Atterton and Australian Fisheries Management Authority - [2002] AATA 683

DECISION AND REASONS FOR DECISION [2002] AATA 683

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/249

GENERAL ADMINISTRATIVE DIVISION       )
           Re      RONALD DAVID ATTERTON
  Applicant
           And    AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date13 August 2002
PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)

CATCHWORDS
FISHERIES – Southern Shark Fishery – conditions attached to fishing permit – school shark and gummy shark quotas – whether applicant's illness during relevant period constitutes exceptional circumstances – whether verified catch history for years other than 1994-1997 should be used to allocate quota.
Fisheries Management Act 1991 s.32
Smythe & Australian Fisheries Management Authority [2001] AATA 677

REASONS FOR DECISION

13 August 2002 Senior Member J.A. Kiosoglous MBE

This is an application for review by Mr Ronald David Atterton (the applicant) for review of a decision of an internal review delegate of the respondent dated 14 June 2001 (T2/2), which affirmed a decision of a delegate of the respondent dated 3 January 2001 (T36/286-287), to impose a particular quota of school shark and gummy shark on the applicant's permit in the Southern Shark Fishery.
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T45) as well as ten exhibits, three lodged by the applicant (Exhibits A1-A3) and seven lodged by the respondent (Exhibits R1-R7). In addition, the Tribunal heard oral evidence from the applicant. Ms Margot Lieselotte Sachse, manager of the Southern Shark and Non-trawl Fisheries section of the respondent, gave evidence on behalf of the respondent. The applicant represented himself and the respondent was represented by Mr Greg Parkin, senior legal officer of the respondent.
issue
The issue before the Tribunal is whether or not the quota attached as a condition to the fishing permit issued to the applicant should be increased on the grounds of "exceptional circumstances".
background to the application
By way of background, the Tribunal in setting out the legislative and policy framework within which shark fishing is managed by the Commonwealth has had regard to information contained within the section 37 documents.
The Southern Shark Fishery ("the fishery") covers Commonwealth waters off the States of Victoria, Tasmania and South Australia. Since 1992, access to the fishery has been granted by way of fishing permits issued under section 32 of the Fisheries Management Act 1991 ("the Act") and the fishery managed through conditions placed on the fishing permits.
In September 1999, and in response to the assessment of the state of school and gummy shark stocks in the fishery, the respondent after consultation with various advisory groups sent a package of policy information to all Commonwealth and State shark fishers advising that the respondent would be implementing quota management for the fishery and invited fishers to have their catch history verified (T23/240). It was decided that Individual Transferable Quotas would be introduced and the allocation of school and gummy shark quota in the fishery to each fisher would be proportional to each concession holder's best three years of verified catch history in the four-year period from 1994 – 1997. In its letter to all shark fishers dated 6 September 1999 (T23), the respondent stated, inter alia, that exceptional circumstances would be considered (T23/242-243):
"Consideration of Exceptional Circumstances
The final section of the AAP report concerns exceptional circumstances. To a large extent, the possibility of catch history being affected by exceptional circumstances in any one year has been addressed by the recommendation that only the best three of the four-year period 1994-1997 be taken into account. Persons who believe that their catch history has been affected by exceptional circumstances will have the opportunity to appeal when the catch verification process has been completed, quota has been allocated, and Permits varied or granted. If you are not satisfied with your quota allocation, you can appeal after a Permit has been varied or granted, and the quota appears as a condition of the Permit. You will be notified of your full appeal rights when you receive your Permit and/or quota allocation."
The applicant participated in the catch verification process and was visited by a Catch Verification Team in November 1999 and a statement of the applicant's verified catch history was sent to the applicant on 17 April 2000 and again on 27 July 2000. The applicant signed this statement as agreeing to the respondent's assessment of verified catch history on 1 May 2000 and 31 July 2000 respectively. After the finalisation of all applications for verified catch history, the respondent allocated interim quotas in December 2000 for the 2001 fishing year and on 3 January 2001, the applicant was issued his 2001 fishing permit, number 25796B, which was conditioned to have a quota for the catching of gummy shark in the amount of 21,084 kilograms and 15,462 kilograms for school shark (T36).
By letter dated 15 January 2001, the applicant appealed this quota allocation, stating (inter alia)(T37/288-289):
"I am appealing against the amount of quota I have been allocated on the grounds that I had a Medical Certificate due to a car accident but A.F.M.A. only allowed it [fishing permit] to be leased out for one year. Their new policy was to only allow leasing for terminal illness or death as their target date for I.T.Q. was July 98.
Niel Hosking leased it for 1 year and caught 40 ton but it was in the financial year 8.5.96 to 30.6.97 due to A.F.M.A. being so slow in approving it to be leased.
