Sewell v Minister for Fisheries - [2001] NSWADT 124

No judgment structure available for this case.

CITATION: Sewell v Minister for Fisheries [2001] NSWADT 124

DIVISION: General Division

PARTIES: APPLICANT
Keith Walter Sewell
RESPONDENT
Minister for Fisheries

FILE NUMBER: 003326

HEARING DATES: 28/03/2001

SUBMISSIONS CLOSED: 03/28/2001

DATE OF DECISION:
08/01/2001

BEFORE: O'Connor K - DCJ (President)

APPLICATION: Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Legislation Amendment Act 1997
Administrative Decisions Tribunal Act 1997
Fisheries Management (General) Regulation 1995
Fisheries Management Act 1994

CASES CITED:

REPRESENTATION: APPLICANT
D Leamey, solicitor
RESPONDENT
C Cory, solicitor

ORDERS: 1 Decision under review affirmed

1 The applicant seeks review of a decision of the respondent Minister to refuse to grant him a Class A (ie. skipper’s) garfish hauling net endorsement in respect of the ocean haul restricted fishery. Part 8 of the Fisheries Management (General) Regulation 1995 (the Regulation) deals with the regulation of activity in restricted fisheries and includes cl 212E(4) which confers the relevant power and cl 212F which sets out the eligibility criteria. The Regulation is made pursuant to the Fisheries Management Act 1994 (the Act).

2 The Tribunal’s jurisdiction in relation to decisions refusing endorsements is conferred by s 126(1)(a) of the Act and commenced on 1 March 1999: see Gov Gaz 1999, p 969 commencing Schedule 5.14[2] Administrative Decisions Legislation Amendment Act 1997.

Jurisdiction

3 There was some consideration at the hearing as to whether the decision in issue fell within the review jurisdiction of the Tribunal. Two applications for endorsement were accepted by the agency in the past. There is an application clearly in proper form with the relevant fee dated 28 January 1995 made at the time when the restrictions affected the ocean haul fishery were being introduced. The decision refusing that application was made on 25 February 1995. The material contains reference to a further application accepted by the agency dated 15 February 1996, and the undated letter in reply from Mr Holt refusing the application (Ex A, p 33).

4 The applicant’s present review application to the Tribunal seeks to locate the relevant decision founding jurisdiction in a letter from the Director dated 27 July 1999. That letter indicated that a reconsideration of the applicant’s representations in respect of the garfish net endorsement had taken place in line with a commitment reflected in a letter from an officer of the agency dated 14 May 1999. The letter of 14 May 1999 issued following the conclusion of District Court proceedings brought by the applicant, where as a result of a settlement the Director had agreed to issue to the applicant a hauling net (general purpose) endorsement. The letter of 14 May 1999 stated ‘the Department will now commence a review of your eligibility for a garfish net authority in accordance with clause 212F of the Regulation.’ On 19 May 1999 the applicant presented a garfish hauling net for inspection at the agency’s Wollstonecraft office. It was found to satisfy the requirements as to dimensions.

5 The letter dated 27 July 1999 from the Director (set out in full later in these reasons) reached the same decision to refuse the endorsement as was reflected in the decision issued on 25 February 1995. The applicant applied for review on 22 September 1999. There were attempts at mediation in the intervening period. The earlier decision was confirmed on internal review, by letter dated 19 September 2000.

6 The statement of reasons accompanying that letter was described as a statement of reasons given pursuant to the relevant provisions of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). The applicant was advised of rights to apply to the Tribunal for review and relevant time periods. On the other hand the covering letter asserted that the original decision under consideration was that of 25 February 1995 and at the foot of the statement of reasons (the substance of which is set out later in these reasons) the decision-maker, Ms Cory, solicitor to the Director (Ms Cory appeared at the hearing) expressed doubts as to jurisdiction. The application for review was lodged on 17 October 2000 and the hearing held on 28 March 2001.

7 The Director has communicated with the applicant in a confusing fashion. The most recent of the decisions, in my view, prior to the events of 1999 is not that of 1995 but that reflected in the letter of Mr Holt issued around late February 1996. The Director did not refer to the Tribunal Act in the letter of 29 July 1999 and identifies the decision in issue as that of 1995, clearly outside the jurisdiction of the Tribunal (as would be the 1996 decision). However the Director has purported to be bound by the Tribunal Act in making the decision on internal review; and in advising the applicant of rights of external review following that decision.

