Virtu v Director General, NSW Fisheries
[2000] NSWADT 75
•06/16/2000
CITATION: Virtu v Director General, NSW Fisheries [2000] NSWADT 75 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Antonio Virtu
Director General, NSW FisheriesFILE NUMBER: 993099 HEARING DATES: 13/12/99 SUBMISSIONS CLOSED: 12/23/1999 DATE OF DECISION:
06/16/2000BEFORE: Skinner PM - Judicial Member APPLICATION: Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence - Jurisdiction MATTER FOR DECISION: Principal matter LEGISLATION CITED: Fisheries Management Act 1994 CASES CITED: Searl v Director General, NSW Fisheries [2000] ADT 53
Esber v Commonwealth of Australia (1992) 174 CLR 430
Kurtovic v Minister for Immigration (1990) 92 ALR 93
Legione v Hateley (1983) 152 CLR 406
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Churchill Fisheries Export Pty Ltd v Director-General of Conservation [1990] 1 VR 968
McDonald v Director-General of Social Security [1984] 1 FCR 354
Kioa v West & Anor (1985) 159 CLR 550
Haoucher v Ministear for Immigration (1990) 169 CLR 648REPRESENTATION: APPLICANT
D S Inverarity
RESPONDENT
J CrespoORDERS: 1. The reviewable decision is affirmed
Application
1 This is an application by Mr Antonio Virtu for review by this Tribunal of a decision by the respondent, which the applicant characterised in his Application for Review filed with the Tribunal on 17 May 1999 as:
- ‘Refusal of grant of Ocean Hauling Class C (purse seine) Endorsement’ [ sic ]
2 As required by the pro forma used in the Tribunal, the applicant answered the question in the Application for Review: ‘Do you have a copy of the decision [you wish to have reviewed]?’. He answered that question in the negative.
3 The Tribunal then wrote to the applicant’s solicitor advising that it required a copy of the original decision and the internal review decision. The solicitor replied that he did not hold a copy of ‘the original decision of the NSW Fisheries to refuse to grant the relevant endorsement’, but that he did hold a copy of a letter from NSW Fisheries dated 13 April 1999 ‘advising the outcome of the internal review . . .[which was] constituted by way of an appeal to the Fisheries Review Panel’. A copy of that letter was attached.
4 The letter from NSW Fisheries dated 13 April 1999 advised the applicant relevantly that:
- ‘In accordance with the recommendations of the review panel the Minister has refused your application for the following endorsements: Restricted Fishery: Ocean Hauling; Class of Endorsement: Ocean Hauling Class C (purse seine) Endorsement.’
5 The terms used are terms of art from the legislative and administrative scheme governing the fishing industry in NSW.
6 This scheme was outlined in detail in my decision in Searl v Director General, NSW Fisheries [2000] ADT 53, so far at least as it was relevant to the decision and circumstances of that case. In the instant case, some different aspects of the legislative and administrative scheme are relevant and require analysis and comment.
7 As in Searl, the respondent raised preliminary objections as to the jurisdiction of the Tribunal in relation to this application, although different submissions were advanced in this case.
8 Submissions as to jurisdiction were made before the President, O’Connor J, in a directions hearing on 1 September 1999, and further submissions were made to me in the hearing before me on 13 December 1999.
9 At the commencement of the hearing before me on 13 December 1999 I indicated that I proposed to take evidence and submissions on the substantive issues as well as jurisdictional matters, and to deal with the jurisdictional arguments in my reasons for decision. As in Searl it was necessary for me to hear the whole case in order to comprehend the complex legal and administrative scheme involved, and to understand the challenges pressed by the respondent as to jurisdiction.
The respondent’s submissions challenging jurisdiction
10 The applicant applied to the Tribunal for review after he had already been through the review process set out in Division 6 of Part 8 of the Regulations and the Minister had acted in accordance with the recommendations of the review panel and refused his application for the subject endorsement, as set out in the letter dated 13 April 1999 extracted above.
11 The applicant relied on s 126 of the Fisheries Management Act 1994 (‘the Act’), in particular paragraph 126(1)(a), as founding the jurisdiction of the Tribunal.
