Dimento -v- Minister for Fisheries [2001] NSWADT 64

CITATION: Dimento -v- Minister for Fisheries [2001] NSWADT 64 DIVISION: General Division APPLICANT PARTIES: Joe Dimento RESPONDENT Minister for Fisheries FILE NUMBER: 013001 HEARING DATES: 18/04/2001 SUBMISSIONS CLOSED: 04/18/2001 DATE OF DECISION: 04/26/2001

BEFORE: Foster GF - Judicial Member APPLICATION: Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994 CASES CITED: Woodward v. Minister for Fisheries (2000) NSWADT 143 APPLICANT REPRESENTATION: In person RESPONDENT C Cory, solicitor ORDERS: 1. That the decision of the Minister to confirm the recommendation of the Review Panel in relation to the Application for Ocean Prawn Trawl Offshore Endorsement is affirmed; 2. That the decision of the Minister to confirm the recommendation of the Review Panel in relation to the Application for Ocean Prawn Trawl Inshore Endorsement be set aside and the matter is referred to a review panel for further consideration taking into account the Tribunal's reasons for decision.

1. The Applicant made an application for endorsement with respect to the Ocean Prawn Trawl Restricted Fishery Inshore and Offshore Endorsements by application dated 29 October 1996 pursuant to the Fisheries Management ( General ) Regulation 1995. 2. The Minister for Fisheries as the Administrator ("the Minister") made a decision with respect to the Applicant's application and refused to grant Ocean Prawn Trawl Restricted Fishery Inshore and Offshore Endorsements and notified the Applicant of the decision by letter dated 22 February 1997. 3. The Applicant lodged an application for review of the Minister's decision on 27 February 1997. 4. The Restricted Fisheries Review Panel carried out a review of the determination relating to the Applicant's eligibility for Ocean Prawn Trawl Restricted Fishery Inshore and Offshore Endorsements and provided the Minister with a written report on 15 June 2000 recommending that the Applicant be refused these Endorsements. 5. The Restricted Fisheries Review Panel conducted a review as provided under regulation 214D of the Fisheries Management (General) Regulation 1995 under the Fisheries Management Act 1994 taking into account the evidence, the Act, the regulation, New South Wales Fisheries policies and the grounds for review set out in regulation 214C. 6. The review panel considered the evidence from the Applicant in relation to the Ocean Prawn Trawl Offshore Endorsement and concluded that the Applicant failed to meet the eligibility criteria because he did not own a licensed fishing boat with an OP1 endorsement. 7. Regulation 178(2) provides "A person is eligible for an offshore endorsement if the Minister is satisfied that the person owns a licensed fishing boat, or is the holder or a licence for a fishing boat that is an abeyance (under clause 14( and the fishing boat licence for the boat has an endorsement from the Director authorising prawn trawling in waters closed to prawn trawling under the fishing closure notification known as OP1". 8. The Applicant acquired his licence by way of purchase from John William Gordon. Exhibit "C" before the Tribunal is a copy of the New South Wales Commercial Fishing Boat Licence issued to Mr. Gordon and in force until 1 May 1992. The said licence has the following endorsements: (i) Offshore commercial fishing - general - the boat is authorised to take fish from offshore waters in accordance with fishing closure notification OG1. (ii) Offshore prawn trawling - the boat is authorised to take penaeid prawns by the method of trawling from prescribed waters in accordance with fishing closure notification OP1. 9. Clause 212Y(2) of the regulation provides: "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." 10. Exhibit "B" before the Tribunal was the Fisheries Management Plan Number 1 Part A Offshore Prawn Trawling Management Rules Revised October 1992. 11. Those rules provide for the classes of authorisation, which give access to the Offshore East Coast Prawn Trawl Fishery. Such classes of authorisation are known as P1, P2 and P3. Class P3 authorisations were issued where neither a commitment to or dependence on, the Offshore Prawn Trawl Fishery was demonstrated by the licensee. P3 authorised vessels may not be upgraded. P3 authorisations may not be transferred (see clause A4.3 of the Management Rules). 12. Paragraph A5 of the Management Rules provides for licence transferability. Paragraph A5.2 provides "Class P3 authorised vessels are not and are never to be transferable". 13. Exhibit "D" before the Tribunal was the Offshore Prawn Trawl Fishery Unit Allocation and Class of Endorsement issued by the Department of New South Wales Agriculture and Fisheries in relation to the licence held by John William Gordon. The certificate provides that the class of endorsement relevant to that licence was P3. 14. On 1 July 1992 the Director of Fisheries wrote to the Applicant in the following terms: "I wish to acknowledge application to transfer LFB10561 to yourself and to licence the vehicle Kimbarra in replacement. A licence will be issued to you in respect of the Kimbarra on receipt of confirmation from the Australian Fisheries Service that the associated Commonwealth Licence/Permit has been finalised and on receipt of advice from C. Puglisi and Sons that the present Licence for the Kimbarra is surrendered for the time being. The Licence issued to you for the Kimbarra will authorise use of the vessel fishing in offshore waters. This is with the exception of prawn trawling as authorisation for this fishery will be deleted on transfer of the Licence in accordance with present management policies. The Licence will not authorise any fishing in waters within 3 miles of the coast." 15. By letter dated 14 December 1999 the Acting Director of Fisheries advised the Applicant in writing in the following terms: "The boat licence for LFB10561, "Island Leader" had a non-transferable P3 Offshore Prawn Trawl Endorsement and an "offshore only" condition and was not authorised to be used for any form of fishing within 3 nautical miles of the New South Wales coast. In accordance with the Offshore Prawn Trawl Management Plan in place at the time the P3 Offshore Prawn Trawl Endorsement was non-transferable and was deleted upon transfer of the licence to you, however the "offshore only" condition remained." 