Wardley v Minister of Fisheries

[2002] NSWADT 65

CITATION:	Wardley -v- Minister of Fisheries [2002] NSWADT 65
DIVISION:	General Division
PARTIES:	APPLICANT Stephen Edward Wardley RESPONDENT Minister of Fisheries
FILE NUMBER:	003393
HEARING DATES:	19/03/2001
SUBMISSIONS CLOSED:	08/08/2001
DATE OF DECISION:	04/29/2002
BEFORE:	Rice S - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries and Oyster Farms (General) Regulation 1989 Fisheries and Oyster Farms Act 1935 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994
CASES CITED:	Ireland v Minister for Fisheries n[2001] NSWADT 198 Searl -v- Director General, NSW Fisheries [2000] NSWADT 53 Micallef-v-Minister for Fisheries [2001] NSWADT 1 Naomi Star Pty Limited -v- Minister for Fisheries [2001] NSWADT 77 Brookman -v- Minister for Fisheries [2001] NSWADT 168 Forster -v- Minister for Fisheries [2002] NSWADT 50 Madge -v- Minister for Fisheries [2001] NSWADT 73 Drake v Minister for Immigration and Ethnic Affairs No. 78/10017 Immigration (AAT) Greenaway-v- Director, Department of Fisheries [2000] NSWADT 158 Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298
REPRESENTATION:	APPLICANT In person RESPONDENT J Crespo, barrister
ORDERS:	1. Pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act I affirm the decision of the Minister; 2. Pursuant to s88 of the Administrative Decisions Tribunal Act I make no award of costs.

1 I am not satisfied that Mr Wardley is eligible for the endorsements he seeks, and his application is therefore unsuccessful.

Application
2 Mr Wardley owns fishing business FB407 and holds commercial fishing licence 791187. On 30 September 1996 he applied for number of endorsements. He applied for, among others, the following ocean trap and line restricted fishery endorsements:

1. Demersal fish trap
2. Line fishing (Western zone)
3. Line fishing (Eastern zone).
3 At the same time he applied for the following estuary general restricted fishery endorsements:
1. Meshing
2. Prawning
3. Fish Trapping.
4 The Minister advised Mr Wardley that his application for these endorsements had been refused, and Mr Wardley requested an internal review of that decision.

Internal review
5 The internal review was conducted by the Restricted Fisheries Review Panel (‘the Review Panel’). The Review Panel recommended to the Minister that the endorsements be refused. After representations from Mr Wardley, in December 1999 the Minister referred Mr Wardley’s application back to the Review Panel for further consideration.

6 Mr Wardley attended hearings by the Review Panel on 11 July and 10 August 2000.

7 The Review Panel again recommended to the Minister that Mr Wardley’s application for the endorsements be refused. By letter dated 28 November 2000 Mr Wardley was advised of the Minister’s decision, in accordance with the Review Panel’s recommendation, to refuse the endorsements.

8 On 7 December 2000 Mr Wardley applied to this Tribunal for review of the decision to refuse the endorsements.

9 I note that Mr Wardley also applied for and was granted an estuary general restricted fishery handling and hauling crew endorsement, and an estuary general restricted fishery eel trapping endorsement. This decision is not concerned with those endorsements.

Reviewable decision
10 The reviewable decision for this Tribunal is the Minister’s decision of 28 November 2000 to accept the Review Panel’s recommendation that the application for the endorsements be refused.

Applicable law: ocean fishery
11 A fisher’s eligibility for endorsements is governed by the: s113(2) Fisheries Management Act 1994 (FMA):

Eligibility for endorsement of commercial fishing licences is to be determined in accordance with the regulations.
12 The relevant regulations are in Part 8 Divisions 2B and 2C of the Fisheries (General) Regulation 1995 (FMR ) . In Division 2B the endorsements sought by Mr Wardley are described in cl.191D(1):
The following classes of endorsement are available in the [ocean trap and line] restricted fishery:
Demersal fish trap endorsement . This endorsement authorises the holder to use A Fish Trap to take fish for sale from ocean waters.
Line fishing (western zone) endorsement . This endorsement authorises the holder to use a line to take fish for sale from ocean waters that are less than 183 metres in depth. The endorsement does not authorise the holder to take school or gummy shark from waters that are south of a line drawn due east from the northern point of the entrance to Moruya River.
Line fishing (eastern zone) endorsement . This endorsement authorises the holder to use a line to take fish for sale from ocean waters that are not less than 183 metres in depth. The endorsement does not authorise the holder to take school or gummy shark from waters that are south of a line drawn due east from the northern point of the entrance to Moruya River.
13 Eligibility for these endorsements is described in cl.191E:
(1) Demersal fish trap endorsement . A person is eligible for a demersal fish trap endorsement if the Minister is satisfied that the person submitted to the Director at least 6 ocean waters catch returns in the years 1986 to 1990, and 4 ocean waters catch returns in the years 1991 to 1993, that indicate that fish were taken using a fish trap of a kind known as a bottom or demersal fish trap.
(2) Line fishing (western zone) endorsement . A person is eligible for a line fishing (western zone) endorsement if the Minister is satisfied that the person submitted to the Director at least 6 ocean waters catch returns in the years 1986 to 1990, and 4 ocean waters catch returns in the years 1991 to 1993, that indicate that fish were taken by the method of line fishing.
(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.
. . .
(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. In such a case, however, the person who actually took the fish for sale and submitted the returns (for example, while working as an employee of the fishing business) does not, by having done so, satisfy the criteria.
(9) In determining a person's eligibility for an endorsement, the Minister may have regard to the records kept by the Director (including licence records and records of fish taken by a commercial fisher).
(10) The catch history associated with a fishing business is to be determined in accordance with clause 135 (3).
(11) In this clause:
ocean waters catch return means a return under section 42 of the 1935 Act that relates to takings of fish in ocean waters.
Applicable law: estuary fishery
14 In Division 2C the endorsements sought by Mr Wardley are described in cl.191M:
(1) The following classes of endorsement are available in the [general estuary] restricted fishery:
. . .
• Meshing endorsement. This endorsement authorises the holder to take fish for sale from estuarine waters using any of the following nets:
meshing net
• flathead net.
• Prawning endorsement. This endorsement authorises the holder to take prawns for sale from estuarine waters using any of the following nets:
prawn net (hauling)
prawn net (set pocket)
prawn running net
seine net (prawns)
hand-hauled prawn net
push or scissors net (prawns)
dip or scoop net (prawns).
• Trapping endorsement. This endorsement authorises the holder to take fish (other than eels and mud crabs) for sale from estuarine waters using any of the following nets and traps:
fish trap
hoop or lift net.
. . .
15 A fisher must satisfy the ‘general’ criteria for all types of general estuary restricted fishery endorsements in cl.191N(1):
General requirements . The general requirements for an endorsement are that the person:
(a) owns a licensed fishing boat that is suitable for use in the restricted fishery, and
(b) has submitted to the Director at least 12 estuary waters catch returns in any 4 years (not necessarily consecutive) from 1986 to 1993, and at least one of those returns relates to a month prior to January 1991.
16 A fisher must also satisfy the specific criteria in cl.191N for each type of endorsement. In Mr Wardley’s case they are:
(3) Meshing endorsement . A person is eligible for a meshing endorsement if the Minister is satisfied that:
(a) the person fulfils the general requirements for an endorsement, and
(b) the person submitted to the Director at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that fish were taken from estuarine waters using a meshing net or a flathead net and at least one of those returns relates to a month prior to January 1991.
(4) Prawning endorsement . A person is eligible for a prawning endorsement if the Minister is satisfied that:
(a) the person fulfils the general requirements for an endorsement, and
(b) the person submitted to the Director at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that prawns were taken by methods other than prawn trawling and at least one of those returns relates to a month prior to January 1991.
(5) Trapping endorsement . A person is eligible for a trapping endorsement if the Minister is satisfied that:
(a) the person fulfils the general requirements for an endorsement, and
(b) the person submitted to the Director at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that fish (other than eels and mud crabs) were taken using a fish trap or a hoop or lift net and at least one of those returns is for a month prior to January 1991.
Catch returns towards demersal fish trap endorsement
17 Mr Wardley must show that he submitted at least six ocean waters catch returns in the years 1986 to 1990 indicating that fish were taken using fish traps. The Minister concedes that he can show five, but says that he cannot show the sixth.

