caught extensive catches of Gemfish. I have been advised by representatives of the Australian Fisheries Management Authority that the ‘Gracie P’ has the largest catch history of Gemfish of any New south Wales vessel. Because of this catch history, the ‘Gracie P’ was selected to participate in the 1996 Gemfish research program undertaken by Jeremy Prince of Biospherics Pty Ltd. Again, I have been told by representatives of the Australian Fisheries Management Authority that the ‘Charissa’ has either the 4th or 5th largest catch history of Gemfish of any New South Wales vessel. We have also targeted and caught Redfish. Additionally we have targeted and caught Orange Roughy and Oreo species from the deepwater grounds in zones 1-6, with catches of up to 40 tonnes per shot (a single towing of the net). With each of these specific target species we have caught a number of other species, some of which were commercially saleable at the time, and some not then saleable.
…
In order for the ‘Charissa’ or ‘Gracie P’ to be economic, each requires catch of large quantities of fish or alternately catch of valuable species.
The trip limits adopted by New South Wales Fisheries acted particularly adversely to both the vessels making them significantly uneconomic to operate in State waters.”

These passages supported a conclusion that the appellants were principally targeting gemfish, and that they did so because of the size of their vessels. The second respondent also submitted that if the appellants’ submissions were sound:
“questions of economic decision-making as to whether or not it was necessary desirable or impossible to acquire a different vessel to re-equip these vessels in a way that made them more economic would be the kind of thing that this sort of construction would open up.”

The second respondent said:
“the inference to be drawn is that this is an applicant who had decided on economic grounds to fish in southern waters because it was economically profitable and gets the advantage of doing so because commercially it is to its advantage to do so... .”

42    The second respondent said that the failure of the appellants to satisfy the eligibility requirements stemmed from a subjective voluntary decision not to fish. Clause 214C(2)(c)(iii) spoke of inability, which means incapacity. Further, the imposition of restrictions on the catching of gemfish did not prevent the appellants from trawling for other species. The appellants never tried to establish that it was not possible for them to trawl for other species.

43 The second respondent pointed out that the appellants were well short of the requirements stated in Clause 187(1) even before limits for gemfish were imposed from 1 July 1988. In the period 1986-1990 it was possible to put in sixty returns: in only seventeen of the sixty months were prohibitions in force. Yet for the “Gracie P” there were only three returns in that period, and for the “Charissa” only two.

The facts

44 While the issues of construction thrown up by clause 214C are narrow, it is undesirable that the process of construction should proceed in a vacuum. The parties differed as to what the precise questions to be answered were, and to some extent differed on the factual position. Neither the Review Panel, nor Mr Wilson, nor the Appeal Panel made detailed factual findings in the manner a court would, and it was and is probably not necessary to do so. It appears to be common ground at least that the appellants decided not to fish for gemfish north of Barrenjoey Headland for commercial reasons, namely that it was uneconomic for them to do so. There was no other external cause of their non-compliance with the criteria in Clause 187(1) other than their considered response to general commercial conditions in the regulatory environment over the relevant period.

The purpose of the legislation

45 The second respondent’s argument that a regulation made under an Act the purpose of which was conserving fishing stocks – whether it be the predominant purpose or one of a range of purposes – should be construed narrowly rather than widely is unsound. First, there is a gap between the extremely general language of s 3(2) of the Resources Management Act 1994, and the specific words of Clause 214C: the character of the former does not point to any particular construction of the latter. Secondly, it was not suggested that Clause 214C(2)(c)(iii) if construed as the appellants would have it was ultra vires; yet that outcome might be necessitated by the appeal to s 3(2). Thirdly, an applicant who falls within Clause 214C(2)(c)(iii) does not thereby obtain an endorsement and an ability immediately to begin depleting fishing stocks by carrying out fishing activities. The Minister retains an ultimate discretion under Clause 188(3), at which stage the purpose of conservation could be vindicated by restricting the grant of endorsements. The second respondent submitted that the existence of a control mechanism at that stage was not a reason for not recognising an equivalent mechanism at the earlier Clause 214C(2)(c)(iii) stage. However, this multiplies control mechanisms beyond necessity.

