Yukich and Chief Executive Officer, Department Of Fisheries, Western Australia - [2009] WASAT 7

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: FISH RESOURCES MANAGEMENT ACT 1994 (WA)

CITATION: YUKICH and CHIEF EXECUTIVE OFFICER, DEPARTMENT OF FISHERIES, WESTERN AUSTRALIA [2009] WASAT 7

MEMBER: JUSTICE M L BARKER (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 21 JANUARY 2009

FILE NO/S: DR 424 of 2008

BETWEEN: RAYMOND A YUKICH
PAMELA R YUKICH
Applicants
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF FISHERIES, WESTERN AUSTRALIA
Respondent

Catchwords:

Fisheries - Management of fish resources - Review of decision not to grant interim permit for demersal scalefish - Whether discretion to issue permit if criteria not satisfied - Fishing returns - Jurisdiction of Tribunal

Legislation:

Fish Resources Management Act 1994 (WA), s 4, Part 6, s 66, s 147(1), s 149(1)
State Administrative Tribunal Act 2004 (WA), s 44, s 47(1)(a), s 47(2)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
West Coast Demersal Scalefish (Interim) Management Plan 2007, cl 8, cl 12, cl 17, cl 22, cl 24, Part 3

Result:

Application for extension of time for lodging review application dismissed
Application dismissed

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: N/A

Solicitors:

Applicants: Self-represented
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Lenden Nominees Pty Ltd and Executive Director, Department of Fisheries, Western Australia [2005] WASAT 339
O’Connor and Town of Victoria Park [2005] WASAT 161

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants sought review of the respondent’s decision to refuse their application for the grant of an interim permit to catch demersal scalefish. The application for review was lodged after the 28 days review period, and the applicants sought an extension of time within which to lodge the application. The respondent opposed the grant of an extension of time on the ground that the applicants did not have an arguable case.
The Tribunal considered the legislative scheme governing the grant of interim permits and concluded that the respondent, and the Tribunal on determination of a review application, did not have the power to grant an interim permit unless the prescribed criteria were satisfied. The Tribunal found that cl 12(b) of the West Coast Demersal Scalefish (Interim) Management Plan 2007 was concerned not simply with the amount of fish caught each year, but with the amount recorded in the annual fishing returns as having been caught. The applicants’ fishing returns recorded an insufficient catch history for the relevant period for the grant of an interim permit. The Tribunal held it did not have the jurisdiction to consider whether an amendment should be permitted to the applicants’ fishing returns.
Consequently the Tribunal considered the applicants did not have an arguable case and refused the application for an extension of time to lodge the review application.

Facts

On 23 November 2007, the applicants applied for the grant of a West Coast Demersal Scalefish (Interim) Managed Fishery Permit under the Fish Resources Management Act 1994 (WA) (FRM Act) in relation to Fishing Boat Licence (FBL) 1738.
On 24 July 2008, the Chief Executive Officer (CEO) of the Department of Fisheries (WA) (Department) wrote to the applicants advising their application had been refused. In the letter, the applicants were advised of the avenue of review in this Tribunal.
On 30 October 2008, the respondent wrote to confirm that no application for review had been lodged with the Tribunal and accordingly the decision to refuse the application for the interim permit was final.
Mr Yukich rang the Department on 3 November 2008, stating he thought they had applied to the Tribunal through the letter dated 18 April 2008 and that he now wished to make a late application.
On 6 November 2008, the applicants applied to the Tribunal for review of the respondent’s decision to refuse to grant the interim permit. This application was made beyond the 28 day period provided by r 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) for the making of applications to the Tribunal.
The respondent now opposes the grant of an extension of time in which to lodge the application for review on the ground that the applicants do not have an arguable case. In the alternative, the respondent says if the Tribunal was minded to grant the extension of time, the applicants’ case would be unjustified or lacking in substance and therefore should be immediately dismissed pursuant to s 47(1)(a) and s 47(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Legislative scheme

