Thornton v Minister for Fisheries
[2000] NSWADT 131
•09/13/2000
CITATION: Thornton -v- Minister for Fisheries [2000] NSWADT 131 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
George Thornton
Minister for FisheriesFILE NUMBER: 993200 HEARING DATES: 10/02/2000 SUBMISSIONS CLOSED: 03/02/2000 DATE OF DECISION:
09/13/2000BEFORE: Skinner PM - 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: Virtu v Director, NSW Fisheries 2000 NSWADT 75
Searl v Director, NSW Fisheries [2000] NSWADT 53
Phelps v Director, NSW Fisheries [2000] NSWADT 83REPRESENTATION: APPLICANT
In person
RESPONDENT
C COry, solicitorORDERS: 1. The decision to refuse the applicant a line fishing (eastern zone) endorsement on his commercial fishing licence is set aside; 2. In substitution for that refusal, the Tribunal orders that the applicant be issued a line fishing (eastern zone) endorsement on his commercial fishing licence; 3. No award as to costs.
Application
1 This is an application by Mr George Thornton for review by this Tribunal of decisions by the respondent which the applicant characterised in his Application for Review filed with the Tribunal on 26 August 1999 as:
- (a) Refusal [of the Director of Fisheries] to conduct an Internal Review of the refusal to grant an endorsement in the Ocean Trap & Line Fishery, dated 3 August 1999; or alternatively or additionally
(b) The refusal of the Minister for Fisheries to refer the application for the grant of an endorsement in the Ocean Trap & Line Restricted Fishery, pursuant to the provisions of Clause 214D(1)(b) of the Fisheries Management (General) Regulation 1995, dated 23 November 1998; or alternatively or additionally
(c) The refusal by the Minister for Fisheries to grant of an endorsement in the Ocean Trap & Line Restricted Fishery, pursuant to the provisions of Clause 191F of the Fisheries Management (General) Regulation 1995.
2 The application for review of the decision complained of at (a) above was dealt with by Deputy President Hennessy in a directions hearing on 24 September 1999. Deputy President Hennessy directed that an internal review take place, and the Statement of Reasons pursuant to s 53(7) of the Administrative Decisions Tribunal Act 1997 was directed to be filed with the Tribunal.
3 The Statement of Reasons was filed with the Tribunal on 14 December 1999. It indicated that despite the internal review the original decision was affirmed by the Minister.
4 On the way that the application was conducted by both parties before me on 10 February 2000, the second decision complained of, (b) above, was also substantively irrelevant.
5 In the hearing on 10 February 2000 the evidence and submissions were not limited to the original refusal by the Minister for Fisheries to grant the applicant an endorsement in the Ocean Trap and Line Restricted Fishery, pursuant to the provisions of Clause 191F of the Fisheries Management (General) Regulation 1995 (‘the Regulations’). There was also material before me as to decision of the review panel affirming the refusal of the Minister, as to the Minister’s declining to reopen the review panel hearing when requested to do so by the applicant’s then solicitors, and as to the internal review conducted by the Department when ordered to do so by Deputy President Hennessy.
6 The ‘Statement of Reasons for Decision’ filed by the respondent on 14 December 2000 refers to all that reasoning process.
7 In my opinion the reviewable decision before me of which the applicant complains, despite the drafting of the application filed by the applicant, is the decision to refuse him the Line fishing (eastern zone) endorsement. Whether the correct analysis is that there was one overall decision making process or a series of separate decisions is, in my view, immaterial (see my comments on this issue in Virtu v Director, NSW Fisheries 2000 NSWADT 75, at [16]-[23]).
Jurisdiction
8 The endorsement sought by the applicant is clearly ‘a relevant authority’ within the meaning of ss 125 and 126 of the Fisheries Management Act 1994 (‘the Act’), and the refusal to issue same to the applicant gave him a right under s 126(1)(a) to apply to this Tribunal for a review of that decision.
