Virtu -v- Director, NSW Fisheries (GD) [2000] NSWADTAP 25

Appeal Panel

CITATION: Virtu -v- Director, NSW Fisheries (GD) [2000] NSWADTAP 25 APPELLANT Antonio Virtu PARTIES: RESPONDENT Director, NSW Fisheries FILE NUMBER: 009021 HEARING DATES: 05/10/2000 SUBMISSIONS CLOSED: 10/05/2000 DATE OF DECISION: 10/05/2000

Principal matter DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Smith MB - Judicial Member; Bolt M - Member CATCHWORDS: interim order MATTER FOR DECISION: Preliminary matter FILE NUMBER UNDER APPEAL: 993099 DATE OF DECISION UNDER APPEAL: 06/16/2000 LEGISLATION CITED : Fisheries Management Act 1994 CASES CITED: APPELLANT REPRESENTATION: A Broad, solicitor RESPONDENT C Cory, solicitor ORDERS: Application for stay of operation of decision under appeal pending disposal of appeal refused.

Delivered Ex Tempore 1 The Tribunal has before it an application for the stay of a decision of the General Division handed down in this matter on 16 June 2000. [The agency's decision to refuse an endorsement on the appellant's commercial fishing licence was affirmed]. The relevant power of an Appeal Panel is contained in s 116 of the Administrative Decisions Tribunal Act 1997 (the Act). [Section 116 provides: ' 116. Appeal does not stay decision Subject to any interlocutory order made by the Appeal Panel, an appeal under this Part does not affect the operation of the decision concerned or prevent the taking of action to implement the decision.' 2 There have been submissions in support of the application by Mr Broad, on behalf of the applicant. The application is opposed by the Department. 3 The considerations that seem to me at least to be appropriate to address are broadly similar to those that the Tribunal would be called upon to address at first instance and are referred to in s 60 of the Act. [Section 60 provides: ' 60. Operation and implementation of decisions pending applications for review (1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.' 4 The material that is before the Appeal Panel in relation to the application is a short affidavit from Mr Virtu, the applicant, setting out his commercial situation and how it might be affected by the failure to grant a stay. There is the decision itself at first instance and the text of the proposed grounds of appeal. The appeal in the matter is scheduled to be heard on 22 November and we also have written submissions in reply from Ms Cory for the Department. 5 The particular order which is sought for Mr Virtu is expressed as follows: 'That the order of the Tribunal dated 16 June 2000 be stayed pending the determination of the appeal in these proceedings upon the grounds set forth in the Affidavit of Antonio Virtu sworn 7 September 2000.' 6 There was some discussion in the course of argument between the Appeal Panel and the legal representatives as to what effect, if any, an order made by the Appeal Penal in these terms would have. The position appeared to be that such an order on the part of the Appeal Panel might not necessarily lead to Mr Virtu being able to resume purse seine fishing, in circumstances where it would appear that he requires an endorsement to do that and he has been refused an endorsement and the Department has expressed the view, as I understand it, that it is not prepared to exercise any powers that it may have alternatively to the issuance of an endorsement to enable him to continue to undertake purse seine fishing. 7 There was some discussion, in argument, of whether the practice which the Department has been pursuing, to date, has a clear statutory foundation. That practice is to allow an activity to continue until such time as any review proceedings are disposed of at first instance in the General Division of the Tribunal even though there has been a negative decision made by a Review Panel and the Minister. Now, we do not wish today to make any comment on the legal basis for that approach which clearly is of benefit to commercial fishermen who are in dispute with the Department. But Ms Cory has conveyed to us that the Department at least has the view that it should not permit a disputed activity to continue any longer if the decision of the General Division is negative to the fisher. 8 So we are in a situation, as we perceive it, that were we to make a stay order it may have no practical effect and it appears to us at least that that is a consideration that needs to be taken into account and given weight in balancing the various factors that are in play in the case. The position practically for Mr Virtu appears to be this: that he has undertaken the activity of purse seine fishing for probably two to three years up until 16 June 2000 in circumstances where he has been aware that the future will require him to have an endorsement. He has been unsuccessful in obtaining that endorsement through the normal decision making processes now and he is now seeking to exercise a right of appeal, essentially on error of law grounds. 9 There are considerations that I think need to be balanced in terms of the role of regulators and the role of Appeal Panels. I do not want to go too far on that subject today. I recognise that Mr Virtu has a commercial fishing business. His income and livelihood depend on the continued existence of the various ways in which he has gone about the business for as long as possible. In fact in this case there is evidence, and it is undisputed, that he continued to fish from 16 June onwards [the date of the General Division decision] possibly under a misunderstanding as to what his rights were in that regard once the decision on 16 June had been made. He had continued to fish until 29 August. So what we are dealing with (in one sense) is the question of his inability to fish as from 29 August to the date of disposal of the appeal proceedings. 10 Our present inclination on balance on the basis of the material put before us is that we ought not to grant a stay application. The principal reason is the one I gave initially, which is that we are not satisfied that we can make an order that has any practical utility for Mr Virtu, in circumstances where there is a lack of clarity as to any power on the part of the Department to issue a continuing authorisation and more importantly a policy stance on the part of the Department not to do so. 11 Judicial Member Smith: I agree generally with the above reasons. I would add that my sole reason for not making an order in the terms sought is that we have not been asked to make an order that would have a positive effect in allowing the appellant to resume fishing. 12 I am ready to assume that there are serious questions in the appeal, that there is hardship in the appellant not being able to go fishing while the appeal is on foot, and, indeed, that it would be unfair not to allow him to continue to do this in circumstances where the Department has previously given authority while proceedings were pending in the Tribunal. However, in view of the position taken by the Department today, I can see no practical utility in making the order sought.