Sayre v Director General, NSW Fisheries [2005] NSWADT 148

CITATION: Sayre v Director General, NSW Fisheries [2005] NSWADT 148 DIVISION: General Division APPLICANTS PARTIES: Peter Sayre and Michelle Sayre RESPONDENT Director General, NSW Fisheries FILE NUMBER: 043115 HEARING DATES: 16/08/2004, 31/08/2004, 1/11/2004 SUBMISSIONS CLOSED: 02/14/2005 DATE OF DECISION: 07/01/2005

BEFORE: Montgomery S - Judicial Member APPLICATION: Charter boat fishing licence - grant of licence - Fisheries Management Act - charter boat fishing licence - grant of licence MATTER FOR DECISION: Principal matter Fisheries Management (General) Regulation 1995 LEGISLATION CITED : Fisheries Management (General) Regulation 2002 Fisheries Management Act 1994 CASES CITED: APPLICANTS REPRESENTATION: In person RESPONDENT C Zoppo, solicitor ORDERS: 1. The decisions by the Minister for Fisheries to cancel the transferable Charter Fishing Boat licence issued to Mr Peter Sayre and Ms Michelle Sayre with respect to the boat 'Action Cat' and to issue in its place a non-transferable Charter Fishing Boat licence are set aside; 2. The decision is made that Mr Peter Sayre and Ms Michelle Sayre be issued with a transferable Charter Fishing Boat licence with respect to the boat 'Action Cat'

