Splash Marine Services Pty Ltd & Gordon v Minister for Fisheries [2003] NSWADT 219 (22 September 2003)

Last Updated: 24 October 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Splash Marine Services Pty Ltd & Gordon v Minister for Fisheries [2003] NSWADT 219

PARTIES: APPLICANT

Splash Marine Services Pty Ltd & Troy Gordon

RESPONDENT

Minister for Fisheries

FILE NUMBERS: 023211

HEARING DATES: 30 June 2003

SUBMISSIONS CLOSED: 30/06/2003

DECISION DATE: 22/09/2003

BEFORE: Higgins S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Fisheries (General) Amendment (Charter Fishihng Boats) Regulation 2000

Fisheries Management (General) Regulation 1995

Fisheries Management (General) Regulation 2002

Fisheries Management Act 1994

CASES CITED:

APPLICATION: Charter boat fishing licence - grant of licence

Fisheries Management Act - charter boat fishing licence - grant of licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

C O'Connor, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

T Lynch, barrister

ORDERS: The decision of the Minister to refuse Splash Marine's application for a "transferable" guided recreational charter fishing boat licence is affirmed

Reasons for Decision:

BACKGROUND

1 This is an application by Mr Gordon, the sole director and operator of Splash Marine Services Pty Limited ("Splash Marine"), seeking review of the Minister's decision to refuse Splash Marine's application for a NSW guided recreational charter fishing boat licence under Part 4A of the Fisheries Management Act, 1994 ("FM Act"). The application related to the boat "Popeye", purchased by Splash Marine, after June of 2000, for the purpose of shark meshing and charter fishing. Prior to purchasing the "Popeye", Mr Gordon had been actively involved in shark meshing and charter boat fishing. Up until 1998 he had been engaged in this activity as a deck hand for another licenced fisherman and in 1998 he purchased his own boat, the "Shari G". He had worked on this boat, which was partly used for charter fishing.

2 On 27 September 2000, Mr Gordon, on behalf of Splash Marine, submitted an application for the issue of a guided recreational charter fishing boat licence ("charter fishing boat licence") under Part 4A of the FM Act. This application was refused on 31 October 2000 as Mr Gordon had failed to demonstrate that he could satisfy the eligibility criteria for such a licence under the then applicable clauses 226H or 226I of the Fisheries Management (General) Regulation 1995 ("the 1995 Regulation").

3 As he was entitled to, on 17 November 2000 Mr Gordon applied for a review of this decision of refusal. In his application for review he expressly stated that he was seeking a "transferable" charter fishing boat licence. The review was conducted by an independent Charter Boat Review Panel ("the Review Panel"), which had been established by the Minister on 25 October 2001. In the mean time the Minister had issued Splash Marine with an interim "non-transferable" charter fishing boat licence for the vessel "Popeye".

4 On 28 June 2002, the Review Panel prepared a report recommending that the applicant be issued with a "non transferable" charter fishing boat licence. The Minister agreed with these recommendations and on 28 August 2002, Mr Gordon was notified of this decision in a letter from the Minister's delegate, Mr Steve Dunn, the Director of the Department of NSW Fisheries. It was as a result of this letter that Mr Gordon lodged his application for review with the Tribunal. At a directions hearing the Tribunal found that the decision under review was not precluded from the internal review provisions under s.53 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). Consequently, Mr Gordon sought an internal review of the decision before pursuing his application any further. The internal review was determined on 28 March 2003 by another delegate of the Minister.

5 The determination following the internal review was to refuse the issue of a charter fishing boat licence altogether. That is, on review it was decided not to affirm the Minister's original decision to issue a "non transferable" charter fishing boat licence to Splash Marine in respect of the vessel, "Popeye". This left Splash Marine with no charter fishing boat licence for the vessel, "Popeye".

HEARING

6 At the hearing, Mr O'Connor, on behalf of the Minister, advised the Tribunal that, on the basis of material provided by Mr Gordon's solicitor the previous day, the Minister no longer pressed his decision of an outright refusal of a charter fishing boat licence. However, the Minister continued to press his original decision to refuse a "transferable" charter fishing boat licence for the vessel "Popeye".

