Foster -v- Minister for Fisheries [2000] NSWADT 175

CITATION: Foster -v- Minister for Fisheries [2000] NSWADT 175 DIVISION: General Division APPLICANT Brian Keith Foster PARTIES: RESPONDENT Minister for Fisheries FILE NUMBER: 003270 HEARING DATES: 31/10/2000 SUBMISSIONS CLOSED: 10/31/2000 DATE OF DECISION: 10/31/2000

BEFORE: Smith MB - Judicial Member APPLICATION: Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Fisheries Management Act 1994 CASES CITED: Woodward v The Minister for Fisheries 2000 NSWADT 143 APPLICANT REPRESENTATION: In person RESPONDENT C Cory, solicitor ORDERS: The decision of the Minister under review in relation to a Line Fishing (Eastern Zone) Endorsement in the Ocean Trap and Line Restricted Fishery is set aside, and in substitution it is decided that the matter is referred to a review panel for further consideration taking into account the Tribunal's reasons for decision.

1 This is an application under s 126 of the Fisheries Management Act 1994 (NSW), seeking review of a decision communicated to Mr Foster by letter dated 26 July 2000. The decision was taken personally by the Minister on 27 June 2000, and accepted the recommendation of a review panel that Mr Foster be refused an endorsement to his commercial fishing licence, that endorsement being one issued in the Ocean Trap and Line Restricted Fishery in respect of Line Fishing (Eastern Zone). 2 The Minister also accepted recommendations of the review panel refusing endorsements in the Estuary General Restricted Fishery in respect of hand lining and prawning, but Mr Foster has not sought the Tribunal's review of those aspects of the decision. 3 I have recently in the case of Woodward v The Minister for Fisheries 2000 NSWADT 143 given considered reasons exploring the legislation under which decisions such as the present are made and, in particular, the powers of the Tribunal on review of a decision of the Minister such as the present. I shall not repeat what I said, but maintain the approach I took in that case. I note, however, that the representative for the Minister submitted that I might not have been correct in my construction of reg 214D as to the power of the Minister, and myself on review, to explore the merits of the application of what I referred to as the extended eligibility criteria in 214C. I have considered this submission, but until corrected by an appeal panel or a higher authority I propose to apply the opinions I expressed in Woodward. 4 In the present case the primary criteria for the endorsement sought by the applicant are set out in regulation 191E: "(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." 5 In the present case there is no dispute that Mr Foster owns a fishing boat of the sort described in reg 191E(3)(a). There is also no dispute that in relation to paragraph (b) it would be open and appropriate to conclude that Mr Foster has made out eligibility in relation to the period 1986 to 1990, invoking, if necessary, the catch history of the previous owner of the vessel which he currently operates in accordance with reg 191E(8). 6 The issue in contest before me is whether Mr Foster can satisfy that part of the primary criteria in reg 191E(3)(b) which required him to have submitted at least two ocean waters catch returns in the years 1991 to 1993 which each indicated that at least two of the specified five species of fish were taken by line methods. 7 Mr Foster concedes that the catch returns lodged both by him and by the previous owner of his current boat over that period, do not expressly show catches of such specified species. However, he points to various items in these which he argues could be taken as "indicating" a catch of those species. These items show catches of "fish, unspecified ocean taken by methods of handlining or jigging". 8 I have decided that I do not need to address whether it would be possible to construe the word "indicate" in the primary criteria as being satisfied by extrinsic evidence as to what comprised unspecified items in catch returns, since I am of the view that there is an alternative route by which a review panel would be able to reach the conclusion that Mr Foster is a person who should be eligible for an endorsement in the fishery. This is pursuant to the extended eligibility criteria in reg 214C(2)(c)(i) and (ii): (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 9 Mr Foster has persuaded me in the present case to make the following findings of fact. He is a fisherman who for many years prior to 1990, possibly 15 or 14, had been operating a boat licence number 2952 and called the Fozzy in methods of offshore fishing using handline, trapline and demersal fish trapping as his primary