King -v- Minister for Fisheries [2003] NSWADT 54

CITATION: King -v- Minister for Fisheries [2003] NSWADT 54 DIVISION: General Division APPLICANT PARTIES: Bernard John King RESPONDENT Minister for Fisheries FILE NUMBER: 023040 HEARING DATES: 19/08/2002, 30/08/2002, 04/09/2002 SUBMISSIONS CLOSED: 10/02/2002 DATE OF DECISION: 03/17/2003

BEFORE: Montgomery S - Judicial Member APPLICATION: Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence MATTER FOR DECISION: Principal matter Fisheries Management (General) Regulation 1995 LEGISLATION CITED : Fisheries Management Act 1994 Administrative Decisions Tribunal Act 1997 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 CASES CITED: McDonald v Director General of Social Security (1984) 1 FCR 354 Kioa v West (1985) 159 CLR 550 APPLICANT REPRESENTATION: In person RESPONDENT C Cory, solicitor ORDERS: 1. The decision to refuse Mr King's application for an endorsement that authorises the use of the garfish hauling net is set aside; 2. The Tribunal substitutes a decision that Mr King's application is granted.

Background 1 These proceedings relate to a decision by a delegate of the Minister for Fisheries ("the Minister") to refuse an application by Mr. Bernard John King ("Mr. King") for an endorsement that authorises the use of the garfish hauling net pursuant to cl.212F of the Fisheries Management (General) Regulation 1995 ("the Regulation"). Mr. King was advised of the decision by letter from the Director, NSW Fisheries dated 29 January 2002. The Minister found that Mr. King did not satisfy the eligibility criteria for a garfish endorsement as set out in the Regulation. The Minister provided reasons for the decision and a copy of those reasons dated 19 April 2002 was provided to Mr. King. Mr. King has applied to this Tribunal for a review of the Minister's decision. 2 This matter has a very long history. Mr. King has pursued the issue over many years asserting that he purchased the garfish hauling net in issue in 1985 and that he is entitled to an endorsement that authorises him to use the net. That pursuit has finally resulted in the decision now under review. 3 On 13 February 2002 Mr. King applied to this Tribunal for review of the Minister's decision notified to him on 29 January 2002. The matter came before the Deputy President of the Tribunal for a directions hearing on 20 May 2002 and subsequently before the President of the Tribunal on 22 May 2002 and again before the Deputy President of the Tribunal on 19 June 2002. Various timetables for the filing of documents were put in place leading to a hearing of the matter at Forster on 19 August 2002. The matter was not finalised on that day and a further hearing of evidence followed by telephone on 30 August 2002 and 4 September 2002. Time was then allowed for further material to be filed and the opportunity given to each party to apply to have the matter relisted. Nature of proceedings 4 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77). 5 These are not adversarial proceedings in which Mr. King carries an onus of proof. Mr. King, by making the application, triggers a process of merits review by the Tribunal. Mr. King does not take on the responsibility of having to prove a case, nor does an Applicant cause the Respondent to have to prove a case. Mr. King and the Respondent are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 6 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Respondent's, and "there is no presumption that the Respondent's decision is correct" (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357). 7 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357). Applicable Legislation 8 The Tribunal's jurisdiction arises pursuant to section 126 of the Fisheries Management Act 1994 ("the Act") which relevantly provides: "126 Applications to Administrative Decisions Tribunal for reviews of certain decisions (1) A person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned: (a) the refusal to issue a relevant authority to the person or to renew the person's relevant authority," 9 Section 126 of the Act defines a relevant authority as: "125 Definition of "relevant authority" In this Division, "relevant authority" means: (a) a commercial fishing licence, or (b) an endorsement on a commercial fishing licence, or (c) a fishing boat licence, or (d) the registration of a member of the crew of a boat, or (e) a fish receiver's registration." 10 Specific provisions found in the Regulation are applicable to Mr. King's application. Registration of a net is pursuant to clause 21 of the Regulation which provides: "21 Registration (1) If an application for the registration of fishing gear is duly made and the fishing gear may lawfully be used, the Director may register the fishing gear. (2) Registration of fishing gear is to be certified in such form or manner as the Director approves. (3) Registration remains in force for the life of the fishing gear. (4) The fee to be paid for the registration of fishing gear is $21. (5) Registration is not transferable. (6) The Director may cause to be compiled a register of all fishing gear registered, containing in respect of each fishing gear the registration number, the name and address of the owner, the class of the fishing gear and the dimensions and mesh of the whole or of each part of the fishing gear." 11 Eligibility requirements are set out in Division 4A of the Regulation which insofar as it is relevant to these proceedings Division 4A provides: "Division 4A Ocean hauling fishery 212A Definitions In this Division: endorsed licence means an endorsed commercial fishing licence. endorsement means an endorsement on a commercial fishing licence authorising the holder of the licence to take fish for sale in the restricted fishery. hauling net means any one or more of the following types of nets: (a) hauling net (general purpose), (b) garfish net (hauling), (c) garfish net (bullringing), (d) pilchard, anchovy and bait net (hauling). nominated fisher means a person nominated in accordance with clause 212X to take fish for sale in the restricted fishery. ocean hauling fishery means the fishery described in clause 212C. restricted fishery means the restricted fishery declared under this Division. waters of the restricted fishery means the waters referred to in clause 212C (1). 212B Ocean hauling fishery is a restricted fishery For the purposes of section 111 of the Act, the ocean hauling fishery is declared to be a restricted fishery. 212C Description of ocean hauling fishery (1) The ocean hauling fishery consists of the use of a hauling net or purse seine net to take fish for sale from any of the following waters: (a) ocean waters within 3 nautical miles of the natural coast line (as defined in Schedule 1), (b) the waters of Jervis Bay, (c) the waters of Botany Bay east of a line drawn from Bear Island generally southeast to the northernmost extremity of Sutherland Point, (d) the waters of Coffs Harbour. (2) The ocean hauling fishery extends to the use of any net by the method of hauling to take fish for sale from any of the waters referred to in subclause (1). 212D Types of endorsement in restricted fishery (1) The following classes of endorsement are available in the restricted fishery: Class A endorsement. This endorsement authorises the holder to take fish for sale using one or more types of hauling net specified in the endorsement in a particular region of the restricted fishery. The holder may also use a hauling net while assisting another person who holds a licence with a class A endorsement that authorises the other person to use the net concerned in that region of the fishery. … (2) For the purpose of section 112 (2) of the Act, it is a condition of an endorsement that the holder of the endorsed licence does not take fish for sale in the restricted fishery except as authorised by the class or classes of endorsement on his or her commercial fishing licence. Note. Additional classes of endorsement are provided for by Division 4B of this Part. 212E Application for endorsement (1) An application for endorsement is to be in a form approved by the Director. (2) The application is to be accompanied by 2 identical passport sized photographs of the applicant and the appropriate application fee. (3) The application fee is: (a) in the case of an application for a class A endorsement - $260, or (b) in the case of an application for a class B endorsement - $52, or (c) in the case of an application for a class C endorsement - $31 if the applicant is the holder of a class A endorsement or $260 in any other case, or (d) in the case of an application for a class D endorsement - $31 if the applicant is the holder of a class A endorsement or $260 in any other case. (4) The Minister may endorse the commercial fishing licence of a person who satisfies the eligibility requirements for the endorsement or who is the nominated fisher of a person who satisfies the eligibility requirements for the endorsement. (5) The Minister may refuse to endorse the commercial fishing licence of a person if the person: (a) has been convicted of an offence against the Act, this Regulation or any other regulation made under the Act, or (b) has been convicted of an offence relating to the theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or (c) has not paid any fee due and payable in connection with the endorsement. (6) The Minister may endorse the commercial fishing licence of a person who applied for an endorsement before the commencement of this Division if the applicant is otherwise eligible for the endorsement under this Division. 212F Eligibility for an endorsement (1) A person is eligible for a class A endorsement if: (a) the person submitted at least one return under section 42 of the 1935 Act during a relevant year and, according to that return, the person caught mullet, bream, salmon, blackfish, pilchard or garfish using a hauling net and at the time had a fishing boat that was licensed to the person, and (b) the Minister is satisfied that the person had a hauling net of the type in respect of which an endorsement is sought, which was registered in the name of the person, before 31 December 1990 and that the person currently has such a registered hauling net, and (c) the Minister is satisfied that the person currently has a suitable boat for use in the ocean hauling fishery that is licensed to the person. (2) A person is eligible for a class B endorsement if the person demonstrates to the satisfaction of the Minister that the person has participated in the ocean hauling fishery at any time after 1 January 1986. (2A) A person is eligible for a class C endorsement if the Minister is satisfied that: (a) the person owns a licensed fishing boat, and (b) the person owns a purse seine net that was registered in the name of the person before 1 January 1991 and the net was used to take fish for sale in at least one of the years from 1991 to 1994, and (c) the person has taken for sale at least 10 tonnes of pilchard, anchovy, whitebait, mackerel, yellowtail or Australian salmon, or at least 10 tonnes of any combination of those fish, in the years 1986 to 1990 (inclusive) using a purse seine net, and (d) the person submitted at least 3 catch returns to the Director in the years from 1991 to 1994 that record purse seining as a catch method. (2B) A person is also eligible for a class C endorsement if the Minister is satisfied that: (a) the person owns a fishing business that is a recognised fishing operation (within the meaning of clause 135), and (b) the fishing business includes a purse seine net that was registered before 1 January 1991, and that was used to take fish for sale in at least one of the years from 1991 to 1994, and (c) the catch history associated with the fishing business of the person (determined in accordance with clause 135) satisfies the criteria set out in subclause (2A) (c) and (d). (2C) A person is eligible for a class D endorsement if the Minister is satisfied that: (a) the person owns a licensed fishing boat, and (b) the person owns a purse seine net: (i) that was registered in the person's name before 1 January 1991, and (ii) that was used, in at least one of the years from 1991 to 1994 (inclusive), to take fish for sale, and (c) the person has, in the years from 1986 to 1993 (inclusive), using a purse seine net, taken for sale: (i) at least 10 tonnes of pilchard, anchovy, whitebait, mackerel, yellowtail or Australian salmon, or (ii) at least 10 tonnes of any combination of those fish, from ocean waters that lie north of latitude 32? south within 3 miles of the natural coast line (as defined in Schedule 1), and (d) the person submitted at least 3 catch returns to the Director in the years from 1991 to 1994 (inclusive) that record purse seining as a catch method, and (e) the person has, in the years from 1986 to 1990 (inclusive), using a purse seine net, taken for sale at least 2.5 tonnes of each species of fish for which the endorsement is sought from ocean waters that lie north of latitude 32? south within 3 miles of the natural coast line (as defined in Schedule 1). (2D) A person is also eligible for a class D endorsement if the Minister is satisfied that: (a) the person owns a fishing business that is a recognised fishing operation (within the meaning of clause 135), and (b) the fishing business includes a purse seine net: (i) that was registered in the person's name before 1 January 1991, and (ii) that was used, in at least one of the years from 1991 to 1994 (inclusive), to take fish for sale, and (c) the catch history associated with the fishing business of the person (determined in accordance with clause 135) satisfies the criteria set out in subclause (2C) (c), (d) and (e). (3) In determining a person's eligibility for an endorsement, the Minister may have regard to the following: (a) the records kept by the Director (including records of net registration, licence records and records of fish taken by a commercial fisher), (b) a verified record of a commercial fishers' co-operative, (c) a verified record relating to the income tax liability of a commercial fisher, (d) a verified record of any fish processing company (whether a wholesaler or a retailer). (3A) The Minister may, for the purpose of determining a person's eligibility for an endorsement, require a net to be presented for inspection by officers of NSW Fisheries. (4) In this clause: (a) a reference to a relevant year is a reference to 1986, 1987, 1988, 1989 or 1990, and (b) 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 Act 2001 of the Commonwealth) or that forms part of a record audited by a registered company auditor. 212G Duration of endorsement An endorsement remains in force for the period specified in the endorsement, except to the extent that its duration is affected by suspension, or unless it is cancelled. 212H Type of hauling net that may be used (class A endorsement) (1) It is a condition of a class A endorsement that the holder of the endorsed licence does not take fish for sale by use of a hauling net from the waters of the restricted fishery unless the holder is authorised to use that type of hauling net by his or her endorsement. (2) The holder of the endorsed licence does not contravene this condition if the fisher is using the hauling net concerned while assisting, and in the presence of, another person who holds a commercial fishing licence with a class A endorsement that authorises that other person to use the hauling net. (3) In this clause, a reference to a hauling net includes any net used by the method of hauling." 12 Entitlements of fishing business owners is set out in Part 8 Division 4C of the Regulations as follows: "212X Eligibility for an endorsement (owners of fishing businesses) (1) If the owner of a fishing business is eligible for an endorsement in a restricted fishery, the owner may: (a) if the owner is a natural person, apply to have his or her commercial fishing licence endorsed, or (b) whether or not the owner is a natural person, nominate an individual to take fish for sale on behalf of the business. (2) Only one individual is entitled to an endorsement in respect of a fishing business. Accordingly, only one individual may be nominated under this clause to take fish for sale on behalf of the fishing business at any one time. (3) If a fishing business is owned by more than one person, they may nominate one of them to take fish for sale on behalf of the business or may nominate another individual to take fish for sale on behalf of the business. (4) Despite subclause (3), if a fishing business is owned by a partnership, each partner may be entitled to an endorsement, but only an endorsement in the estuary general restricted fishery. (5) A nomination must be in a form approved by the Director and may be revoked at any time by the owner of the fishing business by notice in writing to the Director. (6) A nomination has no effect unless it is approved by the Director. The Director may impose conditions on the granting of such approvals. For example, the Director may impose a limit on the number of nominations that may be made in respect of a fishing business under this clause. (6A) The Director is to refuse to approve any nomination made in respect of a fishing business that is owned or partly owned by a person who holds a skipper's endorsement under clause 212R in respect of a fishing business that is owned by another person. (7) If a nomination is approved, the Minister is to cancel or suspend any other endorsement held in respect of the fishing business. (8) If a nomination is revoked, the Minister is to cancel the endorsement of the nominated fisher. This does not limit the powers of the Minister to refuse to endorse a commercial fishing licence, or suspend or cancel an endorsement, under the provisions of this Part. (9) In this clause: endorsement means an endorsement on a commercial fishing licence that authorises a commercial fisher to take fish for sale in a restricted fishery but does not include the classes of endorsement provided for by Division 4B (Special classes of endorsement). owner , of a fishing business, means the person or persons who own the fishing business. 212Y Effect of sale or disposal of fishing business on eligibility (1) A person ceases to be entitled to an endorsement in a restricted fishery if any part of the fishing business that made the person eligible for the endorsement is sold or disposed of. For example, if a person sells the licensed fishing boat that made the person eligible for an endorsement, the person ceases to be entitled to such an endorsement. (2) A person who acquires any part of the fishing business of another person does not thereby become eligible for an endorsement in a restricted fishery, except in accordance with guidelines relating to the transfer of fishing businesses issued from time to time by the Director." 13 Prior to its repeal on 28 February 1997, clause 212M of the Regulation set out procedures for reviews in relation to Class A. registrations. Insofar as it is relevant to these proceedings clause 212M provided: "(1) An applicant for an endorsement may request that the Minister review any of the following: (a) a determination as to whether the applicant is eligible for an endorsement; (b) a determination as to the type or types of hauling nets the applicant is to be authorised to use by his or her endorsement (c) determination as to the region... (d) any other matter concerning endorsement application that the Minister considers it appropriate to review (2) On the review of an applicant's eligibility for a Class A endorsement, the Minister may endorse the commercial fishing licence of the applicant, even if the applicant does not satisfy the relevant eligibility requirements, if the Minister is satisfied that: (a) the applicant substantially satisfies the eligibility requirement; or (b) the applicant was part of a group of commercial fishers that conducted commercial fishing activities in the ocean hauling fishery in the years 1986-1990 (inclusive) and the members of the group together substantially satisfy the eligibility requirements. (3) A review request is to be made in a form approved by the Director and is to be accompanied by a fee of $100. (4) The review is to be conducted in such manner as the Minister thinks fit. For instance the Minister may establish a panel to conduct or assist in the review (5) …" 14 At various times since 1985 NSW Fisheries has adopted policies that governed the approach to be taken in relation to registration of nets. The policies relevant to Mr. King's application are discussed below. Mr. King's Case 15 Mr. King's case is essentially that he purchased a garfish net from Mr. David Golby in November, 1985. Mr. Graham Bramble had worked in partnership with Mr. Golby at Seal Rocks. Mr. Golby and Mr. Bramble had a number of net registrations. They purchased three of these from Mr. Colin Bakes. The nets purchased from Mr. Bakes included two garfish nets. One of those garfish net registrations was transferred to Mr. Bramble. Mr. Golby retained the remaining net and Mr. King subsequently purchased it from Mr. Golby. 16 In a Statutory Declaration dated 12 March 2001 Mr. Colin Bakes stated that he sold a garfish net and net licence to Mr D G Golby of Seal Rocks in December 1984. In a letter from Mr. Bakes to NSW Fisheries also dated 12 March 2001 Mr. Bakes advised that he sold his garfish net licence and net to Mr Golby of Seal Rocks who has since resold the net to Mr. King. 17 It is not in dispute that no hauling net of the type in respect of which an endorsement is sought was registered in Mr. King's name before 31 December 1990. Such registration is a requirement of clause 212F of the Regulation. However, Mr. King asserts that this is due to two significant factors. 18 Firstly, Mr. Golby never transferred the net registration from Mr. Bakes. When Mr. King purchased the net from Mr. Golby, Mr. Golby was unable to locate the registration that was in the name of Mr. Colin Bakes. Mr. Golby and Mr. King had a falling out and the relationship between them became very acrimonious. Despite Mr. King's requests, Mr. Golby refused to assist him in having the net registered in his own name. Consequently, the net registration was never transferred to either Mr. Golby's name or Mr. King's name. Mr. King initially thought that Mr. Golby had purchased the net from a Mr. Bates and this lead to fruitless searches of the NSW Fisheries registers in an attempt to locate the details of the net registration. 19 Mr. King's evidence was that during the period 1985-1995 the NSW Fisheries Tuncurry District Office operated under a policy whereby it did not require transfer of registration where a net was registered and the net was on hand. NSW Fisheries Officers at the Tuncurry District Office were aware of the dispute between Mr. King and Mr. Golby and advised Mr. King that he need not have the net registration transferred to his name. 20 The second factor relates to the failure of NSW Fisheries to register Mr. King's garfish net prior to December 1990 and therefore prevented him from satisfying the requirements of clause 212F of the Regulation. 21 A freeze on new registrations was put in place on 14 July 1989. Mr. King said that he received a circular from NSW Fisheries that advised that unregistered nets that had been in regular use could still be registered. NSW Fisheries operated under a policy with respect to existing nets that had been in regular use. The policy is set out in the NSW Agriculture and Fisheries Circular 80A dated 22 January 1990 which states: "Where the owner claims that the net is registered but has lost the registration efforts are to be made to identify the original registration number, failing this; the nets may be registered in accordance with below. Unregistered nets, which have been in regular use - may be registered. Where the District Inspector is satisfied the applicant prior to 14th July 1989 owned the nets. Such nets must exist and be sighted and must have been in use at the commencement of the freeze." 22 Mr. King's evidence is that his garfish net had been in regular use for five years prior to 14 July 1989 and that Mr. Brett Vercoe, a NSW Fisheries Officer based at Tuncurry, had inspected his nets in 1988. NSW Fisheries Officers also inspected Mr. King's garfish net at a net registration day on 1 October 1990. Mr. King's evidence is that he physically took the garfish net to Fazio Park, Tuncurry for sighting and the transfer of Registration by NSW Fisheries Officers on that day. He attended in an effort to have the net registered in his own name. Mr. King stated that the NSW Fisheries Officer who attended from Cronulla noted the existence of the garfish net in a "big red book" but she failed to register the net because she said she would locate the original registration when she returned to Sydney and that she would attend to the transfer of Registration at that time. Notwithstanding that undertaking, the net was never registered in Mr. King's name. Despite efforts on the part of NSW Fisheries neither the details of the NSW Fisheries Officer who attended from Cronulla nor the "big red book" have been located. 23 Ms Lisa Moxon gave oral evidence in support of Mr. King's application. She also provided a Statutory Declaration dated 12 June 2002. Ms Moxon's evidence was that she and Mr. Golby were in a relationship from 1980 until 1998. She stated that Mr. Golby sold Mr. King a variety of fishing gear and that this gear included a garfish net. 24 Mr. Steve Sounness also attended the hearing and gave evidence in support of Mr. King's application. Mr. Sounness' evidence is that he worked with Mr. King from about 1984 to 1991. He had advised Mr. King to purchase the nets from Mr. Golby and he went with Mr. King to the Caravan Park that Mr. Golby managed and helped Mr. King collect the nets. He said that Mr. King bought all the nets that were there. There was a truckload full of the nets that he helped move to Mr. King's shed. Mr. Sounness said that he was sure that there was a garfish net in the nets that Mr. King bought from Mr. Golby. He said that while they are similar, a garfish net couldn't be mistaken for a pilchard, anchovy and bait net ("PAB net") and he did not concede that there could have been two PAB nets in the gear that Mr. King bought from Mr. Golby. Mr. Sounness said that Mr. King worked with the garfish net for years, and that he could not understand why there is a problem with the registration of the net to Mr. King. 25 Similar evidence is provided in the form of a Statutory Declaration by Mr. Joseph Davies dated 8 May 2002. Mr. Davies stated that in November 1985 he accompanied Mr. King to Mr. Golby's residence at Seal Rocks Camping Reserve to collect fishing gear, which Mr. King had purchased from Mr. Golby. He stated that he helped collect two fishing boats and four nets described as: "2 x general-purpose nets 1 x pilchard/anchovy bait net 1 x garfish hauling net" 26 Mr. Davies further stated that during the seasons the Seal Rocks beach haul crew has used all these nets with the exception of the garfish hauling net when the endorsement was revoked. 27 Mr. Brett Vercoe, a Fisheries Officer stationed at Tuncurry during 1988, agreed that he had sighted a garfish net being used by the Seal Rocks beach haul crew. Mr. Martin Angle, also a Fisheries Officer stationed at Tuncurry, gave evidence that he too had sighted a garfish net being used by the Seal Rocks beach haul crew. 28 In a Statutory Declaration dated 13 September 2002 Mr. Graham Bramble stated that while working in partnership with Mr. Golby he had a number of net registrations. Three of these, namely "1 x bait net rego and 2 x garfish regos" were purchased from Mr. Colin Bakes. Upon leaving Seal Rocks Mr. Bramble retained two of these registrations, "1 x garfish haul net rego and 1 x bait net rego", and had them transferred into his own name. Mr. Bramble stated that this transfer took place in the NSW Fisheries Tuncurry office in about 1985. The transfer was completed by Mr. Gary Luchi who was the local Fisheries Officer at the time. 29 Mr. King submitted that the Tribunal should accept that Mr. Golby and Mr. Bramble purchased two garfish nets from Mr. Bakes. Mr. Bramble retained one garfish net and the registration for that net was transferred to Mr. Bramble. Mr. King purchased the remaining net from Mr. Golby but the registration was not transferred. 30 In summary: * Mr. Golby and Mr. Bramble purchased one bait net and two garfish nets from Mr. Bakes. * The bait net registration number #11859 was subsequently registered to Mr. Bramble as was the garfish net registration number #11987. * Garfish net registration number #84390 was purchsed by Mr. King from Mr. Golby.

31 Mr. King submitted that the Tribunal should accept the evidence given by Mr. Sounness, Mr. Davies and Ms Moxon that he purchsed the garfish net from Mr. Golby. The Tribunal should also accept that he had twice approached Mr. Golby for the registration certificate for the garfish net but that Mr. Golby had told him that he had been unable to locate the registration certificate. Mr. Golby conceded that he recalled Mr. King approaching him for the registration certificate for the garfish net. The Tribunal should also accept the evidence that two Fisheries Officers stationed at Tuncurry, Mr. Angle and Mr. Vercoe, sighted the garfish net being used by Mr. King's Seal Rocks beach haul crew. A NSW Fisheries Officer at Tuncurry also sighted the net on 1 October 1990 and the Officer recorded the existence of the garfish net on that day. 32 If the Tribunal accepts this evidence it should conclude that Mr. King was entitled to have the garfish net registered in his name. The Minister's Case 33 The Minister's case is essentially that Mr. King has failed to meet the legislative requirements that would entitle him to be able to register the garfish net. The Regulation details the criteria to be met in order to be eligible for an endorsement and specifically clause 212F states that for a garfish endorsement in the Ocean Haul Restricted Fishery, the Minister (or his delegate) must be satisfied that Mr King held a garfish net in his name before 31 December 1990 and that Mr. King currently has such a registered hauling net. 34 As indicated above, two NSW Fisheries Officers - Mr. Vercoe and Mr. Angle, provided oral evidence. Mr. Vercoe gave evidence that mesh size between PAB and garfish nets is very similar and could be mistaken compared to General-purpose haul nets. Similar evidence was given by of Mr. Golby and Mr. Sounness. Mr. Vercoe also provided a Statutory Declaration dated 3 September 2002. In his statutory declaration he stated: "Whilst working as a Fisheries officer stationed at Tuncurry during 1988 I was called upon to attend Seal Rocks by Bernard King to check a number of nets and net registrations. I recall that Mr King had a big haul net and a second smaller meshed net. The nets were checked however I cannot recall whether the smaller meshed net was in fact a garfish net. I cannot recall who the nets were purchased from or in whose name the net registrations certificates were signed. I also attended a New South Wales Fisheries net registrations day sometime later however I do not recall whether Mr King was present or who the New South Wales Fisheries representative was on that day." 35 Mr. Vercoe's oral evidence was consistent with his statement however he conceded that he had sighted a garfish net being used by the Seal Rocks beach haul crew. 36 Mr. Golby also provided a Statutory Declaration dated 3 September 2002. In his statutory declaration he stated: "I sold Bernie King a beach hauler net, a diving net for the beach and a bait net. He paid approximately $2000 for these nets. At this time I was in partnership with Graham Bramble and we had other fishing nets registered. When I finished fishing Graham Bramble took one garfish net and one bait net which, as far as I am aware, still has these nets registered in his name. The garfish net was originally bought from Col Bates for approximately $500." 37 Mr. Golby also gave oral evidence consistent with his statement. He conceded however that Mr. King had approached him trying to obtain the registration certificate for the garfish net. 38 Ms. Cory for the Minister submitted that the evidence of what Mr. King purchased from Mr. Golby is not conclusive. The Minister also denies there is any other net registration book for Tuncurry, such as the "big red book", which is not in evidence. Ms. Cory argued that the evidence is weighted against the Applicant. She urges the Tribunal to accept that the evidence does not lead to the conclusion that Mr. King had purchased a garfish net from Mr. Golby or that he had satisfied the requirements for registration prior to 1 December 1990. 39 Ms. Cory provided written submissions with respect to the correct and preferable decision in the following terms: "IS THE DECISION THE CORRECT AND PREFERABLE DECISION The Applicant does not submit that the Administrator failed to follow a procedure set by the Act or acted for a wrongful purpose. The Applicant claims the Minister may have failed to have regard to relevant considerations being a net registration book (red) used by a woman on 19 October 1990 on Tuncurry net registration day and specifically that Net Rego 84390 in the name of Colin Bakes dated 30/1/79 was transferred to David Golby in December 1984, and then supposedly to the Applicant in November 1985. The Respondent submits the evidence is not conclusive and denies there is any other net registration book for Tuncurry. The Respondent says the evidence is weighted against the Applicant. Only 2 Garfish nets are recorded in Golby's name (4262 was sold to G. Bowland and registered in March 1990 becoming net No 16170). Duplicate or Triplicates of the Other net 84390 have never been located or applications to register such a net but Bakes states he sold a Garfish net to Golby and Golby states he sold this net to his partner Bramble and Bramble admits he acquired 1 garfish net but states there were 2 garfish nets. Evidence of Golby, Vercoe and Soumass is that mesh size between PAB and Garfish nets is very similar and could be mistaken compared to General-purpose haul nets. By coincidence Bramble has registered a garfish net (after the 1985 'sale date') on 28/1/88 (11859) and then subsequently replaced that net a year later with Net 11987 on 20/4/89. All this is recorded in the Tuncurry net book. The Applicant does not submit that the Licensing Policy 1996 for manning fisheries by reference to specific eligibility criteria for each fishery is inconsistent with the objects of the Fisheries Management Act. The Applicant continues to have other endorsements in the particular restricted fishery (general purpose haul net and pilchard anchovy and bait net) allowing him to take fish in Ocean waters. The Applicant has not had his interest affected in a manner substantially different to any other person. The evidence does not support the conclusion that a benefit or detriment has been distributed unequally amongst members of a class who are equally deserving. Accordingly the refusal to grant the endorsements is not unreasonable on the basis of infringing the principle of equality. Any legitimate expectation held by the Applicant must be reasonable based. ( Kioa v West (1985) 159 CLR 550). The Applicant was on notice of the need to have nets registered in his name prior to 1 December 1990 and of the necessity to produce the previous net registration in order to have the net so transferred. Indeed he attended and had certain other nets transferred to his name on 22 November 1988 at Tuncurry office when Brett Vercoe was the registering officer (Net 11926 beach hauling net transferred from David Golby previous net 4275). The doctrine of legitimate expectations entitles a person to be heard in opposition to a proposed exercise of a statutory power if the exercise will deprive him or her of any right, interest, benefit or privilege which that person has a legitimate expectation of obtaining or continuing to enjoy. The Applicant was under no expectation that the clause 212F would not be applied in his case." Findings 40 This matter has had a long and sorry history. In my view, the matter could have been resolved many years ago had it not been for the animosity that exists between Mr. Golby and Mr. King. Co-operation between the two could have lead to the registration of Mr. King's net in 1985 and would have avoided many years of frustration. 41 In my view, Mr. King is entitled to the endorsement that he seeks if he satisfied the criteria outlined in the NSW Agriculture and Fisheries Circular 80A dated 22 January 1990. The outcome of this matter therefore depends on the answers to three questions: 1. Did Mr. King purchase a garfish net from Mr. Golby as he asserts? 2. If Mr. King did purchase a garfish net from Mr. Golby as he asserts was the net in regular use prior to 14th July 1989? 3. If the net was in regular use prior to 14th July 1989 did the District Inspector sight it? 42 Each of these questions requires a finding of fact. As noted above, when there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities. Did Mr. King purchase a garfish net from Mr. Golby as he asserts? 43 The evidence in relation to this issue is undoubtedly clouded by the animosity that exists between Mr. Golby and Mr. King. There is clear evidence from Mr. Bramble that he and Mr. Golby purchased two garfish nets from Mr Bakes. This is in clear contrast to the evidence given by Mr. Golby. There is unequivocal evidence from Mr. Sounness, Mr. Davies and Ms Moxon that Mr. King purchased the garfish net from Mr. Golby. Mr. Golby also conceded that Mr. King had approached him seeking the registration certificate for a garfish net. There is no evidence to suggest that when approached Mr. Golby denied that he had sold Mr. King a garfish net. Such an approach by Mr. King would make no sense if Mr. King had not purchased a garfish net from Mr. Golby. 44 In my view, on the evidence before me it is probable that Mr. King purchased a garfish net from Mr. Golby as he asserts. I find as a fact that he purchased a garfish net from Mr. Golby in about November 1985. Was the garfish net in regular use prior to 14 July 1989? 45 There is clear evidence from both Mr. Sounness and Mr. Davies that Mr. King's Seal Rocks beach haul crew used the garfish net until such time as the temporary registration of the net was cancelled. There is also evidence from Mr. Vercoe and Mr. Angle, that they had each sighted a garfish net being used by Mr. King's crew. 46 On the basis of this evidence I find as a fact that the garfish net was in regular use prior to 14 July 1989. Did the District Inspector sight the garfish net? 47 There is uncontradicted evidence that on 1 October 1990 Mr. King physically took the garfish net to Fazio Park, Tuncurry for sighting and the transfer of Registration by NSW Fisheries Officers. Mr. King's evidence is that it was sighted by the Fisheries Officer who attended from Cronulla and by Mr. Vercoe on that ocassion. Mr. Vercoe confirmed that in 1988 he checked a number of Mr. King's nets and that he attended a NSW Fisheries net registrations day, however was unable to either confirm or deny that he inspected a garfish net. As indicated above, there is evidence from Mr. Vercoe and Mr. Angle that they had each sighted a garfish net being used by Mr. King's crew. 48 I am satisfied on the evidence before me, and I find as a fact, that a District Inspector sighted the garfish net. It follows that Mr. King has satisfied the criteria established by the NSW Agriculture and Fisheries Circular 80A dated 22 January 1990. 49 I further note that I accept Mr. King's evidence in relation to the presentation of his net at the net registration day on 1 October 1990. The registration of the net was a task that could only be carried out by a NSW Fisheries Officer. Mr. King could not physically register the net himself. He therefore relied on the NSW Fisheries Officer to undertake that task. If Mr King presented his net on that day and was entitled to have it registered, there was no further action that he could have taken to ensure that the registration was made. The NSW Fisheries Officer who attended on that day should have completed the registration. Had this been done, Mr King would have satisfied the requirements of cl.212F(1)(b) of the Regulation and each of the parties would have been put to far less inconvenience and frustration than they have incurred. Mr King should not be denied an endorsement because a NSW Fisheries Officer failed to carry out the registration. 50 I agree with Ms. Cory's submission that any legitimate expectation held by Mr King must be reasonably based. I also agree that Mr King was on notice of the need to have nets registered in his name prior to 1 December 1990. However, I do not accept that the only way of having the net registration transferred was if the previous net registration was produced. Net registration could have been achieved in accordance with the guidelines outlined in the NSW Agriculture and Fisheries Circular 80A dated 22 January 1990. Mr King possessed the garfish net, it was in regular use prior to 14 July 1989 and he produced it for sighting on 1 October 1990. He therefore had a legitimate expectation that the net registration would be transferred to his name on that date. For reasons that remain unexplained, this transfer never took place. The fact that it was never subsequently transferred should not operate to Mr King's disadvantage. 51 It follows in my view that Mr. King was entitled to have the net registered in accordance with the guidelines outlined in the NSW Agriculture and Fisheries Circular 80A dated 22 January 1990. It also follows that the Minister's decision to refuse Mr. King's application for an endorsement that authorises the use of the garfish hauling net must be set aside. In my view the correct and preferable decision is that Mr. King's application should be granted. Orders 1. The decision to refuse Mr. King's application for an endorsement that authorises the use of the garfish hauling net is set aside. 2. The Tribunal substitutes a decision that Mr. King's application is granted.

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