The irrelevance of Clause 214C(1)

46    Contrary to the appellants’ argument, Clause 214C(1) does not permit the Review Panel to take into account factors other than those listed in Clause 214C(2). It permits the Review Panel to consider any circumstances relevant to the determination that is the subject of the review request: those circumstances cannot go beyond those relevant to the ultimate issues identified in Clause 214C(2)(a), (b) and (c) (i)-(iii), and cannot by themselves widen them.

The size of the appellants’ shortfall

47 The second respondent’s submissions that the appellants fell very short of the Clause 187(1)(a) requirements are not material. If the second respondent’s construction of Clause 214C(2)(c)(iii) is correct, it would not matter whether an applicant fell a little short of the requirements or a long way short. The same is true if the appellants’ construction is correct.

Fault

48 The appellants’ case does not fail because of the word “fault” in Clause 214C(2)(c)(iii). Their economically-motivated decisions to fish, but not to fish on a scale or in places which resulted in compliance with Clause 187(1), do not fall within any available meaning of the word “fault”. In the present context, an applicant can be responsible or accountable for an outcome without that outcome being that applicant’s fault. An outcome can be within an applicant’s control or be the result of an applicant’s conscious decision-making process without it being the applicant’s fault. These states of affairs are only to be seen as revealing “fault” if either the outcome or the way in which the outcome came to pass was blameworthy or wrongful or defective or imperfect or delinquent or culpable or open to censure; or involved misconduct, or a failure to achieve a particular standard, or a deficiency, or a dereliction of duty, or a misdeed, or a transgression; or amounted to a piece of misconduct or to a transgression or a failing; or merited censure, blame or criticism. However the conduct of the appellants is to be described, it cannot be described in any of these ways. The Appeal Panel described the appellants’ conduct as resting on an “error”. That is questionable; but even if there was an “error”, the word “fault” in Clause 214C(2)(c)(iii) does not include mere errors.

Involuntary conditions

49    The second respondent argued that like “illness or incapacity” and “accident or misadventure”, the expression “other significant reasons” refers to factors which are involuntary in the sense that they are outside the control of the applicant. It is true that at least one connotation of the expressions “accident” and “misadventure” is that the events so described happened against one’s will and without one’s control. But though illness and incapacity are often outside one’s control, they can be within it. One may become ill through entirely voluntary decisions not to take medical advice or not to take simple precautions like not sitting outside in cold weather after washing one’s hair. One may be incapable of satisfying the eligibility criteria because of entirely voluntary decisions to consume drink or drugs, or because of injuries sustained during a voluntary attempt at suicide. Hence no genus based on “involuntariness” exists.

Conditions occurring without the fault of the applicant

50    Is Clause 214C(2)(c)(iii) the third member of a genus based on want of fault? The words “accident” and “misadventure” are words which point against the existence of fault. They exclude the case of a fisherman who ran his vessel aground by reason of his own negligence. But that is not true of “illness” and “incapacity”. Those conditions may arise from fault. Further, there is no requirement in Clause 214C(2)(c)(i) and (ii), as there is in Clause 214C(2)(c)(iii), that the relevant reason be “not attributable to the fault of” the applicant. Hence the suggested genus does not exist.

The meaning of “unable”

51    The word “ability” in Clause 214C(2)(c)(i) and (ii) appears to mean “capacity” or “power”. (“Incapacity” in Clause 214C(2)(c)(i), by reason of its location in conjunction with “illness”, refers to physical incapacity, or lack of physical power or strength, but “ability” is used more widely.) “Ability” is the quality in an agent which makes action possible. In the context of Clause 214C(2)(c)(i) and (ii), to say that an applicant is unable to satisfy the identified criteria is to say that it is not possible for that applicant to satisfy them, whether by reason of the applicant’s illness or incapacity or by reason of the applicant’s commercial fishing boat having been lost. To be able to do something is to have the means of doing it. The persons described in Clause 214C(2)(c)(i) and (ii) lack the means of satisfying the eligibility criteria either because of their health or because they have lost their boats. Persons who have the ability to meet the criteria are persons for whom it is possible to meet the criteria in the sense that meeting the criteria is within their potential. A loss of “ability” in the sense of that term as employed in these provisions is not a condition in which illness, incapacity or loss of a boat makes it harder, but not impossible, to meet the criteria.

