CITATION: Holbert v Minister for Fisheries [2001] NSWADT 94 revised - 18/06/2001 DIVISION: General Division APPLICANTS Raymond Holbert PARTIES: Paul Holbert RESPONDENT Minister for Fisheries FILE NUMBER: 003409 HEARING DATES: 02/05/2001 SUBMISSIONS CLOSED: DATE OF DECISION: 06/06/2001 BEFORE: Foster GF - Judicial Member at 1 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 and Oyster Farms Act 1935 Fisheries Management (General) Regulation 1995 Hurst v The Director Department of Fisheries (2000) NSWADT 158 CASES CITED: Cootes v Director, New South Wales Fisheries (2001) NSWADT 65 Minister for Fisheries v Puglisi & Ors (2001) NSWADT AP2 APPLICANTS REPRESENTATION: L Pirona, solicitor 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 Applicants are not eligible for Ocean Prawn Trawl Restricted Fishery Inshore and Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsements be set aside; 2 In substitution the decision is made to refer the matter back to the Review Panel for futher consideration, together with a recommendation that the Panel take into account the reasons of the Tribunal in these proceedings; 3 No order as to costs 1 The Applicants, Raymond Holbert and Paul Holbert, made application for endorsements with respect to the Ocean Prawn Trawl Restricted Fishery and Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsements by application dated 26 December 1996. Background: 2 The Minister for Fisheries as the Administrator ("the Minister") made a decision with respect to the Applicants' application and refused to grant the Ocean Prawn Trawl Restricted Fishery Inshore and Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsements and notified the Applicants of the decision by letter dated 11 April 1997. 3 The Applicants lodged an application for review of the Minister's decision on 30 April 1997. 4 The Restricted Fisheries Review Panel is the statutory review panel under the Fisheries Management (General) Regulation 1995. The Restricted Fisheries Review Panel carried out a review of the determination relating to the Applicants' eligibility and provided the Minister with a written report recommending that the Applicants be refused the Ocean Prawn Trawl Restricted Fishery Inshore and Ocean Fish Trawl Restricted Fisher (Northern Zone) endorsements. 5 In accordance with the recommendations of the Restricted Fisheries Review Panel the Minister determined the Applicants should not be granted the endorsements and notified the Applicants accordingly by letter dated 2 June 1999. 6 The Applicants lodged an application for review of the decision to refuse the issue of Ocean Prawn Trawl Restricted Fishery Inshore and Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsements with the Tribunal by application dated 27 December 2000. 7 The Minister on the recommendation of the Restricted Fisheries Review Panel found that on the basis of the validated catch history requirement pertaining to the Applicants' fishing business (FB No. 2258) there was insufficient catch history to enable the Applicants to obtain an Ocean Prawn Trawl Restricted Fishery Inshore endorsement and an Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsement. 8 More particularly the Minister found on the recommendation of the Fisheries Review Panel the following: (i) that the Applicants have insufficient catch history to qualify for an Ocean Prawn Trawl Restricted Fishery Inshore endorsement under clause 178I(1)(c)(i) of the regulation as they have taken school or king prawns from ocean waters in only one of the three required years between 1986 to 1990 inclusive; (ii) that the Applicants have insufficient catch history to qualify for Ocean Prawn Trawl Restricted Fishery Inshore endorsement under clause 178(1)(c)(ii) of the regulation as they have taken a total of 616 kg of the required 1000 kg of school or king prawns taken from ocean waters between 1986 to 1990 inclusive; (iii) that the Applicants have insufficient catch history to qualify for an Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsement under clause 187(1)(a) of the regulation as they have only 4 of the required 15 ocean waters catch returns indicating fish were taken from ocean zones 1 to 6 by method of fish trawl in the period 1986 to 1990 inclusive; (iv) that the Applicants have insufficient catch history to qualify for Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsement under clause 187(1)(b) of the regulation as, although the Applicants do have the 3 required catch returns for the period 1986 to 1990 indicating fish were taken from ocean zones 1 to 6 by the method of fish trawl, they only have 3 of the required 5 catch returns during the period 1991 to 1993. Furthermore the Applicants do not meet the requirement of 20 tons of fish trawl species in any of the 3 required years from 1986 to 1993 inclusive. 9 The reviewable decision in these proceedings is the Minister's decision, advised to the Applicants by letter dated 2 June 1999 to accept the Review Panel's recommendation not to issue the Applicants with the endorsements applied for. 10 On 27 December 2000 the Applicants applied to the Tribunal for review of the Minister's decision. 11 In accordance with the requirements of Section 58 of the Administrative Decisions Tribunal Act ("ADT Act") the Department lodged their file with the Tribunal. The Evidence: 12 The matter was heard before me on 2 May 2001. 13 At the conclusion of the hearing the Respondent was directed to file with the Tribunal copies of Ministerial and Departmental warnings issued with regard to future New South Wales Fisheries management plans. The relevance of this direction will become apparent later in this Judgment. 14 At the outset of these proceedings it was conceded by the Respondent that apart from the requirement as to catch history the Applicants met all other requirements for the issue of the endorsements applied for. 15 The Applicant, Raymond Holbert, gave sworn evidence and was cross-examined by the legal representative for the Respondent. 16 The Tribunal had before it the following exhibits: (i) the Departmental file; (ii) document entitled "Response by Applicants" filed 2 May 2001; (iii) Newcastle District Fishermens Co-operative Limited dockets for the period 22 March 1995 to 7 June 1995; (iv) Newcastle District Fishermens Co-operative Limited dockets for the period 26 September 1994 to 3 August 1995. 17 Evidence on behalf of the Applicants was given by Mr. Raymond Holbert. He is 54 years of age. He conceded that the findings of fact by the Fisheries Review Panel as to his catch history were substantially correct. He commenced shark meshing for the Fisheries Department in late 1981 or early 1982. Generally those contracts were on a 2 year basis, however, successive contracts were awarded to the successful tenderer. The Applicant had contracts with the Department of Fisheries continuously from 1986 to the present time. Contracts with the Department for the periods up to 1 September 1998 did not involve a suspension of the Applicant's commercial fishing licence. Hence the Applicant was able to undertake his obligations to the Department pursuant to the shark meshing contracts and otherwise engage in commercial fishing. He had been a commercial fisher and held a commercial fishing licence since 1972 and his commercial activities were always in ocean waters taking fish by various methods, including fish trawl, trap and line and inshore prawn. 18 The Tribunal had before it a copy of a contract dated June 1986 whereby the Applicant, Raymond Holbert, contracted with the Department of Agriculture and Fisheries to undertake shark-meshing operations off 10 specified ocean beaches in the Newcastle area. The Applicant was obliged under the terms of that contract to undertake shark-meshing activities during the months of January through to May and thence August through to December each year, commencing on 1 August 1986. 19 The Applicant gave evidence that during the currency of the 1986 contract there was a warning received by the shark-meshing contractors from the Department that the Department was concerned as to the intrusion of the commercial activities of the fishermen on their proper performance of obligations under the shark meshing contracts. The applicant gave evidence of being told by Mr. Alan Stein of the Department that if the shark-meshing contracts were not properly performed the Department would consider the revocation of the commercial fishing licence otherwise held by the shark-meshing contractors. 20 Clearly such a circumstance would have had devastating effects upon a commercial fisher who was obligated under shark-meshing contracts. In the event that his commercial fishing licence was cancelled he would be unable to return to commercial activities in the event that he was an unsuccessful tenderer for a further or subsequent shark-meshing contract. 21 It would appear that the Department took no action during the currency of the 1986 contract in so far as the commercial fishing licences of the contractors were concerned. 22 The Applicant completed his obligations under the 1986 shark-meshing contract and was a successful tenderer for a shark meshing contract with the Department for the period commencing 1 September 1988 through to 30 April 1990. The Tribunal has before it a copy of the contract between the Applicant and the Department for that period. 23 That contract provides pursuant to clause 26 the following: "26. Conditions not to be waived: None of the conditions of this contract shall be varied, waived, discharged or released either at law or in equity unless by the express consent of the Minister, testified in writing under his hand. Where a licenced fisherman secures a contract, his fisherman's licence and the licence of any licenced fishing boat (used in association with the contract) shall be suspended from 1 September 1998 to 30 April 1989 and from 1 September 1989 to 30 April 1990, all dates inclusive, with the provision that such licences shall be restored in the event that the fishermen is unsuccessful in retaining a subsequent contract. This condition is considered essential to preserve the licences of professional fishermen who secure a shark-meshing contract. As the contracts require the full time involvement of the contractors and provide a substantial monetary return, a fisherman holding a contract could not meet the conditions prescribed by Section 25(4) of the Fisheries and Oyster Farms Act for renewal of his licence." 24 At that time the Fisheries and Oyster Farms Act 1935 provided in Section 25(4): "A fishermen's licence issued to an individual shall not be renewed unless, during the period that the licence was in force, the major portion of his income from personal exertion was derived from the taking for sale of fish and unless the major portion of the time is spent in producing income by personal exertion was spent in the taking and sale of fish." 25 Subsequent to the 1988 contract the Applicant was successful in tendering for shark-meshing contracts for the ensuing years. The shark-meshing contract with the Department for the period from 1 September 1990 to 30 April 1992 included a provision in identical terms with clause 26 set out above. 26 In the shark meshing contract for the period 1 September 1992 to 30 April 1994 the provision in clause 26 was reproduced as clause 29 with the exception that the following sentence was added: "The restored licences would be subject to management rules in place at the time of restoration." 27 The 1992 to 1994 contract was entered into by the Applicant prior to 1 September 1992. It would appear from previous contracts that the contract was entered into in approximately June or July 1992. 28 The Tribunal notes that the subsequent eligibility periods under the Fisheries Management (General) Regulation 1995 for Ocean Prawn Trawl Restricted Fishery Inshore endorsement covered the period from 1986 to 1990 (see clause 178(1)(a)(i) and clause 178(1)(c)). 29 In relation to the endorsements for Ocean Fish Trawl Restricted Fishery (Northern Zone) the eligibility periods covered the years 1986 to 1990 (see clause 187(1)(a)) or the years 1986 to 1993 (see 187(1)(b)). 30 The Applicant gave evidence that in the periods when he was not obligated under the shark-meshing contracts there was little time available otherwise for commercial fishing as a consequence of the necessity to dry nets, repair and clean his vessel, take some time off for holidays and, more importantly, the circumstance of bad weather in the available months which were substantially mid-winter. He further gave evidence that the principal season for the school prawn run was principally throughout the summer months. 31 The Tribunal is satisfied that at the time the Applicant entered into the shark- meshing contracts with the Department it was, in relation to the 1986 contract, on the implied understanding between the Applicant and the Department that his substantial involvement in shark-meshing would not prejudice otherwise his eligibility for a commercial fishing licence under the then provisions of the legislation. 32 In relation to the contracts 1988 and thereafter that understanding was indeed converted to an express provision of the contract in recognition by the Department that those fishermen undertaking shark-meshing would not otherwise have been able to satisfy the criteria under the then legislation. The only modification to that condition was the addition in the 1992 contract of a provision, which provided that restored licences would be subject to management rules in place at the time of restoration. 33 The Tribunal notes that at the conclusion of the 1992 contract that is the 30 April 1994 no such management rules had been implemented as the Fisheries Management General Regulations did not commence until 1995. 34 The Respondent to the Review takes the position that the Applicant had received Departmental notification of the pending changes in fisheries management regulation. 35 Subsequent to the conclusion of evidence the Respondents to the present application provided to the Applicant's solicitors copies of press releases and other documentation foreshadowing the implementation of appropriate Fisheries Management guidelines. That documentation was provided to the Applicant's solicitors and I received a written response from those solicitors on behalf of the Applicant. 36 The Respondents have provided a document entitled "Ministerial and Departmental Warnings Issued with Regard to Future New South Wales Fisheries Management Plans". That document outlines in summary form the various "warnings" allegedly provided to the commercial fishing community. Those warnings are in the following categories: (a) Ministerial press releases - the Department acknowledges that there is no documented evidence of fishers receiving information contained in the press releases directly or otherwise or as such the press releases are of no utility in this review process; (b) Vessel transfer, supplementary information form - this form was incorporated with the Licensing Section's administration procedures during 1991 (exact date unknown) and was superseded with the implementation of the Restricted Fisheries Management Plans. The form contained a Departmental warning signed by the fisher and was used in every vessel transfer from about 1991 onwards. This has no relevant to the Applicant as he had a licenced vessel continuously during the eligibility criteria periods the subject of this review; (c) Commercial fishing licence guides - the Department forwarded a "Commercial Fishing Licence Guide" to anyone making an initial enquiry about a New South Wales commercial fishing licence (potential new entrants). This does not apply to the Applicants as the Applicants held during the relevant eligibility periods continuously commercial fishing licences which had been held for many years prior thereto; (d) Unvalidated catch history report - all reports contained the warning "Guide only - these figures do not guarantee entry to any fisher". As at 18 August 1992 a cover letter generally attached to each print out also contained the subject warning. The implementation of this warning commenced after the Applicant had entered into his shark meshing contract for the 1992/1994 period and as such could not have been in his contemplation at the time he entered into the arrangements with the Department pursuant to his contracts. Conclusion – Clause 214C(2)(c) Fisheries Management (General) Regulation: 37 The Tribunal is satisfied that the Applicant's shark meshing obligations to the Department were entered into in the full expectation that at the conclusion of each shark meshing contract his commercial fishing licence would be restored to him on the basis of the same criteria as was required for that commercial fishing licence at the commencement of the shark meshing contract. 