O'Grady v Minister for Fisheries [2002] NSWADT 48 (3 April 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: O'Grady -v- Minister for Fisheries [2002] NSWADT 48

PARTIES: APPLICANT

Thomas Victor

RESPONDENT

Minister for Fisheries

FILE NUMBERS: 003332

HEARING DATES: 23/03/2001

SUBMISSIONS CLOSED: 23/03/2001

DECISION DATE: 03/04/2002

BEFORE: Rice S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Fisheries Management (General) Regulation 1995

Fisheries Management Act 1994

CASES CITED: Stevens -v- Minister for Fisheries [2001] NSWADT 80

Greenaway-v- Director, Department of Fisheries [2000] NSWADT 158

Henderson & anor -v- Minister for Fisheries [2000] NSWADT 182

Cootes -v- Minister for Fisheries [2001] NSWADT 65

Searl -v- Director General, NSW Fisheries [2000] NSWADT 53

Drew -v- Minister for Fisheries [2001] NSWADT 88

Rosenberg v Percival [2001] HCA 18

APPLICATION: Fisheries Management Act - fishing licence - transfer of endorsement on licence

Fisheries Management Act - fishing licence- endorsement on licence

Fishing licence - endorsement on licence

Fishing licence - transfer of endorsement on licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: 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 applicant is eligible for an estuary general restricted fishery mud crab trapping endorsement but not by way of validated catch history, is 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 account of the reasons of the Tribunal in these proceedings when considering the applicant's eligibility for a mud crab trapping endorsement, and take account of the power in cl.214C(3) to include in its report a decision or recommendation relating to Mr O'Grady's entitlements in a restricted fishery

3 The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicant is eligible for an estuary general restricted fishery category one hauling endorsement but not by way of validated catch history, is set aside

4 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 account of the reasons of the Tribunal in these proceedings when considering the applicant's eligibility for a category one hauling endorsement

5 Pursuant to s88 of the Administrative Decisions Tribunal Act I make no award of costs.

Reasons for Decision:

DECISION

1 I am not satisfied that Mr O'Grady is eligible for the mud crab trapping endorsement he seeks, and his application is therefore unsuccessful to that extent. I am of the view however that a recommendation should be made that, although not eligible according the prescribed criteria, Mr O'Grady receive an entitlement to take mud crabs using the method of trapping. The effect of this for Mr O'Grady is that the review panel will consider making such a recommendation to the Minister.

2 I am satisfied that Mr O'Grady is eligible for the category one hauling endorsement he seeks, and his application is therefore successful to that extent. The effect of this for him is that the review panel will reconsider his eligibility for a category one hauling endorsement having regard to these reasons.

REASONS FOR DECISION

Application

3 Mr O'Grady owns fishing business FB1292 and holds commercial fishing licence 781807. He applied for a number of endorsements on his commercial fishing licence including, relevantly:

· a `Category One Hauling' endorsement, and

· an `Estuary General Restricted Fishery Mud Crab Trapping' endorsement.

4 The Minister advised Mr O'Grady that his application for these endorsements had been refused, and Mr O'Grady requested an internal review of that decision. The internal review was conducted by the Restricted Fisheries Review Panel (`the Review Panel').

Internal review

5 The Review Panel recommended to the Minister that Mr O'Grady's application for those endorsements be granted "but not by way of validated catch history". By letter dated 4 October 2000 Mr O'Grady was advised of the Minister's decision, in accordance with the Review Panel's recommendation, to grant the endorsements on a basis other than validated catch history.

6 On 23 October 2000 Mr O'Grady applied to this Tribunal for review of the decision to grant the endorsements on this basis.

7 Mr O'Grady was not satisfied with receiving the endorsements on this basis, as it is Departmental policy that only validated catch histories are transferable. A purchaser will value a validated catch history according to the number of endorsements it can support, and the combined effect of the Minister's decision and the Department's policy is that Mr O'Grady's validated catch history would not deliver to a purchaser endorsements for mud crab trapping and category one hauling.

Reviewable decision

8 The reviewable decision for this Tribunal is the Minister's decision, advised to Mr O'Grady by letter dated 4 October 2000, to accept the review panel's recommendation to grant the endorsements but not by way of validated catch history.