12 Sec 126 provides:
- 126 Applications to Administrative Decisions Tribunal for reviews of certain decisions
(1) A person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned:
(a) the refusal to issue a relevant authority to the person or to renew the person’s relevant authority,
(b) the imposition of conditions on the person's relevant authority (otherwise than by regulation),
(c) the suspension or cancellation of the person's relevant authority.
13 There was no issue between the parties that the Class C endorsement under clause 212D of the Fisheries Management (General) Regulation 1995 (‘the Regulations’) sought by the applicant for his commercial fishing licence came within the definition of ‘relevant authority’ as used in paragraph 126(1)(a) – see s 125 of the Act.
14 The respondent submitted that the operative decision of the administrator, the ‘reviewable decision’ within the meaning of the Administrative Decisions Tribunal Act 1997 (‘the Tribunal Act’), was the final one of the Minister made under clause 214D of the Regulations after the receipt by him of the report of the review panel. The respondent submitted that that regulation allows the Minister only a limited discretion and that that limitation also applies to the Tribunal.
15 Alternatively, the respondent submitted that the decision under review was not the refusal to issue the endorsement, and thus within s 126(1)(a) of the Act, but rather a determination only as to the catch history available to the applicant, which is a separate thing and not a decision within s 126 of the Act.
What is the reviewable decision?
16 As Mr Bingham for the respondent conceded before President O’Connor J, in the process leading to the matter coming before the Tribunal there were ‘different and arguably separate decisions’ and there is the possibility of looking at the situation ‘as an overall one decision making process’.
17 As well as the final decision of the Minister after the review panel report there was the initial refusal by the Minister of the applicant’s application for an endorsement, which led to the review process in the first place, and of course the decision of the review panel itself.
18 Counsel for the applicant submitted to me that it was the initial decision of the Minister to refuse the endorsement that was the proper reviewable decision.
19 I do not accept that submission by the applicant. In short, it seems to me that the legislature could not have intended that there be a lengthy and complex review process by an appropriately constituted and qualified review panel pursuant to detailed provisions of the Regulations, merely for the applicant to have the right to start a separate review process afresh with this Tribunal, at any time after the initial refusal.
20 Secs 8 and 9 of the Tribunal Act provide:
- 8. What is a reviewable decision?
A reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.
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.
(2) The person or body specified by an enactment as a person or body whose decisions are reviewable decisions is taken to be the only administrator in relation to the making of a reviewable decision even if some other person or body also had a role in the making of the decision.
21 In my opinion, the reviewable decision before me, of which the applicant complained in his original application to the Tribunal, and which comes within the wording of s 126 of the Act, is the decision to refuse him the endorsement. The facts of this case could allow an opinion that there was ‘one overall decision making process’ involving as administrators not only the Minister and his departmental delegates and representatives as persons but also the review panel as a body, or an opinion that there was a series of separate decisions. Sec 9(2) of the Tribunal Act does not apply so as to single out only one of these administrators.
22 However the distinction is immaterial in my opinion, and there clearly has been a refusal by the Department to issue an endorsement to the applicant and s 126 of the Act clearly grants to him a right to come to this Tribunal seeking a review of that refusal.
23 As I was in Searl, I am cognisant of s 73(3) of the Tribunal Act which provides:
- 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.
The reg. 214D argument
24 Clauses 214C and 214D of the Regulations provide as follows:
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.
(2) A panel that conducts a review may decide that a person is eligible for an endorsement in a restricted fishery, or should be eligible for an endorsement in the fishery, if the person who applied for the review satisfies the panel:
- (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, or
(b) that a determination as to the catch history associated with the person's fishing business is incorrect 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, or
(c) if eligibility is based on the person's activities in a fishery during a particular period, that:
- (i) the person suffered illness or other incapacity for a significant period and the illness or incapacity substantially affected his or her ability to satisfy the eligibility criteria for the endorsement, or
(ii) the person lost his or her commercial fishing boat due to accident or misadventure and the loss substantially affected his or her ability to satisfy the eligibility criteria for the endorsement, or
(iii) the person was engaged in fishing during that period and for other significant reasons (that are not attributable to the fault of the person) the person was unable to satisfy the eligibility criteria.
