Bailey v NSW Department of Primary Industries

Court of Appeal (NSW)|2009-06-19

CITATION: Bailey v NSW Department of Primary Industries [2009] NSWADT 152 This decision has been amended. Please see the end of the decision for a list of the amendments.

Brian Kenneth Bailey and Heather Ellen Bailey PARTIES: Respondent:

Fisheries Management Act 1994 LEGISLATION CITED : Fisheries Management (General) Regulation 2002 Interpretation Act 1987 Ombudsman Act 1974

CASES CITED: Caterpillar of Australia Pty Ltd v Industrial Court of NSW [2009] NSWCA 83

In person REPRESENTATION: Respondent Representative:

ORDERS: The Tribunal has no jurisdiction to review the decision that is the subject of the application for review.

1 Mr Bailey has applied to the Tribunal for the review of a decision of a delegate of the Minister for Primary Industries ('the Respondent') to reduce the maximum boat length specified in his fishing boat licence. The Respondent contends that the Tribunal does not have jurisdiction to review this decision.

2 The Tribunal has joined Mrs Bailey as an applicant in these proceedings because it is apparent that she is a joint owner of the fishing boat licence and, in most of the correspondence, including the submissions filed with the Tribunal, both Mr and Mrs Bailey are referred to and are joint signatories.

3 I have constructed the following account of the facts from information provided to the Tribunal by Mr Bailey in his 'Application for Review' filed on 8 December 2008, Mr and Mrs Bailey's submissions, with attachments, received on 19 May 2009, a statement from Laurie Derwent, the Manager of Fisheries Business Services at the NSW Department of Primary Industries ('the Department'), dated 12 February 2009, and the Department's submissions filed on 16 February 2009.

4 Mr Bailey states that in 2004/2005, he investigated purchasing a NSW Fishing Business ('FB') licence. In particular, he investigated the catch history of FB 2211 held by Mooloolaba Fisheries Investments Pty Ltd ('Mooloolaba Fisheries'). With the consent of Mooloolaba Fisheries, Mr Bailey contacted the Department for this purpose. The Department responded by letter dated 31 August 2004.

5 In his statement, Mr Derwent said John Eather originally held the FB 2211 licence for the 13.2 metre long fishing boat 'Lady Bird'. On 26 July 2002, Mooloolaba Fisheries applied for the transfer of that licence from Mr Eather to itself. On 1 November 2002, the Department received an application for the renewal of the licence for a new boat, the 23.84 metre long 'Luen Voyager'.

6 Mr Derwent said that because FB 2211 included a Commonwealth permit for the Commonwealth's managed tuna longline fishery (a 'Commonwealth tuna permit'), the Department approved an upgrade in the length of the boat from 13.2 metres to 23.84 metres, subject to conditions. He said that pursuant to the NSW Fisheries Commercial Licensing Policy, a boat intended for use in the Commonwealth east coast longline tuna fishery was permitted to exceed the maximum length for replacement boats licensed by the Department and instead conform with the Commonwealth's maximum length policy.

7 Mr Bailey decided to purchase FB 2211 and spoke with a Departmental officer, Veronica Silberschieder, about the transfer of the licence into his and his wife's names. Mr Bailey states that he made it clear that he wanted the licence for his 20 metre long fishing vessel 'Karina B'. Ms Silberschieder informed him that the Commonwealth tuna permit had to be transferred with the FB 2211 licence.

8 On 22 February 2005, the Department received an application for the transfer of FB 2211 to Mr and Mrs Bailey for the boat Karina B. Because FB 2211 included a Commonwealth tuna permit, the 20 metre length of the replacement boat was approved. The maximum length otherwise permitted would have been 13.2 metres, the length of the boat originally described in the licence, the Lady Bird.

9 Mr Bailey states that the Agreement for the Sale of FB 2211 by Mooloolaba Fisheries to him and his wife was received by the Department on 20 January 2005. The Special Conditions applying to this Agreement, set out in the First Schedule, state that the parties acknowledge and agree that the allocation of Statutory Fishing Rights for the Eastern Tuna and Billfish Fishery will be allocated to the holder of the permit as of November 2002. At that time, this was Mooloolaba Fisheries. Thus, it was known to all involved in the transfer of the business to Mr and Mrs Bailey that the Commonwealth tuna permit could not be fished by them. This would mean that once all the new management arrangements for tuna fishing were completed by the Australian Fisheries Management Authority ('AFMA'), they would be able to surrender the tuna permit to the AFMA and thus would avoid paying $11,500 per annum for the permit.