18 Mr Wardley must also show that he submitted four ocean waters catch returns in the years 1991 to 1993 indicating that fish were taken using fish traps. The Minister says that he cannot show any.

Catch returns towards line fishing (Western zone) endorsement
19 Mr Wardley must show that he submitted at least six ocean waters catch returns in the years 1986 to 1990 indicating that fish were taken using a line. The Minister concedes that he can show these six. Mr Wardley must also show that he submitted four ocean waters catch returns in the years 1991 to 1993 indicating that fish were taken using a line. The Minister concedes that he can show two, but says that he cannot show two more.

Catch returns towards line fishing (Eastern zone) endorsement
20 Mr Wardley must show that he owns a licensed fishing boat with an OG1 authorisation. The Minister concedes that he does.

21 He must show that he submitted at least four ocean waters catch returns in the years 1986 to 1990, and at least two in the years 1991 to 1993, indicating that two of five prescribed species of fish were taken using a line. The Minister says that he cannot show any.

Amalgamation of fishing businesses
22 In written submissions to me through his legal representatives, the Minister says:

The Applicant [Mr Wardley] has subsequently submitted an application to amalgamate two for (sic) his fishing businesses (FB 639 & FB 407). This proposal has been approved subject to conditions.
This amalgamation will result in two additional restricted fisheries entitlements being:
Ocean Trap and Line
Line Fishing (Western Zone) Endorsement
Demersal Fish Trap Endorsement.
23 On file is Mr Wardley’s application for the amalgamation dated 9 June 2000, the Department’s deliberations, and a letter to Mr Wardley dated 13 July 2000 in which the Department says in part:
Your proposal to amalgamate FB 639 and FB 407 has been approved subject to the following conditions . . .
The amalgamation will result in two additional restricted fisheries entitlements . . .
- Ocean Trap & Line
- Line Fishing (Western Zone) Endorsement
- Demersal Fish Trap Endorsement
24 The letter asked Mr Wardley to advise in writing if he wished to continue with the amalgamation; there is no reply on file.

25 It is unclear to me whether those endorsements have in fact been granted as a result of an amalgamation, or whether Mr Wardley continues to seek them under this application. I will proceed to a decision on the basis that Mr Wardley continues to seek those endorsements under this application, although that may not be the case.

General requirements for estuary endorsement
26 Mr Wardley must show that he owns a licensed fishing boat that is suitable for use in the restricted fishery, and that he has submitted at least 12 estuary waters catch returns in any 4 years from 1986 to 1993, at least one of which is prior to January 1991. In previously acknowledging Mr Wardley’s eligibility for a hand lining and hauling crew endorsement and an eel trapping endorsement, the Minister conceded that Mr Wardley satisfies the general requirements.

Catch returns towards meshing endorsement
27 Mr Wardley must show that he has submitted at least eight estuary waters catch returns in the years from 1986 to 1993 indicating that fish were taken using a meshing or flathead net, at least one of which is prior to January 1991. The Minister says that he can show only two.

Catch returns towards prawning endorsement
28 Mr Wardley must show that he has submitted at least eight estuary waters catch returns in the years from 1986 to 1993 indicating that fish were taken using a prescribed prawning net, at least one of which is prior to January 1991. The Minister says that he cannot show any.

Catch returns towards fish trapping endorsement
29 Mr Wardley must show that he has submitted at least eight estuary waters catch returns in the years from 1986 to 1993 indicating that fish were taken using a fish trap or prescribed net, at least one of which is prior to January 1991. The Minister says that Mr Wardley’s validated catch history does not show any. The Minister concedes that seven catch returns for the period when Jervis Bay was considered an ocean waters fishery could be accepted as estuary waters catch returns, but says that Mr Wardley is unable to show an eighth.

Boat history or catch history?
30 On 17 November 1993 Mr Wardley bought licensed fishing boat (LFB) number 4029 from Mr Shepherd. In May 1993 Mr Shepherd had bought LFB 4029 from a Mr Pratt. To make up the shortfall in his catch history, Mr Wardley relies in large part on the personal catch history which he says he inherited from Mr Shepherd and Mr Shepherd had inherited from Mr Pratt. There are two stages to considering this. First, were catches from LFB 4029 personal or boat history? Secondly, if personal history, was it inherited by Mr Wardley?