(4) In this clause, verified record means a document prescribed for the purposes of section 51 (4) of the Act (dealing with determination of catch history).
- (1) On receipt of a report by a panel, the Minister may:
- (a) in accordance with the decision of the panel, confirm the determination that was reviewed by the panel or set that determination aside and substitute a new determination, or
(b) refer the matter back to the panel (together with comments or recommendations) for further consideration.
25 It was submitted by the respondent (per Mr Bingham, solicitor for the respondent, before President O’Connor J on 1 September 1999, and whose submissions were adopted and repeated by Mr Crespo before me) that the Minister could only ‘follow the recommendation of the review panel or . . . refer the matter back to the review panel, together with comments or recommendations for further consideration’. As a consequence, it was submitted, the Tribunal, standing in the shoes of the Minister, similarly could only follow the recommendation of the review panel and refuse the endorsement, or refer the matter back to them.
26 This argument however rests upon an acceptance that the reviewable decision is only the final one of the Minister, made under regulation 214D. I reject that argument, see above.
27 In any event, in my opinion upon a proper analysis of clauses 214C and 214D of the Regulations and the case as actually pressed by the applicant for grant of an endorsement, clause 214D is irrelevant to this application for review.
28 Clause 214C sets out the grounds upon which the review panel can find that a person is eligible for an endorsement. They are threefold and set out in subclauses 214C(a), (b) and (c).
29 Subclauses (a) and (b) refer to the panel being satisfied that the person ‘does in fact satisfy the eligibility criteria’.
30 Subclause 214C(2)(c) however allows the panel to decide, again on a threefold basis, that a person is eligible for an endorsement where ‘eligibility is based on the person’s activities in a fishery during a particular period’ but for some reason the eligibility criteria has in fact not been satisfied (ie. neither subclauses (a) or (b) have been satisfied).
31 The three bases for such a decision are if the person who applied for the review satisfies the panel that his or her ability to meet the eligibility criteria was substantially affected (i) by illness or other incapacity for a significant period or (ii) accident or misadventure, or there are (iii) ‘other significant reasons (that are not attributable to the fault of the person’.
32 The Chairman of the review panel that dealt with Mr Virtu’s case reframed this discretion under clause 214C(2)(c) as ‘broadly, is there anything so unusual, unique or unfair or otherwise compelling that the panel should recommend to the Minister that he ignore the criteria established for a purse seine endorsement and issue Mr Virtue with such an endorsement in spite of his failure to qualify’.
33 In my opinion, with respect to the Chairman, this was too wide a definition of the review panel’s discretion. In my opinion Mr Virtu could never have met the threshold test of subclause 214C(2)(c) in that he personally never had any activities in the fishery for the relevant eligibility period. He was always relying on the transfer to him, by way of catch history, of Mr Monkley’s personal activity.
34 However the review panel did not uphold Mr Virtu’s application in any event. The Chairman stated that: ‘the panel has not been able to come to the view that Mr Virtu’s case is sufficiently unique or is sufficiently unusual or is so demonstrably unfair that he should be distinguished from many other fishermen in various categories who find themselves in the position he does’.
35 That aside, and coming back to the operation and inter-relationship of clauses 214C and 214D, under clause 214D the Minister is still able to refuse or otherwise qualify the endorsement even where the review panel has recommended its grant – see 214D(1)(a). He or she is only constrained as to the reverse situation. Under subclause 214D(2) the Minister may only decide in favour of the grant of an endorsement where the review panel has held a failure to ‘in fact satisfy the eligibility criteria’, and thus that subclauses 214C(2)(a) and (b) do not apply, but then has exercised its discretionary powers under subclause 214C(2)(c) in favour of the applicant.
36 The applicant here however pressed a case to the Department and then to the review panel (despite the consideration of a further discretion in his favour by the panel, as per the comments of the Chairman noted above) and then to this Tribunal that he did in fact meet the eligibility criteria of clause 212F(2A)(c) on the basis of the catch history associated with his fishing business, which includes catch history obtained in June 1993 from Mr Monkley together with the purse seine net – see below.
