Friend and Australian Fisheries Management Authority

[2006] AATA 954

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 954

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1525

GENERAL ADMINISTRATIVE DIVISION		)
Re		Rodney Friend

Applicant

And Australian Fisheries Management Authority

Respondent

DECISION

Tribunal   Justice Downes, President

Date  10 November 2006

Place  Sydney       

Decision   Affirm the decision under review.

..............................................

President

CATCHWORDS

PRIMARY INDUSTRY – Fisheries – Southern Shark Fishery – Quota allocation – Evidence

Fisheries Management Act 1991 (Cth)

Fischer and Tapley v Australian Fisheries Management Authority (2005) 89 ALD 324; [2005] AATA 936

REASONS FOR DECISION

Justice Downes, President

Background

1.      Rodney Friend is a fisherman. He has been a fisherman all his life. His father was a fisherman. He has mostly been fishing for sharks, first with his father, then in partnership with his father and brother and ultimately alone.

2.      In recent years he has operated in what was called the Southern Shark Fishery which became part of a larger Gillnet Hook and Trap Fishery. That fishery is now part of the Southern and Eastern Scalefish and Shark Fishery. The history of the Fishery is set out in my reasons for decision in Fischer and Tapley and Australian Fisheries Management Authority (2005) 89 ALD 324; [2005] AATA 936. I will not repeat that history although it will be necessary to have regard to it to understand parts of these reasons.

3.      In 1990 Mr Friend acquired a boat with an A10 fishing licence attached to it then called the Thetis, which he renamed the Sharben, and began fishing on his own. He still fishes with this vessel.

4.      In these proceedings Mr Friend is challenging the quota allocation made to him for 2004. I have decided to affirm the decision because the evidence before me does not justify Mr Friend’s claim to be treated differently to most of the other fishermen in the Fishery.

5.      A variation in the quota for 2004 is now entirely academic because the fishing season concluded nearly two years ago. I made observations about the utility of appeals in these circumstances in my decision in Fischer (p 329; para [20]). However, the respondent (AFMA) has not objected to reviews in these circumstances and, although they are academic for the year in question, has acted on the Tribunal’s reasoning in subsequent years. It has even proceded on this basis itself. In the present case the quota allocation decision was made on 19 December 2003. Mr Friend sought reconsideration of the decision under s 165 of the Fisheries Management Act1991 (Cth). That reconsideration was not completed until 29 September 2004, nearly three-quarters of the way through the season. The 19 December 2003 quota allocation was affirmed.

6.      The quota allocation made to Mr Friend for the 2004 season permitted him to catch:

13,176.24 kg of gummy shark; and

561.91 kg of school shark

7.      The principal question in these proceedings relates to the gummy shark quota. In their evidence and submissions, the parties primarily addressed the gummy shark quota because of its importance. I will adopt that approach in my reasons. However, I am conscious that I am dealing with the quota for both species of shark.

The Issues

8.      The 2004 allocation in the Fishery found its genesis in the allocation policy commencing in 2001 and the Jenkinson Panel Report on which it was based. That allocation led to a successful challenge in this Tribunal and an appeal to the Federal Court of Australia which affirmed that decision. A new method of allocation was accordingly adopted for the 2004 year. It was based on a report produced by the Lockhart Panel. The validity of the new method of allocation was the subject of a challenge in Fischer. That challenge was unsuccessful. As a result, the method of allocation for 2004 has formed the standard by which subsequent allocations have been made.

9.      The different methods of the Jenkinson Panel and the Lockhart Panel are discussed in Fischer. However, the differences do not affect this case. That is because both panels took verified catch history for the best three years between 1994 and 1997 as a major component in calculating quota allocation. The weight which was given to catch history by each Panel was different but the method of determining catch history was the same. The preferable method for the initial allocation of quota consequent upon the change from input to output controls was finally determined in Fischer. Mr Friend does not challenge that method. What he says is that in his case it would be unfair to use the best three years out of 1994 to 1997 because even after one year is discarded, those years do not fairly reflect his appropriate share of the Fishery.

10.     Mr Friend relies upon three bases for his claim (see, for example, para 9 of the Applicant’s Submissions dated 11 October 2006):

(i) During 1995 and 1996 Mr Friend was prevented from fishing for a total of up to five months while the Sharben was refitted.

(ii) In 1997 he lost three weeks of fishing as a result of unjustified claims that he was using excessive net lengths and as a result of regulatory action based on those claims.

(iii) In 1997 he lost substantial fishing time because he was suffering from a depressive illness caused by the breakdown of his marriage to which the regulatory action also contributed.