8 The fairest construction of these circumstances is, I consider, that the decisions now in issue are fresh decisions in relation to an application treated by the agency as having been renewed in April 1999, but waiving the need to submit a fresh application form corresponding to the requirements of cl 212E. I am satisfied that the Tribunal has jurisdiction.

Applicable Law

9 The law applicable to this case is mainly to be found in Division 4A (cll 212A-212Y) of Part 8 of the Regulation. For the purposes of s 111 of the Act, the ocean haul fishery is declared to be a restricted fishery (cl 212B). Licensed commercial fishers must hold an endorsed licence containing endorsements permitting them to take fish for sale in the restricted fishery. There are three classes of endorsement. A Class A endorsement authorises the holder to take fish for sale using one of more types of hauling net specified in the endorsement in a particular region of the fishery (cl 212D). Class A endorsements are required by skippers, while a Class B is sufficient for crew. Class C endorsements deal with the use of a purse seine net. The hauling nets for which at present endorsements must be obtained are a hauling net (general purpose), a garfish net (hauling) - the type of net in issue in this case, a garfish net (bullringing) and a pilchard, anchovy and bait net (hauling) (cl 212A).

10 It has been government policy for some time not to increase the ‘fishing effort’ (as it is commonly referred to) in NSW waters. Since 1 January 1991 strict controls have applied giving expression to that policy (initially implemented 14 July 1989 and the subject of Circular 80A issued by the Director (ex A, p 41) on 22 January 1990). One aspect has involving seeking to ensure that no additional nets are introduced into restricted fisheries. In the case of the ocean haul restricted fishery the eligibility requirements set out in cl 212F seek to give effect to this policy.

11 As previously noted, the Minister’s power is conferred by cl 212E(4) which provides that:

‘(4) The Minister may endorse the commercial fishing licence of a person who satisfies the eligibility requirements for the endorsement or who is the nominated fisher of a person who satisfies the eligibility requirements for the endorsement.’

12 The powers of refusal in cl 212E(5) are not relevant to this case, Clause 212E(6) provides that:

‘(6) The Minister may endorse the commercial fishing licence of a person who applied for an endorsement before the commencement of this Division if the applicant is otherwise eligible for the endorsement under this Division.’

13 Ms Cory said that this provision covered this case as the application was dated 28 January 1995. On the basis of my finding as to jurisdiction, I do not regard it as now applicable.

14 The eligibility requirements are found in cl 212F:

‘212F. Eligibility for an endorsement

(1)

(2)

(2A) [deals with Class C endorsements]

(2B) [deals with Class C endorsements]

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

(3A)

(4) In this clause:

Corporations Law

15 In the decision dated 25 February 1995 the Director refused endorsement for all nets the subject of the application (general purpose ocean hauling, garfish hauling and pilchard, anchovy and bait hauling) on the ground of the applicant’s failure to present the nets for inspection on the designated day, 1 February 1995.

16 Subsequently, Shane Holt, Manager (Commercial Fisheries) (see Ex A p 33 letter) responded to the applicant’s application for endorsements for the 1996-97 season indicating preparedness to grant the application for a general purpose hauling net endorsement subject to presentation of the net at Wollstonecraft by 30 March 1996. He refused his applications as they related to the garfish net and the pilchard, anchovy and bait nets because of inability to satisfy the catch requirements for the relevant years, 1986-90 as required by para (b) of cl 212F(1) (see documents at pp 26-31 of Ex A).

17 On 20 March 1996 he presented the bait nets, and the agency ascertained that he had relevant personal catch history for 1987. He was granted endorsements in respect of bait nets. He was refused a general purpose hauling net endorsement. (The reason is not immediately apparent from the material). That endorsement was subsequently obtained as an outcome of the District Court proceedings in 1998.

18 The letter from Mr Holt in relation to the 1996 application refers to the applicant having provided a ‘detailed statement’ at the time of the application as to why he could not produce the nets for inspection. The only material before the Tribunal in relation to the content of this ‘detailed statement’ is the letter on file undated to Mr Camkin (incorrectly named Campton by the applicant) (Ex B, item J, no date). In that letter, typewritten on his behalf by another fisherman, he says:

‘Net Registrations

I hold registrations for one mullet net, three general purpose bait haul nets and one general purpose haul net. I have mislaid the registration certificates during home moves but I believe that copies of the registrations are on file at Wollstonecraft.

