Madge -v- Minister for Fisheries [2001] NSWADT 73

CITATION: Madge -v- Minister for Fisheries [2001] NSWADT 73 DIVISION: General Division APPLICANT PARTIES: William Madge RESPONDENT Minister for Fisheries FILE NUMBER: 003249 HEARING DATES: 06/10/2000 SUBMISSIONS CLOSED: 10/06/2000 DATE OF DECISION: 05/14/2001

BEFORE: Rice S - 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 (General) Regulation 1995 Fisheries Management Act 1994 CASES CITED: Greenaway v. Director, Department of Fisheries [2000] NSWADT 173 Henderson & anor v. Minister for Fisheries [2000] NSWADT 182 APPLICANT REPRESENTATION: In person RESPONDENT C Cory, Solicitor ORDERS: 1. The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicant is not eligible for an 'Estuary General Restricted Fishery - Mud Crab Trapping' endorsement, is affirmed.; 2. Pursuant to s88 of the Administrative Decisions Tribunal Act no award of costs.

1 In my view Mr Madge is not eligible for the endorsement he seeks. Mr Madge's application is therefore unsuccessful.

REASONS FOR DECISION 2 Mr Madge owns fishing business FB340 and holds a commercial fishing licence. On 28 October 1996 he applied for 'Estuary General Restricted Fishery – Mud Crab Trapping' and 'Estuary General Restricted Fishery – Hand Gathering' endorsements on his commercial fishing licence. 3 The Minister advised Mr Madge that his application had been refused. Mr Madge requested a review of that decision by the Restricted Fisheries Review Panel. 4 The Restricted Fisheries Review Panel recommended to the Minister that Mr Madge's application for the endorsements be refused. By letter dated 27 June 2000 Mr Madge was advised of the Minister's decision, in accordance with the review panel's recommendation, to refuse the endorsements. 5 On 24 July 2000 Mr Madge applied to the Administrative Decisions Tribunal for review of the Minister's decision. REVIEWABLE DECISION 6 The reviewable decision for this Tribunal is the Minister's decision, advised to Mr Madge by letter dated 27 June 2000, to accept the review panel's recommendation not to issue him with the endorsements. 7 At the hearing Mr Madge abandoned his application for a hand gathering endorsement, but maintained his claim to eligibility for the mud crab trapping endorsement. APPLICABLE LAW 8 By s113(2) of the Fisheries Management Act 1994 (FM Act): Eligibility for endorsement of commercial fishing licences is to be determined in accordance with the regulations. 9 The Estuary General Restricted Fishery – Mud Crab Trapping endorsement sought by Mr Madge is provided for in Division 2D of Part 8 of the Fisheries Management (General) Regulation 1995 (FM Reg), and the eligibility requirements for that endorsement are in cl.191N. 10 For any class of "estuary general restricted fishery" endorsement, cl.191N(1) of the FM Reg prescribes two 'general requirements'. The first is ownership of a licenced fishing boat. The second is the submission of at least 12 estuary waters catch returns in any 4 years from 1896 to 1993, at least one of which relates to a month before 1991. 11 Clause 191N(7) then prescribes specific eligibility requirements for endorsement for mud crab trapping: by subclause (a) a fisher must fulfil the general requirements, and by subclause (b) a fisher must have submitted to the Director a total of at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that mud crab were taken by the method of trapping and at least one of those returns relates to a month prior to January 1991. 12 As Mr Madge bought FB 340 from Mr Joseph Hyde, his eligibility for endorsement on his licence in respect of FB 340 is dependent on cl.191N(11), by which he can rely on the catch returns of the catch history associated with the fishing business he bought. Cl.191N(11) reads, relevantly: If the Minister is satisfied that the catch history associated with a fishing business satisfies any of the eligibility criteria set out in the clause, the owner of the fishing business is taken to have satisfied the criteria, even if the owner did not personally take the fish for sale or submit any catch returns to the Director. 13 The catch history associated with FB 340 is Mr Hyde's, transferred to Mr Madge with the transfer of the fishing business. 14 The issue in practical terms, therefore, is whether Mr Hyde's catch returns meet the requirements of cl.191N(7)(b). When I refer to Mr Madge's satisfying (or not) the requirements of cl.191N(7)(b), I am effectively referring to his satisfying (or not) these requirements by reliance on Mr Hyde's catch returns. ELIGIBILITY 15 The Minister agrees that Mr HirstMr Madge satisfies the general requirements for any Estuary General Restricted Fishery endorsement in cl.191N(1). 16 Mr HirstMr Madge then needs to satisfy the particular requirement in clause 191N(7)(b)for a Category Two Haulingmud crab trapping endorsement. 