10 Mr Bailey said he spoke with Sonia Errington, Senior Manager of Commercial Fisheries at the Department, about surrendering the Commonwealth tuna permit, which she was aware was attached to FB 2211, as part of the Commonwealth's Structural Adjustment and Restructuring Package. She advised him on how to go about seeking the approval of the Deputy Director General of the Department to splitting the tuna permit from FB 2211. Mr Bailey went ahead with her assurance that everything was in order and that he was not doing anything that would put FB 2211 and the vessel length of 20 metres at risk.

11 On 8 May 2006, Mr Bailey applied to the Department for permission to split the Commonwealth tuna permit from FB 2211. Attached to his 'Application for a Review' filed with the Tribunal on 8 December 2008 is a letter, dated 7 January 2007, sent by Express Post to Darryl Sullings, Acting Manager of Commercial Fisheries, in which Mr and Mrs Bailey set out the relevant events relating to the tuna permit. Mr Bailey stated that on 21 April 2006, he was advised by Ms Errington to apply to the Department for permission to split the tuna permit from FB 2211 and that she would support the request. On 3 May 2006, he had a further discussion with Ms Errington about this. On 13 June 2006, Mr Bailey phoned to see if there had been a decision on his request, and was advised by Ms Errington to go ahead and surrender the tuna permit to AFMA as part of the Commonwealth buy out. He therefore surrendered the tuna permit to the Commonwealth. Then, by letter dated 21 July 2006, the Department notified him that a moratorium had been placed on all proposals to split licences.

12 On 23 May 2007, the Deputy Director General of the Department, Renata Brooks, wrote to Mr and Mrs Bailey noting that they had surrendered their tuna permit to the Commonwealth and accordingly, as a consequence, they were no longer eligible to operate their fishing boat at a length more than the original boat length of 13.2 metres. They were invited to 'show cause' within 21 days as to why FB 2211 should not be returned to the original boat length. At the time, Mr Bailey was suffering from the flu, which delayed his response, received by the Department on 13 June 2007. In this response, Mr Bailey said he wished to appeal the decision and asked for an extension of time to show cause.

13 By letter dated 5 August 2007 addressed to Mr and Mrs Bailey (a copy of which was produced by Mr Bailey), Ms Brooks said, having considered the information contained in Mr and Mrs Bailey's submission received on 13 June 2007, she had decided "the boat licence should be amended to reflect the original length of the boat". She stated: "In accordance with Division 6 of the Fisheries Management Act 1994 , if you are dissatisfied with a decision regarding a relevant authority you may apply to the Administrative Decisions Tribunal for a review of the decision."

14 In a further letter, dated 13 September 2007, Ms Brooks again confirmed the decision to reduce the maximum length specified in FB 2211 to 13.2 metres, and referred to a right to apply to the Tribunal for a review. The Department notes that the decisions taken in May and September 2007 were informed by the Department's internal policies, the aim of which is to conserve fishing stocks in NSW waters by capping the number of licensed commercial fishing boats.

15 Mr Bailey states that after being informed of the vessel length reduction, he was advised that he could apply for an internal review of this decision. He made this request verbally and in writing, and said he asked Mr Sullings that he (Mr Bailey) should be included in this review process. Mr Bailey said this was obviously forgotten and he was not included in the review process. He provided a copy of a letter he wrote to Mr Sullings, dated 1 November 2007, which refers to a fax he sent Mr Sullings on 30 October 2007. In the letter, Mr Bailey states: "We accept your information on the internal review process and confirm that we [sic] be part of this process." Mr Bailey goes on to state: "Daryl with our many discussions over the last month you did ask if I would be acceptable to the proposition that I keep fishing the licence with Karina 'B' with the condition that if at any time that the fishing business was to be sold it would revert back to 14 metre boat length. I confirmed to you that this suggestion you put to me would be acceptable to us, hoping this resolves any difficulties with the internal review."