If it is not acceptable that we have Niels catch History in the one year he leased it I would like to go back to when I was full-time shark fishing for 4 consecutive years. The amount I have been allocated makes in unfeasible at my age to buy up more quota to make it viable to continue fishing.
I have been shark fishing full time since 1972 and the allocation I have been allocated does not verify anywhere near my true catch history."
On 14 June 2001, an Internal Review Delegate (IRD) of the respondent decided to affirm the decision to impose the particular levels of quota previously outlined on the applicant's 2001 fishing permit. In setting out her reasons for decision, the delegate stated, inter alia (T2/6-7):
"In considering whether there are special circumstances that should cause me to depart from the policy, I have paid careful attention to the report of the independent Allocation Advisory Panel (AAP). I noted that the intent of the policy was to measure your relative economic position by comparing your catch with the catch of other individuals. In considering whether there are special circumstances that would cause me to depart from the policy in your case I believe that the important consideration is whether those circumstances would mean that the use of the years 1994-1997 to establish catch history would distort the measurement of your relative economic position.
Your accident, which was obviously debilitating, is clearly a long term illness for which you have been receiving treatment since at least 1994 and which, according to the doctors letters that you have provided over the years to AFMA, will continue to affect your ability to fish full time into the future.
What is trying to be measured through the use of catch history is your current relative economic position. As you have a long term condition I do not consider that it would affect your current relative economic position. That is in my view your accident is a factor that has affected your fishing for over 10 years and will continue to do so in the future. It did not just distort your catch over the period 1994-1997.
The option of employing a skipper or leasing out your licence under the special exemption given to you by AFMA has been available to you. I note that for some of the period your son ran the boat for you and for one year you leased the permit out. Your choice not to enter into an arrangement for a skipper full time through your period of illness or to lease your licence out for a longer period of time was a commercial decision and therefore not one which should be taken into account as a special circumstance.
In your letter of 15 January 2001 that you have claimed that the reason that the permit was only leased to Neil Hosking for one year was that AFMA was so slow in approving the lease. I have reviewed AFMA files on this matter and have found that you applied to AFMA in early July 1995 seeking a medical exemption. This was granted on 25 July 1995 but it wasn't until 29 April 1996 that you applied to transfer the permit to Neil Hosking. AFMA processed this transfer and granted the permit to Neil Hosking on 8 May 1996. At the time of the transfer you indicated that the arrangement was to remain in place until 30 June 1998 but in June 1997 you advised AFMA that the lease was to terminate early on 1 July 1997. I therefore do not believe that the time AFMA took in dealing with your requests for transfer would cause me to believe that there are special circumstances that have affected the ability to use your concession during the period 1994-1997.
I understand that you have now returned to shark fishing yourself but at a lower level than your previous activities in the fishery. I would note that you have done this despite a warning issued in June 1997 about increasing catches in the shark fishery and the years that would be used to establish allocations of quota.
Therefore it is my view that there are no cogent reasons why I would depart from the policy in your case."
By letter dated 28 June 2001, the applicant applied to the Administrative Appeals Tribunal for review of this decision (T1/1).
applicant's evidence and submissions
The applicant was born on 7 January 1943 and has been a full-time fisherman for 43 years. He spent some time from the age of 17 years skippering other people's boats before owning several boats. He has had his current boat, the "Lutarna" for four years. In the past he has fished for tuna but apart from that he is a full-time shark fisher.
The applicant told the Tribunal that he had a motor vehicle accident in August 1991 and because of his injuries he could not fish his full capacity. At times between 1994 and 1997 he got his son to skipper his boat but he has not got his true catch history because of his accident.
The applicant stated that before the accident, he just had a fishing permit, as the quota system had not come in yet. The applicant contended that the catch history period used was between 1994 and 1997, but during those years, he was under some handicap which affected his catch, which the applicant asked the respondent to take into account. The applicant disagreed with the respondent's statement that the accident affected the applicant for the next ten years and that because of the accident he could no longer work full-time. The applicant stated that he can and does work full-time as a fisher.
The applicant stated that he is currently allowed to take 29 tonnes of shark under his quota but he sold his permit and quota three months after the issue of the quota because the quota was not enough. The applicant used the money for the permit to pay off his commitments and leased a quota from someone else but not a permit as he had another one for the same fishery. The applicant stated that when he sold his permit and quota, the quota was 37 tonnes, which was not sufficient and nowhere near his prior catch history.
The applicant then proceeded to outline his catch history from 1984 onwards as follows:

1984 47 tonnes in 9 months, skippering a boat
1985 104 tonnes in 12 months aboard the same boat
1986 41.5 tonnes in 6 months aboard the same boat
1987 93-94 tonnes in 12 months aboard the same boat
1988 66 tonnes in 8 months, aboard his own boat, the "Kalinds"
1988-1989 93 tonnes aboard the "Kalinds"
1990-1991 95-96 tonnes aboard the "Kalinds"
1992-1993 after his motor vehicle accident, the applicant's son
skippered the applicant's boat and went spur dog fishing,
therefore, these years were not relevant
1994 71 tonnes in 12 months (gummy and school shark) – the
applicant went with his son on some trips, on other
occasions the applicant directed his son via radio.
1995 32 tonnes in 6 months aboard the "Kalinds" (son)
1996 the applicant tried to find another skipper and ended up
leasing his permit to Neil Hosking, who caught 25 tonnes
of gummy shark in 9 months.
1997 Neil Hosking caught 27 tonnes in 6 months before
terminating the lease after which nothing happened for
the remaining 6 months and the boat was sold.
1998 bought the "Lutarna", caught 30.5 tonnes of gummy and
school shark in 9 months (in State waters).
1999 44.5 tonnes in 12 months
2000 50 tonnes in 12 months (in Commonwealth and State
waters)
2001 56 tonnes in 12 months (in State waters)