Applicable law

9 A fisher's eligibility for the endorsements is governed by the: s113(2) Fisheries Management Act 1994 (FMA):

Eligibility for endorsement of commercial fishing licences is to be determined in accordance with the regulations.

10 The relevant regulation is in Part 8 Division 2C of the Fisheries (General) Regulation 1995 (FMR). A fisher must satisfy the `general' criteria for all types of endorsements (cl.191N(1)), and the specific criteria for each type of endorsement: in Mr O'Grady's case, for mud crab trapping in cl.191N(7), and for category one hauling in cl.191N(9).

11 The Review Panel may, if a fisher does not satisfy the eligibility criteria in cl.191N, nevertheless decide that the fisher is eligible, having regard to what I will for convenience call `extenuating circumstances' set out in cl.214C(2).

12 The Review Panel, on deciding a fisher's eligibility, will report to the Minister (cl.214D) who may make a decision in accordance with the Review Panel's decision. In reporting to the Minister on eligibility, the Review Panel can include any other recommendation (cl.241C(3)).

Terms of the reviewable decision

13 Whatever orders I make in relation to the reviewable decision must be framed appropriately. It is important therefore to clarify the terms in which the Review Panel in this matter did actually report to the Minister and, consequently, the basis on which the Minister made his decision.

14 The Review Panel reported to the Minister that Mr O'Grady meets the eligibility criteria for Mud Crab Trapping and Category One Hauling endorsements but not by way of validated catch history. The Review Panel recommends to the Minister that [the] endorsements be allocated to the applicant.

15 In fact it is clear from the material that the Review Panel decided that Mr O'Grady did not meet the eligibility criteria for the endorsements in cl.191N. The Review Panel did not, and was given no reason to, turn its mind to the `extenuating circumstances' set out in cl.214C(2), which is the only other basis on which it could be said that Mr O'Grady "meets the eligibility criteria".

16 The material shows that the Review Panel found that while Mr O'Grady's validated catch history did not meet the eligibility criteria, other evidence did establish that he had engaged in the activity which was necessary to satisfy the eligibility criteria. Because, in the Review Panel's view, Mr O'Grady did actually but not technically - this is my term - meet the eligibility criteria, it recommended to the Minister that the endorsements be granted but not because he was technically eligible.

17 Such a recommendation can be made under cl.214C(3). I can see no other basis on which a fisher, not eligible under cl.191N or c.214C(2), could be recommended to the Minister for an endorsement. The use of the word `endorsement' in the recommendation is confusing. An endorsement can only be granted if a fisher is eligible. It cannot be granted simply by way of recommendation in relation to a fisher who is not eligible. A preferable term in making a recommendation under cl.214C(3) would be `entitlement', which is the word used in that provision.

18 Although cl.214C(3) is not set out by the Review Panel as the basis for their recommendation, it is the only one on which the wording of the recommendation can be reconciled with their findings. I note that the Department of Fisheries (`the Department') appears to be of the same view. In a letter to Mr O'Grady dated 4 October 2000, explaining the consequences for Mr O'Grady of the Review Panel's decision, the Department said:

The review panel . . . recommended to the Minister that you were eligible for this [mud crab trapping] endorsement using their discretion under Clause 214C(3) . . .

The review panel recommended to the Minister that you were eligible for the estuary general category one hauling endorsement using their discretion under Clause 214C(3) . . .

19 In my view a technically correct expression of the Review Panel's report to the Minister, and the decision the Minister made would be:

The applicant does not meet the eligibility criteria for Mud Crab Trapping and Category One Hauling endorsements, but the Review Panel recommends to the Minister that the applicant have an entitlement to take mud crab and fish on the same terms.

20 This variation in wording from the actual terms of the Review Panel's recommendation would make no difference to the result for Mr O'Grady or the decision of which he is seeking review. It does however make clear the terms in which I should make an order.

Relevance of validated catch history

21 The Minister originally refused the application for the endorsements on the basis that Mr O'Grady's validated catch history (VCH) did not meet the eligibility criteria. The Review Panel agreed that Mr O'Grady's VCH did not meet the eligibility criteria, but looked at other material which satisfied it that Mr O'Grady should nevertheless be granted the endorsements. The Minister adopted the Review Panel's report as his decision. Common to the Minister's original refusal, the Review Panel's finding, and the Minister's reviewable decision, is the view that eligibility is to be assessed having regard to VCH.