7 As a preliminary matter, on the application of Mr O'Connor, and with the consent of Mr Lynch, on behalf of Mr Gordon and Splash Marine, the Tribunal made orders joining Splash Marine as an applicant and making the Minister the respondent in this application.

JURISDICTION

8 The Tribunal has jurisdiction to hear this application by virtue of ss. 125, 126 and 127F of the FM Act and s. 38(1) of the ADT Act.

RELEVANT LEGISLATION

9 Part 4A of the FM Act contains provisions relating to the management of charter fishing. These provisions were inserted into the FM Act in 1997 (see Fisheries Management Amendment Act 1997: assented to 19.12.1997). However, the provisions did not come into operation until mid 1998. Prior to this there was no regulation of guided recreational charter fishing activities in New South Wales waters.

10 Section 127B(1) of the FM Act provides that the regulations may declare that all or any specified class of charter fishing boats are required to be licenced under Part 4A. Section 127D(3) creates an offence where the owner of a boat permits the boat to be used as a charter fishing boat if it is required to be licenced under the Regulations and the boat is not so licenced.

11 It was not until 7 July 2000 that regulations were gazetted for the purposes of Part 4A of the FM Act: Fisheries Management (General) Amendment (Charter Fishing Boats) Regulation 2000 ("the Amending Regulation"). This Amending Regulation inserted a new Part 9A into the 1995 Regulation. That Part contained provisions regulating guided recreational charter fishing activities. The licence requirement under the new Part came into effect on 13 November 2000 (see cl. 298 1995 Regulation), and provided that a charter fishing boat: "used for any guided recreational charter fishing that involved estuarine fishing, near shore bottom fishing and sport fishing, game fishing and deep sea bottom fishing" was to be licensed for the purpose of s.127B of the FM Act. In this application, there is no dispute that the "Popeye" had to be licensed under Part 4A of the FM Act if Mr Gordon and Splash Marine wanted to use it for guided recreational charter fishing activities.

12 The new Part 9A of the 1995 Regulation made provision for two classes of licence, a "transferable" and "non-transferable" licence (see Clause 226G). The eligibility criteria for a "transferable" licence was set out in Clause 226H. That clause provided, so far as is relevant to this application, as follows:

"Cl 226H(1) A person is eligible for a transferrable licence in respect of a boat owned or otherwise under the control of the person if the person satisfies the Minister that:

(a) the person is entitled to claim a history of operations in respect of a boat that:

(i) was actively used for guided recreational charter fishing activities in the marine and estuarine charter fishing sector before 22 October 1997, and

(ii) was actively used for those activities for at least 100 days during the period of 24 consecutive months between 22 October 1995 and 4 August 1999, and

(iii) was used in accordance with the requirements of the certificate of survey for the boat at all times during the period in which it was used for those activities, and

(b) the certificate of survey for the boat referred to in paragraph (a) was, at all times during the period in which it was used for those activities consistent with the type of licence applied for by the person".

(2) If any one of the eligibility criteria is not satisfied, the person is not eligible for a transferable licence. (emphasis added)

13 Clause 226B of the 1995 Regulation defined the term "certificate of survey" of a boat to mean the following:

... the certificate of survey issued by or in accordance with the requirements of the Waterways Authority or other relevant authority approved by the Director."

14 The eligibility criteria for a "non-transferable" licence was contained in clause 226I of the 1995 Regulation. That clause was in exactly the same terms as Clause 226H except there was a lower threshold for the number of days which the boat must have been actively used for recreational charter fishing activities. As mentioned above, the threshold for a "transferable" licence was a minimum of 100 days. In the case of a "non-transferable" licence the minimum was 50 days (see Clause 226I(1)(a)(ii)).

15 Clause 226J of the 1995 Regulation set out the circumstances in which a person was entitled to claim a history of operations in respect of a boat. That clause provided as follows:

"226J(1) For the purposes of this part a person is entitled to claim a history of operations in respect of a boat if:

a) the boat was used by the person for guided recreational charter fishing activities in the marine and estuarine charter fishing sector during the period relevant for the purposes of the eligibility criteria for a licence, and the person has not transferred his or her entitlement to that history of operations pursuant to a transfer made:

(i) before the commencement date, in accordance with the policies of NSW Fisheries with respect to such transfer, or

(ii) on or after the commencement date in accordance with Clause 226L, or

(b) the person has acquired a history of operations of a kind referred to in paragraph (a) in respect of a boat from another person pursuant to a transfer made:

(i) before the commencement date, in accordance with the policies of NSW Fisheries with respect to such transfers, or

(ii) on or after the commencement date, in accordance with Clause 226L.