activity for gaining a living. Over many years before and after the eligibility period, as well as during the eligibility period, fishing has been his preferred livelihood, and he routinely lodged monthly fishing returns. The returns that are in evidence before me starting in 1986 corroborate this. 10 Prior to May 1990, when the events occurred that I will relate, Mr Foster had a history of ulcers which were exacerbated by anxiety, and which from time to time prevented him from undertaking fishing activity. This condition, he says, worsened during late 1989 until in about May 1990, he was totally incapacitated from fishing activities. Indeed, his fishing returns show a dropping in fishing activities during 1989 and a cessation in May 1990. 11 Medical corroboration of an incapacitating illness is contained on the file and, significantly, has been existing on the Department's files at least since 1993 and prior to the whole current scheme of restricted fisheries was introduced. His treating general practitioner, Dr Harmey reported in 1993 when Mr Foster was seeking to retain or regain his licences (Ex 1 p 84).: "This is to certify that Mr Brian Foster was admitted by me in June and July 1988 suffering from a recurrence of symptoms of dyspepsia which he attributed to his tendency to anxiety symptoms. Mr Foster was known to have a duodenal ulcer in 1967, and a further ulcer was found on X ray in 1982 at which time he was treated with Tagamet. My last record of his having problems with digestive symptoms was in May 1989. I have seen him recently (30.11.92 and 6.5.93) and he is now free of symptoms of peptic ulcer an anxiety state. I regard his health now as being excellent and do not anticipate recurrence of previous symptoms." 12 In support of Mr Foster's current application, Dr Harmey reported on 5 March 1999 (Ex 1 p.83): "This is to certify that Mr Brian Foster has been a patient of mine since he was a child. In addition to my certificate of 10.5.93 I am satisfied that he suffered symptoms of peptic ulceration and anxiety during the period of early 1990 to mid 1992. The pertaining records, which were in the practice of Dr P Koh have been lost in transit by courier from Dr Koh's rooms to my present practice and cannot be found. Knowing Mr Foster well I am sure his statement of the facts is correct." 13 Further corroboration of Mr Foster's account of his incapacitation over this period is contained in correspondence which he sent to the Department from time to time in an effort to persuade them to continue to renew to renew his personal fishing licence after he lost Fozzy when it sank in late 1990. Thus in exhibit 3, on the files of the Department is a letter dated 6 February 1992, which states: "I have renewed my current fisherman's licence for this period to December 1992. I have been advised by David Kell to write this letter advising Fisheries that I would not be fishing for a period due to my health at this moment. My intentions are to remain in the Industry and will renew my licence as this become renewable." 14 A letter to the Department dated 13 December, 1991 signed by Mr Foster indicates that, although during the past 12 months he had sought other employment, "my intentions are to remain in the fishing industry as my record has shown after the past nine years previously". A letter in Exhibit 3 corroborates that in 1993 or thereabouts Mr Foster's health had recovered to an extent where he was seeking to re-enter the fishery by acquiring a new boat. Exhibit 1 contains correspondence in 1993 when a decision was made to refuse to renew Mr Foster's personal fishing licence (see p46). It is clear that at that time Mr Foster was seeking to resume his fishing activities. A note of an interview at p.57 on 15 April 1993 records Mr Foster as stating: "he had also been ill during this period, to the point that he was unable to work as a fisherman, however he was able to work in his wife's business". 15 The reason for his being out of the industry at least as an owner and skipper of a fishing vessel between May 1990 and September 1993 was further explained in his evidence to me: firstly by reference to his incapacitating illnesses and then by the sinking of Fozzy at its mooring at Terrigal in late 1990. He gave an account that it sank in the course of a storm: "my Fozzy 1 was at its mooring at The Haven in Terrigal and a huge storm came up and the vessel was written of on its mooring … it was capsized, it went to the bottom and was smashed". The boat was not insured and few items of any value were able to be salvaged. Mr Foster was left with debts owing on the boat as well as personal debts in relation to his home and property. 