9 The respondent through his counsel Ms Cory took no issue with the Tribunal having jurisdiction.
Background
10 Part 4 Division 3 of the Act contains provisions, mostly delegating the detail to the Regulations, for the creation of restricted fisheries and the authorisation of commercial fishers to take fish for sale in such fisheries only if they have an endorsement to that effect on their commercial fishing licence.
11 On 7 October 1996 the applicant applied for two endorsements enabling him to fish commercially in the ‘Ocean trap and line restricted fishery’. Part 8 Division 2B of the Regulations governs that restricted fishery.
12 The applicant applied for a ‘Line fishing (western zone) endorsement’ pursuant to Clause 191E(2) of the Regulations and a ‘Line fishing (eastern zone) endorsement’ pursuant to Clause 191E(3) of the Regulations.
13 The western zone of the restricted fishery is above the continental shelf. The eastern zone is that part of the restricted fishery east of the continental shelf.
14 The Minister was satisfied that the applicant met the criteria for eligibility set out in Clause 191E(2) and he was granted a Line fishing (western zone) endorsement
15 In relation to the eastern zone endorsement, Clause 191E(3) of the Regulations prescribes two conditions:
- 191E Eligibility for endorsement
(3) Line fishing (eastern zone) endorsement. A person is eligible for a line fishing (eastern zone) endorsement if the Minister is satisfied that:
- (a) the person owns a fishing boat and the fishing boat licence for the boat has an endorsement from the Director known as an “OG1” authorisation (relating to use of the boat in offshore waters) and
(b) the person submitted to the Director at least 4 ocean waters catch returns in the years 1986 to 1990, and 2 ocean waters catch returns in the years 1991 to 1993, each of which indicate that at least 2 of the following species of fish were taken by line methods:
- blue-eye trevalla
hapuku
ling
bass groper
gemfish.
16 The Minister accepted that the applicant met the first condition, set out in Clause 191E(3)(a). However he did not accept that the applicant met the condition set out in Clause 191E(3)(b), and on 20 February 1997 advised the applicant of his refusal to endorse the applicant’s commercial fishing licence under Clause 191F of the Regulations with a Line fishing (eastern zone) endorsement.
17 The appellant then applied to the review panel pursuant to the provisions of Part 8 Division 6 of the Regulations. He did not present to the review panel all the material that he has presented to this Tribunal. He stated to me in the hearing on 10 February 2000 that this was because he had misplaced his records in a house move, and only found them later, and he had had difficulties in contacting the persons who provided the statements tendered to me.
18 On 29 April 1998 the review panel recommended that the Minister affirm his original decision, and the Minister did so, advising the applicant of that by a letter from the Director dated 24 July 1998.
19 In 23 October 1998 the applicant through his then solicitors wrote to the Department and requested a re-opening of the review hearing on the basis of seeking to present fresh evidence (which turned out to be most of the material put to me). That course was considered impossible by the Department and the applicant was advised of his rights to approach this Tribunal, which he did.
20 The internal review took place late last year after the application to this Tribunal had been made, as noted above.
The issue
21 The respondent does not dispute that the applicant used line methods in catching fish shown in the ocean waters catch returns he submitted between 1986 and 1993.
22 Neither is there any dispute that the applicant submitted at least four ocean waters catch returns in the years 1986 to 1990 and at least two ocean waters catch returns in the years 1991 to 1993.
23 There is mention in the Department’s ‘Review file’ filed with the Tribunal, and again in argument before me, of a concept of a requirement for ‘targeting’ of the species listed in Clause 191E(3)(b) by the applicant. However, I do not accept this as some additional matter that the applicant, or any other person seeking a Line fishing (eastern zone) endorsement, must establish.
