Set aside by Appeal : Set aside by appeal on 5/9/2003 CITATION: Musumeci -v- Minister for Fisheries [2002] NSWADT 162 DIVISION: General Division APPLICANT PARTIES: Antonio Musumeci RESPONDENT Minister for Fisheries FILE NUMBER: 003392 HEARING DATES: 28/06/01 SUBMISSIONS CLOSED: 11/07/2001 DATE OF DECISION: 09/06/2002 BEFORE: Rice S - Judicial Member APPLICATION: 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 Fisheries and Oyster Farms Act 1935 Madge -v- Minister for Fisheries [2001] NSWADT 73 Brookman -v- Minister for Fisheries [2001] NSWADT 168 CASES CITED: Wardley -v- Minister of Fisheries [2002] NSWADT 65 Minister for Fisheries -v- Puglisi and Ors [2001] NSWADTAP 2 Slockee & Anor -v- Minister for Fisheries [2002] NSWADT 116 APPLICANT REPRESENTATION: M Slattery QC, barrister RESPONDENT J Crespo, barrister ORDERS: Pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act the decision of the Minister is affirmed. 1 I am not satisfied that Antonio Musumeci is eligible for the endorsements he seeks, and his application is therefore unsuccessful. Background 2 I mean no disrespect to Mr Musumeci and the other members of the Musumeci family when I refer to them throughout this decision by their first name, to ensure that their identities are clearly understood. 3 Antonio Musumeci owns fishing business FB2282 and holds commercial fishing licence 781202. He has owned the fishing boat Guiseppa since 1 July 1987. Before then the Guiseppa was owned jointly by Antonio and his brother Vincenzo Musumeci. The change in ownership has no bearing on the question of eligibility, as Antonio's claim is based on the boat history of the Guiseppa. 4 The Guiseppa is skippered by Antonio's son Rocco Musumeci, known in the family as Rocco A to identify him as the son of Antonio and to distinguish him from his cousin Rocco, Vincenzo Musumeci's son. Antonio does not himself work on the Guiseppa; Rocco A has been the skipper of the Guiseppa since 1 July 1987. Before then, under the previous ownership, his cousin Rocco was the skipper. I heard oral evidence in this matter from Rocco A, and from his cousin Rocco relating only to his having skippered the Guiseppa before 1 July 1987. Application 5 On 24 March 1997 Antonio applied for an Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsement. By letter dated 28 March 1997 the Minister advised Antonio that his application for the endorsement had been refused, and on 7 April 1997 Antonio requested an internal review of that decision. Internal review 6 The internal review was conducted by the Restricted Fisheries Review Panel ('the Review Panel'). By report dated 13 September 2000 the Review Panel recommended to the Minister that Antonio's application for the endorsement be refused. By letter dated 23 November 2000 Antonio was advised of the Minister's decision, in accordance with the Review Panel's recommendation, to refuse the endorsement. 7 On 12 December 2000 Antonio applied to this Tribunal for review of the decision to refuse the endorsement. Reviewable decision 8 The reviewable decision for this Tribunal is the Minister's decision of 23 November 2000 to refuse the application for the endorsement in accordance with the Review Panel's recommendation. Hearing 9 Antonio's application was listed for hearing with that of Rocco Musumeci, registry file number 003391. The evidence in both matters was heard on the same day, and the evidence in one matter, to the extent of its relevance, is evidence in the other. Applicable law: ocean fishery 10 A fisher's eligibility for endorsements "is to be determined in accordance with the regulations" (s113(2) Fisheries Management Act 1994 (FMA)). The relevant regulations are in Part 8 Division 2A of the Fisheries (General) Regulation 1995 (FMR). The endorsement sought by Antonio is described in cl.186(1): The following classes of endorsement are available in the restricted fishery: Northern zone endorsement. This endorsement authorises the holder to use an otter trawl net (fish) to take fish (other than prawns) for sale from ocean waters that are north of a line drawn due east from Barrenjoey Headland (other than the waters in which use of an otter trawl net (fish) is prohibited under clause 35). 11 Eligibility for this endorsement is described in cl.187(1): Northern zone endorsement. A person is eligible for a northern zone endorsement if the Minister is satisfied that the person owns an otter trawl net (fish) that was registered in the name of the person at any time before 1 January 1993 and that: (a) the person submitted to the Director at least 15 ocean waters catch returns in the years from 1986 to 1990 that indicate that the person took fish from an area designated on the return as zone 1, 2, 3, 4, 5 or 6 by the method of fish trawl, or (b) the person submitted to the Director at least 3 ocean waters catch returns in the years from 1986 to 1990, and at least 5 ocean waters catch returns in the years from 1991 to 1993, that indicate that the person took fish from an area designated on the return as zone 1, 2, 3, 4, 5 or 6 by the method of fish trawl and that the person took not less than 20 tonnes of fish trawl species in those zones in at least 3 of the years from 1986 to 1993 by the method of fish trawl. Concessions as to eligibility 12 As to net ownership, the Minister concedes that Antonio satisfies the requirement regarding an otter trawl net (fish). 13 As to the catch returns required for eligibility pursuant to cl.187(1)(a), the Minister concedes that of the 15 ocean waters catch returns required in the years from 1986 to 1990, Antonio can show 11. He does not rely on establishing eligibility pursuant to cl.187(1)(b). Claim for eligibility 14 Antonio says that his circumstances bring him within the provisions of cl.214C(2) FMR which allows for eligibility in a range of prescribed circumstances. Specifically, Antonio says that but for the inaccurate or incomplete records of the Department of Fisheries ('the Department'), he would be able to show that he did in fact meet the eligibility requirements (cl.214C(2)(a)): that 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 produced to the panel by the person, the person does in fact satisfy the eligibility criteria for the endorsement. 15 He says that the relevant catch returns were submitted but that the Department cannot locate them. The incompleteness of the records in the hands of the Department is not, he says, attributable to his fault. 16 In the alternative he says that the Department's having lost or misplaced records is a significant reason for which he is unable to satisfy the eligibility criteria (cl.214C(2)(c) (iii)): the person was engaged in fishing during that period and for other significant reasons (that are not attributable to the fault of the person) the person was unable to satisfy the eligibility criteria. 17 He says that the fact that the Department cannot produce the records on which Antonio relies is a 'significant reason not attributable to his fault for which he was unable to satisfy the eligibility criteria'. 18 I refer to the provisions as sub-clause (a) and sub-clause (c)(iii) respectively. Incomplete records 19 The catch returns for the Guiseppa were submitted by its skipper, Rocco A for the period after 30 June 1987, and by his cousin Rocco until that time. 20 The catch returns are, within the meaning of sub-clause (a), "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)". The Minister says that the Department holds no catch returns from Antonio for the 14 months 8606-8707 inclusive, and for the nine months 8904-8912 inclusive. 21 If the catch returns were submitted but the Department is unable to locate them for purposes of determining eligibility, then the records are incomplete. If the catch returns were not submitted to the Department then the records are complete, at least in relation to catch returns. 22 Antonio says that catch returns for those months were submitted. He says, therefore, that the records relied on by the Department are, through no fault of his own, an "incomplete" record of his catch history, and that he should have the benefit of sub-clause (a). 23 The Minister says that the Department has no record of those catch returns ever having been submitted. He says, therefore, that the records relied on are a complete record of Antonio's catch history. 24 The Minister's cross-examination of Rocco A and Rocco did not, however, dispute their evidence that the returns had been submitted, and did not dispute the witnesses' account of law and Departmental practices which support the likelihood that the catch returns were submitted. The Minister instead challenged the probative value evidence of other witnesses who say they saw the Guiseppa fishing at the relevant times. 'Missing' returns 25 For the period 8904-8912 Rocco A was personally responsible for lodging the catch returns. He says, unequivocally, that he submitted catch returns for each month in that period. For the period 8606-8707 his cousin Rocco was personally responsible for lodging the catch returns. He too says, unequivocally, that he submitted catch returns for each month in that period. The Minister did not, in cross examination of each witness, suggest to him that he had not in fact submitted the catch returns. 