37 As I note above, in my opinion the applicant could never have invoked the provisions of clause 214C(2)(c) in any event, and therefore the constraint upon the Minister in clause 214D(2) does not arise.
38 I reject those submissions of counsel for the respondent based upon clause 214D against jurisdiction of this Tribunal.
- The s. 126 argument
As I note above, in my opinion there has clearly been a refusal by the administrator to issue to the applicant a ‘relevant authority’ within the meaning of s 126(1)(a). I do not accept that the decision of the administrator can be limited to a determination as to catch history only.
39 I reject these alternative submissions against jurisdiction made by counsel for the respondent.
Sec 55 of the Tribunal Act
40 No issue was raised by the respondent as to the requirement in paragraph 55(1) (b) of the Tribunal Act for, subject to subs 55(2), an internal review of the decision to have been finalised. In any event, given my opinion as to what the reviewable decision is, I would not accept that no internal review took place here.
41 However, if I am wrong in my determination as to the conducting of an appropriate internal review, I would be satisfied, as I was in Searl, that the requirements of subs 55(2), in particular paragraph 55(2)(c), have been met.
42 I also note the provisions of clause 6A(f) of the Administrative Decisions Tribunal Regulation, commencing 1 March 2000, which now formally exclude from the application of s 53 of the Tribunal Act decisions relating to an endorsement that has been the subject of a review by a review panel. That shows the intent of the legislature at least from 1 March 2000, if not before (without entering upon the topic of the possible retrospective effects of regulations not affecting rights but going to the exercise of discretions - see eg. Esber v Commonwealth of Australia (1992) 174 CLR 430).
43 I hold that that the Tribunal has jurisdiction to hear this application.
The legislative and administrative scheme
44 As I noted in Searl, a very large part of the framework of governance relevant to this application, ie. as to the rights of the applicant flowing from the transfer to him of fishing gear which was part of a fishing businesses, is embodied not in substantive or subordinate legislation but, as eg. in clauses 135 and 212Y(2) of the Regulations, see below, in ‘guidelines issued by the Director from time to time’.
45 The framework of governance of commercial fishing in this State is made up of the Act, the Regulations, and these guidelines. I do not repeat what I set out in Searl as to this general framework, but note below only the particular provisions relevant to this application and my reasons for decision.
The Ocean hauling fishery
46 Part 8 of the Regulations defines and regulates restricted fisheries, and Division 4A of Part 8 of the Regulations, clauses 212A to 212P, deals with the ocean hauling fishery. The Regulations commenced, together with the Act, on 16 January 1995. Part 8 Division 4A however was inserted on 1 March 1995.
47 Clause 212C describes the ocean hauling fishery as follows:
- 212C Description of ocean hauling fishery
(1) The ocean hauling fishery consists of the use of a hauling net or purse seine net to take fish for sale from any of the following waters:
- (a) ocean waters within 3 nautical miles of the natural coast line (as defined in Schedule 1),
(b) the waters of Jervis Bay,
(c) the waters of Botany Bay east of a line drawn from Bear Island generally southeast to the northernmost extremity of Sutherland Point,
(d) the waters of Coffs Harbour.
48 (2) The ocean hauling fishery extends to the use of any net by the method of hauling to take fish for sale from any of the waters referred to in subclause (1)
49 Clause 212D relevantly provides:
- 212D Types of endorsement in restricted fishery
(1) The following classes of endorsement are available in the restricted fishery:. . .
* Class C endorsement. This endorsement authorises the holder to take fish for sale by use of a purse seine net from ocean waters within 3 nautical miles of the natural coast line (as defined in Schedule 1) and the waters of Jervis Bay.
50 Clause 212F relevantly provides:
- 212F Eligibility for endorsement . . .
(2A) A person is eligible for a class C endorsement if the Minister is satisfied that:
- (a) the person owns a licensed fishing boat, and
(b) the person owns a purse seine net that was registered in the name of the person before 1 January 1991 and the net was used to take fish for sale in at least one of the years from 1991 to 1994, and
(c) the person has taken for sale at least 10 tonnes of pilchard, anchovy, whitebait, mackerel, yellowtail or Australian salmon, or at least 10 tonnes of any combination of those fish, in the years 1986 to 1990 (inclusive) using a purse seine net, and
(d) the person submitted at least 3 catch returns to the Director in the years from 1991 to 1994 that record purse seining as a catch method.