The applicant stated that instead of the 1994-1997 period, the respondent should have gone back to when he was a full-time shark fisherman, for example, from between 1987-1990. The applicant stated that he has asked for the respondent to consider various alternative periods and also if it would consider using financial years instead of calendar years.
The applicant stated that he still has his boat, the "Lutarna", and is using it. The applicant stated that he sold his Commonwealth permit and quota in 2001 to another fisher and was operating with his State permit which allows fishing in State waters (up to three miles off the coast). He stated that he purchased another Commonwealth permit in early 2002 which has a quota of 16 tonnes for the full year. His Commonwealth permit covers the southern waters between 3 and 200 miles off the coast. The applicant stated that he sold and bought his permits for financial reasons.
The applicant stated that if the respondent had used different catch years to apportion his quota then he would have received a bigger quota. The applicant stated that if this Tribunal decided to give him a bigger quota, it would be added onto his other quota.
The applicant stated that he was unable to fish properly in the years following his motor vehicle accident but he is now able to do so. He stated that it was unfair to be prejudiced by a quota which takes into account the years following his accident. The applicant stated that he has now gone back to fishing full-time and it should not matter whether or not he has a disability. The applicant stated during cross-examination that he has resumed full-time shark fishing since 1998 and for the past year has been fishing just as intensely as prior to 1990. He stated that he is trying as hard as he can go, to catch what he can. The applicant stated that in 1991 he thought that he just had a bad back and would be okay soon. In 1992 he hired his son as skipper, who fished for spur dog because he did not like shark fishing. He stated that then in 1995 his son skippered the applicant's boat for nine months before leaving, and so the applicant then had to find a new skipper with the requisite experience in the fishery in order to catch anything. The applicant agreed that in July 1995 the respondent granted him permission to lease his permit because of his medical condition and the applicant made an application for the transfer of his permit on 8 May 1996 (T32/272). The applicant stated that at the time of requesting permission to lease his permit he did not have anyone lined up, as he knew every shark fisher in Port Lincoln and the suitable people already had boats and could not leave them. The applicant stated that permission from the respondent related not to putting a skipper on but putting his permit in someone else's name and that other person would decide what to do with the permit. The applicant said that to find a fisher, he ascertained the going price for a permit and advertised in "Professional Fisherman" and leased the permit for the same price as everyone else.
During cross-examination, the applicant agreed that Mr Neil Hosking, to whom he had leased his permit, caught pro-rata the same amount that he caught, however, the applicant stated that Mr Hosking had terminated his lease halfway through the year, which had reduced the catch for the year and it was for that reason that the applicant sought for the respondent to use the financial year rather than the calendar year.
The applicant stated during cross-examination that his catches between 1984 and 1990 are just recorded as "shark" and that probably the amount of gummy shark versus school shark in his catches was about 50%.
evidence of ms margot lieselotte sachse, fisheries manager
Ms Sachse was called to give evidence by the respondent. She affirmed that her written statement was accurate to the best of her knowledge (Exhibit R2).
In her written statement, Ms Sachse outlined her extensive background in fisheries management since 1983 and stated that she is currently Manager, Southern Shark and Non-trawl Fisheries, a position which she has held since September 2000. She stated that she has management responsibility for both of these fisheries in Commonwealth waters adjacent to southern Australia and is the AFMA member on both the Southern Shark Fishery Management Advisory Committee (SharkMAC) and the South East Non-trawl Fishery Management Advisory Committee.
Ms Sachse in her written statement went on to address at some length the history of management of the southern shark fishery from the early 1980's onwards, including measures introduced to protect the targeted shark species by restricting fishing effort, in line with scientific advice that stocks of school and gummy shark were in danger. Ms Sachse outlined in detail the increasingly sophisticated restrictions on shark fishing, including the extensive consultation process leading up to the decision by the respondent to move to individual transferable quotas (ITQs).
Turning to address the applicant's circumstances whilst bearing in mind the overall legislative scheme, Ms Sachse in her written statement stated (inter alia)(Exhibit R2):
"56. In recommending that only the best three years of an operator's catch during the period 1994-1997 be taken into account, the SSAAP believed that the risk of distortion in catch history caused by the vicissitudes of a fisherman's life, such as injury or illness would be lessened – T19/205.
57.A departure from the policy so as to allow the allocation of quota to based on different years of catch history would raise significant equity concerns as it would result in a reduction in the proportion of catch allocated to other operators.
58.What is trying to be measured through the use of catch history is current relative economic position. As the applicant has a permanent medical condition, AFMA management considers that this permanently affected his relative economic position. His medical condition is a factor that has affected his fishing for over 10 years and will continue to do so in the future. It did not just distort his catch over the period 1994-1997.
59.This is an approach that AFMA has consistently applied in other claims of special circumstances and is clearly different to the special circumstance presented by Neil Hosking. Mr Hosking's claim referred to a situation that existed for a finite period during the qualifying years 1994-1997 and therefore his catch history for this period did not provide a true representation of his relative economic position.
60.The delegate found that there were no cogent reasons that justified a departure from the policy in the applicant's case. His medical condition did not preclude his boat from participating in the SSF during the qualifying period. In fact the applicant's licence package was active and generated significant catch history in each of the years throughout this period.
61.Mr Atterton was able to appoint a skipper at any time during the relevant period 1994-1997.
62.In July 1995 Mr Atterton applied for, and was granted a medical exemption allowing him to lease his SSF permit. Mr Atterton chose not to enter into a lease arrangement until April 1996. At this time AFMA approved the lease for a period of up to two years. Mr Atterton contacted AFMA in June 1997 requesting to transfer the permit back into his own name.
63.AFMA management believes that these are essentially commercial decisions and do not constitute exceptional circumstances. Mr Atterton's ability to appoint a skipper and enter into authorised leasing arrangements clearly illustrate the flexibility available to Mr Atterton to keep his permit active in the fishery despite his medical condition.
64.Mr Atterton has sold this permit and this is a further reason why he should not now be given additional quota in respect of that permit. Mr Atterton is aware that it is an established AFMA policy that catch history is attached to the licence under which it was generated T35/276. Consequently, were the quota allocated in respect of SSF permit 25796B to change, any additional quota would accrue to the current owners of this permit and not to Mr Atterton.
65.AFMA management believes it is not appropriate to use earlier years for catch history. The SSAAP report stressed the importance of using catch history years which were as recent as possible so that the then present relative economic positions of fishermen be accurately reflected. To allocate quota based on catch history from a period earlier than the chosen period is likely to create significant distortions for a number of reasons:

Fishermen may shift their focus of effort in different fisheries.
Relative abundance of fish stocks are likely to change over time.
It is widely acknowledged that the abundance of school shark stocks have declined significantly since the mid 1980's.
Catches recorded in the period suggested by Mr Atterton are a poor indication of likely catches in the period 1994-1997.
66.Mr Atterton claims that he faces a number of hardships as a shark fisherman, which are likely to result in loss of fishing time, effort and money. While AFMA recognises that shark fishing is hard work, the difficulties presented by Mr Atterton are circumstances which are faced by all operators in the shark fishery and do not constitute exceptional circumstances.
67.Mr Atterton also claims that AFMA's policy of allowing all shark gillnet fishers to use 10 nets has reduced the value of his permit by 50%. This decision pursues AFMA's legislative objective of economic efficiency. Prior to ITQ management, SSF permits were non-transferable. The SSAAP recognised that the value of the permit to take shark is what the permit holder has chosen to catch by the use of the permit T19/205.

68.The value of Mr Atterton's permit therefore was not the gear entitlements it bestowed, as it was non-transferable. Mr Atterton's permit was an A10 which allowed him to use 10 gill nets in Commonwealth waters and this assisted him in generating a significant catch history which has resulted in a significant quota allocation.

69.Mr Atterton's catch history demonstrates that he is a dedicated school shark fisherman. In 1994, Mr Atterton caught in excess of 64 tonnes of school shark while suffering from an ongoing medical condition, which had been aggravated by an accident three years earlier. This was 10 years after the first warnings not to invest in the fishery T3, at a time when it was widely acknowledged that school shark stocks were in serious decline T10-11, and despite the introduction of management measures to reduce effort in order to promote the sustainability of the shark fishery.

70.Mr Atterton's allocated quota was based on the best three of four years, for each species (gummy and school shark) in the period 1994-1997. Consequently Mr Atterton had included in his allocation the 2 years (94 and 95) when he recorded predominant catches of school shark, and the two years (96 and 97) when Mr Hosking recorded predominant catches of gummy shark. Mr Atterton has therefore benefited in terms of his quota allocation of each species.

71.Mr Atterton's medical exemption to lease his licence was subject to the condition that he didn't fish for the period of the lease."

mr david j hall

The respondent provided to the Tribunal as part of its documentary evidence three reports by Mr David J Hall, orthopaedic surgeon, dated 22 April 1994 (Exhibit R4), 13 July 1994 (Exhibit R5) and 9 February 1995 (Exhibit R6). In his report dated 9 February 1995, Mr Hall stated (inter alia)(Exhibit R6):
"Examination – On examination he was restricted in his cervical spine movements mainly in rotation. His movements in forward flexion and extension were reasonably good.
It would seem logical that, by trial and error, Mr. Atterton has demonstrated that he is not able to continue with fishing and instead I have recommended that he look for work on dry land. Mr. Atterton is planning to work on nets, etc. which would appear to be a sensible option.
It would appear that Mr. Atterton's symptoms are manageable when working on dry land and so it is preferable that he continues in this vein rather than considering cervical spine surgery which would have an unpredictable outcome.
It would be most unlikely that Mr. Atterton would be able to return to his work as a fisherman even with a successful cervical spine fusion."

dr m. dawson

The respondent also tendered to the Tribunal a copy of a medical certificate signed by Dr M. Dawson, General Practitioner of Broome Health Services, dated 2 May 1996 (Exhibit R7) which states, inter alia:
"He has a chronic neck injury. This precludes him from going to sea and earning his living as an active fisherman. This is a long term problem."

