The closure of Upper Spencer Gulf to net fishing and 3
promulgation of Government Policy regarding closure
The plaintiff’s claim and the legislation giving rise to this 11
action
An overview of the evidence - including fishing methods 23
The history of the plaintiff’s fishing in Area 11 and his 42
explanation of fishing records
(a) Use of power hauling by the plaintiff 43
(b) The plaintiff’s misunderstanding as to boundary of Area 21 46
6...... The validity of the regulation - Schedule 1 - item 29 71
Exemption from the Regulations
(a) The operation of s 59 71
(b) . The effect of Government policy on the 80
administration of s 59
(i) The need for procedural fairness 80
..... (ii) The opportunity to be heard 84
(iii) The Minister’s compliance with wishes of 92
Local Government
(iv) The Minister’s alleged “error” 97
(v) Unreasonableness in decision 100
A supplementary hearing 107
A short answer to the plaintiff’s claim 117
Extension of time 118
11.... Conclusion 1216
Background
The plaintiff, Mr Dighton, is a commercial fisher who has worked out of Port Augusta for many years and holds a marine scalefish fishery licence pursuant to the Fisheries Act1982 (SA) (“the Act”). He complains that the Act is being administered in a way which has undue regard to sectional interests, particularly those represented by the Council of the City of Port Augusta, and is in disregard of the Act’s objectives. As such, Mr Dighton contends that contrary to the Act, the regulatory scheme of fishing is being promoted by the Minister for Primary Industries (“the Minister”) to advance tourism and enhance recreational fishing in the Northern Spencer Gulf in a way which unfairly ignores, or discriminates against, the plaintiff’s legitimate interests as a commercial licence holder.
Evidence in this case has been given by reference to the metric chart AUS778, Point Riley to Port Augusta (“the chart”). I have relied on the chart for geographical positions and measurement of distances expressed in nautical miles.
The closure of Upper Spencer Gulf to net fishing and promulgation of Government Policy regarding closure
By cl 3(e) of the Regulations under the Act, No.181 of 1995, made 31 August 1995 and expressed to come into operation on 1 September 1995, the Governor in Council (“the Governor”) varied the Fisheries (General) Regulations 1984 (SA) (“the principal regulations”). This prohibited the taking of fish by any person using a fishing net in the waters of Spencer Gulf situated north of the parallel of latitude passing through the beacon on Douglas Bank, being latitude 32° 48.54’south. This unlit beacon is approximately nineteen miles south of Port Augusta. It marks a very shallow patch of water in mid channel.
Prior to 1 September 1995 the waters between the Douglas Bank geodesic and a line nearly 5 miles further north near Mount Grainger between No 5 Beacon and the Eastern…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Dighton v South Australia [2000] SASC 194
Case
[2000] SASC 194
Decision Date
CaseChat Overview and Summary
This case involved a challenge by Mr Dighton, a commercial fisher, against the closure of Upper Spencer Gulf to net fishing and the Minister's decision to deny him an exemption from the closure. Mr Dighton argued that the regulation was invalid, that he had been denied procedural fairness, and that the Minister's decision was unreasonable. The court held that the regulation was valid and that the Minister had properly exercised his discretion in denying Mr Dighton an exemption. The Minister's decision was based on policy criteria that Mr Dighton had failed to satisfy, and the court found that the Minister had properly considered Mr Dighton's application according to the criteria. The court also held that the Minister's decision was not unreasonable and that the Minister had properly taken into account the views of the local community. The plaintiff's claim was dismissed.
In conclusion, the court found that the regulations were valid and that the Minister had properly exercised his discretion in denying Mr Dighton an exemption. The court found that the Minister had properly considered Mr Dighton's application according to the policy criteria and that his decision was not unreasonable. The court also held that the Minister had properly taken into account the views of the local community. The plaintiff's claim was dismissed, and an extension of time was granted for the purposes of SCR 98.06.