- (a) the person owns a fishing business that is a recognised fishing operation (within the meaning of clause 135), and
(b) the fishing business includes a purse seine net that was registered before 1 January 1991, and that was used to take fish for sale in at least one of the years from 1991 to 1994, and
(c) the catch history associated with the fishing business of the person (determined in accordance with clause 135) satisfies the criteria set out in subclause (2A) (c) and (d).
Catch history
51 The concept of ‘catch history’ comes from subclause 135(3) of the Regulations, which provides:
- 135 Who may hold commercial fishing licence
(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. If a fishing business is sold by a person, the catch history associated with that business is transferable only in accordance with guidelines issued by the Director from time to time.
Transfers of endorsements
52 Division 4C of Part 8 of the Regulations deals with the entitlements of fishing business owners. Subclause 212Y(2) in that Division provides:
- 212Y Effect of sale or disposal of fishing business on eligibility
(2) A person who acquires any part of the fishing business of another person does not thereby become eligible for an endorsement in a restricted fishery, except in accordance with guidelines relating to the transfer of fishing businesses issued from time to time by the Director.
The substantive question for determination
53 The substantive issue between the parties in this case in the context of the legislative and administrative scheme is whether the applicant complied with subclauses (2A) or (2B) of clause 212F of the Regulations.
54 The applicant put each subclause in the alternative, but I am satisfied easily that the applicant does not meet the criteria as set out in paragraph (b) of subclause 2A. The purse seine net central to this case was not registered in the applicant’s name until 1993.
55 The applicant does however meet the criteria as set out in paragraph (b) of subclause 2B, which the respondent concedes. The respondent also concedes that the applicant meets the criteria as set out in paragraph (a) of subclause 2B and paragraph (d) of subclause 2A, which is read into subclause 2B as a requirement pursuant to paragraph 212F(2B)(c).
56 The substantive question for determination then for me, as it had been for the Department and the review panel, is whether the catch history associated with the fishing business of the applicant satisfies the criteria set out in subclause 212F(2A)(c).
The relevant facts
57 The relevant factual material before me included the following:
- statements and sworn viva voce evidence before me on 13 December 1999 by the applicant and a Mr Allan Short called in his case;
- statements from other persons tendered by the applicant in corroboration and support;
- photographs of his equipment and evidence as to his expenditure on the business tendered by the applicant;
- an affidavit sworn 9 December 1999 and sworn viva voce evidence before me on 13 December 1999 by Mr Darren Hale, the Acting Principal Manager of Licensing for New South Wales Fisheries, called in the respondents case;
- a Chronology and bundle of relevant documents tendered by the respondent, which included a transcript of proceedings before the review panel;
- the Departmental file as to the catch history of the applicant; and
- 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.
58 From this material I find the following facts and draw the following conclusions:
- (a) In June of 1993 the applicant purchased a purse seine net from a Mr Monkley. The net was registered with NSW Fisheries, as it was required to be under the then existing legislation. It was purchased together with a registered bait net for the total price of $20,000.
(b) Prior to completing the purchase the applicant visited the Department in Sydney with his father-in-law, Mr Short and Mr Monkley.
(c) This group attended upon Mr Jeff Camkin and Mr John Diplock of NSW Fisheries. Mr Camkin at the time was the Fisheries Manager of the Ocean Haul Fishery. Mr Diplock was also a Fisheries Manager. It is unclear what position he held at the time of the meeting, and whether or not he was Mr Camkin’s superior. At any rate by 28 November 1996 he was designated as the Principal Manager (Commercial Manager) in NSW Fisheries, as he wrote a letter on that date to the applicant in that capacity.
(d) At any rate these two officers were distinct from ‘the licensing section of NSW Fisheries’, to use the applicant’s terminology.