26 For 19 of the 20 months before the period 8904-8912, catch returns for the Guiseppa were lodged, and records show that in each of the twenty months, the Guiseppa also reported fishing in Commonwealth waters. For 46 of the 48 months after the period catch returns for the Guiseppa were lodged, and records show that in 40 of the 48 months, the Guiseppa also reported fishing in Commonwealth waters. This is a reasonably consistent pattern of fishing, in the course of which the absence of catch returns for a period of eight months is notable. That absence would be explained either by there being some factor or factors which caused Antonio to not do what he did consistently otherwise – lodge the catch returns – or by the Department's records being incomplete. There is no evidence that indicates that Antonio did not do in that period what he consistently did otherwise: lodge the catch returns. 27 Rocco A made the point in his evidence that he was under a legal obligation to lodge catch returns each month. I am aware that that obligation, now found in s121 FMA was also in the Fisheries and Oyster Farms Act 1935 which was in force until 1994. He says that had he not lodged a return he would have received a reminder from the Department, and had he still not lodged a return he would have been fined. He says that he received no reminders and was not fined. Again I note that the Minister did not in cross examination suggest to Antonio that he had in fact received reminders and been fined. 28 Rocco A's evidence is that he was under an obligation to lodge a catch return even if he did not fish in the month. It would be a 'nil' return. Thus if his boat did not leave port for the month, or it did but took nothing for sale, he would nevertheless have to have lodged a 'nil' return. If he did take fish for sale in the month, but not in what were then NSW waters, he would nevertheless have to lodge a 'nil' return. The Minister did not suggest otherwise, and I understand from my experience in other matters in this jurisdiction that the obligation to lodge a 'nil' return is as Rocco A described it. 29 There has been no challenge to the evidence of Rocco A that he lodged the returns. It was consistently his practice for more than a year and half beforehand, and for four years afterwards, to lodge the catch returns. Had he not lodged them I could reasonably expect some record of the Department's having pursued his failure to do so, particularly in light of the sustained periods of time we are speaking of. Absence of the catch returns cannot be said by the Department to be indicative of there having been no fishing in NSW waters as the obligation, usually enforced by the Department, was to lodge a return for each month in any event. 30 For the five months before 8606 Rocco Musumeci lodged 'nil' returns for the Guiseppa, and for the years after 8707, when he skippered the Illawarra Star he consistently lodged catch returns. As is the case for Rocco A , had Rocco not lodged the returns I could reasonably expect some record of the Department's having pursued his failure to do so. 31 Some time in evidence was spent on the subject of fishing in Commonwealth waters, a suggestion being that the absence of catch returns in the Department's records could be explained by the Guiseppa's having fished outside what was then the three mile zone. This, though not pressed by the Minister, is in my view answered in two ways. The first is to refer to the requirement to submit a 'nil' return. The second is the fact that in almost every month for which the Department has a catch returns from the Guiseppa there is also a record of the Guiseppa's having fished in Commonwealth waters: the two activities were far from mutually exclusive. 32 I am satisfied, on this evidence, that catch returns were lodged for the Guiseppa for the months of 8904-8912 and for the months of 8606-8707. 33 I do not understand the Minister to be actually contesting this finding, but merely to have not conceded the point. Counsel for the Minister did concede at the hearing, when I suggested that the evidence appeared to show that the catch returns had been submitted and then lost or mislaid, that such a finding was "clearly open" to the Tribunal, The Minister did not, counsel said, "have any evidence that goes against the evidence that has been given by the witnesses with respect to those catch returns" (T116). 