(2) Only one person is entitled to claim a history of operations with respect to one boat". (emphasis added)

16 The commencement date of the new Part was 7 July 2000.

17 Clause 226L made provision for the transfer of a person's entitlement to a history of operations in respect of a boat. That clause, so far as is relevant, provided as follows:

226L(1) A person who holds a transferable licenced may transfer the person's entitlement to a history of operations in respect of a boat, being the history of operations relied on by the person to satisfy the eligibility criteria for the licence.

(2) Such a transfer may be made only with the approval of the Minister.

(3) ....

(4) If the Minister approves the transfer:

(a) the person who acquires the entitlement is entitled to claim the history of operations in respect of the boat, for the purposes of the eligibility criteria for a licence, and

(b) the person who transfers the entitlement ceases to be entitled to claim the history of operation in respect of the boat, for the purposes of the eligibility criteria for a licence.

(5) A transfer of a history of operations need not be accompanied by a transfer of the boat concerned. However, a person who transfers a history of operations without transferring the boat ceases to be eligible for a licence in respect of the boat (because the person ceases to be entitled to claim the history of operations).

18 On 1 September 2002, the 1995 Regulation was repealed and replaced by the Fisheries Management (General) Regulation 2002 ("the 2002 Regulations"). The 2002 Regulation incorporates the same provisions that were contained in Part 9A of the 1995 Regulation, including the abovementioned provisions. However, these provisions are now contained in Part 10 in the 2002 Regulation and are numbered differently. As the substance of the relevant provisions do not differ, for convenience, I will refer to the numbering of these provisions that applied under the 1995 Regulation and not the 2002 Regulation.

EVIDENCE

19 Mr O'Connor, on behalf of Mr Gordon, relied on the material that Mr Gordon had previously provided to the Department with Splash Marine's application for a recreational fishing licence for the vessel "Popeye". In addition to this Mr O'Connor tendered into evidence a commercial vessel permit for the vessel named "Shari-G" dated 9 August 1995, a certificate of survey for the vessel named "Rosanne" dated 1 January 1996, declarations of compliance and fishing ship inspection records for the vessel named "Popeye" dated 1996 to 1999 and a bill of sale for the vessel named "Popeye" dated 27 August 2000.

20 Mr Lynch, on behalf of the Minister, relied on the material that had previously been filed with the Tribunal. Included in this material were copies of the material that Mr Gordon had provided to the Department in support of Splash Marine's application. In addition to this, Mr Lynch tendered into evidence a copy of the internal review report.

ISSUES

21 As mentioned above, there is no longer any issue as to whether or not Splash Marine was entitled to a "non-transferable" charter fishing boat licence in respect of the vessel "Popeye". Mr Lynch, on behalf of the Minister, agreed that Splash Marine had produced the necessary evidence to establish its eligibility for such a licence.

22 Accordingly, the only matter in issue is whether Splash Marine is entitled to a "transferable" charter fishing boat licence in respect of the vessel, "Popeye". Mr O'Connor argued that it it was so entitled by virtue of the evidence of the previous owner that the "Popeye" had been used as a charter fishing vessel, in New South Wales waters, during the relevant years and the evidence of the Queensland surveys for the relevant years.

23 Mr Lynch, on behalf of the Minister, argued that this evidence was not sufficient to satisfy the eligibility criteria for such a licence as set out in cls. 226H(1)(a)(ii) and (iii) of the 1995 Regulations.

FINDINGS OF FACT

24 The material facts in this matter are not disputed. These facts are as follows:

(a) In 1995, after completing school, Mr Gordon gained employment on board the vessel "Shari G" for the shark meshing season. From this time on he has been committed to the fishing industry and has derived his living from fishing ever since. Between 22 October 1995 and 4 August 1999, Mr Gordon worked on various fishing vessels and performed charter fishing boat activities on these vessels.

(b) On 4 December 1996, Mr Peter Johnson of Wildcat Scenic Tours purchased the vessel "Popeye". The vessel had formerly been known as "Rosanne" and was registered in Queensland.

(c) On 27 October 1997, the Minister warned fishers against further investment in the NSW recreational charter fishing boat industry as there was a move to cap the number of operators in the industry to the level that existed at that time. As mentioned above, at that time, recreational charter fishing was not regulated.

(d) In April 2000, Mr Johnson sold the vessel "Popeye" to Mr L. Booth in Victoria. From December 1996 to April 2000, Mr Johnson operated the vessel "Popeye" as part of his business Wildcat Fishing Charters. During that period the vessel "Popeye" was in full service as a charter boat fishing vessel in that it made two to three charter fishing trips per week, depending on the weather. These charter fishing trips, Mr Johnson stated, were undertaken in New South Wales waters.

(e) On 7 July 2000 the Fisheries Management (General) Amendment (Charter Fishing Boats) Regulation 2000, which inserted a new Part 9A into the 1995 Regulation, was gazetted. Under the terms of the new provisions in Part 9A, from 13 November 2000, any vessel used for guided recreational charter fishing was required to be licensed under this Part.

(f) On 28 August 2000, Splash Marine purchased the vessel "Popeye" from Mr L. Booth of Victoria. Splash Marine purchased the vessel for use in its business in shark meshing contracts and charter boat fishing activities. The intention was to use the vessel for shark meshing contracts during 8 months of the year and to use it for charter boat fishing activities in the remaining 4 months of the year and at weekends.

(h) On 27 September 2000, Splash Marine made an application under Part 9A of the 1995 Regulation for a charter fishing boat licence for the vessel "Popeye".

(i) Initially the Minister refused Splash Marine's application. Following representations by Mr Gordon, on 4 December 2000, the Minister issued Splash Marine with an interim "non-transferable" charter fishing boat licence for the vessel "Popeye". Following the issue of the interim "non-transferable" licence there was considerable correspondence between Mr Gordon and the Department, as he sought to establish his eligibility for a "transferable" licence.

(j) On 25 October 2001, the Minister established the Charter Boat Review Panel ("the Review Panel"). Splash Marine had previously made an application for review of the Minister's decision to refuse a "transferable" licence. That application was subsequently forwarded to the Review Panel for consideration. During the remainder of 2001 and into 2002, Mr Gordon and his legal representatives made further submissions, in support of Splash Marine's application, to the Panel.

(k) On 28 June 2002, the Review Panel advised the Minister that all the Panel members were satisfied that Splash Marine was entitled to claim a history of 61 days operations in respect of boats, other than the vessel "Popeye", that were actively used for guided recreational charter fishing activities in the requisite fishing sectors and for the relevant period. The Review Panel also advised that the majority of the Panel had found that Splash Marine was not able to rely on the history of the vessel "Popeye" as it had failed to produce evidence of a Waterways Authority survey for the vessel during the relevant period (namely, 24 consecutive months between 22 October 1995 and 4 August 1999). The minority member of the Review Panel found that the Queensland Certificate of Registration was a sufficient survey for the purposes of the eligibility criteria.

REASONS

25 The decision that is under review, following the concession made by Mr Lynch, is the Minister's decision of 28 August 2002. And the Tribunal is required to determine whether the Minister's decision, to refuse Splash Marine a "transferable" charter recreational fishing licence, is the correct and preferred decision having regard to the relevant facts and the applicable law (s. 63(1) ADT Act).

26 Splash Marine's application for a "transferable" charter recreational fishing licence has had a lengthy history. There is an obvious commercial advantage for Splash Marine if it were granted a "transferable" licence as it would then be able to on sell the history of the charter fishing activities of the vessel "Popeye" to another person or transfer that history from the vessel "Popeye" to another vessel. A "non-transferable" licence does not give Splash Marine those additional rights, it limits the rights of Splash Marine in respect of charter fishing activities in New South Waters in that it can only continue to engage in those activities if it uses the vessel "Popeye".