16 Mr Bailey said he received no response from the Department to his request for a review. On 24 June 2008, he sent the Department an application for renewal of his licence (received by the Department on 27 June 2008), noting that in the renewal form, the length of the vessel had been reduced from 20 metres to 13.2 metres. Mr Bailey stated: "How is this possible when this has been under (internal review) since last November 2007 [sic] during this time we have not been contacted about the review process ... We send these applications back for you so we can hold a licence while waiting for the outcome of the review process."

17 Mr Derwent stated that on 15 July 2008, Mr Bailey faxed him a copy of a letter he had faxed to Mr Sullings on 30 October 2007. In the fax of 15 July 2008, addressed to Matthew Fowler, Mr Bailey refers to a phone call with Mr Fowler on 8 July 2008 when they discussed the matter. (In the letter, which was attached to the 'Application for a Review', Mr Bailey stated that he received a phone call from Mr Fowler who said he - Mr Bailey - had not been included in the internal review.) In the fax, Mr Bailey states that after faxing Mr Sullings the letter on 30 October 2007, he phoned on 31 October 2007 to check Mr Sullings had received the fax, but Mr Sullings was not available. So Mr Bailey wrote to him on 1 November 2007. While Mr Derwent attached to his statement a copy of the fax dated 15 July 2008, he did not attach a copy of the letter Mr Bailey states he faxed to Mr Sullings on 30 October 2007.

18 Mr Derwent stated that he reviewed the departmental files on hand and a 'draft briefing' and "having regard to the facts known to me at that time, on 29 October 2008, I decided that the maximum boat length specified for the fishing boat licence should remain at 13.20 metres". This was confirmed in a letter to Mr and Mrs Bailey dated 29 October 2008. The letter states that if Mr and Mrs Bailey do not agree with the decision "you my be able to ask the Administrative Decisions Tribunal to review it". Mr Bailey states he received this letter on 10 November 2008. He completed an 'Application for a Review' by the Tribunal on 28 November 2008, which was received on 8 December 2008. On 20 January 2009, the Tribunal made directions for the filing of evidence and submissions, and the parties agreed that the matter should be decided 'on the papers'.

19 The Fisheries Management Act 1994 ('the FM Act'), s 107, requires that before a boat may be used to take fish for sale, it must be licensed. Such a licence, issued by the Minister, "is subject to such conditions as are prescribed by the regulations or specified in the licenceÓ (s 108(4)(a)).

20 Clause 152A of the Fisheries Management (General) Regulation 2002 ('the FM Regulation') states relevantly: (1) A fishing boat licence is to be issued or renewed in such form as the Minister approves. (2) Without limiting subclause (1), a licence may specify: (a) any maximum length, or maximum hull units, or maximum engine power (collectively referred to as "maximum boat specifications") that apply in respect of the boat the subject of the licence, as determined by the Minister, and ...

21 Clause 153 prescribes a number of conditions for the purposes of s 108(4)(a). Clause 158(1) provides that ÒThe Director-General may approve the transfer of the right to a fishing boat licenceÓ.

22 Part 5A of the FM Regulation sets out the 'Fishing Business Transfer Rules'. Clause 133E(3)(d) provides that in the event of a breach of the Transfer Rules, the Minister may impose (in accordance with the Act ) conditions on any NSW fishing authority that is a component of the fishing business, so as to restrict the fishing activities of the fishing business, or exercise any other powers conferred on the Minister by the Act so as to restrict the fishing activities of the fishing business.

23 The Tribunal has jurisdiction to review decisions under the FM Act pursuant to s 126(1), which is included in Part 4 of the Act along with ss 107 and 108: 126(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, (b) the imposition of conditions on the person's relevant authority (otherwise than by regulation), (c) the suspension or cancellation of the person's relevant authority.