REASONS FOR DECISION 1 The Applicants ("the Sayres") purchased the boat CFB 15485 'Action Cat' in early 2000. The boat was formerly known as 'Cat Dive'. The Sayres purchased 'Cat Dive' from its former owner Mr Karl St John. In September 2000 the Sayres applied for a charter fishing boat licence for 'Action Cat' under the Fisheries Management Act 1994 ("the Act") and a transferable licence was issued. Notice of the licence issue was published in March 2001 and Mr Stephen Genn lodged a Third Party Review application, to challenge the issue of the licence. 2 A Review Panel was established to conduct the review. The conduct of the review was governed by clauses 226V and 226W of the Fisheries Management (General) Regulation 1995 ("the Regulation"). The Fisheries Management (General) Regulation 2002 ("the 2002 Regulation") replaced the Regulation on 31 August 2002. The corresponding provisions in the 2002 Regulation are found at clauses 301 and 302. Following the review the decision was taken that the Sayres transferable licence be cancelled and a non-transferable licence be issued. The Sayres have applied to the Tribunal for review of that decision. 3 There are two classes of licence, transferable and non-transferable. In order for the Sayres to be eligible for a transferable licence it is necessary that they are entitled to claim a history of operations in respect of a boat that was actively used for guided recreational charter fishing activities in the marine and estuarine charter fishing sector before 22 October 1997, and was actively used for those activities for at least 100 days during any period of 24 consecutive months between 22 October 1995 and 4 August 1999. To be eligible for a non-transferable licence it is necessary that the boat was actively used for those activities for at least 50 days during any period of 24 consecutive months between 22 October 1995 and 4 August 1999. 4 The date 22 October 1997 is significant because on that day the Minister for Fisheries issued a warning against further investment in the Charter Boat Fishing industry because of moves to cap the number of operators in the industry at the level then present. 5 The sole issue to be determined by the Tribunal is whether the Sayres have established that the history of operations of the boat 'Cat Dive' did, in fact, satisfy the eligibility criteria for a Charter Fishing Boat licence. 6 It is common ground that Mr St John ceased to operate the boat 'Cat Dive' some time in early to mid 1997 when the boat fell into disrepair and was vandalised. 7 Prior to September 2000 NSW Fisheries did not actively maintain a record of charter fishing boats in NSW and other documentary evidence of the operations of 'Cat Dive' is scant. The evidence in relation to the history of operations of 'Cat Dive' is therefore from Mr St John and individuals who observed the operations of the vessel during the relevant period. It is apparent that a great deal of animosity exists between several of the witnesses and there is considerable disagreement between the parties as to the weight to be given to their evidence. 8 Each of the Sayres gave evidence and was cross-examined. Evidence was also given in support of their application by Mr St John; Mr Stephen Arthur, a Charter Boat Operator; Mr Stephen Sayre, a Charter Boat Operator and brother of Peter Sayre; and Mr Darren Morrissey, a charter boat operator and commercial fisherman. Evidence for the Respondent was given by Dr Aldo Steffe, a Research Scientist with the Department of Primary Industries; Mr Stephen Genn, a Charter Boat Operator who lodged a Third Party Review application against the decision to grant the Sayres a transferable licence; Mr James Lumb, a Charter Boat Operator; and Ms Jessica Tosti, an Officer with the Department of Primary Industries. 9 The Director General contends that evidence led by the Sayres with respect to the eligibility criteria is based on recollections from individuals about observation they made eight to nine years earlier. Each of the witnesses only guessed the number of days where charter fishing was undertaken by use of the 'Cat Dive'. None of the witnesses relied on any form of contemporaneous notes to assist them recall their observations. The Director General further contends that the Tribunal should not give a great deal of weight to the evidence of Mr St John, because his estimate that the 'Cat Dive' undertook over 100 days charter fishing operations was nothing more than a guess. Accordingly, the Director General submits that the Sayres have not satisfied the criteria for either a transferable or non-transferable licence. 10 In contrast, the Sayres assert that the evidence establish that Cat dive conducted in excess of 100 charter fishing days between October 1995 and early 1997. 11 In the alternative, the Sayres submit that if the evidence does not establish that the vessel Cat dive conducted in excess of 100 charter fishing days between October 1995 and early 1997 then consideration should be given to clause 226V(2) of the Regulation and that they should be granted a transferable licence on the basis that if Mr St John had failed to satisfy the eligibility criteria it was due to circumstances beyond his control, that there were valid reasons why he failed to satisfy the criteria ie the boat was vandalised, and that it is fair and reasonable in the circumstances to grant the licence. 12 The Director General submits that the Tribunal does not have the discretion to issue a licence under clause 226V(2) of the Regulation should the finding be made that the Sayres have not satisfied the criteria. The Director General contends that this clause and its successor only apply to reviews undertaken following a refusal of the Minister to issue a licence. The review that is the subject of the Tribunal's consideration is a review following the issue of a licence by the Minister. It is further contended that that the applicable clause is Clause 226V(4) of the Regulation (Clause 315 of the 2002 Regulation) because the review is one of a decision of the Minister to issue a licence. 13 The Director General submits that the correct and preferable decision in this case is to confirm the decision to cancel the transferable licence previously issued to the Sayres; and to set aside the decision to issue a non-transferable licence. Findings 14 Each of the parties has provided detailed submissions. Each has also provided a summary of the evidence given by the various witnesses. I do not propose to repeat the evidence here but I note that there is some disagreement between the parties as to the value of the evidence of particular witnesses. I agree with Mr Zoppo's argument that the evidence with respect to the charter fishing operations of 'Cat Dive' is based on recollections from individuals about observation they made a long time ago and that the witnesses have merely estimated the amount of days of operations. Nevertheless, it is necessary that I weigh the evidence and form a view as to the probable extent of the 'Cat Dive' operations. In doing so, I have taken the evidence of each of the witnesses into account. 15 I do not consider that either Mr Genn's or Mr Lumb's recollections of the actual events can be relied upon as faithful to the truth. In particular I do not accept Mr Genn's recollection in relation to discussions with Mr St John about whether 'Cat Dive' had a history of operations or that Mr St John had conceded that 'Cat Dive' did not have such a history. Having formed this view, their evidence is of limited assistance in resolving the central issue in this matter. 16 While I accept Mr Zoppo's submission as to the limited recollections of each of the witnesses who appeared in support of the Sayres application, I do not share his view with respect to the weight that should be given to the evidence provided by Mr St John. In the circumstances it is my view that significant weight should be given to that evidence because of the fact that he is no longer active in the industry and is at arms length from the others involved in the proceedings. There is no doubt that his recollection of events is limited but he was unshaken on his view that he had conducted over 100 days of charter fishing operations. 17 In their written submissions, the Sayers have provided what I consider this to be an accurate transcript of part of Mr St John's evidence under cross examination on this issue: "Zoppo: Did you say you said it had conducted over 100 fishing charters. StJohn: Pretty darn sure. Zoppo: You're pretty darn sure? StJohn: Yeh. Zoppo: Well you have just given in evidence to his honour earlier, going through the individual years StJohn: Yeh you were asking me how many and I didn't actually. I would only be guessing. But it would be more than a hundred. Zoppo. All right so you are unable to say with any degree of certainty how many but you are able to say over one hundred. StJohn. Correct." 18 I accept this evidence and consider that it is probably an accurate indication of the extent of the 'Cat Dive' operations. Having formed this view, I do not need to discuss the evidence of other witness that corroborates this position. It is also unnecessary for me to determine whether the Tribunal has the discretion to issue a licence under clause 226V(2) of the Regulation. 19 I therefore conclude that the sole issue to be determined by the Tribunal should be determined in favour of the Sayres. I find as a fact that the boat 'Cat Dive' was actively used for charter fishing activities in the marine and estuarine charter fishing sector before 22 October 1997, and actively used for those activities for at least 100 days during any period of 24 consecutive months between 22 October 1995 and 4 August 1999. The Sayres have therefore established that the history of operations of the boat 'Cat Dive' did, in fact, satisfy the eligibility criteria for a transferable Charter Fishing Boat licence. 20 Accordingly, it follows that the decisions under review should be set aside. Orders 1. The decisions by the Minister for Fisheries to cancel the transferable Charter Fishing Boat licence issued to Mr Peter Sayre and Ms Michelle Sayre with respect to the boat 'Action Cat' and to issue in its place a non-transferable Charter Fishing Boat licence are set aside. 2. The decision is made that Mr Peter Sayre and Ms Michelle Sayre be issued with a transferable Charter Fishing Boat licence with respect to the boat 'Action Cat'.