31 The Department categorised LFB 4029 as a general purpose vessel rather than as a boat history vessel. The distinction is established and explained in the Licensing Policy 1996 at part 6.0:

(a) Personal catch history – Generally, personal catch history applies in fishing businesses where the fisher is the primary unit of effort. This includes estuary and beach fishing, and boats involved in mixed estuary/ocean businesses. A fisher’s personal history comprises all of his/her catches taken from general purposes vessels between 1986 and 1993.
(b) Boat history – Boat history generally applies where the boat is the primary unit of effort. These include all endorsed vessels (ie. Offshore prawn trawl, estuary prawn trawl, Commonwealth tuna longline and South East Trawl endorsed boats) and some unendorsed ocean vessels such as finfish trawlers and large offshore line and trap boats. These vessels are referred to as boat history vessels.
32 I note that the distinction is set out in the same terms and explained in more detail in the Department’s Catch Validation Procedures Manual at pages 11-12.

33 The Department, presumably under delegation from the Minister, determines that a boat’s category is either general purpose, in which case the catch history is personal history of the fisher, or boat history, in which case the catch history is history attached to the boat.

34 At the hearing Mr Wardley argued that LFB 4029 should be categorised a boat history vessel; if it was a boat history vessel then Mr Wardley would have received its catch history on buying it. In the alternative, Mr Wardley says that if LFB 4029 is a general purpose vessel, then when he purchased it from Mr Shepherd he inherited Mr Shepherd’s personal catch history.

35 The categorisation of a boat as a general purpose or a boat history vessel is not itself a decision which can be the subject of review by this Tribunal – it is not a decision identified in s126 of the FMA as one for which a fisher may apply to the this Tribunal for review. A decision on whether to issue an endorsement on a commercial fishing licence is such a decision, and the categorisation of a boat is a necessary step in making that decision. The categorisation of a boat is therefore a matter I must address in considering the correct and preferable decision in relation to the issue of endorsements.

36 In her affidavit of 7 August 2001 Ms Brown, Fisheries Management Officer (Commercial Services) at the Department, repeats the policy definition of general purpose vessels and says:

2 . . . LFB 4029 was determined as a GP [general purpose] vessel. It is a 7.5metre vessel and has a history of both ocean and estuary fishing in the criteria years (1986-1993). Sixty six returns were lodged for ocean waters with the main method being lining and fish trapping. Twenty two estuary returns were lodged with the main method being prawn set pocket netting and fish trapping.
37 Mr Wardley says that another boat of his, LFB 10206, also had a history of both ocean and estuary fishing in the criteria years (1986-1993), yet it was categorised as a boat history vessel. The Minister’s answer is in Ms Brown’s affidavit:
3 LFB 10206 was determined as a BH [boat history] vessel. It is a 9.14 metre vessel which also has a history of both ocean and estuary fishing in the criteria years. However, thirty three returns were lodged for ocean waters with the main method being fish trapping and only two estuary returns with the methods prawn set pocket netting and mesh netting.
38 I note that the split between ocean and estuary catch returns for LFB 4029 in the criteria years was 66/22, or a ratio of 3 to 1, and for LFB 10206 it was 33/2, or 16.5 to 1. It seems that the former led to a general purpose categorisation, the latter to boat history.

39 Mr Wardley questions whether any rationale exists for this. He says that there is no bench mark for the ratio such that a mixed history vessel will clearly be categorised one way or the other. I agree, and I agree too that the situation would be more satisfactory if there was an apparent rationale. But the primary reference point is the policy, and the policy appears to not draw any line at all based on the degree to which ocean and estuary catch histories are mixed: the policy says simply that if the history is mixed then it is personal history.

40 Mr Wardley’s reliance on LFB 10206 works against him: it is LFB 10206, a mixed history boat which has been classified as a boat history vessel, that appears to be the anomaly, not LFB 4029. The policy categorises mixed history vessels as general purpose vessels, and LFB 10206 is an exception to this. The categorisation of LFB 10206 cannot reasonably be the basis for saying that LFB 4029 should be treated the same way.

41 It is appropriate in my view that LFB 4029 be categorised as general purpose vessel, with the consequence that the catch history is personal to the fisher, and is not boat history.

Inheriting catch history: when was the transfer?
42 Whether Mr Wardley is entitled to Mr Shepherd’s personal catch history is determined by Part 6.2 of the November 1996 Licensing policy which states:

Personal catch history may only be transferred as part of an entire RFO [recognised fishing operation] or FO . . . Upon transfer of a personal catch history RFO or FO, the licence holder must surrender their fisher’s licence.
43 At 6.3 the Policy asks and answers this question:
Did I receive catch history when I purchased my boat before June 1994?
Fishers who purchased a boat or boats which were involved in a personal history business (under this policy) normally receive that entire personal catch history of the seller if the transfer resulted in the seller leaving the industry at the time . If the seller continued to hold other licences or retained their fishing licence to work on other boats, the catch history is normally considered to have remained with the seller.
44 The Department has described it this way on Mr Wardley’s file (100164):
Personal history inheritances usually occur through purchase of an LFB from a fisher who then leaves the industry . Where a fisher owns more than one LFB, personal history will generally transfer with the last vessel sold . . . [emphasis in the original]
45 Put in terms of the policy in paragraph 44 above, the question for Mr Wardley is ‘did the transfer result in Mr Shepherd leaving the industry at the time?’.

46 Because there is an issue as to whether and if so when Mr Shepherd left the industry, it is necessary first to answer the related question ‘when did the transfer occur?’.

47 I find this a difficult issue, which requires more extensive analysis than is warranted in this matter. I say this because in my view, even assuming, as I do, the more favourable interpretation for Mr Wardley – that the transfer occurred at the time of the sale – Mr Wardley would not inherit Mr Shepherd’s catch history. The issue therefore need not be answered, at least not definitively.

48 However I make the following observations for three reasons. It is an important question generally; I note that the same question of the timing of the transfer might arise under the FMA and FMR. Further, if I am wrong about Mr Wardley’s not being entitled even if the transfer occurred on the earlier date, then the date of the transfer will have to be decided in order to determine his entitlement. Finally, I note that Mr Wardley has been particularly aggrieved by the Department’s failure to act in a timely way when registering the transfer with the consequence that Mr Wardley was not entitled due to a delay in transfer, and he expended considerable energy over some years addressing this.

49 As a general proposition, a transfer occurs at the point in time when rights pass. This may be by operation of law, where the time at which rights pass is prescribed, or by an act done with the intention of effecting a transfer. Provided there is no legal impediment to the transfer then the act will effect the transfer: the point of time at which there is a contract of sale, and the point of time at which there is a conveyance of title and the vendor becomes the owner, are simultaneous (cf Helmore’s Personal Property and Mercantile Law in NSW, 9th ed, Law Book Co).