24 Essentially, the policy of the new fisheries management scheme introduced by and pursuant to the Act in 1995 - as evidenced by the Act, the Regulations, and the Departmental guidelines promulgated pursuant thereto - is that restricted fisheries are so restricted by limiting access to them to fishers with title to historical participation in the relevant fishery. That title may be acquired either through their own efforts in building up a catch history recognised by the Department, or through transfer to them, within the rules of the scheme, of some other fisher’s catch history. For a more detailed discussion of the scheme see Searl v Director, NSW Fisheries [2000] NSWADT 53; Virtu v Director, NSW Fisheries [2000] NSWADT 75; and Phelps v Director, NSW Fisheries [2000] NSWADT 83.
25 Consistently with this approach Clause 191E(3)(b) sets an empirical test to establish participation in the eastern zone of the ocean line restricted fishery. I was informed in the hearing before me that the fish species listed in Clause 191E(3)(b) were all bottom-dwelling deep sea fish not found in the waters above the continental shelf that form the western zone of this restricted fishery. Thus to catch them, the fisher must fish in the eastern zone. Evidence of having caught sufficient of the fish on sufficient occasions is taken to establish historical participation. The drafter of Clause 191E(3)(b) has seen fit to set a low threshold of sufficiency as to number of fish and occasions of their catching.
26 I can see no basis, in the Act or the Regulations, or any other material put to me in this case, or of which I am aware from my consideration in other cases dealing with the fisheries management scheme in this State, for grafting onto this simple test for eligibility some further test requiring an examination of whether or not the applicant was targeting these fish.
27 Given that the applicant met the condition in Clause 191E(3)(a), and the acceptance by the Department that he was a line fisherman, the issue before the Minister or his delegate when the applicant originally appplied for a Line fishing (eastern zone) endorsement was by Clause 191E(3)(b) defined to be whether the Minister could be satisfied that at least four of the ocean waters catch returns submitted by the applicant in the years 1986 to 1990, and at least two of the ocean waters catch returns submitted by the applicant in the years 1991 to 1993, indicate that the applicant caught at least two of the following species of fish - blue-eye trevalla, hapuku, ling, bass groper, and gemfish.
28 By the terms of Clause 191E(3)(b) the Director or his delegate is limited to a consideration of the catch returns submitted by the fisher. However Clause 191E(8) of the Regulations expands the Director’s ambit of consideration to the catch history of the applicant. Clause 191E(8) relevantly provides:
- (8) If the Minister is satisfied that the catch history associated with a fishing business satisfies any of the eligibility criteria set out in this clause, the owner of the fishing business is taken to have satisfied that criteria, even if the owner did not personally take the fish for sale or submit any catch returns to the Director.
29 The review panel that dealt with the applicant’s case had a still wider ambit of consideration. Relevantly, Clause 214C of the Regulations provides:
- 214C Grounds for review
- (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.
- (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.
30 The word ‘records’ when used in the phrase ‘verified records’ in Clause 214C(2)(a) must obviously from the context have some distinct meaning to ‘the records relied on to make a determination’.
31 Similarly from the context of Clause 214C(2)(a), and considering it in conjunction with Clause 191E(3)(b) and 191E(8), it is clear that the concept of eligibility is distinct from the concept of what is in the records.
32 It is the eligibility of the applicant for the endorsement that has to be determined, and the records or catch history are to be examined to that end. They are not to be assessed as to their content as an end in itself.
33 In the internal review, the individual conducting same is charged by s 53(4) of the Tribunal Act with considering ‘any relevant material submitted by the applicant’. The Statement of Reasons filed by the respondent reveal that in the internal review the Statutory Declarations tendered by the applicant in the hearing before me were considered.
34 When deciding what is the ‘correct and preferable decision’ pursuant to s 63(1) of the Tribunal Act, the Tribunal ‘may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision’ (s 63(2) of the Tribunal Act).
35 Sec 9(1) of the Tribunal Act provides:
- 9 Who is an administrator?
(1) An administrator, in relation to a reviewable decision, is the person or body that makes (or is taken to have made) the decision under the enactment concerned. Upon my interpretation ‘the administrator who made the decision’ includes the Minister and his delegates and also the review panel, and also the individual who conducted the internal review.