22 This approach was set out in the Department's letter of 4 October 2000 to Mr O'Grady:

. . . it is required that the VCH [validated catch history] of FB 1292 meets the estuary general criteria as well as contain 8 estuary catch returns recording mud crab catches taken by trapping methods between 1986 and 1993 (on prior to January 1991) . . . the VCH of FB 1292 is insufficient to satisfy the eligibility criteria for estuary general mud crab trapping endorsement under clause 191N(7) . . .

. . . it is required that the VCH of FB 1292 meets the estuary general criteria as well as contain 10 catch returns recording estuary catches taken by hauling method between 1986 and 1990 . . . the VCH of FB 1292 is insufficient to satisfy the eligibility criteria for estuary general category one hauling endorsement under clause 191N(9) . . .

23 This approach to assessing eligibility is the same as that had been taken in the matter of Stevens -v- Minister for Fisheries [2001] NSWADT 80. In that decision I said:

72. I do not see that the validated catch history process is relevant to assessing eligibility for endorsement. The validated catch history process is a means by which the Department proposes to a fisher what their catch history is, by presenting to the fisher its computer records of the fisher's hand-completed catch returns, for the fisher to agree with or to contest. In doing so the Department is acting under the relevant part of cl.135(3) of the FM Reg:

The catch history associated with a fishing business is the historical takings of fish for sale by or in connection with a fishing business. The catch history is to be determined by the Director in such manner as the Director considers appropriate, having regard to the records, kept by the Director, of fish taken for sale by any person involved in the business, or of fish taken for sale by use of a licensed fishing boat operated by the business, or to a combination of both.

73. The catch history as determined by the Director is relevant to a number of issues arising in relation to restricted fisheries, but not to assessing a fisher's eligibility for endorsement under cl.191N(1)-(10). Those eligibility requirements refer to the catch returns submitted by the applicant fisher, not to catch history or to any summary of the actual catch returns submitted by a fisher.

74. Mr Stevens chose not to take part in the process to validate the Department's catch history based on his catch returns. Unless he is involved at some future time in an activity or transaction for which catch history is relevant, he may never have any need for a validated catch history. Certainly to obtain an endorsement under cl.191N(5) he has no need for a validated catch history. If the Department's interpretation of the catch returns Mr Stevens submitted is different from Mr Stevens' interpretation, then that is to be resolved in these proceedings. Mr Stevens was under no obligation to address it in the validation process. His decision not to validate the Department's catch history can raise no estoppel against him now, and has no relevance to my assessment of what is indicated by the catch returns he submitted.

24 That continues to be my view. Thus the Department, the Review Panel and Minister mistakenly relied on only the validated catch history, rather than on the actual catch returns, in assessing eligibility.

25 In considering whether Mr O'Grady meets the eligibility criteria I will have regard not to what is recorded by the validate catch history, but to what the catch returns indicate, and to other material which is relevant to understanding what the catch returns indicate (see Greenaway-v- Director, Department of Fisheries [2000] NSWADT 158 at paras 73 - 83; Henderson & anor -v- Minister for Fisheries [2000] NSWADT 182 para 24). Indeed, this appears to be what the Review Panel did before it was distracted by the sufficiency or not of the validated catch history.

Relevant material

26 I have reviewed the written material available to me from the Department's file. I find there all the material listed by the Department in its Statement of Reasons as the evidence on which the Minister made findings on relevant questions of fact, but for the tape of the Review Panel's hearing on 29 October 1999. The material includes all the material to which the Review Panel makes reference, and the Review Panel's deliberations. I have heard from Mr O'Grady by telephone in the Tribunal hearing.

Eligibility for mud crab trapping endorsement

27 For a mud crab trapping endorsement Mr O'Grady must show that he:

submitted to the Director a total of at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that mud crab were taken by the method of trapping and at least one of those returns relates to a month prior to January 1991. (cl.191N(7)(b))

28 The Minister agrees that Mr O'Grady can show all of the necessary eight catch returns that indicate that mud crabs were taken by the method of trapping, but says that not one of those returns relates to a month prior to January 1991. The eight returns are all in the year 1993.