The commercial fishing industry in Western Australia is regulated by the FRM Act, the Fish Resources Management Regulations 1995 (WA), and other subsidiary legislation made pursuant thereto. Generally, in order to participate in the fishing industry, a commercial fish licence is required, and in order to carry out boat-based commercial fishing it is necessary to hold a Fishing Boat Licence (FBL).
On 1 January 2008 the West Coast Demersal Scalefish (Interim) Management Plan 2007 (Management Plan), made pursuant to Part 6 of the FRM Act, commenced operation. Pursuant to the Management Plan, the West Coast Demersal Scalefish (Interim) Managed Fishery (fishery) was established and comprises all Western Australian waters off the west coast of Western Australia extending 115 degrees 30 minutes east longitude, westerly and northerly to 26 degrees 30 minutes south latitude. Commercial fishing of demersal scalefish within the fishery is governed by the Management Plan.
Clause 17 of the Management Plan provides:
Prohibition on fishing in the Fishery
Subject to clause 24, a person must not fish in the Fishery other than -
(a)in accordance with this plan; and
(b)under the authority of a permit.
Clause 24 provides exceptions, none of which are relevant in this instance.
Further, cl 22 provides:
Prohibition on having demersal scalefish on board
Subject to clause 24, the master of a fishing boat that is not an authorised boat and which is being used to fish in the waters of the Fishery must ensure that no demersal scalefish is stored or transported on board that boat.
Clause 24 relevantly provides:
Exceptions to certain prohibitions
…
(2)Clause 22 does not apply in regard to -
(a)demersal scalefish taken and in the possession of a person fishing under the authority of an authorisation issued under a management plan for a fishery specified in Schedule 4;
(b)a licensed fishing boat in respect of which a fishing tour operator’s or aquatic eco-tourism operator’s licence is held and which is being used solely for the conduct of a fishing tour or an aquatic eco-tour; or
(c) bait.
The effect of these provisions of the Management Plan is that, with a few exceptions, fishing by line from a licensed fishing boat may only occur under the authority of an interim permit granted pursuant to the Management Plan.
The grant of an interim permit is governed by Part 3 of the Management Plan.
Clause 12 of the Management Plan provides:
Criteria for the grant of a permit
The criteria to be satisfied before the CEO may grant a person a permit to fish in the Fishery are that-
(a)on 1 November 2007 the person was the holder of a fishing boat licence; and
(b)in respect of both the pre-benchmark period and the post-benchmark period the average annual catch of demersal scalefish (whole weight), as determined by the Department and recorded in the Department’s records on the basis of fishing returns relating to the use of the boat licensed under the fishing boat licence referred to in paragraph (a) as having been taken with the use of the boat from the waters of the Fishery by open access line fishing methods, is not less than 2,000 kg; and
(c)the person applies for a permit on or before 29 February 2008.
Clause 8 of the Management Plan provides relevant definitions for the interpretation of cl 12. In particular, 'annual catch':
means the weight of demersal scalefish that has been determined by the Department, on the basis of the relevant fishing returns for the relevant financial year, and which is recorded in the Department’s records as the whole weight of demersal scalefish that was taken in that year.
Further, 'average annual catch':
means the average of the annual catches for those three financial years in the pre-benchmark or the post-benchmark period (as the case may be) in which the most demersal scalefish (whole weight) were recorded as having been taken.
‘fishing history’ is also defined by cl 8 of the Management Plan :
fishing history means the information determined by the Department and recorded in the Department’s records on the basis of the fishing returns relating to the use of the boat licensed under the relevant fishing boat licence.
Relevantly, 'fishing return':
means a return -
(a)in a form approved by the CEO under the relevant Act and from time to time for recording the catch of fish taken with the use of a fishing boat under a fishing boat licence and submitted under -
(i)regulation 64; or
(ii)section 18 of the Fisheries Act 1905; and
(b)received by the Department on or before 30 June 2004.
It is the satisfaction of the criterion set out in cl 12(b) of the Management Plan which is now in dispute.
Section 149(1) of the FRM Act, read with s 147(1), provides a right of review to the Tribunal from a decision to refuse to grant an authorisation. 'Authorisation' is defined as a licence or permit: s 4. These provisions provide the applicants in this case with their right of review.
Pursuant to r 9 of the SAT Rules, an application to the Tribunal for review must be made within 28 days of the applicants being given notice of the relevant decision. By s 44(1)(b) of the SAT Act, the Tribunal may reject an application on the ground that it is made after the time limit before which the application is required to be made.
However, r 10 of the SAT Rules provides the Tribunal with the power to provide an extension of time:
1.The Tribunal, on the application by any applicant, referring person or on its own initiative, may extend any time fixed under the Act, an enabling Act or these rules for the commencement of a proceeding.
2.Under this rule, the Tribunal may extend time even if the time fixed expired before an application for extension was made or the Tribunal on its own initiative considered extending the time.

