Stevens v Minister for Fisheries

[2001] NSWADT 80

CITATION:	Stevens -v- Minister for Fisheries [2001] NSWADT 80
DIVISION:	General Division
PARTIES:	APPLICANT Paul Douglas Stevens RESPONDENT Minister for Fisheries
FILE NUMBER:	003233
HEARING DATES:	14/11/2000
SUBMISSIONS CLOSED:	11/14/2000
DATE OF DECISION:	05/21/2001
BEFORE:	Rice S - Judicial Member
APPLICATION:	Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994
CASES CITED:	Greenaway -v- Director, Department of Fisheries [2000] NSWADT 173 Henderson & anor -v- Minister for Fisheries [2000] NSWADT 182 Madge -v- Minister for Fisheries [2001] NSWADT 73
REPRESENTATION:	APPLICANT C Ravenscroft, barrister RESPONDENT C Cory, solicitor
ORDERS:	1. The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicant is not eligible for an ‘Estuary General Restricted Fishery -Trapping’ endorsement, is set aside.; 2. In substitution the decision is made to refer the matter back to the review panel for further consideration of the applicant’s eligibility for an ‘Estuary General Restricted Fishery – Trapping’ endorsement, together with a recommendation that the panel take account of the reasons of the Tribunal in these proceedings.; 3. Pursuant to s88 of the Administrative Decisions Tribunal Act no award of costs.

REASONS FOR DECISION

Decision

1 In my view Mr Stevens is eligible for the endorsement he seeks. Mr Stevens’ application is therefore successful. The effect of this for him is that the review panel will reconsider his eligibility for an endorsement having regard to these reasons.

Reasons for decision

2 Mr Stevens owns fishing business FB1849 and holds a commercial fishing licence. On 17 October 1996 he applied for an ‘Estuary General Restricted Fishery – Trapping’ endorsement on his commercial fishing licence.

3 The Minister advised Mr Stevens that his application had been refused. Mr Stevens requested a review of that decision by the Restricted Fisheries Review Panel.

4 The Restricted Fisheries Review Panel recommended to the Minister that Mr Stevens’s application for the endorsement be refused. By letter dated 16 June 2000 Mr Stevens was advised of the Minister’s decision, in accordance with the review panel’s recommendation, to refuse the endorsement.

5 On 10 July 2000 Mr Stevens applied to the Administrative Decisions Tribunal for review of the Minister’s decision.

Reviewable decision

6 The reviewable decision for this Tribunal is the Minister’s decision, advised to Mr Stevens by letter dated 16 June 2000, to accept the review panel’s recommendation not to issue him with the endorsement.

Applicable law

7 By s113(2) of the Fisheries Management Act 1994 ( FM Act) :
(e)ligibility for endorsement of commercial fishing licences is to be determined in accordance with the regulations.

8 The ‘Estuary General Restricted Fishery –Trapping’ endorsement sought by Mr Stevens is provided for in Division 2D of Part 8 of the Fisheries Management (General) Regulation 1995 ( FM Reg) , and the eligibility requirements for that endorsement are in cl.191N.

9 For any class of “estuary general restricted fishery” endorsement, cl.191N(1) of the FM Reg prescribes two ‘general requirements’. The first is ownership of a licenced fishing boat. The second is the submission of at least 12 estuary waters catch returns in any 4 years from 1896 to 1993, at least one of which relates to a month before 1991.

10 Clause 191N(5) then prescribes specific eligibility requirements for endorsement for trapping: by subclause (a) a fisher must fulfil the general requirements, and by subclause (b) a fisher must have submitted to the Director at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that fish (other than eels and mud crabs) were taken using a fish trap or a hoop or lift net and at least one of those returns is for a month prior to January 1991.

11 The issue is whether Mr Stevens’s catch returns meet the requirements of cl.191N(5)(b) by indicating that fish were taken using a fish trap.

Eligibility

12 The Minister agrees that Mr Stevens satisfies the general requirements for any Estuary General Restricted Fishery endorsement in cl.191N(1). Mr Stevens then needs to satisfy the particular requirement in clause 191N(5) (b) for a Category Two Haulingtrapping endorsement.

13 The Minister acknowledges that Mr Stevens can show one catch return which records that fish were taken using a fish trap: that for February 1987. That return is prior to 1991. The Minister says that none of Mr Stevens’ other returns records that fish were taken using a fish trap, and so he fails by seven catch returns to satisfy the eligibility requirement.