50 Mr Wardley’s transaction with Mr Shepherd, and Mr Shepherd’s transaction with Mr Pratt, both pre-date the FMA. They were governed by the Fisheries and Oyster Farms Act 1935 (‘the 1935 Act’) and the Fisheries and Oyster Farms (General) Regulation 1989 (‘the 1989 Regulation’).

51 Section 23 of the 1935 Act governed the issue of boat licences, and s23 (5) said simply that “a licence under this section may, subject to the regulations, be transferred”. Section 23 (5) was repealed in 1979 and provisions regarding boat licences were governed by a newly inserted s24A. That section made no reference to transfers, saying only that licences were subject to prescribed conditions (s24A(3)), and empowering the Minister in prescribed circumstances only to issue, refuse, cancel or suspend a licence (s24A(2) and (4)).

52 Clause12 of the 1989 Regulation said that on written application and payment of a fee by the purchaser, the Director-General “may transfer, or refuse to transfer, the boat licence” to the purchaser. I am not sure of the legislative basis for the Regulation permitting the approval or refusal of a transfer, but will assume for purposes of this matter that the Regulation was within power.

53 These provisions do not answer the question: ‘at what time does the transfer occur?’. If approval is necessary before a transfer occurs then a sale transaction would prudently be ‘subject to approval’, as the transfer application could, at some much later date, be refused. That certainly was not the practice – fishers did generally, and Mr Wardley certainly did in this matter, conduct themselves as if the sale transaction was the time of transfer of title.

54 There are other regimes where the effect of a transfer is explicitly dependent on registration. Liquor licensing laws in NSW make statutory provision for transfer of licences to be by application (ss41 and 60 Liquor Act 1982). As well, “under provisions of the Real Property Act or the Crown Lands legislation . . . registration is essential to the passing of the title and the vesting of the legal estate in the purchaser” (Conveyancing Service NSW Vol 1 at [11102], Butterworths).

55 The provisions relating to motor vehicles appear closer to those of the fisheries regime. The Road Transport (Vehicle Registration) Regulation 1998 refers to the disposition of a vehicle by a “disposer” (vendor) and the acquisition of a vehicle by an “acquirer” (purchaser). It is after the disposition and acquisition that the acquirer is then obliged to register the transfer of vehicle registration. This to me is indicative of the transfer being contemporaneous with the contract for sale, and the subsequent registration being an administrative step.

56 If cl.12 of the 1989 Regulation is to be interpreted so as to separate the contract of sale from the transfer, and to effect the transfer of title only if and when the Department registered the transfer, then I would be concerned at the uncertainty that could follow, and the injustice that could be caused. Such an interpretation would give rise to an injustice in circumstances, such as those of Mr Wardley in this matter, when through its error the Department did not register the transfer for nearly two months. The only alternative interpretation – that the transfer occurred at the time of sale and the subsequent registration was purely administrative – would better reflect the fishers’ general practice, and would avoid injustices arising due to delay. It would however raise the question of what is meant by the power to refuse to register.

57 In Ireland v Minister for Fisheries n[2001] NSWADT 198 the date of a transfer was relevant only to the extent that the Tribunal was concerned to know whether a licence was current at the time of the transfer. The facts in that particular matter were such that there was no need for the Tribunal to consider and decide whether the sale transaction or the act of registration was the date of transfer. Thus in Ireland, the Tribunal’s apparent distinction between ‘purchase’ and ‘transfer’, for example in paragraph 32 of the decision, and its reference to a date at which a transfer ‘took effect’ for example in paragraph 37 of the decision, does not in my view indicate that the Tribunal had considered and decided whether a transfer occurs at the time of purchase or at the time of registration by the Department.

58 The evidence as to the sale from Mr Shepherd to Mr Wardley is that on 17 November 1993 Mr Shepherd issued Mr Wardley a signed receipt for

full payment for boat + licence Sum of $28,000. LFB 4029 includes fishing gear sounder + compass + marine radio free of all incumbrances.
59 On the same document Mr Shepherd signed the following text:
I Brian Shepherd give permission for LFB 4029 to be transferred to Stephen Wardley File No 791187 as he has purchased this LFB of me.
60 Mr Wardley later obtained from Mr Shepherd a statement dated 30 September 1999 in which Mr Shepherd stated “I sold the boat [LFB 4029] to Steve Wardley about five or six years ago as I was giving up fishing to go to a new job in New Zealand but the job fell through. As far as I can recall I sold the traps (fish) and all the gear that went with it on the boat”.

61 There was a process of applying for a transfer, and the relevant form states that a licence holder and a “proposed transferee” “hereby apply for transfer of the licence”. Although this was the practice of the Department pursuant to cl.12 of the 1989 Regulation, I do not think that the effect of the Regulation altered the ordinary position that an act done with the intention of effecting a transfer does effect the transfer.

62 To say otherwise – that is, that a transfer is not effected until registered by the Department – would give rise to injustice in circumstances where the Department delays in registering the transfer, as I noted above. I do not think it can be the case, without clear legislative authority, that a transfer is not effected until and unless the Department gets around to registering the transaction.

63 Mr Wardley signed an ‘Application for Transfer’ for LFB 4029 on 19 November 1993, but the Department did not register the transfer until January 1994. The date at which the Department registered the transfer is not, in my view, the date at which the transfer of the business took place.

64 I proceed therefore on the basis that Mr Shepherd transferred LFB 4029 to Mr Wardley on 17 November 1993.

Inheriting catch history: leaving the industry
65 The next question raised by the policy is whether the transfer on 17 November 1993 resulted in Mr Shepherd “leaving the industry at the time”? An important phrase is “at the time”. Does the policy allow for the possibility that a transferor, though leaving the industry “at the time”, might later return to the industry? Or does the policy mean to identify the particular transfer which marks the time at which the transferor left the industry and did not ever return?

66 In my view the latter interpretation is unworkable. It does not allow for any certainty, leaving open the possibility that a transferee may at any time return to the industry and continue to claim their catch history. It might never be possible to say that a transfer is the one which, at the time, did result in the transferee leaving the fishing industry.

67 The former interpretation enables catch history to be managed with some certainty, because it can be said that, at the time, the transfer resulted in the transferee’s leaving the industry. Whatever the transferee does in future is a matter for them. If they were one day to return then they would do so without the personal catch history which had passed with the transfer that resulted in their leaving the industry.

