Smith v Minister for Fisheries - [2003] NSWADT 84

CITATION: Smith v. Minister for Fisheries [2003] NSWADT 84

DIVISION: General Division

PARTIES: APPLICANT
Peter Smith
RESPONDENT
Minister for Fisheries

FILE NUMBER: 023205

HEARING DATES: 17/01/2003

SUBMISSIONS CLOSED: 01/24/2003

DATE OF DECISION:
04/24/2003

BEFORE: Montgomery S - Judicial Member

APPLICATION: Charter boat fishing licence - grant of licence - Fisheries Management Act - charter boat fishing licence - grant of licence

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Fisheries Management (General) Amendment (Miscellaneous Provisions) Regulation 2001
Fisheries Management (General) Regulation 1995
Fisheries Management (General) Regulation 2002
Fisheries Management Act 1994

CASES CITED: Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Murphyores Incorporated Ltd. v. The Commonwealth (1976) 136 CLR 1
Drake v. Minister for Immigration and Ethnic Affairs (1979) 2
ALD 60; 24 ALR 577
Surinakova v Minister For Immigration, Local Government And Ethnic Affairs (1991) 33 FCR 87
Jones v Dunkel (1959) 101 CLR 298
Citibank Limited v Federal Commissioner of Taxation (1988) 88
ATC 4714
Mohammed Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Hill J, 12 December 1989)

REPRESENTATION: APPLICANT
R Horsley, barrister
RESPONDENT
J Klarica, barrister

ORDERS: The decision by the Minister for Fisheries to grant a non-transferable charter fishing boat licence to Mr. Peter Smith is set aside. The matter is remitted for the Minister’s reconsideration.

Background
1 These proceedings relate to a decision by the Minister for Fisheries (“the Minister”) to grant a non-transferable charter fishing boat licence to Mr. Peter Smith. Mr. Smith was advised of that decision by letter dated 28 August 2002 from the Director of Fisheries.
2 On 25 January 2001 Mr. Smith applied for issue of a transferable charter fishing boat licence for the authorised activities of near shore bottom fishing and sport fishing and deep-sea bottom fishing for the vessel 'Banks'.

3 By letter dated 29 March 2001 Mr. Smith was advised that he had not met all the prescribed criteria. By letter dated 11 April 2001 Mr. Smith was advised that his application was refused under clause 226H of the Fisheries Management (General) Regulation 1995 (“the Regulation”). The application was refused because Mr. Smith was not able to satisfactorily demonstrate that his vessel was:

“(i) actively engaged in NSW charter fishing activities on or before 22 October 1997;
(ii) engaged in those activities for more than 100 days during any two-year period between 22 October 1995 and for August 1999; and

(iii) operating in accordance with the requirements of the certificate of survey.”

4 Mr. Smith was encouraged to submit additional information to clarify those matters and provided with the opportunity to challenge the decision by applying for a review.
5 Mr. Smith applied for a review of the decision under cover of a letter dated 21 May 2001. He indicated that he had made a financial commitment to purchase the vessel for the purpose of conducting guided estuarine and marine charter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWADT 84
Decision Date: 04/24/2003

CaseChat Overview and Summary

In the case of Smith v Minister for Fisheries, the plaintiff, Mr. Peter Smith, sought judicial review of the decision made by the Minister for Fisheries to grant a non-transferable charter fishing boat licence to another party. Mr. Smith argued that the Minister’s decision was unreasonable and unlawful, contending that the Minister had failed to consider his application fairly and had acted in a manner that was inconsistent with the legislative framework governing the issuance of charter fishing boat licences.

The primary legal issues before the court involved the proper application of statutory criteria in the Minister’s decision-making process. Specifically, the court needed to determine whether the Minister had correctly exercised his discretion under the Fisheries Management Act by failing to consider all relevant factors, including Mr. Smith's application and qualifications. Additionally, the court had to assess whether the Minister's decision was so unreasonable as to be unjust or lacked a rational basis. The court also needed to examine whether procedural fairness was observed in the decision-making process.

The court found that the Minister had failed to consider Mr. Smith's application adequately and had overlooked several critical factors that should have been evaluated. The court held that the Minister's decision-making process was flawed as it did not align with the statutory requirements and procedural fairness. The Minister had not properly assessed the evidence and had not provided adequate reasons for the decision. Consequently, the court set aside the Minister's decision and remitted the matter back to the Minister for reconsideration, ensuring that all relevant factors were properly weighed and that procedural fairness was observed.

Orders

Orders of the court

The decision by the Minister for Fisheries to grant a non-transferable charter fishing boat licence to Mr. Peter Smith is set aside. The matter is remitted for the Minister’s reconsideration.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Smith v. Minister for Fisheries [2003] NSWADT 84
DIVISION:	General Division
PARTIES:	APPLICANT Peter Smith RESPONDENT Minister for Fisheries
FILE NUMBER:	023205
HEARING DATES:	17/01/2003
SUBMISSIONS CLOSED:	01/24/2003
DATE OF DECISION:	04/24/2003
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Charter boat fishing licence - grant of licence - Fisheries Management Act - charter boat fishing licence - grant of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Amendment (Miscellaneous Provisions) Regulation 2001 Fisheries Management (General) Regulation 1995 Fisheries Management (General) Regulation 2002 Fisheries Management Act 1994
CASES CITED:	Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150 Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 Murphyores Incorporated Ltd. v. The Commonwealth (1976) 136 CLR 1 Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 Surinakova v Minister For Immigration, Local Government And Ethnic Affairs (1991) 33 FCR 87 Jones v Dunkel (1959) 101 CLR 298 Citibank Limited v Federal Commissioner of Taxation (1988) 88 ATC 4714 Mohammed Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Hill J, 12 December 1989)
REPRESENTATION:	APPLICANT R Horsley, barrister RESPONDENT J Klarica, barrister
ORDERS:	The decision by the Minister for Fisheries to grant a non-transferable charter fishing boat licence to Mr. Peter Smith is set aside. The matter is remitted for the Minister’s reconsideration.