38 The Tribunal is satisfied that it could not have been in the contemplation of the Applicant that the subsequently introduced Restricted Fisheries Management Guidelines would so disadvantage the Applicant in terms of satisfying the catch history requirement for relevant endorsements. 39 It is conceded by the Applicant that he is unable to satisfy the catch history requirements for either of the subject endorsements sought by him. 40 Being unable to satisfy the eligibility criteria as to catch requirement the Applicant relies on clause 214C of the Fisheries Management (General) Regulation 1995, which gives the Review Panel grounds to recommend to the Minister that a person is or should be eligible even though the eligibility criteria have not been satisfied. Clause 214C(2)(c) allows a person who applied for the review to satisfy the Review Panel that: (i) the person suffered illness or other incapacity for a significant period and the illness or incapacity substantially affected his or her ability to satisfy the eligibility criteria for the endorsement, or (ii) the person lost his or her commercial fishing boat due to accident or misadventure and the loss substantially affected his or her ability to satisfy the eligibility criteria for the endorsement, or (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. 41 The Applicant before the Tribunal relies upon the provisions of clause 214C(2)(c)(iii). 42 Clause 214C(2)(c)(iii) can be broken down into 3 parts. The first is that the person was engaged in fishing during the relevant period. The Applicants before the Tribunal satisfy this part. The second is that the person is unable to satisfy the eligibility criteria. The Applicants before the Tribunal satisfy this part as to catch history. The third indicates a connection of some sort between a circumstance which is both significant and not the fault of the person and the inability to satisfy the eligibility criteria. 43 It is the Tribunal's view that the meaning of clause 214C(2)(iii) requires a direct causal link to be established between the significant circumstance and the inability to satisfy the eligibility criteria. If the link were established, the circumstance would then be the "reason" for the inability. 44 In this respect see Hurst v. The Director Department of Fisheries (2000) NSWADT 158 and Cootes v. Director, New South Wales Fisheries (2001) NSWADT 65. 45 In the matter before the Tribunal the Applicants were engaged in fishing during the relevant period and are unable to satisfy the eligibility criteria in so far as catch history is concerned. 46 Simply put the Applicants contend that their obligations pursuant to the shark- meshing contracts with the Department in the years from 1986 through to 1992 were such that at least for the period 1 September 1988 to 31 December 1993 prevented the Applicants from undertaking commercial fishing activities during the term of the contract as, pursuant to the terms of the contract, their commercial fishing licence was suspended. 47 The Applicants contend that during the months that they were not obligated under the shark-meshing contracts there was precious little time to devote to commercial fishing as a consequence of the need to dry and mend nets, repair and clean their boats and to take what in all probability was a well earned holiday. A further significant circumstance limiting their commercial activities was that the only months available outside their obligations under the shark meshing contract were mid-winter. The Applicants gave evidence as to the limited catch available during this period as a consequence of the seasonal nature of various fishing activities and, more importantly, the vagaries of the weather, which throughout the winter months was a very limiting factor on commercial fishing activities. 48 The matter presently before the Tribunal can be comfortably distinguished from the matter of Minister for Fisheries v. Puglisi & Ors (2001) NSWADT AP2. In that matter the applicant made a commercial decision not to fish in the relevant area during the relevant period and accordingly could not show the necessary catch history. The issue before the Appeal Panel was whether that decision could be covered by the phrase in clause 214C(2)(c)(iii) "other significant reasons (that are not attributable to the fault of the person)". 49 The Appeal Panel on the meaning given to that phrase said, at paragraph 50: "Our conclusion is that the words in parenthesis in subparagraph (iii) of paragraph (c) confine the scope of "other significant reasons" to explanations that relate to circumstances that lie beyond the personal control or conduct of the applicant." 