19 It is unclear when that letter reached the agency. The agency states and it is not disputed that Mr Camkin had ceased employment with the agency on 5 May 1995.

20 The agency has since acknowledged that the applicant meets the garfish catch history requirements. He inherited the catch history of Mr F J Wilson, a licensed fisher, from when he purchased licensed fishing boats in 1987. Mr Wilson had catch returns showing garfish catches in January 1986 and December 1987. So there is no longer any dispute in relation to the para (a) of cl 212F(1). There has never been an issue in relation to para (c).

21 The dispute centres on para (b). The applicant has been unable to demonstrate to the satisfaction of the Director that he ‘had a hauling net of the type in respect of which an endorsement is sought, which was registered in the name of the person, before 31 December 1990 and that the person currently has such a registered hauling net.’

Material before Tribunal

22 A substantial amount of material was placed before the Tribunal - comprising extracts from the agency’s files, history of correspondence between the applicant and the agency, affidavits filed in connection with District Court proceedings concerning the issuance of a general purpose hauling net endorsement (the Director agreed to issue such an endorsement and did so in 1998), statutory declaration by the applicant dated 13 September 1999 and lodged in support of his internal review application made 22 September 1999 and a statement corroborating the applicant’s statements from Mr Stephen Hopkins dated 24 July 1999.

Minister’s Reasons for Refusal

23 As noted the application was revived by letter dated 14 May 1999 following the settlement of the District Court proceedings. By letter dated 29 July 1999 the Director’s decision was set out:

I note that you presented the garfish hauling net for inspection at the Wollstonecraft Fisheries Office on 19 May 1999 and at the Entrance Fisheries Office on 20 May 1999, but that you were unable to produce a corresponding net registration certificate or any proof of ownership of the net.

Clause 212F(1)(b) of the Fisheries Management (General) Regulation 1995 outlines the requirements for a class A endorsement authorising the use of various net types in the fishery. The Regulation requires, among other things, that:

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

No evidence has been provided or exists on your file to support your claim that you held the required garfish hauling net registration in your name prior to 31 December 1990. You have also failed to supply a current registration for the net.

Given that you have not satisfied the requirements of the legislation, I regret to advise that I am unable to approve the allocation of an authorisation to use a garfish hauling net.

Please contact Mr Nick James, Manager (Commercial Finfish), on (02) 9527 8556 should you have any enquiries on this matter.’

24 The applicant requested internal review of that decision by letter dated 22 September 1999, but it was not dealt with for 12 months. Attempts to resolve the matter by mediation occurred during that period but were unsuccessful.

25 Ultimately the Director replied by letter dated 19 September 2000, as follows:

I apologise for the delay but can now advise that your internal review has been finalised.

The internal review of the initial decision made on 28 January 1995 [sic; the Tribunal interpolates - this was the date of the application in that year with the decision being dated 25 February 1995] has found that you are not eligible for the garfish hauling net endorsement for reasons that are outlined in the statement of reasons.

The statement of reasons outlines the material questions of fact, the understanding of the administrator of the applicable law, and the reasoning processes that led to the conclusions the administrator made.

An appeal may be made to the Administrative Decisions Tribunal (ADT) in accordance with section 126 of the Fisheries Management Act 1994. ADT rules provide that appeals should be made within 28 days of receiving your notification, however, the ADT has total discretion in this regard and may take into account reasonable circumstances for delay in making an application.

If you have any further inquiries into this matter please consult Clare Cory, Legal Counsel on [phone number given].’

26 Attached to the letter is a ‘Statement of Reasons for Decision Pursuant to section 53(7) of the Administrative Decisions Tribunal Act 1997’ prepared by Ms Cory. The text of these reasons follows:

B The Minister for Fisheries as the administrator (‘the Minister’) found the applicant to be ineligible for a Class A endorsement based on unverified nets and net registrations.

C The applicant gained a Class A endorsement with Pilchard, Anchovy and Bait net and General Purpose Haul net entitlements. The Garfish Haul net entitlement was not granted, as the applicant had not provided the relevant evidence that was required to gain net entitlements.

D In accordance with the recommendations of the Ocean Haul Fishery manager and the Principal Manager (Commercial Finfish), the Minister confirmed the original decision and found that the applicant had not provided enough evidence to gain the garfish haul net entitlement on 29 July 1999.

The reasons for the decisions are:

(A) The findings on material questions of fact, referring to the evidence or other material on which those findings were based:

(ii) The applicant had a fishing boat that was licensed to him between 1986 and 1990 and has a suitable boat for use in the ocean haul restricted fishery.

(iii) The applicant was originally denied a class A Skipper endorsement as he had not demonstrated to the Minister that he owned and used the nets before 1990 and still possessed the nets. The Minister set up a net verification day to give all fishers the opportunity to demonstrate ownership of nets and to have the nets that they owned measured and verified by Fisheries Officers.

(iv) The applicant was sent information regarding the Minister’s decision on 22 February 1995 to allocate a Class B crew endorsement to him and that he could appeal that decision. The applicant was also sent the appropriate paperwork in relation to appeals.

(v) No application for review was lodged in accordance with 212M regulations (now repealed) with respect to the Class A endorsements or net types approved.

(vi) The applicant did not appeal the decision in the format that was outlined by the Minister, however, the original decisions that were made in regard to his endorsements were reviewed in various arenas. The outcomes of the various reviews led to the applicant obtaining a Class A endorsement with Pilchard, Anchovy and Bait net in 1996 and General Purpose Hauling net entitlements in 1998.

(vii) The applicant was still denied the garfish hauling net entitlement, as he had not supplied the relevant net registrations for the net. A check of the applicant’s files still did not produce a net registration certificate.

(viii) The applicant produced the garfish hauling net in question to the Wollstonecraft Office to be measured and registered. The net was measured and it complied with the measurements for a garfish hauling net in ocean waters, as detailed by the legislation. The officers involved could not reissue a net registration, as the applicant could not show ownership or past registration papers.

(ix) Principal Manager (Commercial Finfish) sent a response to the applicant on 14/5/99 concerning his application for a garfish hauling net entitlement. The applicant was advised that the Minister was going to review the applicant’s eligibility for a garfish hauling net entitlement, in response to the applicant’s inquiries. The applicant was advised in this correspondence that he would need to provide proof of ownership to the Minister or a registration certificate for the net in question.

(x) The Minister advised the applicant on 29/7/99 that he had not satisfied the legislation to gain his net entitlement, as he had not provided the Minister with information pertaining to the net registration before 1991.

(xi) A briefing note was prepared by the Executive Fisheries Officer, on 31/8/1999, in relation to investigations into the garfish registration records and found that there were nets registered in the applicants name that were unidentified and therefore could not be clarified as to whether one of them is a record pertaining to the garfish net registration.

(xii) Ocean Haul Fisheries Manager, established that there were two pre 1991 net registrations where the type of net is unknown. These entries have the net registration numbers 72372 and 72370.

(xiii) Mr Wilson on 28/11/87 by letter sought to sell 3 nets to the applicant and on the same date sought to sell his garfish net to another fisher.

(xiv) The applicant has no personal catch history regarding garfish or any records to show that he used a garfish hauling net in ocean waters between the relevant years of 1986-1990.

(xv) The applicant lodged an application for internal review on 22 September 1999 for the refusal to grant a Class A endorsement in the Ocean Haul restricted fishery for use of a garfish net.

(xvi) The evidence upon which the findings on the material questions of fact were made included monthly catch returns submitted for the applicant, for the period 1986 to 1993 inclusive, records of the director, Policies and the bound material submitted by the applicant for the purpose of mediation, dated 14 December 1999.

(B) The Administrator’s understanding of the applicable law:

135 Who may hold commercial fishing licence

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, used 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

Personal catch history generally applies in fishing businesses where the fisher is the primary unit of effort. This includes estuary and beach fishing, and boats involved in mixed estuary/ocean businesses. A fisher’s personal catch history comprises of all his/her catches taken from general purpose vessels between 1986 and 1993.

Boat history generally applies where the boat is the primary unit of effort. These include all endorsed vessels (ie. offshore prawn trawl, Commonwealth tuna longline and south east trawl endorsed boats) and some unendorsed ocean vessels such as finfish trawlers and large offshore line and trap boats. These vessels are referred to as boat history vessels. The current owner of a boat history vessel is usually entitled to all catches taken from the vessel between 1986 and 1993.

(iv) The Ocean Haul Restricted Fishery is Part 8 Division 4 of the Regulations as follows:

[Clauses 212A - 212E reproduced]

(v) Eligibility for an endorsement in the ocean haul fishery is outlined in the Fisheries Management (General) Regulation 1995 212F. Under this Regulation a person is eligible for a Class A endorsement if:

[cl 212F(1) reproduced]

The Principal Manager (Commercial Finfish) was acting on the requirement in (b) for the applicant to have a registered garfish hauling net before 31 December 1990.

(vi) Factors assisting the Minister to determine eligibility are set out in cl.212F (3)-(4) as follows:

[cl 212F(3)-(4) reproduced]

(vii) Clause 212H requires the applicant to be endorsed for the particular type of hauling net used in the ocean haul fishery as follows:

[cl 212H reproduced]

(viii) The Fisheries Management (General) Regulation, 1995 (pursuant to Section 23 of the Act) Clause 21 outlines the registration of nets. The Regulation states:

21 Registration

1. If an application for the registration of fishing gear(net) is duly made and the fishing gear may lawfully be used, the Director may register the fishing gear.

2. Registration of fishing gear is to be certified in such form or manner as the Director approves (Form 3 here).

3. Registration remains in force for the life of the fishing gear.

4. The fee to be paid for the registration of fishing gear is $20.

5. Registration is not transferable.

6. The Director may cause to be compiled a register of all fishing gear registered, containing in respect of each fishing gear the registration number, the name and address of the owner, the class of the fishing gear and the dimensions and mesh of the whole or of each part of the fishing gear.

There is no record on the applicant’s file to show a net registration certificate or a copy of the net registration application (Form 3). The registrar of net registrations did not record the class of net nor did it contain the dimensions of the net.

Only nets which comply with the current regulation and which are registered may be used for commercial fishing.

Net registrations are not transferable. Where a net is sold to another fisher, the new owner may apply to the District Fisheries Officer for a registration in their name. The current registration certificate for the net must be produced and the net must be inspected. A fee is applicable for net registrations (see schedule 1).

Catch history may not be transferred with a net registration.

Where nets change hands as part of the transfer of an RFO to a conditional fisher, only nets able to be used within the purchaser’s licence conditions will be registered.

No additional nets are being registered. Existing registered nets may be replaced. Registration of nets is carried out only at NSW Fisheries District Offices.

The District Fisheries Officers were following this policy when they refused to register the applicant’s garfish hauling net as the applicant could not supply a net registration certificate and they did not have solid evidence that the applicant had registered the garfish net in the past.

(x) Circular 80A NSW Agriculture and Fisheries 22 January 1990, states under the heading of ‘existing nets which have been in regular use’ that:

Where the owner claims that the net is registered but has lost the registration efforts are to be made to identify the original registration number, failing this; the nets may be registered in accordance with below.

Unregistered nets, which have been in regular use -may be registered.

Where the District Inspector is satisfied the applicant prior to 14th July 1989 owned the nets.

Such nets must exist and be sighted and must have been in use at the commencement of the freeze.

It was determined that the applicant has not show (sic) that the net was in regular use as the applicant has no personal catch history in relation to garfish from the period 1985 to 1999.

(xi) The Restricted Fishery Entry Criteria (Policy) approved by the Minister on 3 September 1996 and distributed to all commercial fishers with Application forms for the 6 Restricted Fisheries developed in 1996 (but not including Ocean Haul Class A applicable in this case) stated on page one:

GEAR OWNERSHIP

The entry criteria for many restricted fisheries will require the applicant to show current or past ownership of fishing gear such as registered nets. Where an applicant has entered the industry by buying out another fisher along with all his catch history, a net registered in the previous owners name is taken to satisfy the criterion of being a net registered in the current applicant’s name.

(xii) The repealed section 212M Regulations set procedures to apply for reviews in Class A. Repealed on 28 February 1997

(1) An applicant for an endorsement may request that the Minister review any of the following:

(a) a determination as to whether the applicant is eligible for an endorsement;

(b) a determination as to the type or types of hauling nets the applicant is to be authorised to use by his or her endorsement

(c) determination as to the region…

(d) any other matter concerning endorsement application that the Minister considers it appropriate to review

(2) On the review of an applicant’s eligibility for a Class A endorsement, the Minister may endorse the commercial fishing licence of the applicant, even if the applicant dos (sic) not satisfy the relevant eligibility requirements, if the Minister is satisfied that:

(a) the applicant substantially satisfies the eligibility requirement; or

(b) the applicant was part of a group of commercial fishers that conducted commercial fishing activities in the ocean hauling fishery in the years 1986-1990 (inclusive) and the members of the group together substantially satisfy the eligibility requirements.

(3) A review request is to be made in a form approved by the Director and is to be accompanied by a fee of $100.

(4) The review is to be conducted in such manner as the Minister thinks fit. For instance the Minister may establish a panel to conduct or assist in the review

(5) …

(C) The reasoning processes that led the Administrator to the conclusions the Administrator made:

(i) The original decision made by the Minister not to endorse the applicants commercial fishing licence with respect to the garfish net endorsement corresponds to the existing regulations outlined in the Fisheries Management (General) Regulation 1995, as the applicant did not produce insufficient evidence (sic) in relation to the ownership or use of a garfish net prior to 1991.

(ii) The Minister reiterated the decision in relation to the garfish endorsement on 29/7/99, again requesting that the applicant supply evidence to the Minister in relation to the registration of the garfish net as stated in the regulations. There has been a net registration record found in relation to a net but it cannot be quantified sufficiently.

(iii) The presumption of regularity with forms lodged with the Minister does not apply where there is no application for registration of a garfish net prior to 1991. The applicant has been unable to establish on the balance of probabilities by relevant evidence and verified records that a net existed and that it was used by the applicant to catch fish.

(iv) The decisions made in the past were correct and are consistent with the Regulatory requirements relating to entitlements gained in the Ocean Haul Restricted Fishery. The applicant has not show (sic) regular historical use of the garfish hauling net in ocean waters which would support his claim that the net was registered in the past.

(v) There is no evidence that the applicant purchased a recognised fishing operation from Mr Wilson in 1987 and was therefore entitled to the benefit of the Restricted Fishery Policy on Gear Ownership.

(vi) As no application was lodged by the applicant under the repealed cl.212M Regulations, prior to its repeal on 27/2/97, the Applicant is out of time to seek a review now in 1999 with respect to a Class A endorsement and the Minister would be disadvantaged in conducting a review without the benefit of appropriate records, personnel and evidence to substantiate events in 1987. In addition such a review may confer a benefit on the applicant different to a similar class of fishers that have not been able to benefit from a similar review.’

(The statement raises in the last paragraph on page 10 the question of whether the original decision of the Minister is subject to the present review scheme. That issue has been dealt with earlier in these reasons.)

27 Attempts to Locate Information in relation to Net Registrations by Applicant: In July 1998 by way of a Freedom of Information Act application the applicant obtained copies of the register entries for certificates issued to him between 1973 and 1976. The agency found (see point (xi) of Part A of Statement of Reasons) that in the case of 2 entries for 1976, 72370 and 72372, the type of net was unknown.

28 These entries are handwritten in a register book divided into columns, showing date, registration number, name of fisher and amount of fee paid. The registers did not contain details of the net. That was shown on the certificate itself. The certificates would have included a description of the net type and its dimensions. The register was not kept in accordance with the law applicable at the time which required that the type and net dimensions be recorded (acknowledged by Ms Cory).

29 The applicant has also sought to obtain the agency’s duplicates of the certificates issued to him in 1976. Mr Wayne Currie, an experienced senior officer who previously was for 7 years a commercial fisher, told the Tribunal that the usual practice of the agency is for the duplicate to be held at the local fisheries office where the certificate is issued, and the triplicate to be held at head office. Searches have been unable to locate duplicate or triplicate records.

30 In a letter of 11 June 1999 the Director said,

‘To ascertain the type of nets held by you, both Mr Currie and yourself made a search for duplicate copies of your registration papers at the Wollstonecraft office on 17 July 1998. None of the duplicates could be located and Mr Currie advised you that their whereabouts are unknown and it appears that your duplicate registration papers together with those of other fishers (both recreational and commercial) may have been inadvertently lost or destroyed.’

31 Following the failure of the officer searches the applicant made another application for the duplicates by way of a FOI request for the duplicates. The agency required search fees to be paid by the applicant, which he declined to do.

32 Relevant Net Registration Certificate: The applicant states that it was has belief that registration certificate 72370 issued on 5 May 1976 was for the garfish hauling net. He said that registration certificate 72372 issued 28 May 1976 was for a mesh net.

33 History of Net: In the statutory declaration dated 13 September 1999 accompanying his request for internal review the applicant said that the net presented on 19 May 1999 had been his since approximately April or May 1976.

34 He says he made the net himself, and that he has been re-hung and repaired since. He said that he had been influenced to make the net by the big runs of garfish that occurred after a new moon in April 1976. He said that he acquired the netting material from NetSales. His recollection was that while the mesh net was being hung, he had used the garfish net. He said that it took him about 50 hours to make the net, which it did at home while watching television.