(e) At the time of the meeting in June 1993 there was a great deal of uncertainty as to the future plans for management of fisheries in NSW and there had been a great deal of publicity about these uncertainties for several years
(f) On or about 1984 NSW Fisheries instituted a freeze on the issue of new boat licences.
(g) There had been a specific policy against ‘licence splitting’ since 28 July 1984. Mr Hale stated in his Affidavit at paragraph 2:
- ‘On 28 July 1984, New South Wales Fisheries adopted a policy on licence splitting. Pursuant to this policy the State would ensure that, “where a boat is authorised to operate in one or more fisheries, transfers of licences, authorisations, and/or endorsements, or any fishing entitlement will not be permitted that would result in a separation of any part of a licence package unless there is prior agreement from all authorities which may reasonably be expected to be affected by such an agreement”.’
(i) Since 1989 a number of Ministerial warnings, press releases and letters had been dispatched to licensed fishers and publicised in trade journals and the general press, about the uncertainties of future management and the need to be aware that nothing final in that regard had been decided by the government. Specific warnings had been given in respect of purse seine nets.
(j) The applicant was aware of these uncertainties and warnings. That was essentially why he approached the Department about his plans in the first place.
(k) In the meeting in early June 1993 the applicant was assured by Mr Diplock or Mr Camkin or both that the net could be sold to him and its registration transferred into his name.
(l) The applicant also advised the Departmental officers at the meeting that it was intended that he receive as part of the transfer such rights attaching to the net as were at that time held by Mr Monkley. It was known in the industry by that time that the concept of catch history was proposed as a criteria for entrance to restricted fisheries, and the applicant enquired about his ability to acquire Mr Monkley’s catch history
(m) The applicant in evidence before me stated that the meeting went as follows:
- ‘We said, “This gentleman, Mark Monkley, would like $20,000 for his net and net registration”. We said to them, “What do we do?”. So they said to us, “Under the current licensing what you have to do is get in writing what exactly you are buying because if you just buy the net and registration, Mark Monkley would have the history in it so in the future when management does come out, you will have the net and registration but you will not have the history”. He said, “you have to make sure you buy the package and get it in writing”.
Q. What did you understand the package to mean?
A. History, the net, the registration, what he has caught with that net. So then they both said they were going to go and speak to the licensing section about this and see what their views were on it. We waited until they returned. It might have been 15 minutes. They returned and said, "Yes, we spoke to the people in licensing and as long as you have a contract between the two parties stating what you are buying, the net, the net registration and history with it, you should be all right, you should be able to do it”.’ .
(o) However, even on the applicant’s version, I cannot find that any guarantees were given as to the effect upon the applicant of future management policies. The language used by the Departmental officers as recited by the applicant in the extract above, and to much the same effect on the previous occasions that I have noted, refers to ‘current licensing’, refers to a new management regime coming in, and gives an equivocal assurance at best – ‘you should be all right, you should be able to do it’.
(p) Both Mr Diplock, in a letter to the applicant dated 28 November 1996 and when he gave evidence before the review panel in 1999, and Mr Camkin, in a letter to the applicant dated 4 June 1997, denied any firm approval or guarantee was given. The flavour of their recollections is that no such guarantee could be given in the light of the then known uncertainties as to future management, but that they did advise the applicant to get something in writing from Mr Monkley as to the intent of the agreement with him.
(q) Further, the approval by the Department of the purchase of the net was required as a waiver of the licence-splitting policy to some extent - quite a separate thing to an assurance as to the effect of future policy.
(r) The applicant did obtain a short note from Mr Monkley addressed to the Department dated 7 June 1993, which he sent on to NSW Fisheries. It was in the following terms:
- ‘This letter is to notify the department that any concessions, quotas or permits given to Commercial Fisherman Mr Mark Monkley . . . in relation to catching fish type ‘Yellowtail’ or ‘Mackerel’ caught with net registration no. 9823 Purse net, or Bait net registration no. 5383 are to be wavered [sic] by Mr Mark Monkley and passed on to Mr Anthony Virtu.’
(t) When the Act and the Regulations and thereby the legislative and administrative scheme in relation to restricted fisheries commenced in 1995, the applicant applied for validation of his catch history including in his own right the history of Mr Monkley attached to the nets that he had purchased in 1993, and applied for inter alia an endorsement on his fishing licence allowing access to the ocean hauling fishery with the purse seine net.
