Van Eden v Minister for Fisheries
[2002] NSWADT 245
•11/25/2002
CITATION: Van Eden -v- Minister for Fisheries [2002] NSWADT 245 DIVISION: General Division PARTIES: APPLICANT
Franciscus (Frank) Maria Van Eden
RESPONDENT
Minister for FisheriesFILE NUMBER: 023095 HEARING DATES: 22/07/2002 SUBMISSIONS CLOSED: 07/22/2002 DATE OF DECISION:
11/25/2002BEFORE: Montgomery S - Judicial Member APPLICATION: Aquaculture permit - cancellation of permit - Fisheries Management Act - aquaculture permit - cancellation of permit MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Legislation Amendment Act 1997
Fisheries Management (Aquaculture) Regulation 1995
Fisheries Management Act 1994
Primary Industries and Energy Research and Development Act 1989 (Cth)CASES CITED: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
McDonald v Director General of Social Security (1984) 1 FCR 354REPRESENTATION: APPLICANT
In person
RESPONDENT
C Cory, solicitorORDERS: The decision to cancel the Aquaculture Permit AP1224 held by Mr Van Eden is affirmed.
1 These proceedings relate to a decision made by the Director, NSW Fisheries as a delegate of the Minister for Fisheries (“the Respondent”), to cancel the Aquaculture Permit AP1224 (“the Permit”) held by Mr Franciscus (Frank) Maria Van Eden (“Mr Van Eden”). The decision to cancel the Permit followed Mr Van Eden’s failure to meet payments on his aquaculture account and the Minister’s Delegate forming the opinion that Mr Van Eden had not shown sufficient cause why the Permit should not be cancelled.
2 By letter dated 8 April 2002 Mr Van Eden requested an internal review of the decision to cancel the Permit. On 30 April 2002 the Director NSW Fisheries wrote to Mr Van Eden and advised him that following that review the original decision to cancel the Permit was re-affirmed.
Decision under Review
3 On 7 May 2002 Mr Van Eden applied to this Tribunal for review of the Respondent’s 30 April 2002 decision. He also applied for an urgent stay of the decision on the basis that he has invested significant amounts of time and money into the development of his lease and that he could never recover that input if the Permit was cancelled. The matter of the stay came before the Tribunal on 17 May 2002 and the stay was granted. That stay remains in force. A timetable for the filing of documents put in place leading to a hearing of the matter on 22 July 2002.
4 The reviewable decision is that of the Minister to affirm the cancellation of the Permit, advised to the Applicant by letter dated 30 April 2002.
Jurisdiction
5 The Tribunal’s jurisdiction arises pursuant to section 160(5) of the Fisheries Management Act 1994 (“the Act”) which provides:
- “ 160 Power to cancel or suspend a permit after a hearing
…
(5) A permit holder may apply to the Administrative Decisions Tribunal for a review of the cancellation or suspension of the holder's permit under this section.”
6 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. “The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made” (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).
7 These are not adversarial proceedings in which Mr Van Eden carries an onus of proof. Mr Van Eden, by making the application, triggers a process of merits review by the Tribunal. Mr Van Eden does not take on the responsibility of having to prove a case, nor does an Applicant cause the Respondent to have to prove a case. Mr Van Eden and the Respondent are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).
8 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Respondent’s, and “there is no presumption that the Respondent’s decision is correct” (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).
9 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).
Relevant Statutory Provisions
10 An aquaculture permit is held subject to certain conditions. Those conditions are detailed in Part 6, Division 2 of the Act. Of particular relevance are sections 152 and 156 of the Act. Section 152 of the Act provides:
- “ 152 Conditions of permits
(1) An aquaculture permit is subject to:
- (a) such conditions as are prescribed by the regulations, and
(b) such conditions as are specified in the permit or as the Minister notifies to the permit holder while the permit is in force.
- (a) conditions regulating the cultivation of the species of fish or marine vegetation to which the permit relates, and
(b) conditions relating to the erection of structures on the area to which the permit relates, and
(c) conditions relating to the escape of fish, effluent or any other thing from the area to which the permit relates, and
(d) conditions requiring the permit holder to enter into a bond or guarantee or other financial arrangement for the due performance of the holder's obligations under this Act (including for the destruction of noxious fish and the restoration of, or removal of material from, the area in which the aquaculture has been undertaken), and
(e) conditions requiring the permit holder to maintain public liability insurance and to indemnify the State and its agents in connection with the undertaking of the aquaculture, and
(f) conditions relating to the review of the commercial farm development plan of the permit holder.