17 After representations from Mr Hirst, tThe Minister acknowledges that Mr Madge can show seven catch returns which record mud crabs being taken, and that at least one of those returns is prior to 1991, but says that none of the returns records trapping as the method used. Mr HirstMr Madge, on the other hand, agrees says that these catch returns "indicate", within the meaning of cl.191N(7)(b), that the trapping method was used. 18 If Mr Madge's contention is accepted, he would be one catch return short of satisfying the eligibility criteria. The seven returns are those for: February 1986 October 1986 October 1987 January 1988 February 1988 March 1988 April 1988 19 Mr Madge says that the eighth can be found among the other catch returns, and takes two alternative approaches to identifying it. IS A METHOD 'INDICATED' IN THE OTHER RETURNS? 20 First, Mr Madge says that evidence would show that catch returns which record catch of "Fish, unspecified estuary" included mud crabs in that catch. He says therefore that, properly understood, those catch returns "indicate" the use of the trapping method as required by the terms of cl.191N(7)(b). 21 As I discussed in Greenaway -v- Director, Department of Fisheries [2000] NSWADT 173, a catch return need not explicitly record that a particular fishing method was used to satisfy the requirement that use of a method is 'indicated'. It is legitimate to make a reasonable inference from the catch return as a whole, assisted by any relevant evidence, as to whether the catch return does "indicate" the use of a method; I note the decision of this Tribunal, differently constituted, in Henderson & anor -v- Minister for Fisheries [2000] NSWADT 182 to similar effect. The most usual 'indication' in the catch return is the recording of particular species having been caught, opening up the possible inference that a certain method was used to catch that species. Whether it is reasonable to draw that inference has to be decided on the available material. 22 Except in circumstances covered by cl.214C, the catch returns must be the basis of establishing eligibility. When a catch return gives no 'indication' that a particular method was used, it is not permissible to rely only on other evidence to establish that that method was used: there is nothing in the catch return in relation to which that evidence could give a better understanding The other evidence might itself establish that trapping was used as a method, but unless there is an indication to that effect in the catch returns, then the terms of cl.191N(7) (and of all similarly worded provisions for eligibility) cannot be satisfied. 23 In my view catch returns which, as in Mr Madge's case, do not record the use of trapping as a method, do not record mud crabs having been taken, and do record only "Fish, unspecified estuary", cannot be said to "indicate" the use of trapping as a method; there is nothing in the catch returns to support an inference as to the method used. Cl.191N(7)(b) does not allow me, in the absence of any indication in that catch returns, to rely on evidence from Mr Browne and Mr Cox, and from Mr Madge as to what Mr Hyde and Mr Shepherd told him. CAN 'VERIFIED RECORDS' BE RELIED ON? 24 Alternatively, Mr Madge says that he can show that a specific return is inaccurate, and should have shown the taking of mud crabs. 25 A person can establish eligibility for an endorsement other than by satisfying the eligibility requirements only in the circumstances described in cl.214C of the FM Reg. Relevantly for Mr Madge, cl.214C(2)(a) provides that a person is or should be eligible for an endorsement if: the records relied on to make a determination whether the person is eligible for an endorsement (for example, catch history records or records of net registration) are, for reasons that are not attributable to the fault of the person, inaccurate or incomplete and, on the basis of verified records . . . the person does in fact satisfy the eligibility criteria for the endorsement 26 Mr Madge says that the catch return for February 1987 is inaccurate though no fault of his. He says that verified records show the use of the trapping method in that month, and that the catch return for that month should therefore be treated as the eighth return necessary for eligibility. 27 Clause 214C(4) says that "verified records" for purposes of cl.214C(2)(a) are those which are prescribed for s51(4) of the FM Act. They are prescribed in cl.128 FM Reg: (1) For the purposes of section 51 (4) of the Act, the following documents are prescribed: (a) a verified record of a commercial fishers' co-operative, (b) a verified record relating to the income tax liability of a commercial fisher, (c) a verified record of any fish processing company (whether a wholesaler or retailer). (2) In this clause, a reference to a verified record is a reference to an original record, or a copy of a record, audited by a registered company auditor (within the meaning of the Corporations Law) or that forms part of a record audited by a registered company auditor.