24 A 'relevant authority' is defined in s 125(c) as including a fishing boat licence.

25 The Department submits that the Tribunal has no jurisdiction to review the decision to reduce the maximum boat length of Mr and Mrs Bailey's boat for the purposes of FB 2211 to 13.2 metres. It submits that a re-determination of maximum boat length specifications under cl 152A(1)(a) of the FM Regulation does not fall within any of the categories specified in s 126(1) of the FM Act. The decision was not a refusal to issue or renew an authority (s 126(1)(a)) or a suspension or cancellation of a relevant authority (s 126(1)(c)). The Department submits the decision is also not a decision to impose conditions on the Bailey's fishing boat licence (s 126(1)(b)), noting that although cl 153 of the FM Regulation prescribes various conditions of fishing boat licences, these are excluded from review under s 126(1)(b).

26 The Department submits the determination of a 'maximum boat specification' under cl 152A(1)(a) of the FM Regulation is not the imposition of a 'condition': "Context dictates that a reference to a 'condition' in s 126 is a reference to a condition referred to in s 108(4)(a) of the FM Act." The use of a different term 'maximum boat specification' is a clear indication that this is something other than a 'condition'. A presumption of statutory construction is that the terms in a statute are used consistently. Further, pursuant to s 11 of the Interpretation Act 1987, it is to be assumed that words used in the FM Regulation have the same meaning as they carry in the FM Act. Therefore, it is assumed that Parliament intended the word 'condition' in s 126(1)(b) to refer to the same subject matter as the word 'condition' in s 108(4). Conversely, it can be assumed, for reasons of consistency, that a clause in the Regulation in which a term other than the word condition is used deals with a subject matter other than a 'condition'.

27 The Department submits that other parts of the FM Regulation draw a distinction between a 'condition' and a 'maximum boat specification'. For example, cl 154(3) provides that the Minister may refuse to renew a licence if either: (b) the holder of the licence has, in the opinion of the Minister, contravened a condition of the licence, or ... (d) the boat does not comply with any maximum boat specifications set out on the licence,

28 The Department submits that if 'maximum boat specification' is a 'condition', it would not have been necessary to include (d), because the refusal would have been caught by (b). An almost identical distinction is drawn in cl 156(b) and (e). In construing a statute, it is necessary, wherever possible, to give effect to each of its provisions. The Department also refers to cl 153(1)(g), which stipulates that one of the prescribed conditions is "that the boat to which the licence applies is not modified in such a manner that it ceases to comply with any maximum boat specifications set out on the licenceÓ. Here it is compliance with the specifications rather than the specifications themselves that is the condition. If the specifications were themselves a condition, this would effectively mean it would be a condition of the licence that the holder complies with another condition.

29 In conclusion, the Department submits "[t]hese textual indications demonstrate that the re-determination of a maximum boat length under cl 152A is not the imposition of a condition under s 108(4)". It is not, therefore, a decision that falls within the scope of s 126(1)(b) of the FM Act.

30 Mr Bailey's submissions, many of which are reflected in my summary of the facts set out above, focus largely on the sequence of events that gave rise to these proceedings.

31 However, in relation to the jurisdictional issue raised by the Department, Mr Bailey notes that on two occasions, in letters dated 5 August 2007 and 29 October 2009, the Department has stated that if he is dissatisfied with the decision, he can apply to the Tribunal for a review of the decision. He says that the Department's lawyers are now trying to confuse the issue and "take away the right of an independent review for me". He states that the Department has erred in this matter and requests that the Tribunal afford him the independent review the Department told him he was entitled to.

32 It is apparent from the events that gave rise to these proceedings that Mr Bailey has been diligent in providing relevant information to the Department, in communicating with the Department in relation to relevant matters, and in following up telephone conversations with written correspondence. My review of the correspondence and other documentation indicates that over the course of about four years, he has dealt with various departmental officers and has at all times acted on the advice that he was given by those officers and has tried to do what was required of him in order to achieve the outcome he and his wife sought. The evidence before me suggests that he has been less than well served. I note that, in fact, on three occasions, in a letter dated 5 August 2007, in a letter dated 13 September 2007 and in a letter dated 29 October 2008, the Department has informed him that if he is dissatisfied with the decision, he may apply to the Tribunal for a review.