(u) He also applied for access to the ocean trap and line fishery and for rights in relation to the bait net that he had bought from Mr Monkley. I do not go further into the history of these applications, which were ultimately successful, as they do not affect the decision under review.
(v) The applicant relied in his submissions to the Department and then to the review panel and then to this Tribunal upon what he claims is sufficient catch history transferred to him by Mr Monkley with the purse seine net in 1993 to enable him to satisfy, through the catch history associated with his fishing business (see clause 212F(2B)(c) of the Regulations), the criteria set out in 212F(2A)(c) of the Regulations.
Does the applicant comply with Reg 212F(2A)?
59 I hold that there has been no transfer of catch history recognisable by the legislative and administrative scheme that created and regulates the concept, such that the applicant can satisfy the criteria set out in subclause 212F(2A)(c) of the Regulations.
60 Whether or not the applicant validly could claim transfer from Mr Monkley of all yellowtail and mackerel catch history associated with the purse seine net, upon exhaustive examination by the catch validation section of the Department and review of same by the review panel, it could not be established that there was at least 10 tonnes of yellowtail or mackerel caught with that net in the years 1986 to 1990 (inclusive), as per the criteria set out in clause 212F(2A)(c) of the Regulations.
61 The catch history records of Mr Monkley do not show that, and as Mr Hale submitted to the review panel, when addressing the question of whether Mr Monkley’s fishing business and associated catch history in fact was subsequently transferred to persons other than the applicant (in respect of which there was at least some evidence):
62 . . . the fact remains that we’ve never been able to identify catch history from a net and I think it ludicrous that we actually attempt to do it. We just couldn’t do it’.
63 To understand this submission one needs to know something of the methods that the Department uses to record catches made by fisherman, which knowledge the review panel obviously had and which I also have to some extent from considering this application and others, including that the subject of my decision in Searl. From my knowledge of the said methods I consider Mr Hale’s submission to be well-founded, as did the review panel.
64 In any event, the transaction between the applicant and Mr Monkley in 1993 in no way constituted the transfer of a ‘fishing business’ within the meaning of the Regulations and the legislative and administrative scheme is clear, as I outlined in Searl, that catch history can only be transferred with and as part of a transfer of a fishing business, not just a transfer of fishing gear.
65 Therefore in my opinion the applicant is not eligible for the endorsement that he seeks, under the applicable legislative and administrative scheme.
Estoppel, or other basis for holding for the applicant
66 Nonetheless, my determination in the previous paragraph does not dispose of this application. The applicant has also raised questions of estoppel and a ‘legitimate expectation’ of receiving the subject endorsement, to submit that the Department should not be able to resile from what he says were undertakings made to him in June 1993 and which he acted upon, to his detriment now if he were not to obtain the endorsement.
67 Indeed, this is really the nub of the applicant’s case, as in my opinion it is clear that he cannot establish a transfer of catch history within the scheme that created and administers that concept. His real complaint is that nonetheless he was misled into thinking that he could so comply. The bulk of the submissions of his counsel were to these issues.
68 As to the alleged estoppel firstly, I do not accept the applicant’s submissions. In my opinion, even if I were to apply private law principles of estoppel, I cannot hold for the applicant. As I note above, in my opinion no guarantees were given by the Departmental officers. The applicant fails at the evidentiary level. Like Gummow J in Kurtovic v Minister for Immigration (1990) 92 ALR 93, at 108, I hold that:
- ‘. . . any argument that the Minister was estopped from exercising his discretion . . . must fail at the threshold for want of a sufficiently clear and unambiguous representation to the effect contended for; cf. Legione v Hateley (1983) 152 CLR 406 at 435-437’.
69 In my opinion the terms of the alleged representation are too vague and uncertain of meaning and, even on the applicant’s own evidence, too equivocal to be able to amount to an estoppel against the Department, even within the accepted principles of private law.