Submissions of the applicant

The applicants, being self represented, did not make detailed legal submissions. However, they did provide the following information.
Mr Yukich began fishing with his father, who was also a professional fisherman, in the 1950’s. He has been fishing continuously since 1961, and his three sons have followed in his footsteps. The applicants say that to them fishing is a way of life, not just a job.
Mr Yukich says that sometimes he would fish at both Shark Bay and South Fremantle at the same time, and his son would skipper in South Fremantle. Further, he says that up until 1996 some of his catch was sold to the public from his gear shed in South Fremantle, until the local council required him to cease selling fish from that address. Mr Yukich says that it appears that they inadvertently missed recording some of these catches on the monthly returns.
The applicants say they did catch in excess of 2,000 kilograms of fish in the relevant period. The applicants say much of this catch was used for bait (particularly for cray fishing). Other catch not sold to processors was consumed by family, given to friends and relatives, and shared in the Croatian community.
The applicants explain that not all of the catch was recorded in monthly fishing returns as they were under the impression that only fish which were sold needed to be recorded. Although the applicants have no dockets or receipts for fish caught but not sold during the relevant period, they provided two statutory declarations from fellow fishermen.
The first, from a fisherman who fished in similar areas to the applicant, says that many fishermen caught much of their own bait, and that he did not record it on his monthly returns to the Department. This fisherman also states that he has no doubt that the applicant would have caught in excess of 2,000 kilograms of fish for use as bait alone.
The second, from a retired fisherman, says Mr Yukich is an honest fisherman and a respected member of the fishing industry.
The applicants also provided a copy of the minutes of a meeting of the West Australian Fishers Federation. Approximately 100 people were in attendance, and when asked who included their unsold fish in their returns, only one person indicated he had included some of it.
Mr Yukich says that since 1973 he has kept voluntary Rock Lobster Research log books and that the research officer noted wetline activities which may have found their way onto the Department’s records to support a catch of over 2,000 kilograms.
Mr Yukich recognises the difficulties that will be faced in proving his catch, but believes it is unjust for the Department to deny him fishing rights. Mr Yukich says that if his appeal is dismissed he can no longer use his boat and will receive no compensation.