29 Mr O'Grady must show a catch return from before January 1991 which indicates that mud crab were taken by the method of trapping. He is unable to do so: there is no such catch return.

30 While there is other material which does indicate that mud crab were taken by the method of trapping, that other material has logical but no legal relevance if, at the outset, there is no indication from the catch return itself.

31 I recognise, and have discussed in Greenaway at paras 84 - 89 (see also Henderson & anor -v- Minister for Fisheries [2000] NSWADT 182 at paras 19-22), that the catch return form in use until mid-1990, Form 49, did not allow a fisher to record more than one method. It is common therefore for catch returns to not record the use of a fishing method which the fisher says was used. The indication of a method being used is often the recording of certain species having been caught, from which use of a method might be inferred, or can be the recording of certain weights of species having been caught, from which it might be inferred that the catch was not by-catch. In such cases it is possible to then have recourse to other material to assess whether it supports that inference.

32 In Mr O'Grady's case neither the catch return of November 1987, about which there is other evidence, nor that of any other month before January 1991, gives any such indication. None records trapping as a method, and none records species caught by trapping. It is not permissible to look past the catch returns if at the outset they give no indication as required by the eligibility criteria.

33 Though logically relevant to the general question `is it likely that Mr O'Grady caught crabs before January 1991?', the oral evidence of Mr O'Grady and Mr King, and the written material from Mr Moir, Mr Kerslake and Dr Kennelly, are not legally relevant to assessing the criteria by cl.191N(7).

34 In the absence of any indication from the catch returns, Mr O'Grady is unable to satisfy the eligibility criteria for a mud crab trapping endorsement.

Other decision or recommendation

35 This is a harsh result, when persuasive evidence must be ignored by the law, at the expense of a valuable entitlement. I note however that cl.214C(3) allows "the inclusion in a report by a panel of any other decision or recommendation relating to a person's entitlements in a restricted fishery".

36 Although he is not eligible for the endorsement, Mr O'Grady's circumstances are such that consideration should properly be given, as it was by the Review Panel, to recommending that he be entitled to fish on the same terms as would be provided for by the endorsement. I note a decision to similar effect in Cootes -v- Minister for Fisheries [2001] NSWADT 65.

37 The result for Mr O'Grady is the same as the Minister's decision based on the Review Panel's report. I have however arrived at it by a different route. The Review Panel found that Mr O'Grady was eligible for an endorsement, but on the basis of evidence other than catch history. In my view Mr O'Grady is not eligible, but a recommendation should be made to grant him an entitlement to fish.

Transfer of the entitlement

38 I said in Cootes that:

[a]n endorsement is transferable as provided for in the FMA, FMR and relevant policies. There is no provision for the transfer of an entitlement or any other permission to fish which is granted by way of discretion; only an endorsement achieved by meeting eligibility criteria can be transferred. This being the case, a recommendation under cl.214C(3) does not circumvent the eligibility requirements for endorsement, but enables a concession to be made to a person, when warranted by the circumstances, to enable that person to continue to fish.

39 That continues to be my view. Departmental policy prevents Mr O'Grady's entitlement to take mud crabs by trapping being transferred. The policy I am referring to is, at least, the NSW Fisheries Policy (Version 2, November 1996) parts 6.2 and 7.0; I note that the Tribunal in Searl -v- Director General, NSW Fisheries [2000] NSWADT 53 found the relevant policy in:

· the November 1996 Policy

· an internal document of the Department `Briefing - Eligibility For Endorsements Following Transfer' dated 1 July 1998

· a publication `General information on commercial fishing and transfer of a fishing business' dated 15 July 1998

· a publication "Restricted Fisheries Endorsements Transfer Guidelines' dated 12 July 1999.

40 The Tribunal in Searl decided that the application of policy resulting in an endorsement's not being transferable is a reviewable decision for this Tribunal. I am not sure that that is so. I do not however need to explore that issue: if the application of policy has effect without being subject to review, then it is clear that the policy precludes Mr O'Grady's transferring his mud crab trapping entitlement; if the application of policy is subject to review then the circumstances in this matter are relevantly the same as those in Searl, and I would be constrained by the policy to not interfere with the decision to impose a condition of non-transferability on the mud crab trapping entitlement.

