CONSOLIDATED DIVERS GROUP INC and ANOR v DIRECTOR NEW SOUTH WALES DEPARTMENT OF FISHERIES and ORS [1998] NSWCA 62

CONSOLIDATED DIVERS GROUP INC v DIRECTOR NEW SOUTH WALES DEPARTMENT OF FISHERIES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, POWELL and STEIN JJA 18 December 1998

[1998] NSWCA 62

Meagher JA This is an appeal from a decision of Dunford J concerning the abalone fishing industry by some fisherman who were disaffected by His Honour's decision. At the outset I should mention that I agree with his Honour's decision, in all but one particular.

In order to understand the effect of his Honour's judgment it is necessary to understand the legislative background. The fishing industry of New South Wales used be governed by the Fisheries and Oyster Farms (Management) Act 1935. S24C required all fishermen to be licensed. S22A authorized the Minister to declare that fish of a specified class were a "restricted fishery";

required all fishermen fishing for fish belonging to a "restricted fishery" to have a special permit in addition to their ordinary licences; prohibited the fishing for fish belonging to a "restricted fishery" by other persons; enabled the Minister to fix the maximum number of permits to be granted; and enabled him to fix the number of fish which may be taken in any specified period. Abalone were declared a "restricted fishery", with 57 as the maximum number of permits for that fishery. In 1979 the Government decided that maximum number of permits should be reduced from 57 to 29, and to enable this objective to be achieved introduced a "two-for-one" scheme. This scheme required a new entrant to the industry to find two current permit holders who were willing to surrender their permits in favour of the new entrant. The simple transfer by one permit-holder to a new entrant was not permitted. When two permit-holders were willing to surrender their permits in favour of a new entrant, the "original" permits were cancelled and a new permit, called a "consolidated" permit was issued. There were two, inevitable effects of this scheme: one was continually to reduce the number of permit holders, in pursuance of the policy of going from 57 to 29 and in fact reaching their present number of 37; the other was to increase the value of a "consolidated" permit to nearly twice that of an "old" (or "original'"') permit. The appellants are all holders of what used be called "consolidated permits", but are now called "consolidated endorsements".