52    The word “unable” in Clause 214C(2)(c)(iii) should be construed in a manner which is cognate with “ability” in Clause 214C(2)(c)(i) and (ii). The meaning of Clause 214C(2)(c)(iii) would not change if it read “for other significant reasons … the person lacked the ability to satisfy the eligibility criteria”. To be “unable” to satisfy the eligibility criteria is to be incapable of doing so or to lack power to do so. It is to lack the quality which makes satisfying the criteria possible. It is to lack the means of satisfying the criteria. It is to lack the potential to meet the criteria. It is to suffer a disability preventing one from satisfying the criteria.

53    To construe the word “unable” in that way is not to give Clause 214C(2)(c)(iii) a very wide meaning. One example of “other significant reasons” proffered by the second respondent was inability to satisfy the eligibility criteria because of the cutting of a trawler’s net by another vessel or by some submerged object in circumstances where the trawler was operating in an inherently competent fashion. Other examples mentioned in argument were inability to procure crew and inability to procure equipment. But Clause 214C(2)(c)(i) does not have a wide meaning either. To fall within it there must be illness or other incapacity for a significant period to such an extent that it substantially affected the applicant’s ability to satisfy the eligibility criteria. It would be a rare illness or incapacity which would cause an applicant to fall within the provision if Clause 187(1)(a) is under consideration, since it requires only the submitting of fifteen ocean waters catch returns out of a possible sixty (or about thirty if allowance is made for the fact that not all species can be caught all year). And it would be a rare illness or incapacity which would cause an applicant to fall outside the provision if Clause 187(1)(b) is under consideration, for that requires three ocean waters catch returns out of sixty (or thirty) in the years 1986 to 1990, and five out of thirty-six (or eighteen) in the years 1991 to 1993, together with twenty tonnes of fish in three years out of eight. The same analysis applied to Clause 214C(2)(c)(ii) leads to a similar conclusion. It would not therefore be surprising if Clause 214C(2)(c)(iii) was not of frequent application. The point, however, is that even though it may not be of frequent application on the second respondent’s construction, it does have some content and some work to do.

54    The appellants’ argument that the expression “other significant reasons” refers to a practical difficulty in doing something flowing from the application of rational commercial considerations would give Clause 214C(2)(c)(iii) very wide application. It would exclude decisions not to fish where fishing would have been a rational commercial option, but it will leave in decisions not to fish if that is not a rational commercial option. The width of the appellants’ construction is not in itself a vice compelling acceptance of the second respondent’s approach. But there is no doubt that the appellants’ construction would be difficult to apply. It points to failure to satisfy the criteria as a result of practical commercial decisions. Does a decision not to fish in order not to trade at a loss suffice? What about a decision to take greater profits in one area and not to fish in another because fishing there will produce lower profits? The difficulty of these and similar questions does not of itself compel rejection of the appellants’ construction. But that type of inquiry is a radically different one from the relatively confined issues thrown up by Clause 214C(2)(c)(i) and (ii), and indeed those thrown up by Clause 214C(2)(a) and (b). The inquiry into commercial rationality would turn on extremely difficult questions of judgment, characterisation and degree. The fact that it is a radically different inquiry suggests that there may be an error in the construction which is said to make the inquiry necessary.

55    Even if the second respondent’s construction is accepted, ambiguities would remain. On that construction, if economic performance causes the applicant not to fish in an area because the applicant has decided not to enter into debt by buying a new boat, Clause 24c(2)(c)(iii) does not apply. But an applicant in an identical position with the same economic performance who decides to buy a new boat on credit and then has it seized for non-payment of the loan is within Clause 214C(2)(c)(ii). Another applicant in the same position with the same economic performance who decides to buy a new boat on credit and then develops an incapacitating psychiatric illness because of worry about ability to pay off the loan is within Clause 214C(2)(c)(i). Anomalies of this type reveal difficulties in the second respondent’s approach, but are not sufficient to compel a different construction.