Maximum penalty: In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.
(4) The Minister may, at any time by notice in writing to the holder of the permit, revoke or vary the conditions of an aquaculture permit (other than conditions prescribed by the regulations).
(5) The regulations may make provision for or with respect to bonds, guarantees and other financial arrangements entered into under a condition of an aquaculture permit.”
11 Section 156 of the Act provides:
- “ 156 Annual contribution to cost of administration or research or to other industry costs
(1) A permit holder must, if the regulations so require, pay to the Minister an annual contribution towards any of the following costs:
- (a) the cost of administration of this Part, being a cost that is identified in the regulations as a cost directly attributable to industry,
(b) the cost of monitoring the quality of the environment in which aquaculture is undertaken and of testing the quality of the fish or marine vegetation cultivated,
(c) the cost of carrying out research into aquaculture,
(d) any other costs relating to the aquaculture industry.
(3) The payment required by this section is taken to be a condition of every aquaculture permit.
(4) A contribution payable under this section is in addition to any rental payable by the permit holder for an aquaculture lease.
(5) A contribution is payable under this section even if the aquaculture permit is suspended.
(6) The Minister is to appoint a committee of persons to advise the Minister about the level of services provided to the aquaculture industry for the purposes referred to in subsection (1) (a) and about the amount of contributions for the costs of administration directly attributable to the aquaculture industry. The Minister is to ensure that a majority of the members of such a committee are relevant representatives of the aquaculture industry.”
12 By virtue of section 152(1)(a) of the Act the aquaculture permit holder is obliged to comply with the conditions as prescribed by the regulations. The applicable Regulation is the Fisheries Management (Aquaculture) Regulation 1995 (“the Regulation”). Clause 6 A of the Regulation provides:
- “6A Aquaculture permit holders liable to pay contributions towards cost of administration
(1) Each holder of an aquaculture permit must pay to the Minister an annual contribution towards the costs of administration of Part 6 of the Act that are directly attributable to industry.
Note. See section 156 (1) (a) of the Act.
(2) The annual contribution is payable in respect of the financial year commencing 1 July 2000 and each subsequent financial year.
(3) The amount of the annual contribution is $364.
(4) The annual contribution is payable within 30 days of the issue of the permit, or by instalments. If the contribution is to be paid by instalments, the Minister is required:
- (a) to determine the amounts of the instalments, or the manner in which they are to be calculated, and
(b) to notify the amounts or the manner of their calculation, and the date by which each instalment must be paid, to the permit holder concerned.
(6) A person must pay the annual contribution under this clause in respect of a financial year if the person holds an aquaculture permit at any time during that financial year.
(7) However, if a person is issued with an aquaculture permit after the start of a financial year:
- (a) the Minister may reduce, on a pro rata basis, the person's contribution for that financial year, and
(b) the contribution must be paid within 30 days of the issue of the permit, or by instalments in such manner as may be advised by the Minister in accordance with subclause (4).”
13 Clause 7 of the Regulation provides:
- “7 Aquaculture permit holders liable to pay contributions for research
(1) Each holder of an aquaculture permit must pay to the Minister an annual contribution of the prescribed amount for 1995 and each subsequent year for the purposes of meeting:
- (a) the cost of carrying out research that will benefit the New South Wales aquaculture industry (including research by the Fisheries Research and Development Corporation established under the Primary Industries and Energy Research and Development Act 1989 of the Commonwealth), and
(b) the costs incurred in maintaining any relevant research committee established under section 157 (4) of the Act.
Note. See section 156 of the Act (Annual contribution to cost of administration or research or to other industry costs).
(3) The prescribed annual contribution is (subject to subclause (4)) $20 for each hectare, or part of a hectare, of the area of the aquaculture farm or farms to which the permit relates.
(4) If the aquaculture farm or farms to which the permit relates are not located on public water land, the prescribed annual contribution is:
- (a) in the case of a class D or H permit, the greater of:
- (i) $104, or
(ii) $21 per hectare of the total water production area on the aquaculture farm or farms, or
(6) A permit holder may pay a contribution by instalments. For that purpose, the Minister is required:
- (a) to determine the amounts of the instalments that are payable, or the manner in which they are to be calculated, and
(b) to notify those amounts or the manner of their calculation to the permit holder concerned.
(8) If the total area of the aquaculture farm or farms to which an aquaculture permit relates is less than 1 hectare, the contribution payable by the holder of the permit under this clause is that payable for 1 hectare.
(9) If a person holds 2 or more aquaculture permits, the prescribed annual contribution for that person is to equal the highest annual contribution that applies to any one of that person's permits.