16 I have no difficulty accepting his evidence that the sinking of this vessel acted on his illness in a serious and adverse way. I accept that his illnesses involving digestive symptoms and anxiety continued during 1991 and well into 1992, and that he was incapacitated by this illness from working in the fishery except as an occasional crew member for another skipper. 17 His return to the fishery was also, plainly, hampered by the loss of his vessel. His ability to re-enter the fishery after recovering from illness was further protracted by the refusal of the Department to allow him to revive the licence given to his previous vessel, and by the Department's requirement that in effect he go out and purchase a new vessel with a new licence package. This he managed to achieve by September 1993 when he purchased the vessel that was renamed Fozzy II, and resumed fishing activities using it. 18 In my opinion, the above circumstances fit plainly within the language and intent of reg 214C(2)(i) and (ii). In relation to the application of both, in my opinion, in the present circumstances "eligibility is based on the person's activity in the fishery during a particular period", this being the period 1986 to 1993 required to be addressed under reg 191E(3)(b). During part of this period Mr Foster was suffered incapacitating illness and the loss of his "commercial fishing boat", and I consider that this period from May 1990 to late 1992 is able to be addressed under subparagraphs (i) and (ii). 19 Giving the requirements that incapacity must last for "a significant period" and "substantially affect" the person's ability to satisfy the criteria the construction adopted in Woodward at [37-39], I am satisfied as to both of these matters in the present case. I consider that that the incapacity "substantially affected his ability to satisfy the criteria" since it prevented Mr Foster engaging in fishing altogether for at least two of the qualifying years as a skipper of the vessel of which he was an owner or could be treated as being an owner. I consider that reg 21C(2)(c)(i) is satisfied on the evidence before me. 20 In relation to reg 21C(2)(c)(ii), the same opinion is required as to "substantially affected his or her ability to satisfy the eligibility criteria for the endorsement". I consider that it is within the intent of the words "his commercial fishing boat" in that regulation to encompass the relationship of Mr Foster with the Fozzy 1, notwithstanding that on his evidence at some point in time prior to its sinking he transferred his full ownership rights to a company in which he was a one-third owner. He remained its skipper and the active owner. 21 To the extent that both of these extended eligibility criteria require a review panel to address the likelihood of Mr Foster satisfying the criteria if he had not been involuntarily removed from the fishery, I am satisfied that it is probable both that he would have been fishing on Fozzy I over his period of absence, and also that he would have regularly been catching by line methods at least small quantities of the species designated in reg 191E(3). In this respect, I accept Mr Foster's evidence that prior to 1993 it had been his practice to sell such catches in boxes of mixed fish. I consider that this is corroborated by sworn statutory declarations by Messrs Penton and Stevens (Ex 1 pp 62-63 and 85), the former being the weighmaster at Terrigal Co-op. I do not accept the submission that I should be deterred from this finding by the references to a wider range of dates in the statement of Mr Foster's son at Ex 1 p.61 and Mr Peters at p.75. 22 I consider that the present case presents a set of circumstances which are of the type which reg 214C(2)(c) is plainly intended to address, and which explain why a person was unable to personally meet eligibility criteria by personally engaging in the fishery over part of the eligibility period. I do not accept the submission that Mr Foster is, in some way, rendered unable to enjoy the benefit of these extended criteria by reason of his also having acquired a "non-personal" catch history which could be invoked under reg 191E(8). I consider that no such implication can be made from reg 191E(8), which is a provision designed to allow an applicant for endorsement the benefit of "acquired" catch history, not to prevent him from relying on his own circumstances if they fall within the primary or extended eligibility criteria. The prohibition in reg 191E(8) which would prevent the vendor of Fozzy II enjoying its catch history has no bearing on the present situation and, in any event, does not arise. 