34 In coming to the view that the catch returns were submitted I have not relied at all on the evidence of other fishers who say that they saw the Guiseppa fishing. Antonio relies on that evidence for two purposes. One is under sub-clause (c)(iii) and I deal with this below. The other is under sub-clause (a) to help establish the inference that the "missing" catch returns were likely to have been lodged. In light of the finding I have made it is unnecessary to have regard to that evidence and the reasoning it is said to support. I note however that as the evidence did not specify the times when the Guiseppa was seen, and was silent on the possibility that it has been fishing in Commonwealth waters, the evidence has almost no probative value for that purpose. Verified records 35 It follows from my finding that the catch returns were submitted that the records of the Department, on which Antonio's eligibility for an endorsement was assessed, are incomplete. There is no suggestion that the incomplete nature of the Department's records is due to the fault of Antonio. Sub-clause (a) is therefore brought into play. 36 Being satisfied that the records are incomplete, I must turn to "verified records" as defined to determine whether the applicant does in fact satisfy the eligibility requirements. (The stages of the inquiry might not be as clearly demarked in other matters, as the verified records themselves may, depending on their content, be part of the evidence on which an inference could be based that missing catch returns were in fact submitted and that the Department's records are therefore incomplete.) 37 Antonio needs to establish on the basis of verified records what he is unable to do on the basis of the incomplete record of catch returns. He may not, as is suggested in submissions, ask the Tribunal to infer from evidence other than verified records what the missing catch returns showed. I am concerned with the missing catch returns only to the extent they are shown to be missing through no fault of Antonio. That having been established, I will look only to verified records to determine whether Antonio is eligible. I am not concerned with, as is submitted, "other evidence as to what the content of the missing returns necessarily must have been". I expressed the same view in Madge -v- Minister for Fisheries [2001] NSWADT 73 at para 28, Brookman -v- Minister for Fisheries [2001] NSWADT 168 para 49-50, Wardley -v- Minister of Fisheries [2002] NSWADT 65 para 106; see also the decision of the Appeal Panel in Minister for Fisheries -v- Puglisi and Ors [2001] NSWADTAP 2 at paras 49 and 57, and of the Tribunal in Slockee & Anor -v- Minister for Fisheries [2002] NSWADT 116 at para 93. 38 A "verified record" for purposes of sub-clause (a) is defined in cl.214C(4) as "a document prescribed for the purposes of s51(4)" of the FMA. Section 51(4) enables the prescription of documents, and that prescription is in cl.128 FMR: (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. 39 No such records are in evidence. I am unable to determine Antonio's eligibility as the necessary documents on which I would assess eligibility are not in evidence. In light of the manner in which the application proceeded before me, which I set out in some detail below, I infer that verified records do not exist or that if they do then they do not establish Antonio's eligibility. 40 At the hearing, before the evidence commenced, I explored with counsel for both parties the nature of the application, the issues raised, and the evidence to be led. Counsel for Antonio said, addressing the nature of the exercise under sub-clause (a) once it had been established that the records were incomplete: "We then have to work out what the missing material should – what its content would have been" (T10.6). I remarked that I wanted to come back to that point. 41 At T12.2 I had this exchange with counsel for Antonio Musumeci: Judicial Member: Would you agree that for you to rely on [clause 214C] (2)(a) . . . you're limited to relying on verified records as defined? Slattery: Yes. Judicial Member: So the extent of the relevant evidence that you can rely on in order to bridge the gap from 11 to 15 [catch returns] is verified records. Slattery: In my submission at least one of the bases of inference about the nature of the incomplete records is other verified records . . . Judicial Member: It all has to come down to the inference must be based on verified records. Slattery: Precisely. Judicial Member: The evidence may help me in doing that but if there aren't verified records they are not -- (sic) Slattery: I accept that . . . in my submission even though under (2)(a) I don't have to rely on just verified records, I can use other evidence – I'm sorry. I need at least to have verified records as the basis of the inference. Judicial Member: That's right, yes. 42 I then said this to counsel for the Minister (T13.4) (I have corrected the word 'construction' which was recorded in the transcript as 'reconstruction'): Judicial Member: Mr Crespo, what I raised with Mr Slattery and what he has said to me is, I'd suggest, a broad interpretation of the phrase "on the basis of verified records". That is to say, he will be relying on an inference based on verified records and the finding of inferences assisted by other evidence. Again, my construction, which has been canvassed in this Tribunal, is that "on the basis of verified records" means the verified records must show the catch as a matter of fact . . . I prefer Mr Slattery's approach to it. Can we proceed on the basis that it's sufficient to establish an inference on the basis of verified records, and the verified records themselves don't need to, on their face, establish the catch history? 