27 In my opinion, the first question to be determined is whether Splash Marine is able to rely on the history of the recreational charter fishing activities of the vessel "Popeye", during the time Mr Johnson was its owner. If the answer to this is yes there is no dispute that Splash Marine has produced the requisite evidence that satisfies the 100 days eligibility criteria set out in cl. 226H(1)(a)(ii) of the 1995 Regulation. However, if it is established that it can rely on the history, it is then necessary to determine the second question of whether the survey evidence relied on by Splash Marine satisfies the eligibility criteria set out in cl. 226H(1)(a)(iii) of the 1995 Regulation.

28 The answer to the first question lies in the proper construction of cl. 226J of the 1995 Regulation. As mentioned above, that clause relates to "the history of operations in respect of a boat" and the circumstances in which that history may be claimed by an applicant for a charter fishing licence. The clause contains two distinct circumstances. The first set of circumstances are those set out in cl. 226J(1)(a) which applies where the "person" (the applicant for a licence) has "used" the boat for recreational charter fishing activities during the relevant period (24 consecutive months between 22 October 1995 and 4 August 1999) and that person has not transferred his or her entitlement to that history. These circumstances are not applicable to Splash Marine or, Mr Gordon, as they had not "used" the vessel "Popeye" for recreational charter fishing during the relevant period. The appropriate applicant under this sub clause in respect of the vessel "Popeye" was Mr Johnson.

29 The second set of circumstances are those set out in cl. 226J(1)(b) of the 1995 Regulation and applies where the "person" (the applicant for a licence) has "acquired a history of operations of a kind ..." referred to in the first set of circumstances (cl. 226J(1)(a)). In this case, Mr O'Connor argued that Splash Marine had acquired the recreational charter fishing activities of the vessel "Popeye", either on the acquisition of the vessel (28 August 2000) or by agreement from Mr Johnson. That is, when purchasing the vessel, Splash Marine also acquired the relevant history. Alternatively, on the basis of the following statement of Mr Johnston, in his statutory declaration dated 9 May 2002, Splash Marine acquired the history of operations of the vessel "Popeye" by agreement:

"11. I have no objection to Troy Gordon claiming the fishing history for "Popeye" as set out above. When I sold "Popeye" in 2000 into Victoria, to the best of my knowledge the log book was also handed over to the purchaser. I did not expressly include or exclude fishing history in that sale"

30 Even if these circumstances are accepted as being a transfer of the relevant history of the vessel "Popeye", cl. 226J(1)(b) has an additional requirement that the transfer must be in accordance to that prescribed in either sub paragraphs 226J(1)(b)(i) or (ii). In this case, as both acquisition occurred after the commencement date of Part 9A of the 1995 Regulation (i.e. 7 July 2000), sub paragraph 226J(1)(b)(ii) applies. This sub paragraph provides that the transfer must be in accordance with cl. 226L.

31 As outlined above, cl. 226L of the 1995 Regulation makes provision for the transfer of entitlement to a history of operations in respect of a boat. However, it only applies to "a person who holds a transferable licence" (see cl. 226L(1)). In this case, Mr Johnson nor Mr Booth were the holders of a "transferable" licence at the time of the alleged transfer to Splash Marine. Accordingly, even if Mr O'Connor was correct in that Splash Marine or Mr Gordon acquired the history of operations of the vessel "Popeye" from Mr Booth or Mr Johnson, it can not be established that it was acquired in accordance with that prescribed under cl. 226L of the 1995 Regulation. As a consequence, Splash Marine is not able to rely on the history of operations of the vessel "Popeye" for the purpose of its application for a "transferable" licence.

32 As a result of the abovementioned findings it is not necessary for the Tribunal to consider the second question in respect of whether the survey evidence relied on by Splash Marine satisfies the eligibility criteria set out in cl. 226H(1)(a)(iii) of the 1995 Regulation.

33 For the reasons mentioned above the Tribunal is of the opinion that the Minister's decision to refuse Splash Marine's application for a "transferable" guided recreational charter fishing boat licence is the correct and preferred decision.

34 The Tribunal orders that the decision of the Minister to refuse Splash Marine's application for a "transferable" guided recreational charter fishing boat licence is affirmed.