(10) If a person is issued with an aquaculture permit after 31 July in any financial year, the Minister may reduce, on a pro rata basis, that person's contribution for that financial year.
Note. Public water land is defined in section 4 of the Act.”
14 Until its repeal in December 2001 clause 12H of the Regulation provided for NSW Shellfish Quality Assurance Program contributions. That clause provided as follows:
- “ 12H Aquaculture permit holders to pay contributions for Shellfish Quality Assurance Programs
(1) Each holder of a class A permit must pay to the Minister an annual contribution of the prescribed amount for the period of 12 months beginning on I July 1995 and on 1 July in each following year.
(2) Annual contributions payable under this clause may be applied only for the purposes of meeting:
- (a) the cost of operating the New South Wales Program, and
(b) the costs incurred in maintaining the New South Wales Committee, and
(c) the costs incurred by that Committee in carrying out its responsibilities.
(4) If the total area of the aquaculture farm or farms to which a class A permit relates is less than I hectare, the contribution payable by the holder of the permit under this clause is that payable for 1 hectare.
(5) A contribution under this clause must be paid on or before 31 July 1995 and 31 July in each following year.
(6) A class A permit holder may pay a contribution by instalments. For that purpose, the Minister is required:
- (a) to determine, with the concurrence of the Minister for Agriculture, the amounts of the instalments that are payable, or the manner in which they are to be calculated, and
(b) to notify those amounts or the manner of their calculation to the permit holder concerned.
15 Clause 38(4) of the Regulation provides:
- “ 38 When rent payable
(1) The first payment of rent under an aquaculture lease is payable before the lease is granted or renewed or within such period thereafter as the Minister allows.
(2) After the first payment, the rent under an aquaculture lease is payable yearly in advance on or before 31 January in each year.
(3) However, the lessee may pay the rent by instalments. For that purpose, the Minister is required:
- (a) to determine the amounts of the instalments that are payable, or the manner in which they are to be calculated, and
(b) to notify those amounts or the manner of their calculation to the lessee concerned.
16 The power to cancel or suspend a permit arises pursuant to section 160 of the Act which provides:
- “ 160 Power to cancel or suspend a permit after a hearing
(1) The Minister may, by notice in writing to the holder of an aquaculture permit, cancel or suspend the permit if:
- (a) the application for the permit was false or misleading in a material particular, or
(b) the permit holder has contravened this Part or the regulations under this Part, or
(c) the permit holder has contravened Division 6 of Part 7 (Noxious fish) in the area to which the permit relates, or
(d) the permit holder has contravened a condition of the permit, or
(e) the permit holder has been convicted of stealing fish or marine vegetation, or
(f) the permit holder is not undertaking aquaculture in accordance with the holder's current commercial farm development plan, or
(g) the area to which the permit relates has been varied since the issue of the permit and the Minister is satisfied that an application for an aquaculture permit would have been refused under section 146 (2) if made in relation to the area (as varied), or
(h) in the case of a permit for an area subject to an aquaculture lease—the area is not being used for the purposes for which the lease was granted, or
(i) in the case of a permit for an area subject to an aquaculture lease—the area is being so mismanaged that the production of fish or marine vegetation in that area or any surrounding area has been prejudicially affected or that the suitability of that area or any surrounding area for aquaculture is threatened, or
(j) the Minister is otherwise authorised by the regulations to cancel the permit.
(3) The Minister may at any time, by notice in writing to the holder of the permit, revoke a suspension under this section.
(4) Nothing in this section affects any powers of the Minister to cancel an aquaculture lease.
(5) A permit holder may apply to the Administrative Decisions Tribunal for a review of the cancellation or suspension of the holder's permit under this section.”
17 The Tribunal heard evidence from Mr Van Eden. He also put in evidence various items of correspondence between himself and the Respondent. The Respondent put in evidence a number of documents relating to the Permit and events leading to the decision to revoke the Permit. Included in the Respondent’s documents are details of the amounts said to be payable by Mr Van Eden, a schedule of payments that he actually made, and correspondence between the parties in relation to the amounts said to be outstanding.
The Respondent’s Case
18 In essence the Respondent’s case is that Mr Van Eden is in breach of the conditions of the Permit in that he failed to meet his obligation to pay contributions towards the cost of administration under clause 6 A of the Regulation; the research contribution under clause 7 of the Regulation, the NSW Shellfish Quality Assurance Program contribution under clause 12H of the Regulation, and rent for aquaculture leases under clause 38(4) of the Regulation.