56    The court was not taken to any authorities about the meaning of “unable”. In some statutory contexts the word “unable” may extend beyond impossibility. Thus in Leeder v The Mayor, Etc, of the Town of Ballarat East [1908] VLR 214, the Full Court of the Supreme Court of Victoria had to construe s 708 of the Local Government Act 1903 (Vic). It provided that no person shall be entitled to recover damages against any municipality in respect of any loss or injury sustained either to himself or to any other person or any property by reason of any accident upon or while using any highway in the municipal district, etc., unless (inter alia) the following condition was complied with:

“That notice in writing stating the name and address of the person injured or of the owner of such property the nature of the accident and the time and place at which it took place be given to the municipality … by or on behalf of the person injured or by or on behalf of the owner of such property in the case of a borough within ten days and in the case of a shire within twenty-one days after the occurrence of the accident or the plaintiff show some sufficient reason why the person injured or the owner of such property was unable to give such notice.”

The Full Court held that it was not necessary for impossibility to be established, and that the question should have been left to the jury. Hodges J said (at 219-221):
“it is desirable to discuss briefly the meaning of the word ‘unable’ in this section. On the one hand, I do not think that it is equivalent to ‘impossible.’ When the Legislature mean anything so hard and fast as impossible, they use that word, as in sub-sec (3), which provides that the property injured must be produced ‘if it is possible’. On the other hand, the provision must not be practically destroyed by giving a too extended meaning to the word and allowing any person in any degree ailing, or alleging any trifling obstruction, to escape the duty of giving notice. It is difficult to mark out the limits of impossibility and trifling obstruction between these two extremes. But I may first give a few illustrations that may help to show the elastic meaning of the word. Suppose the medical attendant on a person in the circumstances of the plaintiff were to depose – ‘The plaintiff was mentally and physically unfit to give attention to any business whatever. He was weak and in intense pain. In a sense he was able to give such a notice. But the mental and physical exertion would have killed him immediately.’ In such a case I think that, if the jury believed that evidence, they should find that the plaintiff was so unfit as to be ‘unable’ (within the meaning of the section) to give the notice. The Legislature could not mean that he was to sacrifice his life to give the notice, and open up another nice question as to whether it was the municipality or his own folly that caused his death. Again, suppose the medical attendant said:- ‘The plaintiff had received such a severe shock, and was in such intense pain for ten days after, that his mind was centred entirely on himself and his sufferings, and he was oblivious to everything in the nature of business, and wholly unfit to attend to any business, though I will not say that if anyone had called his attention directly to the subject he might not have been able to give the notice, but his condition was such that it was utterly improbable that his mind of itself could ever have turned to such a subject.’ And suppose there were further evidence that no one did call his attention to the subject, I should say that the jury would be entitled to find that the plaintiff was so unfit to attend to any business as to be ‘unable’ to attend to this business, and to give this notice. And now let me alter the last illustration in one particular, and make it resemble the case now under consideration. Suppose the last illustration to be varied by the evidence establishing that someone had called his attention to the subject. Then it seems that questions of this kind would arise. According to the evidence, he was able at the moment that his attention was called to the subject to give the notice. But the matter not having been done on the instant, how long under the circumstances would the question be before his mind? – how soon would it be driven out by pain, etc? If he remained fit, i.e., able – for a reasonable length of time to give the notice, then he was not for that period of time ‘unable’ within the meaning of the Statute. But if the jury believed that the matters had then, owing to his injuries, slipped from his mind, and for the same cause he remained unfit for the remainder of the ten days, I should still be of opinion that the jury should find for the plaintiff on this question. Assuredly, if he did not remain fit – i.e., able – for a reasonable length of time, he would be ‘unable’ to give the notice, and the jury should so find. And this meaning of ‘unable’ would certainly be in accordance with common usage. I have many times received certificates from doctors excusing the absence of jurors in this form – ‘I hereby certify that AB is suffering from influenza, and is ‘unable’ to attend as a juror.’ I have never understood this to mean that it was impossible for the juror to attend, but only that he was so ill that it would be dangerous or injurious to the juror to attend, or that he was unfit to properly discharge a juror’s duties. Indeed, there is a still more common use of this word that indicates still more clearly the very wide area covered by it, as when a man writes to his friend, saying – ‘I was sorry that I was unable to keep my appointment to dine with you last night, but my son was taken suddenly ill.’ And similar language is used with regard to an alleged inability to keep other appointments. Other instances might be given of the use of the word in the ordinary intercourse of man with man. But I am not at present prepared to deal judicially with the meaning of the word further than is necessary for the determination of cases of the class now before the Court, and its meaning for this purpose is sufficiently suggested in the foregoing illustrations.
It thus appears that I am of opinion that a mental and bodily condition which makes it dangerous or even substantially injurious for a man to give the notice, or which makes him oblivious of business matters altogether, or which makes him really unfit to give the notice, thereby renders him ‘unable’ within the meaning of the Statute. It must be borne in mind that I am not writing ‘unfit’ in the place of ‘unable’ in the Statute. ‘Unable’ is the word there, but it is a word of more extensive significance than unfit, and there may be very many cases where a man is perfectly fit and yet ‘unable’. I am only indicating the application of the Statute to causes similar to the one now under consideration.”

