Horan -v- Minister for Fisheries [2002] NSWADT 144

CITATION: Horan -v- Minister for Fisheries [2002] NSWADT 144 DIVISION: General Division APPLICANT PARTIES: Paul Horan RESPONDENT Minister for Fisheries FILE NUMBER: 023087 HEARING DATES: 05/07/02 SUBMISSIONS CLOSED: 07/19/2002 DATE OF DECISION: 08/19/2002

BEFORE: Higgins S - Judicial Member APPLICATION: Fisheries Management Act - fishing licence- endorsement on licence - 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 CASES CITED: Micallef v Minister for Fisheries [2002] NSWADT 105 APPLICANT REPRESENTATION: D Armstrong, agent RESPONDENT C Cory, solicitor ORDERS: The Minister's decision to refuse Mr Horan's application for eligibility for a class B (crew) endorsement for ocean haul restricted fishery is affirmed.

Background 1 On 26 April 2002, Mr Horan made an application to the Administrative Decisions Tribunal for review of the decision made by a delegate of the Minister for Fisheries (the Minister) of refusing his application for eligibility for a class B (crew) endorsement in the ocean haul restricted fishery, upon the transfer of fishing business FB1093 from Mr Johnson to Mr Horan. This fishing business consisted of two licensed fishing boats. One was a general purpose boat and the other was used for prawn trawling in the Clarence River. 2 The Tribunal's jurisdiction derives from s.126 of the Fisheries Management Act 1994 and s.38 of the Administrative Decisions Tribunal Act 1997. 3 Mr Horan purchased FB1093 on 27 August 1996. Attached to that business was a class B ocean haul restricted fishery, estuary general restricted fishery and estuary prawn trawl fishery endorsement. 4 After he had purchased the business, Mr Horan was given the estuary general restricted fishery and estuary prawn trawl fishery endorsements, but not the ocean haul class B (crew) endorsement. 5 However, since that time Mr Horan has actively sought entitlement to this endorsement as he alleges that he had been told by an officer of the Department of NSW Fisheries that he would be entitled to it. Preliminary Issue 6 A preliminary issue was raised, but not pressed, by Ms Cory who appeared on behalf of the Minister. This issue related to Mr Horan's application being out of time and contrary to s.55(1) of the ADT Act and the ADT Rules, which require the applicant to make his application within 28 days of becoming aware of the administrator's decision following an internal review. As this issue is relevant to the Tribunal's jurisdiction I will deal with it briefly. 7 On 1 May 2000 Mr Horan applied for eligibility for a class B (crew) ocean haul restricted fishery on the basis of his purchase of FB1093 from Mr Johnson. Prior to this there had been ongoing correspondence between Mr Armstrong, on behalf of Mr Horan, and NSW Fisheries in relation to this entitlement. 8 NSW Fisheries responded to the application on 26 September 2000 and advised Mr Horan that his application had been refused because the Validated Catch History of the fishing business was not sufficient to meet the April 2000 criteria of the Director in respect of eligibility for a Class B (crew) endorsement on the transfer of a fishing business. 9 Mr Armstrong, on behalf of Mr Horan, wrote to NSW Fisheries on 22 November 2000 and made further submissions on why Mr Horan was entitled to the endorsement sought. 10 On 16 December 2001, more than one year later, NSW Fisheries responded and advised that Mr Horan was not eligible for the endorsement and that the validated catch history of FB1093 could not be reviewed. 11 On 2 April 2002 Mr Armstrong wrote seeking another review. NSW Fisheries responded on 8 April 2002 stating that the letter of 16 December 2001 had been the review decision and that they would not consider it again. An application was then lodged with the Tribunal on 26 April 2002. 12 From the material filed it would appear that Mr Armstrong, who is not legally qualified failed to understand the effect of the 16 December letter. Once informed of its effect an application was lodged within time. 13 Accordingly, I am of the opinion that the NSW Fisheries letter of 2 April 2001 is the relevant decision from which review is sought. However, if I am wrong, in my opinion the circumstances are such that Mr Horan has provided a reasonable explanation for the delay in making his application following receipt of the letter from NSW Fisheries dated 16 December 2001. I therefore would also extend the time, pursuant to s.57(1) of the Administrative Decisions Tribunal Act for the lodgement of Mr Horan's application. Main Issue 14 The primary issues in this case are: (a) whether the eligibility criteria as set out in s.212F(2) of the Fisheries Management (General) Regulations apply to Mr Horan's application for an endorsement; and (b) whether Mr Horan, through representations made to him by an officer of NSW Fisheries, Mr Driver, at the time he purchased the business gave rise to an entitlement for the endorsement. Relevant Legislation 15 Section 64 of the Administrative Decisions Tribunal Act, 1997, makes provision for the application of Government policy in determining an application for a review of a reviewable decision by the Tribunal. So far as is relevant, that section provides as follows: "64(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstance of the case. …. (4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case. In this section: Government policy means a policy adopted by: (a) the Cabinet, or (b) the Premier or any other Minister, and that is to be applied in the exercise of discretionary powers by Administrators". The FM Act has been in operation since 16 January 1995 and its objects are contained in s. 3 of the Act, which provide: "3(1) The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of the present and future generations. (2) In particular, the objects of the Act include: