Shirley v The Director, NSW Fisheries

[2001] NSWADT 72

CITATION:	Shirley -v- The Director, NSW Fisheries [2001] NSWADT 72
DIVISION:	General Division
PARTIES:	APPLICANT Garry George Shirley RESPONDENT Director, NSW Fisheries
FILE NUMBER:	003304
HEARING DATES:	20/04/2001
SUBMISSIONS CLOSED:	04/20/2001
DATE OF DECISION:	05/09/2001
BEFORE:	Wilson K - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Fisheries Management Act 1994
CASES CITED:	Minister for Fisheries v Puglisi [2000] NSWADTAP 2
REPRESENTATION:	APPLICANT In person RESPONDENT C Cory, solicitor
ORDERS:	1. The decision that the Applicant should not be granted the endorsement is affirmed.

1 The applicant made an application for an endorsement with respect to the Estuary General Restricted Hand Gathering by application dated 29 October 1996. In accordance with the legislative framework the Minister for Fisheries as the appropriate administrator, made a decision in regard to the application and refused to grant the endorsement and notified the applicant by writing on 20 February 1997.

2 Subsequently the applicant lodged an application for review of the Minister's decision on 29 December 1997 and in accordance with the statutory framework the Restricted Fisheries Review Panel carried out a review of the determination relating to the applicant's eligibility and provided the Minister with a written report on 18 April 2000 recommending that the applicant be refused the endorsement.

3 The applicant subsequently lodged an appeal against that decision with the Administrative Decisions Tribunal on 12 September 2000.

4 In a recent decision of the Administrative Decisions Tribunal's Appeal Panel Minister for Fisheries -v- Puglisi and others (2001) NSW ADTAP2, the legislative and regulatory framework governing these matters is comprehensively set out. That decision also sets out the Appeal Panel's view about the appropriate role of the Tribunal in dealing with applications for review. This application has been considered in the context of the decision of Puglisi.

The Issue

5 The issue in this matter is straightforward. For the applicant to have been entitled to the issue of the hand gathering endorsement he needed to demonstrate an appropriate catch record over a relevant number of years. He was unable to do so and his explanation was that for two years of the period he was required to earn an income by working on a fishing trawler and in respect of another period he was suffering emotional difficulties related to his family life and was not engaged in this occupation.

6 There is considerable material contained in the file and in the submissions particularly from the Fisheries Department about the strenuous attempts made by officers to ensure that Mr Shirley had every opportunity to provide appropriate information.

7 Mr Shirley made an honest attempt to provide the relevant information and has a sense of unfairness as he claimed at the Tribunal that some others who were issued with licenses had not provided valid information.

8 Notwithstanding this view of Mr Shirley the fact of the matter remains that he is unable to provide the relevant information required under the regulations showing the consistent record of performance in hand gathering catch over the relevant period.

9 Whether the particular personal circumstances of Mr Shirley amount to matters which would enliven other provisions of the regulation relating to consideration of matters deemed to be not his fault is on the current understanding of the law in Puglisi not an avenue which would appear to be open for consideration by the Tribunal.

The Tribunal's Reasoning

10 The evidence in this matter is straightforward. Mr Shirley was unable to provide the required information to demonstrate that he had been carrying out activities in relation to the endorsement which he sought by his original application. He acknowledged this before the Tribunal, however he gave an explanation as to why it was that he was not hand fishing at particular periods of time.

11 Mr Shirley has a sense of grievance as he is presently carrying out his work as a fisherman and he feels aggrieved that he can no longer do so without the particular endorsement. The Tribunal was at pains to explain the regulatory framework to him and to give him every opportunity to provide further factual information which may have assisted his cause.

12 It is clear to the Tribunal on the basis of the records held that were provided by Mr Shirley that he is unable to meet the regulatory requirement for his endorsement.

Determination

13 For the reasons set out above the Tribunal affirms the original decision to refuse the issue of an endorsement for Estuary General Restricted Fishing Fishery Hand Gathering applied for by the applicant.