57    Cussen J said (at 223-224):

“The great difficulty is caused by the word ‘unable’. It is a word not of definite but of flexible meaning. Sometimes, where it is used with reference to a person, it connotes an act or series of acts which no human being could do; sometimes an act or series of acts which the particular person referred to could not in any circumstances do; sometimes an act or series of acts which this person could not in existing circumstances do; and sometimes an act or series of acts which in existing circumstances this person could do if he directed his mind to nothing else, but which, having regard to other circumstances, he could not reasonably be expected to do. It therefore sometimes involves a comparison of the various circumstances influencing action or inaction. If the contemplated action and its consequences are of trifling importance, very little may be sufficient to induce a person to say that he is unable to do it. The examples of an invitation to dinner or to join in a walk will illustrate this class of cases. On the other hand, there are cases of which those involving the giving of notice under this Statute may be examples, where much graver reasons would be required before a person should be able to say that he was ‘unable’. But I think that if these grave reasons are present, a person may be said to be ‘unable’ within the meaning of the Statute although it was not impossible for him to have given the notice if he had concentrated, or been persuaded to concentrate, his mind on the subject. I think, for myself, that the emphatic words in the section are the words ‘show sufficient reason’. The Legislature intended, I think, to permit the tribunal which has to decide the matter to judge whether a person injured could fairly be said to have been capable of giving the notice. Any other reading would result in inequality and in harshness to the poor, the helpless, and the ignorant. As previously stated, the Legislature seems to assume inability, and the words are not that plaintiff must show that he was unable to give the notice, but that he must show sufficient reason why he was unable to give the notice. Even if ‘unable’ standing by itself had not ordinarily so extended a meaning as I have given, its association with the words ‘sufficient reason’ should in this context lead to its being given that meaning. I am not sure that the word ‘unable’ has not a wider meaning than the words ‘not able’. On the other hand, we must of course remember that the words are not ‘why he did not give the notice,’ but I think that illustrations may easily be imagined which would show that the meaning I have given does not have the result of getting rid altogether of the effect of the word ‘unable’. I have mentioned that I think that the words ‘show sufficient reason’ are the emphatic words of the section. It must not be forgotten that even if inability is assumed, there may not be ‘sufficient reason.’ For example, suppose the plaintiff, knowing the probable consequence of his doing so, takes liquor to such an extent as to deprive himself of his ability to give the notice, it might then be said that he had not shown sufficient reason for such inability.”