50 The Applicant has given evidence that his obligations pursuant to the shark meshing contracts were such that they prevented the satisfaction of the relevant catch criteria for both of the subject endorsements. The Applicant has given evidence, which is referred to above as to the time otherwise available to undertake commercial fishing activities outside the scope of his contractual obligations. The Applicant gave evidence that in relation to school prawns where the Applicant is 384 kg short of the required 1000 kg of school or king prawns in the years 1986 to 1990, that had be been able to work as a commercial fisherman during the summer months he would have expected a normal catch of 300 to 400 kg a day. Under the circumstances it is the view of the Tribunal that if the Applicant was not otherwise obligated under his shark- meshing contract to the Department he would have been able to more than comfortably satisfy the catch criteria for the Ocean Prawn Trawl Restricted Fishery Inshore endorsement. 51 Further, the Tribunal is satisfied that had it not been for the shark-meshing activities of the Applicants pursuant to the contractual obligations to the Department the Applicants would have satisfied the catch history criteria for the Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsement. It is an inescapable inference from the evidence that had the Applicants not engaged in shark-meshing and thus had available to them a further 9 months of commercial fishing the required catch history over the period from 1986 to 1993 would have been easily satisfied. 52 The question that falls for determination by the Tribunal is whether the conduct of the Applicants in entering into shark-meshing contracts with the Department can be seen as a significant reason not attributable to the fault of the Applicants as a consequence of which they were unable to satisfy the relevant catch criteria. 53 It is clear to the Tribunal that it was the expectation of the Applicants that, notwithstanding undertaking contractual obligations with the Department that they would have at all times have continued to hold their commercial fishing licences in so far as the contract entered into in 1986 was concerned and that their obligation under the contract would not prejudice their eligibility for a renewal of their commercial fishing licence under the provisions of Section 25(4) of the Fisheries and Oyster Farms Act 1935. 54 Further, in so far as the contracts commencing 1988, 1990 and 1982, it was expressly provided in the contracts that the undertaking of the contractual obligation to the Department would not prevent the restoration of the commercial fishing licences at the conclusion of the contract. 55 The 1992 contract provided that the commercial fishing licence would be restored to the Applicants at the conclusion of that contract on 30 April 1994 "subject to management rules in place at the time or restoration". In fact no such management rules were in place and such management rules were not implemented until 1995. 56 It is inconceivable to suggest that it would be in the contemplation of the Applicants in this matter that at any time whilst they undertook those contractual obligations for the Department that the undertaking of those obligations would prejudice the restoration of their commercial fishing licence or the continuation of their commercial fishing activities in any way. 57 The subsequent implementation of the Fisheries Management (General) Regulation 1995, which imposed artificial catch criteria for the years 1986 to 1993 inclusive, could never have been in the contemplation of the Applicants. Having regard to that circumstance, it is the view of the Tribunal that the Applicants entering into contractual shark-meshing obligations with the Department is a significant reason as to why the Applicants were unable to satisfy the eligibility catch criteria for the subject endorsements. 58 The subsequent intervention of a statutory regime pursuant to the Fisheries Management (General) Regulation 1995 which operated adversely against the Applicants, in circumstances whereby they had no knowledge of the future requirements for the continuation of their commercial fishing activities, cannot in any circumstance be seen as attributable to the fault of the Applicants. 59 It is regrettable that the Applicants have been adversely affected by the superimposition of a statutory scheme which in itself created artificial eligibility criteria on a past history basis. It is clear to the Tribunal that it could never have been in the contemplation of the Applicants that a statutory scheme as was introduced would have required them to make a decision as to whether to continue shark meshing or remain wholly within the commercially licenced fishing industry. 60 Under the circumstances it is the view of the Tribunal that the provisions of clause 214C(2)(c)(iii) operate in favour of the Applicants for the reasons set out above. 61 Accordingly the orders of the Tribunal are as follows: 1. The decision of the Minister to, in accordance with the decision of the Review Panel, confirm the determination that the Applicants are not eligible for Ocean Prawn Trawl Restricted Fishery Inshore and Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsements be set aside. 2. In substitution the decision is made to refer the matter back to the Review Panel for further consideration, together with a recommendation that the Panel take into account the reasons of the Tribunal in these proceedings. 3. No order as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.