33 The Department submits that the Tribunal does not have power to review the decision to reduce the maximum boat length specified in Mr and Mrs Bailey's fishing boat licence. The Tribunal's jurisdiction in such matters is founded in s 126(1) of the FM Act, set out above. The Department submits that the decision is neither the refusal to issue or renew a fishing boat licence (s 126(1)(a)), nor the suspension or cancellation of that licence (s 126(1)(c)). I agree. The question then is whether the decision in respect of which a review is sought is one that falls within s 126(1)(b), and comprises the imposition of conditions on Mr and Mrs Bailey's fishing boat licence.

34 The Department submits that one has to look at the context in which the word 'conditions' is used in the Fisheries Management legislation ('FM legislation') to understand its meaning. In particular, the Department contends that the word 'conditions' in s 126(1)(b) has the same meaning as the word 'conditions' in s 108(4)(a), which provides for a fishing boat licence to be "subject to such conditions as are prescribed by the regulations or specified in the licence". Conditions prescribed by the regulations, relevantly by the FM Regulation, are specifically excluded from review by the Tribunal by s 126(1)(b). This leaves the Tribunal's review jurisdiction in relation to conditions as relating only to those specified in the licence.

35 It follows that the issue in this case is whether the maximum boat specification comprises a condition specified in the licence. This is a specification that may be included in the licence pursuant to cl 152A(2)(a) of the FM Regulation, and I am satisfied that, pursuant to s 48 of the Interpretation Act 1987, the Minister may exercise the power to determine a maximum boat specification from time to time as occasion requires.

36 The Department states that the exercise of the power was, in this case, enlivened by the breach of the Fishing Business Transfer Rules. These Rules proscribe the surrender of "an external fishing authority", such as the Commonwealth tuna permit, "unless all NSW fishing authorities that are components of the fishing business are surrendered to the Minister for cancellation" (cl 133E(2) of the FM Regulation). In the event of a breach, the Minister may take a range of action.

37 I note the recent comments of Spigelman CJ in Caterpillar of Australia Pty Ltd v Industrial Court of NSW [2009] NSWCA 83, at [86]: "It is now well established that the contemporary approach to statutory interpretation requires a court to have regard to the context in which words appear in the first instance and not merely after some ambiguity has been identified." 38 A review of the text of the FM legislation reveals that the words 'condition' and 'maximum boat specification' are used in such a way that it is apparent that it was intended that, in the context of the FM legislation, a 'maximum boat specification' appearing in a relevant authority such as a fishing boat licence should be considered as distinct from a 'condition'. The word 'condition' is used in s 108(4) of the FM Act. Clause 152A(1)(a) of the FM Regulation refers to 'maximum boat specifications'. Clause 154(3) refers specifically to the Minister's power to refuse to renew a licence both for contravention of a condition (cl 154(3)(b)) and if the boat does not comply with any 'maximum boat specifications' (cl 154(3)(d)), suggesting that 'condition' and 'maximum boat specification' are considered to be different from one another. The power of the Minister to cancel or suspend a fishing boat licence also exists separately for breaches of a condition of a licence (cl 156(b)) and non-compliance with any 'maximum boat specifications' in the licence (cl 156(e)).

39 In my view, this indicates an intention on the part of the Parliamentary draftsperson and, ultimately, Parliament, that a distinction should be drawn in the FM legislation between the words 'condition' and 'maximum boat specification'. That being so, a 'maximum boat specification' is not to be considered a 'condition' in the context of the FM legislation and, therefore, the Tribunal does not have jurisdiction to review the decision to reduce the 'maximum boat specification' for Mr and Mrs Bailey's fishing boat licence.

40 I have come to this conclusion reluctantly because the evidence before the Tribunal suggests that this is a case where there should be an external review. However, it appears that it may be open to Mr and Mrs Bailey to make a complaint to the NSW Ombudsman. The Ombudsman, unlike the Tribunal, has investigative powers. Nevertheless, it should be noted that the Ombudsman's powers on finding, for example, that the conduct of a public authority is contrary to law, or unreasonable, unjust, oppressive, or otherwise wrong, is limited to making a report, which may include recommendations: Ombudsman Act 1974, s 26.

41 The Tribunal has no jurisdiction to review the decision that is the subject of the application for review.

09/07/2009 - Delete word 'not' - Paragraph(s) Paragraph 38

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