16. On hearing the Applicant conceded that in the absence of his licence having an "OP1" endorsement he was not in a position to pursue his application for an offshore endorsement pursuant to clause 178(2) of the regulations. It may well be that upon examination of historical and background information the Applicant may be able to convince the Minister that the P3 classification attaching to the licence of John William Gordon was in error. The Applicant was not in a position to provide such evidence on hearing nor were the Departmental files of any assistance in this regard. 17. Accordingly in relation to the application for offshore endorsement it is the decision of this Tribunal that the decision of the Minister be confirmed as to the application for an Ocean Prawn Trawl Restricted Fishery Offshore Endorsement. 18. The second aspect of the application before the Tribunal related to the Review Panel's recommendation to the Minister in relation to the Ocean Prawn Trawl Inshore Endorsement of the Applicant's licence. 19. The Review Panel considered the evidence from the Applicant in relation to the Ocean Prawn Trawl Inshore Endorsement. Having regard to the Newcastle Fishermans Co-operative Dockets presented by the Applicant for July and August 1988, the Panel accepted that 100 kilograms or more of prawns was taken in 1988. In conjunction with the school and king prawns recorded on the VCH for FB383 the Panel determined that the Applicant meets the catch history component of the eligibility criteria for an Ocean Prawn Trawl Inshore Endorsement. However, the Review Panel determined that the Applicant failed to meet the additional eligibility criteria of having an OP1 condition on his boat licence or an appropriate Waterways Ocean Going Survey Certificate. 20. The provisions of clause 178(1) provide as follows: "A person is eligible for an inshore endorsement if the Minister is satisfied that: (a) the person owns a licenced fishing boat and (i) the boat was the subject of an ocean going survey certificate issued by the Waterways Authority (or its predecessor, the Maritime Services Board) for at least one of the years from 1986 to 1990, or (ii) the fishing boat licence for the boat has an endorsement from the Director authorising prawn trawling in waters closed to prawn trawling under the Fishing Closure Notification known as "OP1", and (b) the fishing boat licence is not subject to a "not to prawn trawl" condition, and (c) on the basis of ocean waters catch returns submitted to the Director by the person (i) the person has taken not less than 100 kilograms per year of school or king prawns (or a combination of the two) from ocean waters in at least 3 of the years from 1986 to 1990, or (ii) the person has taken a total of not less than 1000 kilograms of school or king prawns (or a combination of the two) from ocean waters in the years from 1986 to 1990." 21. Having regard to the positive finding of the Review Panel as to the "catch history" component, the representative of the Minister on hearing conceded that the issue before the Tribunal was whether the Applicant satisfied the criteria set out in clause 178(1)(a)(i) or (ii). 22. Exhibit "1" before the Tribunal was a facsimile transmission from the Waterways Authority dated 17 April 2001 confirming that the vessel owned by John William Gordon held a seagoing survey permit which was cancelled on 20 April 1989. Accordingly, the Applicant has demonstrated compliance with the requirement of clause 178 1A(i) of the regulations. 23. On hearing it was conceded by the Respondent that the document comprising Exhibit "1" was sufficient to satisfy the Respondent as to compliance with the relevant provision as to the holding of an Ocean Going Survey Certificate for at least one of the years from 1986 to 1990. 24. On hearing before the Review Panel the Applicant in these proceedings did not have documentary evidence of the Ocean Going Survey Certificate that had been issued to the vessel owned by John William Gordon and acquired by the Applicant. It is clear that in the absence of the Applicant being able to meet that aspect of the eligibility criteria the Review Panel had no alternative but to make the recommendation that it did to the Minister. 25. Section 63 of the Administrative Decisions Tribunal Act 1997 provides that in determining an application for review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it and the Review Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. 26. The Applicant is now possessed of evidence that satisfies the eligibility criteria for inshore endorsement. That evidence being the certification from the Waterways Authority was not available to him on hearing before the Review Panel. 27. The decision under review is that of the Minister pursuant to clause 214D of the regulations which provides as follows: "(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). (2) The Minister may, following a review, determine that a person is eligible for an endorsement in a restricted fishery, even though the person does not satisfy the eligibility criteria for the endorsement, only if the panel decides that the person should be eligible for an endorsement. If the Minister makes such a determination, the person is taken, for the purposes of the provisions of this part that deal with eligibility for an endorsement in the fishery concerned, to be eligible for the endorsement." 28. The "reviewable decision" for the purposes of Section 63 of the Administrative Decisions Tribunal Act 1997 in the present case is only that of the Minister, the Tribunal's powers are subject to the limitations imposed by clause 214D of the regulations (Woodward v. Minister for Fisheries (2000) NSWADT 143). 29. In the present application the Applicant has demonstrated his compliance with the eligibility requirements for an inshore endorsement in accordance with the provisions of clause 178(1) of the regulations. Hence in those circumstances the Tribunal is of the view that the Ministers decision should be set aside and the matter referred back to a review panel for further consideration taking into account the Tribunals reasons for decision. 30. The formal orders of the Tribunal are as follows: 1. That the decision of the Minister to confirm the recommendation of the Review Panel in relation to the Application for Ocean Prawn Trawl Offshore Endorsement is affirmed. 2. That the decision of the Minister to confirm the recommendation of the Review Panel in relation to the Application for Ocean Prawn Trawl Inshore Endorsement be set aside and the matter is referred to a review panel for further consideration taking into account the Tribunal's reasons for decision.