Submissions of the respondent

Applicant’s catch history: The respondent provided the following additional facts.
On receiving the applicants’ application, the Department carried out an examination of the records relating to the FBL. The Department determined the applicants’ annual average catch based on the whole weight of fish taken by the applicants as reported by them in their catch returns previously supplied to the Department. Catches taken outside of the waters of the Fishery were not included. Where the catch returns indicated the fish referred to were not whole fish, the Department used conversion rates specified in cl 8 of the Management Plan to convert it to whole fish weight.
The Department determined that the total average catch taken under FBL was under 2,000 kilograms for the pre-benchmark period and was more than 2,000 kilograms for the post-benchmark period.
Application for extension of time to lodge review application: In relation to the review application, the respondent submits that an extension of time for the lodgement of the application should not be granted on the basis that the applicants have no arguable case. The respondent makes the following contentions in support of the submission that the applicants have no arguable case.
Pursuant to s 66 of the FRM Act the CEO may grant an application for an interim permit only where he is satisfied that the criteria specified in the Management Plan are satisfied. Where the criteria of a Management Plan are not satisfied then the CEO has no discretion to grant an interim permit on other grounds, regardless of whether a failure to grant an interim permit will result in hardship to the applicants. The respondent cites Lenden Nominees Pty Ltd and Executive Director, Department of Fisheries, Western Australia [2005] WASAT 339 (Lenden) in support of its case.
The respondent submits that the criterion in question in cl 12(b) of the Management Plan is not directed simply to whether 2,000 kilograms of fish was actually caught each year, but whether the catches of fish were recorded in the fishing returns - and therefore it is the information in those returns only which may be used in determining whether the criterion is satisfied. In this regard, the respondent points to the definition of 'fishing return' in cl 8 of the Management Plan and its reference to 'received by the Department on or before 30 June 2004'. Based on these provisions, the respondent says the applicants do not have an arguable case, regardless of whether or not they could produce sufficient evidence to support their claim of having caught more than 2,000 kilograms of fish.
Further, the respondent says that the unrecorded catch history was not, in any case, eligible to be considered part of the applicants' fishing history, because fishing history is restricted by the definition of 'open access line fishing methods' to a person fishing commercially, and fish caught for family consumption is not commercial, and no contention has been made that the fish taken for bait was for a commercial purpose. The respondent says that even if the unrecorded fishing catch could be considered, there would be good reason to refuse to grant the interim permit as a matter of discretion, since catch taken for one purpose should not be credited to return records submitted in respect of a different purpose.
The respondent also points out that since the commencement of the legislation, the taking of species of fish for use as bait by persons engaged in commercial fishing, when done for a commercial purpose, be reported in the returns.
The respondent also draws the Tribunal’s attention to the Wetline and Related Fisheries Adjustment Scheme (VFAS) which has been established by the respondent to allow holders of FBLs to retire those licences for compensation. The VFAS is available for offers to be made for FBL surrender until 29 January 2010. The respondent says that all FBL holders, including the applicants, were advised of this scheme by letter dated 16 June 2008. The respondent notes this compensation scheme in response to the applicant’s contention that the permit should be granted to prevent hardship, as he would not be entitled to compensation. In any case, the respondent says that the hardship does not confer on the decision-maker the power to grant an interim permit where the criteria of the Management Plan are not satisfied.
Finally, the respondent says the applicants are asking the Tribunal to grant an interim permit on the strength of unproven personal assurances as to their annual catch history during a period over a decade ago, and that doing so would set a precedent allowing other FBL holders to make similar unproven claims and then apply for an interim permit.

Tribunal's Findings

The principles governing the extension of time for the making of applications were considered by the Tribunal in O’Connor and Town of Victoria Park [2005] WASAT 161. In particular, four factors are relevant. First, the length of the delay; secondly, the reasons for the delay; thirdly, whether there is an arguable case; and fourthly, the extent of any prejudice to the respondent. The respondent contends that in this case, the extension of time should be refused on the ground that there is not an arguable case.
Discretion to grant permit where criteria are not satisfied: The Tribunal has previously considered in Lenden the discretion of a decision-maker to grant a fishing permit in circumstances where the criteria required for the permit is not satisfied.The critical words to be considered in this case are those in cl 12 of the Management Plan: 'The criteria to be satisfied before the CEO may grant a person a permit …'; and s 66 of the FRM Act which the CEO may grant an authorisation if 'the CEO is satisfied that the criteria specified … for the grant of the authorisation have been satisfied'. The wording of these provisions makes it clear that the CEO, and consequently the Tribunal on considering a review application, has no power to grant a permit unless the criteria are satisfied. Consequently, regardless of any hardship or apparent unfairness that a refusal to grant a permit may cause an applicant, unless the criteria are satisfied a permit cannot be issued.
Were the relevant criteria satisfied? The issue here then becomes whether the applicants satisfy the criteria. The respondent says that the criterion in cl 12(b) of the Management Plan is not satisfied, with the average annual catch of demersal scalefish (whole weight) for the pre-benchmark period, as determined by the Department and recorded in the Department’s records on the basis of fishing returns, having been taken with the use of the boat from the waters of the fishery by open access line fishing methods, being less than 2,000 kilograms.