68 A further important phrase in the policy is “resulted in”. The policy does not identify the transfer as the cause of a transferee leaving the industry. The policy asks whether, as a question of fact, a consequence of the transfer is that the transferee leaves the industry.

69 The intention of the transferee cannot determine the question, although it would be relevant. A transferee might have intended, in selling their only licensed fishing boat, to stay in the industry because, say, they had agreed to buy a new boat. If the purchase of the new boat does not go ahead, perhaps for personal reasons, and the transferee never returns to the industry, then the transfer is one which, at the time, did result in the transferee leaving the industry, even though that had not been their intention. Similarly, a transferee might have intended, in selling their only licensed fishing boat, to leave the industry because they had decided to travel. If the travel does to go ahead, perhaps for personal reasons, and the transferee returns to the industry, then the transfer is one which, at the time, did not result in the transferee leaving the industry, even though that had been his intention.

70 Over what period of time can the consequences of a transfer be measured – when is the line drawn, and when can it be said that a transfer did or did not result in a transferee leaving the industry? I think that the further wording of the policy indicates that the holding by the transferee of a fishing licence is such a measure.

71 Under the policy, a transfer is not considered to have resulted in a transferee’s having left the industry if the transferee holds other licences, which I take as a reference to other boat licences, or if the transferee retains their fishing licence to work on other boats. In this matter the transferee, Mr Shepherd, did not hold other boat licences, so only the second of these circumstances might be relevant.

72 The policy asks whether the transferee’s retention of their fishing licence was “to work on other boats”. This question must be asked, because a transferee will usually have a licence current until its expiry and so can “hold” a licence until its expiration without an intention to fish.

73 Whether a fisher’s holding of a licence, after the sale of their only licensed fishing boat, is simply a legacy of the licence continuing to be current, or is “to work on other boats” is a question of fact to be determined in the particular case.

74 Was it a consequence of the transfer to Mr Wardley that Mr Shepherd left the industry at the time? In my view it was not. It is clear from the evidence that it had been, at some stage, Mr Shepherd’s intention to leave the industry on the sale to Mr Wardley. He said as much to Mr Wardley and, it appears to others including his crew.

75 But what actually happened is that within 48 hours of the sale to Mr Wardley Mr Shepherd was inquiring about buying another boat. A file note on the Department’s file dated 19 November 1993 states “[Mr Shepherd] has inquired about getting another boat . . . ”. A file note dated 24 November 1993 states: “Mr Shepherd has purchased LFB 4343’s licence . . . ”. Mr Shepherd completed a Departmental document titled Proposed Transfer of NSW Licensed Fishing Boat, as purchaser, on 24 November 1993.

76 Whenever the line is drawn on the consequences of a transfer, I cannot say that Mr Shepherd left the industry for 48 hours and then returned to it. I do not know when his arrangements for travelling to New Zealand fell through, and I do not know what Mr Shepherd knew and intended on 17 November. It is possible, and in light of his interest in purchasing a boat only 2 days later it is a real possibility, that on 17 November he already knew that he wasn’t going to New Zealand. In that case the sale of LFB 4029 was merely a transaction he had committed to and proceeded with.

77 Consistently with this, it seems likely that on 17 November 1993 Mr Shepherd kept his licence not merely because it was current, but to work on other boats. Mr Shepherd has personal catch history, from another boat, in the month he sold to Mr Wardley. The only alternative to a finding that the transfer from Mr Shepherd to Mr Wardley did not result in Mr Shepherd’s leaving the industry is a finding that Mr Shepherd left the industry for not more than 48 and then returned to it. I am not satisfied that this is the case.

78 On the material I am unable to find, on balance, that the transfer from Mr Shepherd to Mr Wardley on 17 November 1993 resulted in Mr Shepherd’s leaving the industry. The effect of the policy is that Mr Shepherd’ catch history, such as it was, did not transfer to Mr Wardley.

The personal catch history of Mr Shepherd
79 It is not necessary therefore to make a finding on what Mr Shepherd’s personal catch history is. I do however make the following observations, as Mr Wardley spent some years and considerable effort advocating to the Department his belief that he was entitled to Mr Shepherd’s catch history, driven by his further belief that that catch history would substantially assist him meet the eligibility requirements.

80 Mr Wardley believes that Mr Pratt’s history passed to Mr Shepherd, and that it was Mr Shepherd’s intention to pass it on to him, Mr Wardley. He says that Mr Shepherd showed him a printout of catch history which he, Mr Shepherd, had said had been shown to him by Mr Pratt. My sense is that Mr Wardley believes that the actual catch history was passed on as the catch history printout was passed on.

81 For the same reason that Mr Wardley did not inherit Mr Shepherd’s personal catch history, Mr Shepherd had not inherited the personal catch history of Mr Pratt.

82 The error was perhaps originally Mr Shepherd’s. If it is the case that he, on receiving the printout with the purchase of LFB 4029 from Mr Pratt, did believe that he was getting Mr Pratt’s catch history, then he may have engaged in the same transaction with Mr Wardley, giving rise to Mr Wardley’s having the same belief. But what they believed to be the case is not the actual state of affairs.

83 At the time of Mr Pratt’s sale to Mr Shepherd, and of Mr Shepherd’s sale to Mr Wardley, the legislation and policy in relation to catch histories, endorsements and transfers were not in place. Fishers were warned consistently that changes were pending, and that fishers should not engage in transactions until the changes were known.

84 When the changes were eventually introduced they did not always, and it appears that they did not in Mr Wardley’s case, reflect the beliefs under which some fishers had engaged in transactions. Although Mr Shepherd may have thought he had received Mr Pratt’s catch history because he had been given the printout, and Mr Wardley did think that he had in turn received the catch history because he too had been given the printout, the subsequent eligibility requirements did not recognise the transfer of catch history on that basis. The effect of the policy is that what Mr Wardley believed at the time had happened is not what subsequent policy says happened. In the same way, nor did Mr Shepherd receive personal catch history from Mr Pratt.

85 Mr Shepherd’s own catch history began only in July 1993. The whole of Mr Shepherd’s personal catch history is five months: July, August, September, November and December 1993. But as Mr Wardley’s argument that he is entitled to the catch history turns on the effective date of Mr Shepherd’s sale to Mr Wardley being 17 November 1993, Mr Wardley can only claim Mr Shepherd’s catch history as it was at that date. Thus he claims the three completed returns for July, August and September 1993. Mr Shepherd’s returns for November and December were for catches taken after 17 November.