36 In this case ‘administrator’ clearly includes not only the Minister and his departmental delegates and representatives as persons but also the review panel as a body, upon recognising that the decision complained of is the process as a whole resulting in the continuing refusal of the endorsement as at the time that the application came on for hearing before me on 10 February 2000.
37 As well as exercising all of the functions of the administrator, the Tribunal is by s 63(1) of the Tribunal Act to have ‘regard to the material then before it’, by s 73(2) of the Tribunal Act ‘may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice’ and by s 73(3) of the Tribunal Act:
The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
38 In conclusion, I hold that:
- · the substantive issue before me is the eligibility of the applicant to a line fishing (eastern zone) endorsement in the Ocean trap and line restricted fishery;
· that issue is to be determined upon all the material before me and not just the applicant’s ‘catch history records’ as that term may be defined under the scheme of the Act and the Regulations; and
· the condition of eligibility that I must be satisfied that the applicant meets is that in at least four months between 1986 and 1990 and at least two months between 1991 and 1993 the applicant caught at least two of the following species of fish - blue-eye trevalla, hapuku, ling, bass groper, and gemfish.
39 The relevant factual material before me includes the following:
- (a) statements to me from the Bar table and then sworn viva voce evidence before me, upon which he was cross-examined, by the applicant;
(b) sworn evidence before me by the applicant’s wife, essentially as to her filling out of the relevant catch history forms;
(c) statements from two wholesalers to whom the applicant sold his catch during the relevant periods, one in statutory declaration form, stating that the ‘mixed fish’ that they received included ling, blue-eye trevalla and gemfish;
(d) a statutory declaration from a fellow fisherman that he had fished with the applicant and on many occasions helped him unload his catch between 1987 and 1995 and that the applicant had caught fish including hapuka, ling, gemfish and blue-eye trevalla in that period;
(e) a statement dated 1 March 2000 by Ms Jennifer O’Brien Hale, Team Leader of Restricted Fisheries Reviews in New South Wales Fisheries, filed by the respondent at my invitation after the hearing on 10 February 2000, which opportunity was extended by me to enable the respondent to check on the statements in (c) and (d) above;
(f) the Departmental file as to the catch history of the applicant;
(g) the Departmental file as to the review process conducted under Division 6 of Part 8 of the Regulations in respect of the refusal of the subject endorsement; and
(h) copies of the forms for filing catch returns prescribed at the relevant times and which on the evidence of the applicant and his wife were used by her on behalf of the applicant, inserting the details that he told her.
40 From this material I extract the following relevant matters:
- (a) the applicant is a licensed commercial fisherman with a licensed fishing boat and has been commercially fishing in NSW waters since about 1985;
(b) he concentrates his efforts upon kingfish and is the third biggest catcher of kingfish in NSW;
(c) he catches the kingfish by line in the western zone of the ocean line fishing restricted fishery;
(d) for a period of about three months, on average, each year, the kingfish do not run and he moves eastward to catch what other species he can in the eastern zone of the ocean line fishing restricted fishery;
(e) he only has a small boat, 18 foot long, hauls his fishing tackle by hand and the method he used for that alternative fishing was mainly setting ‘trot lines’ because he ‘couldn’t do drop-lining in heavy current’ [T13.6];
(f) he would set his trot-lines ‘… above the walls of the canyons, because sometimes the fish used to come up over the walls of the canyons and feed’ [T 24.2];
(g) when he fished in this way he would ‘catch a bit of everything, a little bit of everything and he would send them to Melbourne as mixed boxes, and that’s when they used to come back as unspecified fish, because I didn’t have enough room on the boxes to put what species there was’ [T13.7 – this was from the Bar Table but the sworn evidence of the applicant was to the same effect];
(h) the applicant’s wife would fill out the catch returns required to be filed with NSW Fisheries once a month, using information that the applicant had told her plus weekly receipts from the Melbourne and Sydney fish markets;