14 Catch returns submitted by a fisher do not 'record' the fact that fish were taken using a fish trap. They record the fact that fish traps were used, and they record the fact that fish were taken. It must then be inferred that the traps recorded were used to take the fish recorded. When, as in Mr Stevens’s case, other fishing methods are recorded, doubt can arise as to which method was used to catch which fish.

15 Mr Stevens agrees says that of his other catch returns at least seven indicate that fish were taken using a fish trap. The Minister says that those catch returns indicate that the fish were taken as by-catch from Mr Stevens’s prawn netting.

16 The catch returns Mr Stevens relies on are in the period 1986 to 1989, when the Form 49 was in use as the form for catch returns.

17 In saying that the catch returns "indicate" that traps were used to take the fish, Mr Stevens relies on:
• the fact that the catch returns record estuary waters species as having been taken
• the fact that some of those species are not, he says, caught in prawn nets
• the fact that some of those species are not, he says, likely to be caught in prawn nets
• evidence that supports his claim he was using traps at the time that his catch returns showed catch of these species
• evidence that supports his claim he caught fish with traps at the time that his catch returns showed catch of these species.
18 In saying that the catch returns do not "indicate" that traps were used to take the fish, the Minister relies on the following:
• the fact that the catch returns record only small quantities of estuary waters species as having been taken
• the disproportionate effort and cost it says would be involved in taking small quantities of estuary waters species by traps
• Mr Stevens’ failure to record trapping as a method when he had the opportunity to do so
• Mr Stevens’ failure to validate the Department’s catch history.


Background

19 Mr Stevens fishes in both estuarine and ocean waters. His estuarine fishing is, he says, principally netting for prawns, with some fish trapping. Whether and to what extent Mr Stevens was trapping fish in estuarine waters is the factual issue in these proceedings.

20 Mr Stevens was ocean fishing when he was not netting for prawns. In his ocean fishing Mr Stevens used fish traps. Mr Stevens says that, as well, he used fish traps in his estuarine fishing, to complement his prawn netting.

21 In the period to July 1990 Mr Stevens was completing ‘Form 49s’ as catch returns for all his fishing. A Form 49 recorded on the one form all fish “taken from ocean and estuarine waters”. In Form 49s the first page allowed the recording only of the ‘main method’ in the month of fishing for prawns, and the ‘main method’ in the month of fishing for fish. There was no distinction drawn between methods used in ocean and estuarine fishing.

22 The distinction between ocean and estuarine fishing activities was made only in relation to the species caught: page two of Form 49 recorded the species of fish caught in the ocean, and page three recorded the species of fish caught in estuarine waters.

23 For the method of catching prawns Mr Stevens consistently recorded “prawn set pocket net”. For the method of catching fish Mr Stevens, despite being invited to record only the ‘main method’, in fact recorded at least two and sometimes three methods: trolling, trapping and longlining.

24 Trolling and longlining are ocean fishing methods. Mr Stevens used trapping as a method for both ocean and in estuary waters.
Recording of estuary waters species taken

25 Mr Stevens' Form 49 catch returns clearly state that trapping was a method used, and that estuarine fish were caught. But Mr Stevens does not say that when he recorded the trapping method he was necessarily recording it for the estuarine waters catch. The highest he puts it is that the forms are ambiguous on their face. He says, however, that in recording certain species of estuarine fish the forms indicate the use of traps to catch them, whatever method is recorded.

26 A catch return need not explicitly record that fish were taken using a particular method to satisfy the requirement that use of a method is ‘indicated’. The Tribunal can make a reasonable inference from the catch return as a whole, assisted by any relevant evidence, as to whether the catch return does “indicate” the use of a method (see eg Greenaway -v- Director, Department of Fisheries [2000] NSWADT 173; Henderson & anor -v- Minister for Fisheries [2000] NSWADT 182; Madge -v- Minister for Fisheries [2001] NSWADT 73).

27 As I said in Madge, the most usual ‘indication’ in the catch return is the recording of particular species having been caught, opening up the possible inference that a certain method was used to catch that species.

28 Mr Stevens says that the catch returns which show that estuarine fish species were caught, properly understood, indicate that trapping was the method used to catch them.