86 The three returns which Mr Wardley would receive from Mr Shepherd each show the methods of trotline, trolling, handline and fish trap, except August which does not show trolling. They would be relevant to Mr Wardley’s eligibility for a demersal fish trap endorsement and either a line fishing (Western zone) endorsement or a line fishing (Eastern zone) endorsement.

Would the policy produce an unjust decision?
87 Mr Wardley’s transaction with Mr Shepherd, in which he believed he was receiving catch history, was in November 1993. The policy which says that, for purposes of his future fishing entitlements he did not receive the catch history, was not in place until 1994, and revised in 1996. Though unfair in Mr Wardley’s eyes, such a policy is neither ‘retrospective’ (see Hirst-v- Director, Department of Fisheries [2000] NSWADT 158), nor unjust decision only because it operates contrary to his belief as to the state of affairs (see Forster -v- Minister for Fisheries [2002] NSWADT 50). The policy might, however result in an unjust decision in the circumstances.

88 In determining an application for review

the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case (s 64(1) Administrative Decisions Tribunal Act (‘ADT Act’))
89 The policy was in force when the Minister made the reviewable decision in 2000. Would giving effect to it produce an unjust decision in the circumstances of the case?

90 What constitutes an “unjust decision” appears, in decisions where the issue has arisen in this Tribunal, to have been taken as self-evidently just, or unjust, in the circumstances (see eg Searl -v- Director General, NSW Fisheries [2000] NSWADT 53; Micallef-v-Minister for Fisheries [2001] NSWADT 1; Naomi Star Pty Limited -v- Minister for Fisheries [2001] NSWADT 77; Brookman -v- Minister for Fisheries [2001] NSWADT 168 Forster -v- Minister for Fisheries [2002] NSWADT 50).

91 The origin of the concept in s64(1) of the ADT Act is the observation of Brennan J in Drake v Minister for Immigration and Ethnic Affairs No. 78/10017 Immigration (AAT) that “the Tribunal will ordinarily apply [a Minister’s] policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.

92 Davies J in Aston and Secretary to the Department of Primary Industry No. S.85/27 Fisheries (AAT), refers at paragraph 23 to the Tribunal “taking into account all relevant considerations, including any policy” He says that “the weight to be given to policy will vary according to the circumstances”. The role that policy plays in this Tribunal is different. More than ordinarily applying it, or taking it into account as a relevant consideration, the ADT Act says that this Tribunal “must give effect to” relevant policy.

93 This, to my mind, makes it especially important to be clear about the concept of an “unjust decision”. I do not have a discretion to not give effect to policy, or to give it only some weight; I am compelled to give effect to it. If I am to avoid the application of policy, I should do so only when there are clear and well argued grounds for characterising a decision resulting from application of the policy as unjust.

94 In the more discretionary context in which the AAT has considered the nature of an unjust decision resulting from policy, that Tribunal has articulated a test of ‘unusual or especial disadvantage to the applicant’ – see Boschetti and Minister for Primary Industry No. W87/124 AAT No. 4014 Fisheries (AAT) at para 30, citing Aston and Secretary to the Department of Primary Industry (Decision No. 2398, 6 November 1985) and Evans and Secretary to the Department of Primary Industry (Decision No. 2472, 18 December 1985).

95 Consistently with this approach, if the result of the application of policy reflects the intended operation of the policy, the decision could not be an unjust one. An unjust decision is not one which is merely unfair to the applicant in the circumstances.

96 In this matter, a decision giving effect to the policy will characterise a transaction as one which does not transfer catch history, and will result in Mr Wardley not inheriting catch history in circumstances where he expected to. That is unremarkable, and the ordinary effect of the policy. It is the effect that the policy has on all fishers. Mr Wardley is not unusually or especially disadvantaged. A decision resulting from the application of the policy is not unjust in the circumstances, within the meaning of s.64(1) of the ADT Act.

97 Mr Wardley is unable to rely on boat history from LFB 4029 or, in the alternative, on personal catch history inherited from Mr Shepherd. Except for an argument in relation to the line fishing (Eastern zone) endorsement, Mr Wardley has only the discretion under cl.214C to rely on if he is to identify the necessary catch returns to establish eligibility for the endorsements he seeks.

Line fishing (Eastern zone) endorsement
98 Differently from his claims in relation to other endorsements, Mr Wardley says that some of his own catch returns should be understood to indicate line fishing in waters less than 183 metres deep. Clause 191E(3)(b) requires that the catch returns indicate the use of line methods and the taking of particular species. The indicator species are an eligibility requirement to distinguish between the use of line methods in waters less than 183 metres deep (Western Zone) and use of line methods in waters not less than 183 metres deep (Eastern Zone) – see cl.191D FMR.

99 Mr Wardley’s catch returns in his personal catch history – from fishing on LFB 5277 – do not record any of the indicator species. Mr Wardley says that the ‘indicator species’ requirement is unfair as fishers were not at the time required to record those species. Mr Wardley says that he recorded ‘unspecified ocean’, as he was allowed to do, and that in those unspecified fish were indicator species.

100 The regulations require that catch returns indicate that at least two of the indicator species were caught with line methods. The recording of line methods, and of ‘unspecified ocean fish’, would in my view together be a sufficient indication of the catch of the indicator species to warrant reference being made to other material which might support an inference that at least two of the indicator species were in fact caught (see eg Greenaway-v- Director, Department of Fisheries [2000] NSWADT 158 at paras 73-83).

101 There is no such other material. The sale dockets do not show the species. There is nothing before me which assists at all in inferring that the ‘unspecified ocean fish’ included at least two of the indicator species. Mr Wardley himself has not said that in four months during 1986 – 1990 and in two months during 1991 – 1993 he caught at least two of the indicator species. His claim appears to be based on the unfairness of introducing, after the event, the requirement of the indicator species. That unfairness is not a basis on which I can find Mr Wardley eligible for an endorsement.

102 Even if Mr Wardley could show that returns in his personal catch history indicate the use of line methods to take at least two of the indicator species, that catch history only exists until and including 1990. Mr Wardley must also show catch returns for the period 1991 – 1993, but he has no personal catch history for that period. From 1991 until he bought LFB 4029 in late 1993 Mr Wardley fished from LFB 1954, which was categorised by the Department as a boat history boat. The catch history for LFB 1954 was therefore inherited by its purchasers and is not available to Mr Wardley.

103 Mr Wardley’s personal history catch returns do not indicate the use of line methods to take at least two of the indicator species in the period 1986 – 1990, and he has no personal history catch returns for the period 1991 – 1993. Mr Wardley is not able to show the necessary six catch returns to be eligible for a line fishing (Eastern Zone ) endorsement.