The applicants do not dispute that the average annual catch as recorded on the fishing returns was less than 2,000 kilograms, but say that they did, in fact, catch more than 2,000 kilograms and that the respondent should accept that their annual catch history was in excess of 2,000 kilograms.
From this, it is clear that the applicants do not satisfy the criteria for the grant of a permit, as the Department has determined the catch history as less than 2,000 kilograms on the basis of what is recorded in the fishing returns.
The Tribunal accepts the submission of the respondent that cl 12(b) of the Management Plan criterion is concerned not simply with the amount of fish a person says they caught, but what appears in the returns. The precise wording of the provision makes it clear that the criterion is concerned with the amount of fish caught as determined by the Department on the basis of the fishing returns. This confines the Department, in determining the weight of fish caught, to the information provided in the fishing returns and any relevant adjustments permitted by the Management Plan (such a conversion to whole weight).
In effect, what the applicants require in order to be eligible for the grant of an interim permit is for the Department to allow amendment to the fishing returns to reflect the amount of fish that the applicants say they in fact caught during the relevant periods, which would then result in them satisfying the criteria for the grant of an interim permit. It is clear from the respondent’s conduct and its submissions that the Department will not allow an amendment to the fishing returns (even if such an amendment is open under the legislation).
At this point, the scope of the Tribunal’s review jurisdiction is an issue. The Tribunal does not have an independent, general review power. It is reliant on a provision of an enabling Act to give it jurisdiction. Section 149(1) of the FRM Act, read with s 147(1) and s 4, provides the Tribunal with jurisdiction to review a decision to refuse to grant a permit. This jurisdiction gives the Tribunal the power to determine the facts, law and policy aspects of the original decision. However, there is no provision in the FRM Act for the Tribunal to review all decisions made by the Department. A decision by the Department whether or not to permit an amendment to a fishing return, if it were open to it to do so, is not a decision which the Tribunal has jurisdiction to review. The Tribunal has no power to require the Department to amend the fishing return, and no jurisdiction to consider whether such an amendment should be made.
The inevitable conclusion therefore is that the applicants do not satisfy the criterion in cl 12(b) for the grant of an interim permit because the relevant returns do not support the required catch criteria. It is not open to the Tribunal to disregard this requirement.

Other issues

As a result of the interpretation of the legislation adopted above, it is unnecessary for the Tribunal to consider other arguments raised by the Department, such as whether any of the applicants' alleged unrecorded catch was eligible to be part of the fishing history, or whether the applicants could prove their catch history.

Conclusion and orders

In light of the Tribunal’s findings set out above, the applicants have no chance of success should the Tribunal extend the time for lodgement of the application. As the applicants have no arguable case, the Tribunal must refuse the applicants application for an extension of time within which to lodge the application for review.

Orders

For these reasons, the Tribunal orders:
1.Pursuant to s 44 of the State Administrative Tribunal Act 2004 (WA) the application by Raymond Yukich and Pamela Yukich to extend the time for lodging a review application is refused.
2.Application dismissed.

I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT

Actions

Download as PDF Download as Word Document

Citations

Yukich and Chief Executive Officer, Department Of Fisheries, Western Australia [2009] WASAT 7

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

4

Lenden Nominees Pty Ltd and Executive Director, Department Of Fisheries, Western Australia [2005] WASAT 339

O'CONNOR and TOWN OF VICTORIA PARK [2005] WASAT 161