29 In light of the ambiguity as to the method specified on the returns, the only other information in the catch returns from which I can infer the method used is the quantity and species of fish taken.

30 Contrary to submissions made on Mr Steven’s behalf to the Department and to me, the quantity of the catch is relevant to deciding eligibility. Whether it is reasonable to infer that fish were taken using traps will depend in part on the quantities that have been recorded: a small quantity might reasonably lead to the inference that the catch was by-catch from another method.

31 As is commonly the case in these types of proceedings, this matter requires me to deal with a matter which is really one of specialist knowledge: when was a recorded quantity of species caught using the appropriate fishing method, and when was it caught as by-catch from use of another fishing method? Neither an applicant nor the Department has, in my experience in other matters, relied on expert evidence, and they do not in this matter. In the absence of independent expert evidence the Tribunal must draw inferences based on the available material and has, on occasions, accepted the evidence of an applicant as providing some expert guidance. An issue with this latter course is the applicant’s obvious interest in the Tribunal’s findings. In this matter I have no reason to doubt Mr Stevens’ truthfulness. I discuss further below the extent to which, however, I can rely on his evidence of an expert nature.

32 Mr Stevens has identified eight catch returns. These, he says, with other evidence, indicate that that fish were taken using traps, along with the one catch return of February 1987 conceded by the Minister. In all they are for the months of:
January 1987
February 1987
March 1987
May 1987
October 1987
November 1987
December 1987
January 1988

Likelihood of species being taken in prawn nets


33 Looking first at the catch returns themselves, they show small quantities of catch of many estuary water species. Mr Stevens’ evidence is, by way of a concession on his part, that some of those species were commonly by-catch in his prawning net. Those species include river garfish, tailor, silver biddy and squid. Occasionally, he says mud crabs will be by-catch in the prawning net but could as well be caught in traps.

34 Ms Stevens says that rarely, but possibly, sand whiting and shark will be by-catch in a prawning net; more usually they will be caught in traps. Mr Stevens is adamant that trevally and bream were never by-catch in his prawning net. In fact, it was specifically bream he was looking for with his traps. Because of the habits of bream and the nature of the prawn net, bream would only be caught in a prawn net if they are sick, with sores on them. Fish with sores on them were not sold, so were not recorded on catch returns. It follows that bream on Mr Stevens’ catch returns were not sick, and so were taken in traps.

35 Accepting Mr Stevens’ evidence, a catch return showing a catch of bream, and/or a catch of trevally, regardless of the quantity, would indicate the use of traps without the need for further evidence; there can be no question of those species being by-catch. A catch return showing a catch of sand whiting or shark would raise the possibility that traps were used, but more evidence would be needed to be able to reasonably infer they were caught traps and not as by-catch, particularly if the quantities were small.

36 In the material before me I can identify twelve of Mr Stevens' catch returns in the years 1986 to 1988 inclusive which record catches of bream and trevally, and in some cases of sand whiting and shark, as follows:

Month	Bream / trevally	Sand whiting / shark
September 1986	Bream	Sand whiting
November	Bream	Sand whiting and shark
December	Bream	Sand whiting
January 1987	Bream and trevally	Sand whiting and shark
February	Bream
March	Bream
May	Bream
October	Bream	Sand whiting and shark
December	Bream	Shark
January 1988	Bream	Sand whiting and shark
October	Bream
December	Bream	Sand whiting


37 Catch returns in the years 1989 and 1990 record further catches of this nature which I have not listed.

38 Accepting Mr Stevens’ evidence as to what inference must necessarily be drawn from a catch of bream and trevally, and what inference is reasonable suggested by a catch of sand whiting and shark, the table above shows, as required by cl.191N(5)(b), “at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that fish (other than eels and mud crabs) were taken using a fish trap . . . and at least one of those returns is for a month prior to January 1991”.

39 As I said in Greenaway , the critical issue as to which the Minister must be satisfied is that the person submitted “at least 8 estuary waters catch returns” which indicate the use of the relevant fishing method. There is no need to identify 8 catch returns for particular months, only that there are at least 8 which indicate the use of the relevant fishing method.

40 The table above is based on Mr Stevens evidence as to the species which would not be caught as by-catch. As I have said, I have no reason to doubt Mr Stevens’ truthfulness. His credit was not put in issue. I accept that the opinions he has expressed regarding catching bream, trevally, shark and sand whiting are honestly held. I must however have some reservations relying solely on his, or any other applicant’s, expertise in a matter such as this, where eligibility turns on the very issue on which the applicant is giving evidence of an expert nature.