58    In Carrington v McColl [1948] VLR 304 Fullagar J followed Leeder’s case. At 307 he said:

“In the present case the plaintiff was an elderly woman, an old aged-pensioner, her foot was seriously injured and was in plaster for a period of five months, she had only her husband, who was also an old aged-pensioner, to assist her, she could only attend to business matters with great difficulty, and she could not be expected to know even that she might have a cause of action against the city of Melbourne, much less that, if she had, the law required her to give notice of the accident within ten days.”

59    In Thomas v Associated Galvanisers; Electricity Trust of South Australia, Third Party (No 2) [1971] SASR 1, Bray CJ gave consideration to a statute permitting an extension of a limitation period where the plaintiff had been unable for reasonable cause to commence the proceedings within the prescribed time. Bray CJ held that “unable” did not mean “impossible”. He said (at 4):

“the excusing facts must be such as to affect the capacity of the party to commence the proceedings, though as I have said, the degree of incapacity need not be total.”

60    The contexts in which these decisions were given are very different from the present. The most which the appellants could derive from them is that, according to Cussen J, “unable” can refer to “an act or series of acts which in existing circumstances this person could do if he directed his mind to nothing else, but which, having regard to other circumstances, he could not reasonably be expected to do”. The expression “unable” in the context of legislation establishing periods limiting the ability of plaintiffs (including plaintiffs of limited intelligence and means, whose mental powers may have been affected by injury) to commence litigation, particularly limitation periods as short as ten days, is to be construed differently from the expression “unable” in the context of a legislative enactment regulating the distribution of licences for the exploitation of a scarce resource. That is peculiarly so where the legislative enactment is part of a scheme creating as criteria for the eligibility to receive permission to exploit the resource events in the history of fishing businesses extending over periods of up to eight years. To construe the legislative enactment as permitting and compelling examination of a series of commercial decisions making up the history of those fishing businesses for periods of that length would call for clearer language than that which is to be found in Clause 214C(2)(c)(iii). The inquiry into reasonableness contemplated by Cussen J, in the context in which he was writing, is a relatively confined and manageable inquiry. To apply to Clause 214C(2)(c)(iii) a reasonableness test of the type which Cussen J’s words might suggest is to compel a very different and more difficult inquiry. The law is familiar with reasonableness inquiries in various contexts, for example, in the torts of negligence, nuisance and malicious prosecution, in the restraint of trade doctrine, in the defences available to trustees, and in various crimes, but in all such contexts the inquiry is sufficiently confined and sufficiently closely related to workable tests to be justiciable. The type of test for which the appellants contend here goes far beyond what is justiciable. It creates a task beyond the capacity of a court, and even beyond the capacity of an administrator, to perform. Hence in the context of Clause 214C, the meaning urged by the appellants, whether expressed as they have expressed it or expressed in Cussen J’s words, does not appear to be an available one.

Application of Clause 214C(2)(c)(iii) to the appellants

61    The appellants decided not to fish for gemfish in the northern zone because it was uneconomic to do so. Yet it was not impossible for them to do so. They were capable of doing so. They had the means of doing so. It was within their potential. They did not labour under any disability preventing them from doing so.

62    Accordingly the appellants do not fall within Clause 214C(2)(c)(iii). The conclusion of the Appeal Panel to that effect was correct.

Orders

63    The appeal should be dismissed with costs. If the outcome had been different, it would have been necessary to give close consideration to the form of Mr Wilson’s order and to whether it was open to the Review Panel or the Minister to inquire whether the reasons affecting the appellants were “significant”. These were issues to which the Appeal Panel paid some attention at the end of its reasons for decision. In addition to what the Appeal Panel said, it is to be noted that it is possible that if the appellants’ construction is sound, there is no need for any further inquiry into whether the reasons were “significant”. But in the circumstances none of these matters need be examined.

64    The following orders are proposed.

1. The appeal is dismissed.

2. The appellants are to pay the costs of the second respondent.

65    FOSTER AJA: I agree with the reasons of Heydon JA.

: I agree with Heydon JA.

**********