70 When notions of public law such as those discussed in Kurtovic, above, particularly by Gummow J, and Attorney-General (NSW) v Quin (1990) 170 CLR 1, particularly per Mason CJ at 17-18, are considered, I am reinforced in my opinion.
71 In Attorney-General (NSW) v Quin Mason CJ said at p 17, citing abundant authority:
- The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power;
- What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion.
71 The degree of ‘grave injustice’ which Mason CJ must have had in mind can be illustrated by a case such as Churchill Fisheries Export Pty Ltd v Director-General of Conservation [1990] 1 VR 968. In that case a policy of approximately 10 years duration not to enforce provisions of the Fisheries Act 1968 (Vic) or its predecessor and representations by officers of the department to the plaintiff company that the policy would continue, which for the purposes of his decision were accepted by Beach J, were held not sufficient to create an estoppel preventing the department from reversing its policy and prosecuting the company for breaches of the legislation. His Honour considered that the duty of the executive to enforce the law and exercise its statutory discretions was not overridden even in those circumstances.
72 I am conscious that this Tribunal is not a court, and that I am conducting a merits review, standing in the shoes of the previous administrators and charged by s 63 of the Tribunal Act with deciding ‘what the correct and preferable decision is’, and by s 64 of the Tribunal Act with considering whether the application of government policy ‘produces an unjust decision in the circumstances of the case’. However s 63 of the Tribunal Act makes it plain that the Tribunal in deciding what is the correct and preferable decision must have regard to inter alia any relevant factual material and the applicable law.
73 Even though it has been said that in merits review applications the strict application of principles of legal onus of proof are inappropriate (see eg. in McDonald v Director-General of Social Security [1984] 1 FCR 354), in the circumstances of this case in my opinion there is a requirement for a higher degree of satisfaction as to the terms of the alleged representation than that which I hold, for the applicant to succeed.
74 However even if I agreed with the submissions of the applicant’s counsel that the applicant has established that a firm and clear representation had been made to him that the catch history relating to the purse seine net would be recognised as his, in my opinion not holding the Department bound by that representation does not come within any ‘grave injustice’ exception as postulated by Mason CJ in Quin, above, or produce an unjust decision in the circumstances of this case.
75 Factors relevant in that regard include the amount of the purchase price paid by the applicant, the purchase by him for that price of not only the purse seine net but the other net as well, the rights the applicant did gain eventually as a result of his purchase of that bait net, and the use since 1993 of the purse seine net that the respondent has enjoyed. There is also force in my opinion in the submission by the respondent’s counsel that the applicant knowingly took a business risk in proceeding with the purchase of the purse seine net on the strength only of the conversation in early June 1993, the brief consultation by the officers with the other ‘licensing section’ and the known uncertainties in the industry at the time and the warnings to that effect widely published by the government.
76 I find myself unable to accept that the Department is in some way estopped or otherwise precluded from refusing to issue the endorsement to the applicant in accordance with its policies introduced in 1995 because of what is said to be represented verbally by two of its officers in 1993 in the circumstances that the applicant puts forward.
77 The system of licensing and restricting access to fisheries inevitably means that some persons qualify, some don’t. I can see no unequal application of the legislative and administrative scheme to the applicant, as opposed to other fishers, and I note the comments of the Chairman of the review panel which I extract in paragraph 34 above.
78 I have also considered the submissions of the applicant that he had a ‘legitimate expectation’ of receiving the endorsement to his fishing licence enabling him access to the ocean hauling fishery. Here any right that the applicant had to be heard, based on a legitimate expectation that he may have had, has been satisfied. The applicant certainly has been afforded procedural fairness and in my opinion the current law as to ‘legitimate expectations’ applied to the facts of this case gives the applicant no rights greater than that – see eg. Kioa v West & Anor (1985) 159 CLR 550, per Mason J at 582-583 and Brennan J at 616-618; Haoucher v Minister for Immigration (1990) 169 CLR 648, per McHugh J at 681-682; Kurtovic, above per Gummow J at 125; and Quin, above.
79 I affirm the decision of the respondent as embodied in the letter dated 13 April 1999 to the solicitors for the applicant.
Orders
80 The formal order that I make is:
- 1. The reviewable decision is affirmed.
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