(i) the respondent tendered what I was told were the two relevant catch return forms at the time, and they had spaces for catches of all the species listed in Clause 191E(3)(b) to be noted, except for bass groper, and in the earlier form 49 for the relevant period a category for “Other fish, mixed” with a numerical code and in the later form 19 a category for “Fish, mixed” with another, different, numerical code;
(j) Mrs Thornton stated in her evidence in chief that ‘down in Melbourne when you’d put in a mixed box it’d come back “mixed” so you just – you know, like on the monthly return there’s a thing there for mixed so instead of writing ling fish or things like that I’d just put “mixed”’ [T42.7];
(k) the applicant stated in evidence that he didn’t think that he ever caught a bass groper [T 24.7], but that he did catch from time to time all of the other species of fish listed in Clause 191E(3)(b), but never in sufficient quantities to deal with them other than as he described as I note at (g) above;
(l) the catch history of the applicant was entered into the Department’s computer in 1997 as part of the assessment and validation process under the new management scheme brought in by the Act;
(m) a draft copy of the validated catch history (‘VCH’) was sent to the applicant on 28 June 1997, which he accepted, at least by default of any objection to same;
(n) the VCH shows eighteen monthly entries under the category ‘Fish, unspecified ocean’ for the years 1986 to 1990, with the same numerical code as the form 19 which however did not come into operation until 1990;
(o) the VCH shows five monthly entries under the category ‘Fish, unspecified ocean’ for the years 1991 to 1993; and
(p) the computerised VCH was entered up manually, and the slight variation in terminology (“mixed” to “unspecified”) and the use of the post 1990 code for pre 1990 entries would have been a function of that process.
41 As well as the factual material before me there was filed as noted above a Statement of Reasons for the Decision under Review, and written submissions by the respondent.
42 I also received oral submissions from the applicant and counsel for the respondent in the hearing on 10 February 2000.
The case for the applicant
43 The case for the applicant comes down to a submission that I ought be satisfied that at least four of the seventeen 1986-1990 ‘Fish, unspecified ocean’ entries in the VCH and at least two of the five 1991-1993 ‘Fish, unspecified ocean’ entries represent the catching by the applicant of at least two of the following - blue-eye trevalla, hapuku, ling and gemfish.
44 The applicant relies to this end upon:
- · his evidence as to what he caught and as to how he sold it and how his wife was informed to enable her to fill out the catch return forms;
· his wife’s evidence corroborating him;
· the numerous entries in the VCH of ‘Fish, unspecified ocean’;
· the corroborating statements from the wholesalers; and
· the corroborating statutory declaration from his fellow fisherman.
45 The respondent challenges the specification as to the fish that he caught which is now pressed by the applicant, but in any event also submits as a preliminary issue, through Ms Cory, that I can not go behind the catch history entries in the VCH and consider the additional evidence of the applicant.
46 On this latter point Ms Cory referred me to s 51(4) of the Act, and Clause 128 of the Regulations.
47 Sec 51 of the Act provides as follows:
- 51 Catch history
(1) The catch history of a person is (subject to the regulations) to be determined under and in accordance with the criteria specified by the Minister in the public notice inviting eligible persons to apply for shares.
(2) The criteria are to specify the period before the fishery becomes a share management fishery during which the catch history of a person is to be determined. The criteria may allow persons to choose their best catch history for a specified part of the relevant period.
(3) The criteria are to provide for the recognition of catch history in connection with the transfer of fishing boat licences.
(4) The catch history of a person is, subject to any appeal under this Part, to be determined by the Minister having regard to the records, kept by the Director, of fish taken by the person or such other documents as are prescribed by the regulations.
(5) The Minister may increase the catch history of a person for any period during which the person was unable to engage in the person's usual fishing activities because of the person's duties as a representative of the commercial fishing industry.
48 Clause 128 provides as follows:
- 128 Determination of catch history
- (1) For the purposes of section 51 (4) of the Act, the following documents are prescribed:
- (a) a verified record of a commercial fishers' co-operative,
(b) a verified record relating to the income tax liability of a commercial fisher,
(c) a verified record of any fish processing company (whether a wholesaler or retailer).
49 It was submitted on behalf of the respondent that s 51(4) and Clause 128 prescribe the only material that can be regarded in determining catch history. However, in my opinion it is clear that s 51, and hence subs 51(4) and Clause 128, are confined to the determination of catch histories of persons seeking to enter a share managed fishery. This is not the situation in this case, and in my opinion these provisions are distinguishable.
50 In my opinion the more general Clause 135(3) of the Regulations applies. It relevantly provides as follows:
- (3) 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 …
51 In any event, for the reasons as I set out above, in my opinion the task for the Tribunal in deciding upon this application is not to conduct an arid examination of whether the catch history records of the applicant comply with procedural requirements, but to assess the eligibility of the applicant in the context of his historical participation or not in this restricted fishery.
52 In this case the records kept by the Director led to the compilation in 1997 of the applicant’s VCH, with the unspecified entries referred to above. The VCH left unspecified some fish that the applicant caught, but the material that for the reasons as I set out above I hold that I may consider, specifies this fish. The question is whether it specifies them to the required level to satisfy me that the applicant is eligible for his endorsement.
The correct and preferable decision
53 After the hearing before me on 10 February 2000 Ms O’Brien of the Department was able to locate and check the original NSW Fisheries catch returns of Mr Thornton from which his VCH was prepared. The results of her enquiries are set out in her statement dated 1 March 2000. Some further details of the fish emerged, but Ms O’Brien states that still ‘…in no instance was any relevant nominated criteria species for an Ocean Trap and Line Eastern Zone endorsement specified by the Applicant. Rather other species such as Tuna, Pike, Bonito, Castor Oil Fish, Pigfish and Mackerel were written in.’
54 Nonetheless, some eleven monthly returns of unspecified fish from May of 1987 to 1990 remain completely unspecified, and the statement says nothing about two earlier returns in September 1986 and January 1987. Thus thirteen monthly returns for the period 1987-1990 remain unspecified.
55 Similarly, for the period 1991-1993 the checking of the original catch returns only resulted in the further specification of one monthly catch return – four remain completely unspecified.
56 I am not satisfied that at least four of the ocean waters catch returns submitted by the applicant in the years 1986 to 1990 and at least two of the ocean waters catch returns submitted by the applicant in the years 1991 to 1993 indicate that the applicant caught at least two of the following species of fish - blue-eye trevalla, hapuku, ling, bass groper, and gemfish. Therefore if I were limited to a consideration of the applicant’s case exercising only the functions of the Minister under Clauses 191E(3)(b) or 191E(8) of the Regulations, I would not grant the endorsement and would affirm the decision under review.
57 However, in my opinion by the further relevant factual material before me the applicant has established that he does in fact satisfy the eligibility criteria for the endorsement.
58 I accept the evidence of the applicant about the fish that he caught. He gave sworn testimony and impressed me as a witness of truth. He was corroborated by the sworn testimony of his wife, and by the statements of the two wholesalers and his fellow fisherman. The checks on those statements by Ms O’Brien referred to in her statements confirmed their content. The checks on the original catch returns confirmed the identity of the wholesalers. The identification of other species in the catch returns by the applicant’s wife infers that they were not the species that were returned by her as ‘mixed’. The applicant gave reasonable explanations as to why his record keeping was less than punctilious, and as to why he did not present to the review panel the material he presented to me.
59 That being so, in my opinion the correct and preferable decision, taking account of the Government policy behind Clause 191E(3) which essentially aims to limit participation in this fishery to those with historical entitlements, is to grant to the applicant the endorsement that he seeks.
Orders
60 The formal orders that I make are:
- (1) The decision to refuse the applicant a Line fishing (eastern zone) endorsement on his commercial fishing licence is set aside.
(2) In substitution for that refusal I order that the applicant be issued forthwith a Line fishing (eastern zone) endorsement on his commercial fishing licence.
(3) I make no award as to costs.
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