Eligibility for category one hauling endorsement

41 For a category one hauling endorsement Mr O'Grady must show that:

at least 10 estuary waters catch returns have been submitted to the Director in the person's name or listing the person as a crew member in the years 1986 to 1990 that indicate that fish were taken by the method of hauling. (cl.191N(9)(b))

42 The Minister agrees that Mr O'Grady can show five of the necessary ten catch returns that indicate that fish were taken by the method of hauling in the period. Mr O'Grady must show five more such catch returns.

43 The catch return in use until mid-1990, Form 49, did not allow a fisher to record more than one method. I noted above how a catch return might nevertheless contain material from which an inference can be drawn that a particular method is indicated. Mr O'Grady says, and I agree, that the returns 8801, 8802, 8803, 8811 and 8812 contain such material and that the inference can reasonably be drawn.

44 For 8801, 8803, 8811 and 8812 the method of `prawn haul net' is shown, yet there are catches of sea mullet: 8801 (1301 kg in 13 days), 8803 (109 kg in 11 days), 8811 (14 kg in 1 day) and 8812 (186 kg in 20 days). This species in these quantities invite the inference that fish were taken by the method of hauling in the months of January, March and December 1988.

45 I look then to other material to see whether or not the inference can be supported. Firstly, the Minister agrees that Mr O'Grady had a hauling net registered in his name from June 1987. Secondly, Mr O'Grady's evidence to the Review Panel, which I do not understand to have been contested, was that sea mullet cannot be caught as by-catch in a prawn hauling net. Thirdly, Mr McLennan declares that he assisted Mr O'Grady take fish with a hauling net in March 1988. Fourthly, the quantity of sea mullet caught in January 1988 - 1301 kg - can leave little room to suggest that the catch in that month could have been by-catch from prawn nets, if indeed any sea mullet by-catch is possible.

46 I give no weight to the representation from the Northern Professional Fisherman's Association, which merely repeats Mr O'Grady's own claims, or to the letter from Dr Kennelly which lacks detail and cannot be taken as corroborating more than that Mr O'Grady was fishing in the period 1987 - 1989.

47 On the basis of this material I am satisfied that the catch returns for 8801, 8803, 8811 and 8812 indicate that fish were taken by the method of hauling.

48 For 8802 the method of `mesh net' is shown, as is a catch of 39k of sea mullet on one day's fishing. Because such fish can be taken by the method of hauling, a catch of this size is some basis for inferring that fish were taken by that method. I look therefore to other material to see whether or not the inference can be supported.

49 Firstly, Mr O'Grady had a hauling net registered in his name from June 1987. Secondly, Mr O'Grady said to me during the hearing, and it was not contested, that sea mullet are not easily caught in a mesh net, although he conceded that they can be. Thirdly, Mr McLennan declares that he assisted Mr O'Grady take fish with a hauling net in February 1988. Fourthly, Mr O'Grady used a hauling net in January and March, which in my view adds some weight to his claim that he used it in February.

50 Against these is the fact that sea mullet can be caught by mesh netting. The catch returns for February and June 1989 show catches of sea mullet using, relevantly, only a mesh net, although the catch returns for January and April in the same year show catches of sea mullet and using both a mesh net and a hauling net. In the same way, the catch return for March 1990 shows a catch of sea mullet and the use of, relevantly, only a mesh net, although the catch returns for May and June in the same year show catches of sea mullet and the use of both a mesh net and a hauling net. Similarly, the catch return for February 1991 shows a catch of sea mullet and the use of, relevantly, only a mesh net, although the catch returns for April, May and October in the same year show catches of sea mullet and the use of both a mesh net and a hauling net.

51 The relevant question raised by this analysis is "why, if he used both methods, did Mr O'Grady record that fact for some months and not for others?" An answer might be that he did not use both methods in the months for which only one method is recorded.

52 The material to this point is, in my view, equivocal as to whether the catch return 8802 does in fact indicate that fish were taken by the method of hauling. There are two further considerations. The first is the credence given by the Review Panel to Mr O'Grady's claim that there was a fifth month. The consideration is the meaning of the phrase "at least" in the eligibility criteria.