Other evidence

41 There is no other expert evidence available to me on the question of what species are caught in traps and not in nets. There is however other evidence which is relevant to the likelihood, or not, of fish having been taken in traps.

42 In his evidence Mr Stevens says that he had about 10 fish traps which he used in estuarine waters. They were converted lobster traps and he used about 5 of them at any one time. Mr Stevens used the traps while he was prawning.

43 The prawn season is from September to April/May. Netting for prawns is undertaken when there is no moon (‘the dark’), so for between 10 and 14 days each month.

44 Mr Stevens says his practice was to drop the traps near the oyster leases, looking for bream, on his way to setting his pocket net for prawns during the dark.

45 Mr Stevens says he would put out at least 4 traps, and would pull them up traps 8 or 10 times to check what had been taken. He says he did this in each month from September to April/May during at least 1986 until 1991, which is for at least 48 months.

46 In a written statement tendered to me Mr Noel Gogerly says
I . . . have been fishing for 29 years and have varied experience and local knowledge of prawn set pocket netting . . . I have found that taking of fish in a pocket net is a rare occurrence. The only exception is if one was working flood waters when the water is very muddy and dirty.

47 Mr Gogerly puts the likelihood of by-catch at a much lower level than does Mr Stevens in support of his own application. Not having heard from Mr Gogerly, and in light of Mr Stevens’ evidence against his own interests, I do not accept that “taking of fish in a pocket net is a rare occurrence. The only exception is if one was working flood waters”. I do however consider that Mr Gogerly’s evidence lends support to Mr Stevens’ contention that it should not be assumed, as it has been by the Minister, that small quantities of all species estuary waters fish recorded in catch returns should be assumed to be by-catch.

48 Mr Robert Wilson was the District Inspector of Fisheries in the Wallis Lake District, in which estuarine waters Mr Stevens fished, from 1983 until an unspecified date. In a written statement tendered to me Mr Wilson says, relevantly,
Paul Stevens was then engaged in the fishing industry in the following methods. Lake Fishing: Trapping for fish and crabs, Prawning and occasionally meshing.

49 I did not hear from Mr Wilson so I am unable to ascertain the time and period he speaks of, or the reliability of his knowledge of Mr Stevens’s fishing methods. The Restricted Fisheries Review Panel did hear evidence from him, and expressed the reservation only that he was unable to specify particular months. I have said above that the requirement of showing “at least” 8 catch returns does not require an applicant to precise months. Mr Wilson’s statement is relevant to, and of assistance in, assessing the probability that the species and quantities of estuary waters fish recorded in any of the catch returns were caught using fish traps.

50 In an affidavit tendered to me Ms Joanne Stevens deposes, relevantly,

1 I am the wife of Paul Douglas Stevens . . .

2 . . .

3 In have knowledge form my observations of my husband’s use of fish traps in Wallis Lake during the period 1986-1993 . . .

4 I recall my husband had lake traps stored at our home . . . I recall my husband prawning during that period of time in conjunction with Antonio Fernandez.

5 I recall my husband taking traps from the yard to his boat and when he would return he would not have the traps with him. This was a regular occurrence and over the prawning season I would estimate that my husband would take traps two or three times a week over a six month period. That happened consistently over the years 1988, 1989, 1990 and 1991.

6 From time to time my husband would make comment to me about “getting a few in the traps”.

51 Ms Stevens’ affidavit is relevant to, and of substantial assistance in, assessing the probability that the species and quantities of estuary waters fish recorded in catch returns in the period 1988 to 1991 were caught using fish traps.

52 In a statutory declaration tendered to me Mr Gary Luchi declares,
Whilst employed as a District Fisheries Officer for NSW Fisheries during the period 1985 to 1989 at Forster/Tuncurry I recall that Paul Stevens a licensed commercial fisher was engaged in estuary fish trapping as part of his regular fishing activities.

As District Fisheries Officer I was required to patrol the Wallis Lake waterways regularly both day and night and I recall regularly seeing Mr Stevens engaged in fish trapping whilst on many of these vessel patrols.
It is my opinion based on observing Mr Stevens commercial fishing operations over the period 1985 to 1989 that estuary fish trapping made up one of the facets of Mr Stevens’ regular commercial fishing operations.