43 At T14.3 Mr Crespo said "Yes, as long as they fall within the definition of verified as (sic) records I agree with that proposition". 44 I am satisfied that this exchange made clear that consideration of the requirements of sub-clause (a) – where catch history records are incomplete – depends on verified records as defined. Whether the verified records must on their face show that the eligibility criteria are satisfied, or it is permissible to do as counsel for Antonio persuaded me and rely on inferences based on verified records, is of no matter. The point I make is that the need for verified records to be in evidence was clearly understood. In the circumstances I am satisfied that I have discharged the obligation "to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings" (s73(5)(b) Administrative Decisions Tribunal Act). 45 Submissions for Antonio correctly say "there must be verified records produced to the panel as the basis for satisfying the eligibility criteria for endorsements" (para 34). It is clear however from the remainder of the submissions on point that Antonio relies on catch returns as verified records. It is submitted that "the applicant uses the 11 catch returns which do exist between 1986 and 1990 as the basis of the inference, together with other evidence, as to what the content of the missing returns must necessarily have been". 46 There are two errors in this. The first error is to rely on catch returns as verified records. Catch returns are not within the definition of verified records in cl.128 FMR. 47 The second error is to say that the finding which is to be made "on the basis of" verified records – whether directly or by inference – is as to the content of the missing returns. The finding to be made is as to whether the applicant "does in fact satisfy the eligibility criteria for the endorsement" (cl.214C(2)(a)). That could be quite a different thing from what the missing catch returns would show if ever they were found. 48 To determine whether Antonio satisfies the eligibility criteria for the endorsement I have available to me only 11 of the necessary 15 catch returns in the period. I am satisfied that the catch history records on which the determination was made are incomplete so I turn to verified records. There are no verified records in evidence. The records on which Antonio relies are not verified records. Antonio relies on other evidence which is not itself, nor based on, verified records. I am therefore unable to make a finding under sub-clause (a). Other significant reasons 49 In the alternative to sub-clause (a) Antonio relies on sub-clause (c)(iii): the person was engaged in fishing during that period and for other significant reasons (that are not attributable to the fault of the person) the person was unable to satisfy the eligibility criteria. 50 Having regard to the meaning given to "unable" by the Court of Appeal in Puglisi , it is not the case that Antonio was unable to satisfy the eligibility criteria. To the contrary, he insists that he was able to, and that he did. What he is unable to do, in the absence of the catch returns he says were submitted, is to establish that he satisfied the criteria. Such a circumstance is covered by the provisions in cl.214C(2)(a) and (b), but not (c)(iii). Clause 2145C(2)(c)(iii) FMR has no application in Antonio Musumeci's circumstances. Findings 51 I find that Antonio Musumeci is unable to establish eligibility for Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsement. He is unable to satisfy the eligibility criteria in cl.187(1) FMR. He has brought himself within the circumstances described in cl.214C(2)(a) FMR, but he has not satisfied the eligibility criteria in the manner required by that provision. His circumstances are not within those described by cl.214C(2)(c)(iii) FMR. Correct and preferable decision 52 Having regard to the relevant factual material and the applicable law, I agree with the Minister that Antonio Musumeci is not eligible for the endorsement he seeks. Accordingly the correct and preferable decision is that the applicant is not eligible for an Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsement, and I affirm the decision of the Minister to that effect. ORDERS Pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act I affirm the decision of the Minister. 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