23 There is nothing in reg 214C(2)(c)(ii) itself or elsewhere which prevents someone who has purchased a new vessel with catch history from enjoying its provisions, and, as I have held in Woodward at [14], reg 214C does not contain a discretion to ignore or overlook the satisfaction of one of its criteria. Moreover I can see no inconsistency with the scheme of the regulations in Mr Foster being allowed to avail himself of reg 214C(2)(c) to answer the catch return requirements of reg 191E(3)(b) in relation to the period of 1991-1993. 24 I have come to the opinion that the preferable decision for a review panel on all the evidence now before me would be to find that Mr Foster is a person who "should be eligible for an endorsement" of the type now in issue. 25 In Woodward at [45] and following, I addressed how the Tribunal should act under section 214D if it formed a view contrary to the conclusion of a review panel. I accepted the submission that was again put today that a reference back to the panel does not automatically follow, and I referred to some of the matters which might affect whether that should be done. However, in the present case, as in Woodward, I am faced with a report from the review panel which is entirely lacking in any reasoning explaining how it has approached the evidence which was before it, both in relation to fact finding and in construction of the relevant regulations. All the review panel has reported appears in Exhibit 1 at page 39: "The Review Panel is not satisfied that the applicant meets the eligibility criteria for an Ocean Trap and Line Restricted Fishery Line Fishing (Eastern Zone) endorsement and the Review Panel recommends to the Minister that the application for that endorsement be refused." 26 In relation to the Minister's consideration of that report, all I have is a minute forwarding it to the Minister without comment or submission. The Minister has then "approved" the Panel's recommendation without any further annotation. In the Department's documents now placed before me, there is an unsigned draft statement of reasons, which had apparently been prepared for signature by a "solicitor for the administrator." This may be a useful document in its identification of issues, but I am not persuaded to accept it as in fact providing the reasons of the review panel nor of the Minister. 27 Even if I did, its reasoning is unsatisfactory in my view. The critical reasoning provided in justification of the review panel's decision is found in Exhibit 1 p 16-17. In relation to this reasoning, I consider that it adopts a construction of reg 214C(2)(c)(i) which is too demanding. For the reasons I gave in Woodward, I do not consider that this requires a positive "inference that if it had not been for the illness the applicant would have met the eligibility criteria". In any event, on the evidence now presented to me, I think it probable that, if Mr Foster had not been incapacitated and deprived of a fishing vessel between 1990 and 1993, he would have taken a catch and would have satisfied the requirement in reg 191E(3) of "two ocean catch returns ... each of which indicated that at least two of the following species were taken." 28 Secondly, the draft reasons erroneously suggest that statutory declarations verifying the landings of specified species between 1986 and 1990 were "not signed by a Justice of the Peace". The panel's further doubts about declarations referring to the years 1991 to 1993 should have been treated as irrelevant, since the applicant's case was that he was not able to participate as skipper in the fishery for most of this period. However, as a side comment, I would myself have no difficulty in accepting the applicant's evidence that an occasional valuable fish would be purchased by the Co-op in a box of "mixed fish". 29 Thirdly, for reasons explained above, I have a different opinion of law to the suggestion in the draft reasons that it is impermissible to give Mr Foster the benefit of reg 214C(2)(c) in circumstances where his boat has sunk, its licence has been surrendered or not renewed over a period of illness, and the Department has, in effect, forced him to purchase a new licence package as well as a new boat. To me, such a construction flies in the face of the apparent objects of the regulation, as well as being generally unjust. 30 In all the circumstances and on all the evidence in front of me, I have concluded that the correct or preferable decision in the present case is for the Tribunal, standing in the shoes of the Minister under regulation 214D, to set aside the decision of the Minister and to refer the matter back to a review panel for further consideration taking into account my reasons for decision and all the evidence in the case.