53 Mr Luchi’s declaration is relevant to, and of substantial assistance in, assessing the probability that the species and quantities of estuary waters fish recorded in catch returns in the period 1986 to 1989 were caught using fish traps.

54 In a written letter to Mr Stevens tendered to me, Mr Brett Vercoe says:
. . . during the years I was stationed at Tuncurry as NSW Fisheries District Officer (March 1988 to June 1994) I witnessed your activities as a licensed commercial fisher. One of the fishing activities that I observed you undertaking was crab trapping in the Wallis Lake estuary.
I cannot find records in my diary or remember any specific dates on which you were observed crab trapping, however I can readily recall checking your activities on the water whilst you were tending crab traps marked with your details.

55 Mr Vercoe’s letter is relevant to, and of substantial assistance in, assessing the probability that the species and quantities of estuary waters fish recorded in catch returns in the period 1986 to 1989 were caught using fish traps.

56 In an affidavit tendered to me Mr Antonio Fernando deposes, referring to joint fishing activities between himself and Mr Stevens,
. . . the number of occasions on which we set fish and crab traps while we were prawning in the Wallis Lake system far exceeded [8] . . . In fact while we were prawning on average 5 – 10 nights per month, during the season each year, we would set fish and crab traps on approximately 50% of those outings. Whether or not we set these traps while we were prawning was determined by such factors as weather, position, of prawning sites (dictated by pegs drawn in prawn ballot) and time limitations. Often it was a disappointing result from these traps but as we were consistent in this practice over time it would make a contribution to the total catch for the season as well as providing for the family table.

57 Mr Fernandes’ affidavit is relevant to, and of substantial assistance in, assessing the probability that the species and quantities of estuary waters fish recorded in catch returns in the period 1986 to 1989 were caught using fish traps.

58 In the material I describe above, reference is made variously to the use of traps, and to fish having been caught in traps. Using traps is not the same as catching fish in the traps that are used, and the requirement for eligibility is that “fish . . . were taken using a fish trap”. But the use of traps is clearly relevant to the question of whether fish were caught in traps.

The small quantities of fish taken

59 The Minister says that the species and small quantities of estuarine waters fish recorded in the catch returns indicate that trapping was not the method, but that the fish were by-catch from the prawning net. The Minister says that when trapping is recorded as the method then that is referring only to the use of traps in ocean waters.

60 The Minister, through the Department’s officers, has acted on this interpretation when making an electronic record of the hand-completed catch returns. This electronic record is the ‘catch history’ as recorded by the Department, based on the catch returns. In Mr Stevens’ case the Department has listed trapping, whenever recorded by Mr Stevens, as an ocean fishing method. It has recorded prawn netting as Mr Stevens’ only estuary waters method. It has not recorded trapping as an estuarine waters fishing method, despite the recording in the catch returns of estuarine waters fish. These fish, says the Minister, were by-catch from the prawn nets.

61 Mr Stevens agrees that he didn’t catch much of the species of fish ordinarily caught in fish traps. He says that if he put out, say, six traps then he might not take any in three of them, and he might take small quantities of bream in the other three.

62 The Minister says that, in light of what he assumes to be the disproportionate cost and effort for a small catch, it is unlikely that Mr Stevens did in fact use traps for the catch. The catch, he says, is more likely to be by-catch from prawn netting.

63 In reply Mr Stevens says that there was no cost and little effort involved in his using the traps. He would throw the traps off the boat on his way to prawning, and pick them up from time to time to check them. He concedes that the main reason he was there at all was to net prawns, but says that the catch from the traps would pay for the month’s fuel and a bit of pocket money.

64 Consistently with this, Mr Antonio Fernando, with whom Mr Stevens shared traps, deposed as I noted above:
Often it was a disappointing result from these traps but as we were consistent in this practice over time it would make a contribution to the total catch for the season as well as providing for the family table.

Failure to record trapping as a method


65 Mr Stevens does not rely on catch returns from the period when the Form 19s were used. He relies only on the earlier Form 49s to meet the requirements of cl.191N(50(b).

66 The Minister refers however to the Form 19s as material which counters Mr Stevens’s submission that his recording of estuarine species in the Form 49s should be taken to indicate the use of traps. If that is the case, asks the Minster, why did Mr Stevens not record trapping for estuarine fish when he had the opportunity to do so on the later Form 19s?

67 From July 1990 Mr Stevens was completing ‘Form 19s’ as catch returns for his estuary waters fishing. There was no overlap in these forms with ocean fishing activities: the forms related exclusively to fishing in estuarine waters. There are two versions of Form 19, the first in use from July 1990 and the second from, it appears, February 1992. In different words and format, but to the same effect, the two versions of Form 19 require fishers to identify each fishing method used in the month, to record the number of days each method was used, and to record the number of days more than one method was used.

68 Mr Stevens did not record trapping as an estuarine waters method on these forms, although he recorded catch of estuarine waters fish. He says that it was an error. He says his estuarine fishing was principally for prawns, and on his estuarine waters returns he merely recorded his main method, the set pocket net he used for prawns. This, I note, would be consistent with Mr Stevens having recorded trapping for his ocean waters catch but not for his estuarine waters catch in the Forms 49s, as the Minister maintains was the case.

Failure to validate catch history

69 The Minister says that Mr Stevens did not take the opportunity, offered by the Department, to review the validated catch history, and to ensure that it did record trapping as a method used in estuarine waters.

70 Mr Stevens says he did not engage in the extra paperwork and process of catch validation because he had checked the quantities on the Department's catch history, and was satisfied with them. He says he did not understand that the recording of the fishing methods was important. He knew only that the instructions from the Department had been not to diversify. He didn’t diversify, he kept on doing what he had been doing, and he was confident that he’d filled the forms in correctly.

71 I do not see that the validated catch history process is relevant to assessing eligibility for endorsement. The validated catch history process is a means by which the Department proposes to a fisher what their catch history is, by presenting to the fisher its computer records of the fisher's hand-completed catch returns, for the fisher to agree with or to contest. In doing so the Department is acting under the relevant part of cl.135(3) of the FM Reg :
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.

72 The catch history as determined by the Director is relevant to a number of issues arising in relation to restricted fisheries, but not to assessing a fisher’s eligibility for endorsement under cl.191N(1)-(10). Those eligibility requirements refer to the catch returns submitted by the applicant fisher, not to catch history or to any summary of the actual catch returns submitted by a fisher.

73 Mr Stevens chose not to take part in the process to validate the Department’s catch history based on his catch returns. Unless he is involved at some future time in an activity or transaction for which catch history is relevant, he may never have any need for a validated catch history. Certainly to obtain an endorsement under cl.191N(5) he has no need for a validated catch history. If the Department’s interpretation of the catch returns Mr Stevens submitted is different from Mr Stevens’ interpretation, then that is to be resolved in these proceedings. Mr Stevens was under no obligation to address it in the validation process. His decision not to validate the Department’s catch history can raise no estoppel against him now, and has no relevance to my assessment of what is indicated by the catch returns he submitted.

FINDING

74 I am satisfied that Mr Stevens used traps consistently in the period 1985 to 1991. I am satisfied that Mr Stevens has answered the Minister’s speculative contention that the effort involved in using to traps to take a small catch was so disproportionate as to raise doubts as to whether the traps were used at all.

75 That Mr Stevens used traps consistently in this period adds significant weight to Mr Stevens’ contention that his catches of bream and trevally, and to a lesser extent sand whiting and shark, indicate his use of traps to take that catch.

76 I am satisfied that the catch returns relied on by Mr Stevens indicate that the fish which were taken in those months were caught using the trapping method. I am satisfied that there are at least 8 catch returns which satisfy cl.191N(50(b), and that there are many more.

77 Having regard to the relevant factual material and the applicable law, I am of the view that Mr Stevens is eligible for an ‘Estuary General Restricted Fishery – Trapping’ endorsement.

78 Accordingly the correct and preferable decision is that the Minister’s decision to accept the review panel’s recommendation be set aside.

ORDERS

79 I make the following orders pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act :
1 The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicant is not eligible for an ‘Estuary General Restricted Fishery – Trapping’ endorsement, is set aside.
2 In substitution the decision is made to refer the matter back to the review panel for further consideration of the applicant’s eligibility for an ‘Estuary General Restricted Fishery – Trapping’ endorsement, together with a recommendation that the panel take account of the reasons of the Tribunal in these proceedings.
3 Pursuant to s88 of the Administrative Decisions Tribunal Act I make no award of costs.