35 At that time, he worked for Mr F J Wilson. When Mr Wilson retired in 1987 he acquired from Mr Wilson four licensed fishing boats and three nets. He did not acquire Mr Wilson’s garfish net. He said that the reason that he did not acquire Wilson’s garfish net was that he already had one.

36 Use of Net: He says that he used the net and traded in garfish between 1976 and 1983. He referred in evidence to locations where he had fished for garfish around 1982-83 with Mr Hopkins - Shelly Beach, Fairy Bower area of Manly, and to quantities sold through the Sydney Fish Market. He said that while he had not fished for garfish for some years, he wished to maintain his right to fish for garfish after the species was included in the restricted fishery about 1994. Mr Currie told the Tribunal that it is not unusual for fishers for commercial reasons not to pursue a species for long periods of time.

37 Circumstances of Loss of Net Registration Certificates: The applicant said in evidence that the certificates that he held around 1976 (he said he had four hauling nets - 2 mesh nets, a general purpose net and a garfish net) were kept in the drawer of the bottom of his father’s wardrobe. He said that after his father died, his mother cleared out the wardrobe and that was when they were lost. He acknowledged that his clerical practices were very poor. He said that he could not read and write well.

38 The applicant described the missing certificate as having a blue or green colour (he said he had difficulty differentiating colours) on 10-12” by 3-4” paper. Mr Currie said that the certificates were green in colour.

39 The applicant said that Mr Wilson’s brother Chicka, now deceased, had seen him using the net. He said that he used the garfish net in the Shelly Beach areas with Steve Hopkins in the 1982-83 period to catch garfish. He said Mr Hopkins crewed for him for about a year. There is a letter dated 24 July 1999 in which Mr Hopkins states:

‘I am writing on behalf of Mr Keith Sewell to confirm the existence of a garfish haul net owened (sic) by Keith Sewell. Back in approx 1982-1983 I attended the Wollstonecraft Fisheries Office with Keith Sewell to have the garfish haul net owned by Keith inspected, and at the same time apply for a pro licence for myself which was required to work as crew to assist hauling of net.

The garfish net and net boat which was being towed by my vehicle was inspected by Inspector Gordon Harris in the Wollstonecraft Fisheries car park.’

40 Personal Catch History: The applicant said that he recalled filling in catch returns prior to 1984 which he said related to garfish amounts. He described them as forms creamy in colour, where it was necessary to summarise by species.

41 Ms Cory advised that the agency held catch cards derived from these returns but no longer held the returns. The catch cards showed totals for ‘fish’ but not the particular species. Computerised records introduced on 19 September 1984 gave full details.

42 Documentary Evidence: The applicant said that he was unable to produce tax returns from the 1970s and early 1980s which might shed light on what nets he had in that time.

Conclusions

43 The sole item of corroboration of the applicant’s evidence is the letter of 24 July 1999 written by Mr Hopkins.

44 The applicant looks to the agency to overcome his difficulty in producing the certificate.

45 As noted the agency has been unable to locate the duplicate certificates for 1976. Its register practices were deficient. More understandably, it has not retained the large volumes of paper generated by catch returns prior to 1984; and since that time has taken advantage of computerisation to store complete details.

46 While it is unsatisfactory that the Director can not produce the duplicates for 1976 (and so much has been acknowledged by the Director) that should not in my view distract from the Tribunal’s task of assessing the account put by the applicant.

47 As I see it, the onus must lie on licensed fishers to satisfy the authorities that they meet eligibility requirements for licences and endorsements. It is vital that they keep the relevant records. While it is regrettable that the agency did not keep a register in 1976 that fully complied with the law governing the keeping of registers, the certificates furnished to fishers did record the net type and its dimensions. The licences and certificates, and their contents, are of great significance in the context of regulated industry where the value of boats is connected with the licences and net registrations held. I accept the statement of Ms Cory that it has long been the policy that the licensee is responsible for ensuring that he maintains the relevant records. The agency does not carry a primary responsibility.

48 I accept that in the lead up to the 1996 application for endorsements the applicant informed Mr Holt that he had misplaced various registration certificates and that the written explanation (addressed to Mr Camkin) was held by the agency.

49 But I share the difficulty put to the applicant by Ms Cory in her questions. I am concerned that what may have occurred is that the applicant has constructed an account of events which fits in with the discovery of the entries in the register for 1976 and of Mr Wilson’s catch returns conferring a catch history in respect of garfish for the required period of 1986-90.