respondent's submissions

Mr Parkin submitted on behalf of the respondent that the choice of the years 1994-1997 as the period used to calculate the quota reflected the preservation of the allocation of proportions that each fisher already had in the fishery. Mr Parkin explained that the applicant had a relative economic position in the fishery which reflected the level of fishing the applicant had undertaken in the fishery in the requisite time period in comparison with other fishers using the fishery. Mr Parkin submitted that the respondent does not look at a fisher's whole career but rather looked at a four-year period to establish the quota for a particular fisher to measure what the permit-holder had chosen to catch in that time. The period between 1994 and 1997 was chosen, even though the quota system did not come into effect until 2001, to prevent people from artificially increasing their catch based upon speculation on when the quotas were coming in. Mr Parkin submitted that the 1994-1997 time period was more relevant in ascertaining a fisher's involvement in a fishery than some period in the 1980's.
Mr Parkin submitted that the respondent's policy regarding the sharing of the resource has an emphasis on consistency. Mr Parkin submitted that the policy involves allocating shares in a fishery to permit-holders in particular proportions and that therefore to give the applicant an additional entitlement would mean taking away entitlement from others.
Mr Parkin submitted that against the background of that particular policy, the respondent is willing to consider exceptional circumstances in particular cases. Mr Parkin submitted that the 1994-1997 rule applied to everyone but the respondent recognised that it could not be a blind application and that as a matter of administrative law it was necessary to consider whether there were cogent reasons to depart from the policy in particular circumstances. Mr Parkin submitted that the process that the respondent adopted was that it would apply the 1994-1997 policy consistently but then allow for fishers to put forward cogent reasons to depart from the policy upon internal review. If the internal review delegate was satisfied that there were cogent reasons, then they were to look for the nearest years as best representing the catch history. Mr Parkin put forward the example of Mr Neil Hosking's case (Exhibit A1) and in particular the use in his case of the time period from July 1996 to June 2001 to ascertain the correct quota. Mr Parkin emphasised that the reasons for allowing the departure from policy were specific to Mr Hosking's circumstances in that Mr Hosking had temporary difficulties with his boat which went beyond one year so as to misrepresent Mr Hosking's catch over three years. This was in contrast to the applicant's situation, involving a medical condition affecting the applicant since 1991 and continuing. Mr Parkin submitted that the situation of long term medical impairment does not sit with the articulation of the policy by the panel. In relation to the applicant's medical condition, Mr Parkin referred the Tribunal to the medical reports of Mr Hall (Exhibits R4-R6) and the medical certificate of Dr M. Dawson (Exhibit R7).
Mr Parkin submitted that if the years 1992 and 1993 were used in the applicant's case, then during this time the applicant chose to engage a skipper who pursued a different species. This only showed the applicant's lack of commitment to the gummy/school shark fishery and constituted a deliberate commercial decision to pursue something different. In the previous year, the applicant did not have a skipper and was on holidays. Mr Parkin submitted that a period of ten months after the respondent allowed the applicant to lease his permit went by before he did so. Mr Parkin submitted that the applicant stated during evidence that he advertised his permit for lease but took no further effort to use the resource or permit. Mr Parkin submitted that there were other times when the permit was not used and that full allowance was made for such times by using the formula of the best three out of four years. Mr Parkin submitted that to use only part of a year, ie, by using the financial rather than the calendar year, would advantage the applicant over all other fishers.
Mr Parkin submitted that if the respondent were to rely upon the applicant's catch for the years 1984-1990, the fishing levels at that time should be reflected in the years since the applicant has gone back to the fishery. Mr Parkin submitted that the most recent figures as to the applicant's fishing show no equivalence to the years during the 1980's for reasons of the applicant's health and also because of the declining numbers of shark in the fishery. Mr Parkin submitted that if it could be shown that the applicant has overcome his medical problems then this is not reflected in the more recent figures. Mr Parkin submitted that such would result in the applicant being given a windfall based upon his activities in the 1980's which would not be fair to other fishers who have to stick to their quotas.
Mr Parkin submitted that there was a particular benefit to the applicant in the differentiation between species regarding the best three years and the applicant was given an overall higher quota because of this. Mr Parkin submitted that even if Mr Hosking has caused disadvantage to the applicant by only working for half a year, the applicant still benefited on the particular species. Mr Parkin submitted that overall this did not result in a detriment which needs to be corrected by the Tribunal.
Mr Parkin drew the Tribunal's attention to the decision of the Tribunal in David Alan Smythe & Australian Fisheries Management Authority [2001] AATA 677 and in particular paragraph 33 which states:
"On the weight of the evidence before it, the Tribunal is of a view that Mr Smythe's situation does not constitute exceptional circumstances. He did not suffer major loss or damage of a vessel, his illness was not of a severity or duration to threaten livelihood and for most of the period 1991-1999 he was principally working for license holders other than himself, as much in cray fishing as shark fishing. The decision to sell a vessel in 1992 was a domestic arrangement and in 1995 advice was available it might take considerable time to obtain a suitable vessel and TFBL (Tasmanian Fishing Boat License). Even when shark fishing was commenced in 1999, there were circumstances which ultimately dictated selling the license in May 2001. In short, events were not some unanticipated quirk of fate, but largely determined by personal decisions of Mr Smythe and his partner."

discussion and findings

In arriving at its conclusion the Tribunal has taken into account the evidence as a whole including the documentary evidence, the oral evidence and the submissions of both Mr Atterton and Mr Parkin. As previously stated, in issue before this Tribunal is whether or not the quota attached as a condition to the fishing permit issued to the applicant should be increased on the grounds of "exceptional circumstances".
The Tribunal accepts and finds that a letter was forwarded to all shark fishers on about 6 September 1999 (T23) wherein the respondent advised that it would be implementing quota management for the fishery and invited fishers to have their catch history verified. Thereupon Individual Transferable Quotas (ITQs) were to be introduced with each fisher being allocated its quota of school and gummy shark in the fishery based on each concession holder's best three years of verified catch history in the four-year period between 1994 and 1997. In so advising all shark fishers of this, including the applicant, the respondent also advised that exceptional circumstances would be considered.
The Tribunal is satisfied that the applicant did not voice any disapproval when notified and in fact proceeded to participate in the catch verification process. Furthermore, the applicant was visited by a Catch Verification Team in November 1999. A statement of the applicant's verified catch history was sent to him both in April 2000 and in July 2000. The applicant signed each statement agreeing to the respondent's assessment of verified catch history. On 3 January 2001, the applicant was issued his 2001 fishing permit which set out his quota for the catching of gummy shark in the amount of 21,084 kilograms and of 15,462 kilograms for school shark.
The applicant on being so advised appealed this quota allocation on the basis that he had a medical certificate due to a motor vehicle accident in August 1991. During the hearing the applicant stated in his evidence that because of the injuries suffered he could not fish his full capacity. He further stated that at times between 1994 and 1997 he had his son to skipper his boat. He also stated that he had leased his permit to Mr Neil Hosking for one year, namely 8 May 1996 to 30 June 1997. He further stated that in that period, which he described as being in the financial year, Mr Hosking caught 40 ton. In fact Mr Hosking chose not to complete the year and in his oral evidence the applicant agreed that Mr Hosking caught pro-rata the same amount as the applicant. The applicant stated that Mr Hosking's termination of the lease halfway through the year reduced the catch for that year and it was on this basis that he sought for the respondent to use the financial year rather than the calendar year. The Tribunal does not accept the applicant's reasoning for seeking to change from calendar year to financial year. He has not provided any evidence to the Tribunal whatsoever of any attempt to increase the catch in the balance of the calendar year. This was not sound business acumen on the part of the applicant. Hence the Tribunal rejects his suggestion of the respondent exercising consideration of financial year in lieu of calendar year. The applicant in his oral evidence stated that during the quota system period between 1994 and 1997 he was under some handicap which affected his catch.
The Tribunal is satisfied that the accident in which the applicant had been involved was debilitating and affected his ability to be able to properly comply with the terms of his fishing permit. In fact in his request for reconsideration in January 2001 of the quota allocated he cited his having a medical certificate. However, the respondent's files reveal that the applicant applied to the respondent in early July 1995 seeking a medical exemption which was granted him on 25 July 1995. Notwithstanding this, it was not until April 1996 that he applied to lease the permit to Mr Hosking until June 1998. However, as stated above, the applicant in June 1997 advised of the termination of the lease. In fact in affirming the original allocation the IRD rejected there being any special circumstances that enabled departure from the respondent's policy. The IRD stated, inter alia, that in her view the accident suffered is a factor that has affected the applicant's fishing for over ten years and would continue to do so in the future.
The applicant stated in his evidence that the respondent should not have taken into account the 1994-1997 period in his case but that rather should have gone back to the time he was a full-time fisher between 1987 and 1990 or other various alternative periods. He also stated that he was unable to fish properly in the years following his accident but that he is now able to do so. In fact he further stated that he sold his Commonwealth permit in 2001 but retained his State permit and that he then purchased another Commonwealth permit early this year. He agreed that he sold and bought his permits for financial reasons and that any increase in quota that he is able to obtain would be beneficial to him financially.
When considering the issue of exceptional circumstances, Ms Sachse, who the Tribunal accepts as being a credible witness, stated both in her written statement and oral evidence that the delegate found that there were no cogent reasons that justified a departure from the policy in the applicant's case. She also stated that his medical condition did not preclude the applicant's boat from participating in the fishery during the qualifying period. The Tribunal is satisfied that such is the case and so finds.
The applicant in both his approaches to the respondent and to this Tribunal has sought to emphasise his problem as contributed to by his medical condition. Ms Sachse stated that on the medical evidence before the respondent the applicant has a permanent medical condition which the respondent considers permanently affected his relative economic position. She also reiterated the IRD's decision in that the applicant's medical condition is a factor that has affected his fishing for over ten years and will continue to do so in the future. She further stated that the respondent did not just distort the applicant's catch over the period 1994 to 1997. The Tribunal is satisfied that such is the case and so finds. In addition she also stated that the applicant's medical exemption enabling him to lease his licence to Mr Hosking was subject to the condition that he did not fish for the period of the lease. On the other hand the applicant stated in his evidence that whereas following his accident he was unable to fish he is now able to do so.
The applicant's evidence that his medical condition does not now prevent him from fishing properly is not supported nor corroborated by any evidence before the Tribunal. The applicant was seen on at least three occasions by Dr David J. Hall, orthopaedic surgeon, and as previously stated prepared three reports. In the first report dated 22 April 1994 (Exhibit R4) Dr Hall stated, inter alia, that the applicant "will make an attempt at returning to his work as a shark fisherman but it is likely that the movement in the boat will aggravate his symptoms". He further stated that the applicant's "normal duties as a fisherman will be restricted as a result of his injury and he may be precluded from returning if he continues to suffer symptoms".
The report dated 13 July 1994 (Exhibit R5) states that when the applicant returned to fishing his symptoms had been aggravated. It further stated that the applicant had been unable to continue with his duties as a fisherman. Dr Hall then recommended a period of six months away from fishing to see whether his symptoms settled.
In the third report dated 9 February 1995 (Exhibit R6) Dr Hall stated that the applicant had remained on land and not gone on any fishing expeditions until approximately ten days prior to his medical consultation on 30 January 1995. He further stated that by the time the applicant had come off the boat he reported that he could "barely walk" because of pain extending from the neck down to the lower back. Dr Hall further stated that the applicant demonstrated that he is not able to continue with fishing and that it was recommended to the applicant that he look for work on dry land. He also stated that the applicant's symptoms are manageable when working on dry land and suggested that it is preferable that he continues in this vein rather than considering cervical spine surgery which would have an unpredictable outcome. He concluded that it would be most unlikely that the applicant would be able to return to his work as a fisherman even with a successful cervical spine fusion.
The other medical evidence before the Tribunal is that of a medical certificate dated 2 May 1996 (Exhibit R7) from Dr M. Dawson which clearly states that the applicant's chronic neck injury precludes him from going to sea and earning his living as an active fisherman. Dr Dawson concluded that this is a long term problem.

Whilst the applicant maintained in his evidence that he is able to return to work as a fisherman there is no medical evidence before the Tribunal that supports this. In fact all the medical evidence before the Tribunal indicates the contrary. The Tribunal is satisfied that in the absence of any medical evidence to support the applicant, the evidence to the contrary is accepted as a true indication of the applicant's inability to return to the role of a full-time fisherman.
The Tribunal accepts that the respondent's action in selecting the years between 1994 and 1997 as the period in which it calculated the quotas reflected the preservation of the allocations of proportions that each fisher already had in the fishery. The Tribunal also is satisfied and accepts that the period chosen prevented fishers from artificially increasing their catch based upon speculation and that the respondent's policy regarding the sharing of the resource has an emphasis on consistency.
The Tribunal is satisfied on the weight of the evidence before it and for the reasons previously set out that the applicant's situation does not constitute exceptional circumstances so as to enable a different time period to be used to calculate his quota.
Accordingly, the Tribunal affirms the decision under review.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE.
Signed:   (Signed)
  Barbara Armstrong, Associate
Date/s of Hearing  4 March 2002
Date of Decision  13 August 2002
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr Greg Parkin
Solicitor for the Respondent    AFMA