Meshing endorsement: cl.214C(2) – incomplete records
104 In relation to a meshing endorsement, the Minister concedes Mr Wardley can show two returns showing meshing. They are a return of Mr Burton in September 1990 at which time Mr Wardley had a shared fishing agreement with Mr Burton, and a catch of luderick evidenced by a sales docket in May 1990. Mr Wardley needs to show a further six returns to be eligible for a meshing endorsement.

105 Mr Wardley relied on statements from witnesses, and on the material available to me I am satisfied that Mr Wardley did on occasions in the period 1986 – 1993 use meshing as a method for taking fish. The evidence is, however, general, and none of it indicates how often Mr Wardley used mesh nets.

106 For purposes of eligibility for an endorsement it does not matter that I am satisfied that Mr Wardley took fish by meshing – only catch returns and verified records which indicate that Mr Wardley took fish by meshing are relevant. Catch returns need to have been lodged by him, or by another fisher with whom Mr Wardley had a shared fishing agreement.

107 Mr Wardley says that he was meshing with a Mr Burton, that he had a ‘shared fishing agreement’ with Mr Burton, that Mr Burton was responsible for lodging the catch returns. He says that he meshed with Mr Burton in about 10 months from 1989 to 1992, and that it was Mr Burton’s responsibility to lodge the catch returns. Mr Wardley says he saw Mr Burton fill out the returns to be lodged by his, Mr Burton’s, wife. The Department has a record of Mr Burton’s having lodged only the one catch return showing meshing as a method, in September 1990.

108 Mr Wardley relies on cl.214C(2)(a) FMR:

(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
109 Mr Wardley says that because of Mr Burton’s apparent failure to lodge the catch returns, the Department’s records are inaccurate or incomplete through no fault of Mr Wardley’s. He says that statistical records from the Sydney Fish Markets show that Mr Burton did take fish by meshing.

110 Those records do show that Mr Burton sold fish in the 13 months June 1990 to June 1991. The records also show sales made by Mr Wardley in the period February 1990 to February 1993. Being sale records, however, the fishing method used to take the fish is not recorded.

111 As to species which indicate the use of mesh nets, I am aware from the material before me, and from other matters in this Tribunal, that mud crabs are sometimes caught as by-catch from mesh nets (eg Brookman -v- Minister for Fisheries [2001] NSWADT 168; Madge -v- Minister for Fisheries [2001] NSWADT 73) and that mullet and mulloway are caught in mesh nets (eg Greenaway-v- Director, Department of Fisheries [2000] NSWADT 158). In Mr Wardley’s matter the Minister concedes that a catch of luderick indicates the use of a mesh net.

112 I can infer from the species of fish sold by Mr Burton only that meshing was a likely method in August 1990, when luderick were caught. Similarly I can infer from the species of fish sold by Mr Wardley only that meshing was a likely method in May 1990, when luderick were caught – this is the month already conceded by the Minister.

113 The fish market records thus indicate only a further one month, and not the necessary six months, in which fish were taken by meshing, whether sold by Mr Wardley or Mr Burton.

114 If the records did indicate a total of six, it might then be necessary for me to be satisfied as to a number of further matters. (That need might nevertheless be obviated by the Minister’s implicit concession that the matters are not in issue, the Minister having conceded, on the Review Panel’s recommendation, that Mr Wardley should be allowed to rely on Mr Burton’s catch return of September 1990 and his own sale of luderick in May 1990).

115 Those matters which might have required decision are that the fish market records are verified records within the meaning of cl.214C(4); that the catch history records are, for reasons that are not attributable to Mr Wardley’s fault, inaccurate or incomplete such that I can properly look at the verified records; that there is in existence a shared fishing agreement between Mr Wardley and Mr Burton; and that I can and should give effect to the shared fishing agreement. As the fish market records do not indicate six months in which Mr Burton took fish by meshing, and as the Minister appears to have impliedly conceded them, it is not necessary to decide these further matters.

116 I note however the question of the status of the Department’s 1996 Catch Validation Procedures Manual. I understand that the manual is the sole or principal source of authority for recognition of shared fishing agreements. This Tribunal, differently constituted, in Ireland at paragraph 68, found that the Manual is not Government policy within the meaning of s 64(5) of the ADT Act such that the Tribunal is bound to give effect to it. With respect, I am not sure that I would agree, at least not until I was satisfied that the delegation from the Minister to the Director under s227 FMA did not encompass the Director’s adoption of a document such as the Manual as policy.

All endorsements: cl.214C(2) – other significant reasons
117 In relation to all the endorsements he seeks, Mr Wardley says that he is or should be eligible for the endorsements because of number of circumstances. In terms of cl.214C(2)(c)(iii), he says that for significant reasons that are not attributable to his fault, he was unable to satisfy the eligibility criteria.

118 Clause 214C(2)(c) FMR provides:

(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:
. . .
(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.
119 The NSW Court of Appeal provided guidance to the meaning of this provision in Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298 . At paragraph 61 the Court said that the appropriate question to ask, in relation to the relevant period, is: was it impossible for Mr Wardley to fish? The Court went on to put this in other ways, to the same end: was he capable of doing so? Had he the means of doing so? Was it within his potential? Did he labour under any disability preventing him from doing so?

120 Mr Wardley’s attendance with his wife for IVF treatment in the years 1989-1994 kept him away from fishing from time to time. Having considered the material and Mr Wardley’s evidence, I agree with the Review Panel’s recommendation to the Minister that “the visits were spaced to a degree that [Mr Wardley] would have had in any particular month perhaps some 20 days or more available to him to undertake his fishing activities”. The catch returns allow reporting on fishing done at any time in a calendar month – Mr Wardley’s attendance for IVF did not preclude him from fishing for the greater part of a calendar month. In my view it cannot be said of Mr Wardley that attending for the IVF treatment made it impossible for him to fish within any month.

121 In relation to the need for repairs to his boat engine in 1989 and 1990, Mr Wardley conceded in his evidence that the boat was out of action for about 5 or 6 days at a time in March, April and May 1990. Catch history records show that in those months he fished for one, five and four days respectively. I note however that in January in the same year he fished four days, July five, August none, October eight and December eight. This amount of fishing is consistent with the amount of fishing done in the months in question, and Mr Wardley does not suggest he faced impediments to fishing other than in the months in question.