19 Mr Van Eden was issued with Standard Permit Conditions by the Minister on 22nd January 1996. Condition 3 states "Except where specific exemption is made, all provisions of the Fisheries Management Act 1994, and the Regulations made thereunder are strictly complied with".
20 It is a further condition of each aquaculture permit that the permit holder complies with such conditions as prescribed by the regulation by virtue of section 152 of the Act. Payment of annual contributions relating to every aquaculture permit is an obligation prescribed by section 156 of the Act.
21 The Minister moved to cancel the Permit because he was satisfied that there were no mitigating circumstances in relation to the breaches. Before cancelling a permit the Minister observed the provisions of section 160 of the Act.
22 The Minister ascertained that Mr Van Eden was aware of the need to pay the contributions. He had been sent written requests for payment of the contributions on four separate occasions without success but he failed to pay the contribution instalments by the due date. Mr Van Eden was invited to show cause why the Permit should not be cancelled. He was given the opportunity to be heard on the matter or to make written submissions on the matter. Mr Van Eden did not respond to any of the letters of demand, show cause notices, or invitation to be heard or make a written submission to the cancellation of the permit.
23 On 11 April 2002 the Respondent received Mr Van Eden’s application for an internal review. No new material was included with the application. No new material was sent for consideration in the internal review process. Mr Van Eden cited correspondence regarding a court case for an unrelated matter served as reason for not cancelling the Permit, however, he did not respond to three letters of demand for the overdue amount or the show cause for cancellation letter.
24 Ms Cory for the Respondent submitted that NSW Fisheries had, with a view to ameliorate the situation, made extraordinary attempts to help Mr Van Eden with his aquaculture account including agreeing to a payment plan but Mr Van Eden defaulted on that plan. This resulted in further action leading to the decision to cancel the permit. Mr Van Eden offered no other mitigating factors for consideration by the Respondent.
25 She argued that due process was observed by NSW Fisheries in its dealing with Mr Van Eden in relation to the Permit. She cited the chronology of events leading to the cancellation as supporting that argument. She further argued that in the absence of any mitigating circumstances, material facts or other evidence, the decision to cancel the permit was justifiable and within current and appropriate administrative guidelines.
26 On 20 November 2000 a "show cause" for cancellation of permit letter sent to Mr Van Eden for outstanding and overdue balance of $670.08 for the quarters ending 31 December 1999, 31 March 2000, 30 June 2000 and 30 September 2000.
27 On 13 December 2000 a NSW Fisheries Senior Fisheries Manager wrote to Mr Van Eden offering him a payment schedule with monthly instalments of $200 to sign and return. On 5 January 2001 the signed copy of the payment agreement was received along with the first payment plan instalment of $200. NSW Fisheries wrote to Mr Van Eden in reply and reminded him that the payment schedule only covered the overdue debt and the current quarter fees were to be paid by their due date. The fees for the quarter ending 31 December 2000 remained outstanding.
28 On 29 January 2001 NSW Fisheries received payment of fees for the quarter ending 31 December 2000 and another instalment of the payment schedule. His ability to pay was subject to his being successful in court action in an unrelated matter.
29 On 26 July 2001 Mr Van Eden advised that he could not pay the outstanding and overdue amounts. On 6 August 2001 Mr Van Eden advised that he did not have any funds to pay outstanding fees and to clear his oyster lease of cultivation and materials.
30 On 17 September 2001 a "show cause" for cancellation of permit letter was sent to Mr Van Eden for the quarters ending 31 March 2001, 30 June 2001 and part of the quarter ending 30 September 2000. No response was received from Mr Van Eden and the decision was taken to cancel the Permit on 28th March 2002. NSW Fisheries requested payment for all outstanding fees totalling $1242.46.
31 On 28 March 2002, after seizure of noxious fish from Mr Van Eden's leases, NSW Fisheries also invited Mr Van Eden to "show cause" in relation to cancellation of leases associated with cancelled permit and inclusion on a register of persons disqualified from holding an aquaculture permit.
32 On 8 April 2002 Mr Van Eden contacted NSW Fisheries and sought to have the cancellation of his permit reversed. On 9 April 2002 NSW Fisheries received payment from Mr Van Eden for the period 01 January 2002 to 31 March 2002.
Mr Van Eden’s Case
33 Mr Van Eden does not dispute that he failed to pay the required amounts on his aquaculture account. However, he argued that he has good cause for failing to do so. His evidence was that he was placed in a dire financial position as a consequence of a fire that caused the destruction of business property, which he co-owned. The destruction of the property resulted in the loss of his main source of income. He has been forced to rely on social security benefits and these benefits are insufficient to allow him to meet his obligations in relation to the Permit.