53 Mr O'Grady makes his own assertion that he used a hauling net on this and the other occasions. I did not see Mr O'Grady in the witness box and he was not cross-examined in; in those circumstances I would usually give his self serving assertion little weight. That is not to doubt his honesty, but merely to say that his untested assertion would have little probative value in support of his own claim.

54 However in this matter the Review Panel did hear from Mr O'Grady in a hearing. I rely on the Review Panel's finding, based on their having heard evidence from Mr O'Grady, as relevant material in these proceedings, and note the comment of the Tribunal in Drew -v- Minister for Fisheries [2001] NSWADT 88 at para 24:

the panel had the benefit of seeing and hearing from the applicant in person. Only very recently the High Court has again affirmed the advantage enjoyed by a tribunal at first instance in the task of fact finding - see Rosenberg v Percival [2001] HCA 18.

55 On the strength of his evidence and other material, the Review Panel found that Mr O'Grady took fish with a hauling net in at least five months in 1986 to 1990 in addition to those conceded by the Minister. The Review Panel did not feel able to specify the months. I am however satisfied as to four of those months: January, March, November and December 1988.

56 Mr O'Grady says the fifth month was in February 1988; the Review Panel agrees that there was a fifth month in 1986-1990 (the period can be limited to 1987-1990 as Mr O'Grady did not have a haul net before June 1987).

57 The critical issue as to which the Minister must be satisfied is that the person submitted "at least 10 estuary waters catch returns" which indicate the use of the relevant fishing method. As I said in Greenaway at paras 98-102, there is no need to identify 10 catch returns for particular months, only that there are "at least" 10 which indicate the use of the relevant fishing method.

58 These considerations tip the balance in favour of the return for February 1988, and indeed of any of that return and the returns for February and June 1989 and March 1990, indicating that fish were taken by the method of hauling.

59 Based on the five agreed catch returns, the four returns of 8801, 8803 8811 and 8812, and one any of the returns 8802, 8902, 8906 and 9003, I am satisfied that "at least" 10 of the necessary catch returns have been submitted as required buy cl.191N(9).

60 In my view, therefore, Mr O'Grady is able to satisfy the eligibility criteria for a category one hauling endorsement. There should be no question that the granting of that endorsement would lead to an amendment of Mr O'Grady's validated catch history, with the consequence that the transferee of that validated catch history would be eligible for a the same endorsement.

Correct and preferable decision: mud crab trapping

61 Having regard to the relevant factual material and the applicable law, I find that Mr O'Grady is not eligible for a mud crab trapping endorsement. As the reviewable decision is expressed in terms of Mr O'Grady's being eligible, I set aside that decision. I substitute for it a decision that, in terms of clause 214D(1)(b) of the FMR, the matter be referred back to the Review Panel for further consideration, together with a recommendation that it take account of these reasons when considering Mr O'Grady's eligibility for a mud crab trapping endorsement, and of the power in cl.214C(3) to include in its report a decision or recommendation relating to Mr O'Grady's entitlements in a restricted fishery.

Correct and preferable decision: category one hauling

62 Having regard to the relevant factual material and the applicable law, I find that Mr O'Grady is eligible for category one hauling endorsement. I set aside the Minister's decision and substitute for it a decision that, in terms of clause 214D(1)(b) of the FMR, the matter be referred back to the review panel for further consideration, together with a recommendation that it take account of these reasons when considering Mr O'Grady's eligibility for a category one hauling endorsement.

ORDERS

63 I make the following orders pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act:

64 The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicant is eligible for an estuary general restricted fishery mud crab trapping endorsement but not by way of validated catch history, is set aside.

65 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 account of the reasons of the Tribunal in these proceedings when considering the applicant's eligibility for a mud crab trapping endorsement, and take account of the power in cl.214C(3) to include in its report a decision or recommendation relating to Mr O'Grady's entitlements in a restricted fishery.

66 The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicant is eligible for an estuary general restricted fishery category one hauling endorsement but not by way of validated catch history, is set aside.

67 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 account of the reasons of the Tribunal in these proceedings when considering the applicant's eligibility for a category one hauling endorsement.

68 Pursuant to s88 of the Administrative Decisions Tribunal Act I make no award of costs.