122 In my view the test of ‘impossibility’ is clearly not satisfied. Mr Wardley acknowledged that such repairs are matters that have to be attended to by fishers from time to time – he did not agree that all fishers face these problems, but that some do. While it was impossible for him to fish when the boat was under repair, it was not impossible for him to fish for the greater part of a calendar month for which a catch return would have been submitted.

123 To the extent that the test of ‘impossibility’ is satisfied, I agree with the Minister that such repairs are unremarkable over a period of years. The eligibility criteria for the endorsements Mr Wardley seeks can be satisfied by showing, at most, 10 relevant monthly catch returns over the eight years 1986 - 1993. In my view the unavailability of his boat for a few days a month for three months in that time is not a “significant” reason for his inability to satisfy the eligibility criteria within the meaning of cl.214C(2)(iii)(c).

124 Mr Wardley relies on the trap puller’s being out of order in November and December 1993. Although the unavailability of a trap puller meant that for those two months Mr Wardley was unable to trap, that is, it was impossible for him to do so, the reason for this was not, in my view, “significant”. Such an occurrence is unremarkable over a period of years. To satisfy the eligibility criteria for trapping Mr Wardley needs to show, for the three years 1991-1993, only four relevant monthly catch returns. In my view the unavailability of a trap puller for two months in that time is not a “significant” reason for his inability to satisfy the eligibility criteria within the meaning of cl.214C(2)(iii)(c).

125 Mr Wardley says that there was a delay in settlement of his sale of LFB 1954, during which time he didn’t fish for the 3 months August, September and October 1993. Mr Wardley’s catch history shows he did not fish on any days in these months. But Mr Wardley agrees that he could have fished in that period, although it would have been “silly” to do so as the boat was under contract for sale. He still owned the boat, and he would have been taking a risk had he used it for fishing. It seems to me however that, in terms of the test posed in Puglisi, it was not impossible for Mr Wardley to have fished. It might have imprudent, or even reckless, but he was capable of doing so. Unfair as this may seem to Mr Wardley, I understand the test in cl.214C(2)(c)(iii) to have been put as high as that by the Court of Appeal in Puglisi.

126 To the extent that the test of ‘impossibility’ is satisfied, I agree with the Minister that such a delay in settling a sale is an unremarkable occurrence in a period of years, and would therefore not be a “significant” reason within the meaning of cl.214C(2)(iii)(c).

127 In relation to his wrist operation in 1987, Mr Wardley’s evidence is that, as a result of the operation and its effect on his wrist, he would take a day off when he needed to. I accept, as the Review Panel recommended to the Minister, that the effect of the surgery was to reduce Mr Wardley’s fishing efficiency, but I also agree with the Review Panel that that would not prevent him engaging in fishing during the whole or, it seems to me, even the greater part, of a calendar month.

Circumstances under cl.214C(2): illness or incapacity
128 The effect of wrist surgery on Mr Wardley’s ability to satisfy the eligibility criteria could be considered under cl.214C(2)(c)(i). The test there is that illness or incapacity “substantially affected his ability” to satisfy the eligibility criteria. This is different from, and is arguably a less onerous test than, the test in cl.214C(2)(c)(iii): for other significant reasons he was “unable to” satisfy the eligibility criteria. Even so, for the reasons I gave above when considering the effect of wrist surgery in light of cl.214C(2)(c)(iii), the wrist surgery and resulting incapacity, while it may have had some occasional effect to some degree, did not substantially affect Mr Wardley’s ability to satisfy the eligibility criteria.

Findings
129 I find that LFB 4029 is a general purpose vessel, with the consequence that catch history associated with it is personal catch history not boat history.

130 I find that Mr Pratt’s personal catch history was not inherited by Mr Shepherd.

131 I find that the transfer of LFB 4029 from Mr Shepherd to Mr Wardley took place on 17 November 1993. I am unable to find that that transfer resulted in Mr Shepherd’s leaving the fishing industry.

132 I find that Mr Shepherd’s personal catch history was not inherited by Mr Wardley.

133 I find that to give effect to the 1996 Licensing Policy would not produce an unjust decision in the circumstances.

134 I find that the catch returns in Mr Wardley’s personal catch history returns do not indicate the use of line methods to take at least two of the required indicator species.

135 I find that Mr Wardley’s incapacity resulting from his wrist operation did not substantially affect his ability to satisfy the eligibility criteria for the endorsements he seeks.

136 I find that none of the various circumstances Mr Wardley relies on was attributable to his fault. I find however that none was a reason for his being unable to satisfy the eligibility criteria. In addition, I find that some of those circumstances would not constitute significant reasons.

137 I find that even if Mr Wardley could rely on records other than catch history to establish his share of mesh net catch taken with Mr Burton, those records establish only two months in which meshing was used as a method to take fish.

138 For a demersal fish trap endorsement Mr Wardley needs to be able to show a further catch return for the period 1986 – 1990 and four catch returns for the period 1991-1993. I find that Mr Wardley is unable to show these returns.

139 For a line fishing (Western zone) endorsement Mr Wardley needs to be able to show four catch returns for the period 1991-1993. I find that Mr Wardley is unable to show these returns.

140 For a line fishing (Eastern zone) endorsement Mr Wardley needs to be able to show four catch returns for the period 1986 – 1990 and two catch returns for the period 1991-1993, all of which must show at least two of the indicator species. I find that Mr Wardley is unable to show these returns for the period 1986 – 1990, or for the period 1991-1993.

141 For a meshing endorsement Mr Wardley needs to be able to show a further six catch returns. I find that Mr Wardley is unable to show these returns.

142 For a prawning endorsement Mr Wardley needs to be able to show eight catch returns. I find that Mr Wardley is unable to show these returns.

143 For a fish trapping endorsement Mr Wardley needs to be able to show one further return. I find that Mr Wardley is unable to show this return.

Correct and preferable decision
144 Having regard to the relevant factual material and the applicable law, the correct and preferable decision is that Mr Wardley is not eligible for the endorsements he seeks.

145 Accordingly I affirm the Minister’s decision to accept the Review Panel’s recommendation that the applicant is not eligible for the following ocean trap and line restricted fishery endorsements:

1. Demersal fish trap
2. Line fishing (Western zone)
3. Line fishing (Eastern zone)
and for the following estuary general restricted fishery endorsements:
1. Meshing
2. Prawning
3. Fish Trapping.
ORDERS
(1) Pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act I affirm the decision of the Minister.
(2) Pursuant to s88 of the AdministrativeDecisions Tribunal Act I make no award of costs.