34 Mr Van Eden’s evidence is that he advised the Respondent of these facts and that he could not pay the outstanding and overdue amounts and further that he was unable to carry out necessary maintenance to his oyster lease. Mr Van Eden stated that Court proceedings are underway elsewhere in relation to the sale of property from the business. If those proceedings result in a decision in his favour he will have no difficulty in paying the outstanding amounts. He provided a statement from Central Coast Real Estate Gorokan which refers to the value of the property as follows:
- “With regard to the property at Yarramalong Road - this is 11.36 hectares of creek flat property adjoining turf farms and very close to Wyong. The property has a couple of good house sites and would sell, I believe for approximately $450,000.
The property at 29 Alison Road is currently undergoing a rezoning to residential (2c) zone, which allows for villa or unit development. The size of this site at 1967 sq m would allow for approximately 8 villas and would therefore be saleable at around $360,000.”
35 Mr Van Eden argued that he should be allowed time to pay the amounts owed In support of that argument he referred to the draft report “Review of NSW aquaculture industry costs and pricing” dated January 2000 prepared for NSW Fisheries by the Centre for International Economics. This report suggests that any policy of recovery of management overhead costs by NSW Fisheries should be implemented over a number of years. The report suggested that alternatively it may be in the community’s interests to have those costs absorbed by taxpayers and to charge the industry only those direct costs of activity provisions.
36 Mr Van Eden also gave evidence that much of the maintenance of the lease relates to noxious oysters which entered his lease as a consequence of a policy decision by NSW Fisheries to allow those noxious animals to be cultivated in nearby areas. Mr Van Eden stated that he is unable to maintain the lease because of the extent of the noxious oyster invasion. He argued that if NSW Fisheries had carried out its obligations the noxious oysters would not be a problem. He sought assistance from NSW Fisheries to help maintain the lease but this was not forthcoming.
37 In support of his arguments he referred to the NSW Fisheries research report titled “The 1998 Pacific Oyster Survey” by D. D. Reid and I. R. Smith dated July 1999.
38 In summary, Mr Van Eden stated that if he was given more time, he could pay the outstanding amounts and ensure that his lease was maintained.
Findings of Fact
39 I find as a fact that the Act and of the Regulation place an obligation on aquaculture permit holders to pay contributions towards the cost of research, administration and general management overhead costs, and rent for aquaculture leases. I also find as a fact that Mr Van Eden was advised of the obligation to contribute towards those costs.
40 I find as a fact that Mr Van Eden is liable to pay the majority of the amounts which the Respondent alleges are outstanding. Mr Van Eden is not liable for the amount of $180 which is alleged to be outstanding in relation to commercial spat production referred to in invoices numbered CNT102713 dated 6 March 1997 and CNT103112 dated 26 March 1998. Mr Van Eden is liable for all the other amounts as alleged by the Respondent. I do not accept that the policies adopted by NSW Fisheries that were referred to by Mr Van Eden relieve him from his obligations to pay those fees or to maintain his lease.
41 I find as a fact that Mr Van Eden failed to pay the total of the contributions for which he was liable under the Act and the Regulation.
42 I find as a fact that NSW Fisheries advised Mr Van Eden that he had not paid the total of the contributions for which he was liable and requested payment for those amounts.
43 I find as a fact that before the decision was taken to cancel the Permit the Respondent gave Mr Van Eden an opportunity to be heard on the matter or to make written submissions on the matter as required by section 160 of the Act.
44 It follows in my view that the Respondent was entitled to cancel the Permit. The Respondent has accommodated Mr Van Eden for a significant period of time. It cannot reasonably be expected to indefinitely refrain from collecting fees which are clearly payable.
45 NSW Fisheries has obligations to the industry as a whole and to the wider community. A permit holder who is unable to pay those fees and who is unable to maintain a lease to the standard required by the Respondent endangers the livelihood of others operating within the industry. This is because the failure to maintain a lease provides a breeding ground for noxious animals which can then infest other leases and the failure to pay fees limits the resources available to the Respondent to undertake research and maintenance programs to ensure the continued viability of the industry.
46 In my view, the decision to cancel the Aquaculture Permit AP1224 held by Mr Van Eden was the correct and preferable decision. Accordingly I affirm the Respondent's decision to cancel the Permit.
Orders
47 The decision to cancel the Aquaculture Permit AP1224 held by Mr Van Eden affirmed.
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