50 I am concerned that the applicant has had many opportunities in the past when he could have recorded an account of his conduct in 1976 but has not done so. While I accept (possibly like many commercial fishers) that he is not comfortable with written communication, at various times in the history of this matter he has arranged for letters to be prepared on his behalf. In that way he has recognised the desirability of giving explanations in writing on important matters of concern to the agency. I note that there is no explanation (prior to discovery of the information mentioned) of the circumstances of creation of the net or the extent of its use.

51 At hearing he manifested a vivid recollection of garfish runs said to have occurred after the new moon of April 1976 and that is what led him to make the net. In response to questions from the Tribunal, he said it took him about 50 hours to make the net, and said that he did not use it until it was registered. He said that he had a good recollection for significant events. I acknowledge that a man who lives by the tides and the stars is likely to have strong powers of observation and a good recollection of significant events. But given the vividness with which he now recalls this history, I would have expected it to have been referred to much earlier in his dealings with the agency over this issue.

52 The letter from Mr Hopkins was not challenged. He was not required for the hearing. Consequently I accept Mr Hopkins’ recollection that he fished for garfish with the applicant around 1982-83, that a garfish hauling net was used and that there was an occasion at Wollstonecraft when the net was present with a boat. There is insufficient material to make any finding in relation to the occurrence of, and nature of, any official inspection.

53 Understandably Mr Hopkins is not able to assist on the question of whether the net was a registered net or a net owned by the applicant.

54 I view adversely the fact that the applicant did not promptly present the garfish hauling net for inspection at an early opportunity in the 1995-96 period. On his account it has always been in his possession, stored in the garage at home. In the written correspondence with officers in the lead up to the 1996 season and in contrast to the position in relation to several of his other nets (see letter to Mr Camkin) there is no history reported by him of loss or damage to that net.

55 He was cross examined as to why there is no reference to a garfish net in the correspondence in late 1995 with Mr Camkin and Mr Holt. The letter to Mr Camkin has already been quoted at [18]. In the handwritten letter dated ‘22/12/95’ to Shane Holt he refers to having four net registrations, listing them as 1 general hauling and 3 pilchard, anchovy. He does not refer to the fifth net mentioned in the letter to Camkin (the mullet net). In neither letter does he refer to the garfish net. His explanation was that he was dissuaded by Shane Holt from referring to the garfish net in these letters because of the dispute. He was told, he said, to bring one category of application forward at a time. But it is clear that he was bringing forward two categories of application (for a general purpose net endorsement and for bait net endorsements).

56 The applicant claimed in evidence that in late September 1997 the inspector at Wollstonecraft at the time (Mr Lawton) opened a storage of box of duplicates, and he saw in them a garfish endorsement in his name; and prevented him from seeing it, and from taking a copy. In light of my concerns as to the reliability of the applicant’s recollections and in the absence of any other evidence I make no finding on this allegation.

57 The applicant says finally that he should be given the benefit of an assumption that he was fishing in a lawful manner and using properly registered nets, especially at a time when there was no incentive not to register a garfish net (there being no restrictions of the kind now in force). I have no reason to question the lawfulness of the applicant’s conduct in this period. But that conclusion does not provide an adequate basis for a conclusion favourable to the applicant.

58 On the basis of all the material presently before me, there is insufficient evidence produced by the applicant to be reasonably satisfied that he held a registration certificate for a garfish hauling net prior to December 1991.

Order

59 Decision under review affirmed.

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Citations

Sewell v Minister for Fisheries [2001] NSWADT 124

Most Recent Citation

Forster v Minister for Fisheries [2002] NSWADT 50

Cases Citing This Decision

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Forster v Minister for Fisheries [2002] NSWADT 50

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CITATION:	Sewell v Minister for Fisheries [2001] NSWADT 124
DIVISION:	General Division
PARTIES:	APPLICANT Keith Walter Sewell RESPONDENT Minister for Fisheries
FILE NUMBER:	003326
HEARING DATES:	28/03/2001
SUBMISSIONS CLOSED:	03/28/2001
DATE OF DECISION:	08/01/2001
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Legislation Amendment Act 1997 Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994
CASES CITED:
REPRESENTATION:	APPLICANT D Leamey, solicitor RESPONDENT C Cory, solicitor
ORDERS:	1 Decision under review affirmed