11.     It is significant to note that the claim which Mr Friend now makes was as significant for the 2001 quota allocation and the intervening years as it was for the 2004 allocation. However, Mr Friend made no complaint about the verified catch history assigned to him or the quota allocation based upon it, other than an application for internal review, based on similar considerations to those raised in Fischer, which was not upheld, until he sought reconsideration of the 2004 quota allocation.

12.     The task of the Tribunal is to seek to determine the extent to which circumstances occurring in 1994 to 1997 had the consequence that Mr Friend could not engage in his fishing business as he had in the past and as he did subsequently. The Tribunal must then consider whether the situation identified is such that the preferable basis upon which to allocate quota is some basis other than verified catch history for the 1994 to 1997 period. This might involve choosing another period, which is what Mr Friend primarily contends for; or it might involve adjusting his verified catch history for 1994 to 1997 to take into account his particular circumstances.

The First Basis

13.     The Sharben is a 60 foot steel fishing boat. It was not built for Mr Friend or his family. It was built by an unrelated company. The crew accommodation was apparently inadequate. Mr Friend was often at sea for days and he found the accommodation cramped and the headroom low. This was particularly noticeable when he went to sea with two crews. In 1994 Mr Friend says he made a large profit and his accountant advised him that it may be a good time to carry out some work. He decided to raise the height of the aft deck of the Sharben to make a poop deck and carry out associated work.

14.     Mr Friend gave oral evidence in chief. His evidence as to the work carried out and when it was carried out, was anything but precise. These are some of the relevant passages:

Question:            “And how long did this work take?”

Answer:“We did it over two – we started on it and we raised all the bulwarks and cut out the bulkheads of that and then I went back to work and maybe – I don’t know how long it took, quite some time, and then we started it about 12 months later and we – that’s when we finished the last fit so I wouldn’t have too much – yes, so I could keep going, like without – I couldn’t afford to take at least six months off, so we did it in two bits.”

…

Question:“So what do you – can you estimate the total amount of time that the vessel was out of action?”

Answer:“Well, it was a long time – I don’t know, it was – oh, some months.”

…

Question:“After the – during the period in which the vessel was undergoing those works that you referred to, can you estimate the time you lost in your fishing?”

Answer:“Some months, I don’t know how many months.”

15.     At this point I indicated to Mr Friend and his counsel that “it would be asking a lot to ask me to make a finding that he lost six months of fishing time from what he ha[d] just said.” I suggested that Mr Friend should attempt to improve his recollection by reference to contemporaneous records and events. I indicated that, because the case had three days set aside for it, he would have time to consider and investigate these issues.

16.     In answer to further questions from his counsel Mr Friend then began, by reference to his recollection of contemporaneous events, to give a more detailed account of what had actually happened. The essence of this evidence was that the two periods when the boat was being worked on were between January and March 1995 and January and April 1996.

17.     Problems with this account appeared in cross examination. It did not fit in with a handwritten document prepared by Mr Friend’s mother (Exhibit 4). That shows substantial gummy shark catches in every one of the months Mr Friend claimed the vessel was being worked on. It also shows catches of sword sharks in each month and other catches in some of the months. This document had been produced to AFMA’s representatives by Mr Friend’s representatives.

18.     Evidence was called from two contractors, Mr D.I. Bulmer and Mr R.J. Hammond, who carried out carpentry and steelwork on the vessel. Mr Hammond is a welder who cut off the deck and superstructure at the stern and replaced it with a raised deck. Mr Bulmer is a builder who removed internal fittings and carried out various essential works including fitting a new galley. Mr Friend said the work has still not been completed in its entirety.

19.     Predictably, but understandably, Mr Bulmer and Mr Hammond had a limited recollection of the detail of the work they carried out, particularly as to its timing. They were really dependant upon records which were scarce.

20.     The only invoice prepared by Mr Bulmer was written up in 2004 at Mr Friend’s request. It purports to show work done during the period November 1995 to July 1998 in each of six separate months. It simply shows a number of hours in each month charged at $30 per hour and rising to $35 per hour. The total number of hours is 449. All but 64 hours of the work are shown as having been paid for after April 1996 and as late as July 1998. This is not a very reliable or helpful document.

21.     Mr Bulmer said that he did not have a very good memory of the work. He did, however, say in his evidence in chief that he “… tried to work on the galley when [the applicant] did come home from fishing …” In cross examination he agreed that the time at which the work was undertaken was up to Mr Friend. He agreed that it was a matter of finding a suitable time for Mr Friend. He also said this:

“He just came in and when he did come in, you know with fishing, they go out the [sic] come in … and if he was going to be there for a week we would probably be able to do some work on the boat, yes.”

22.     Mr Hammond only had a debtors ledger to evidence his work. The ledger showed the following invoices being issued to Mr Friend.

Date	Amount	Date Paid
08/04/1995	$26800.00	19/04/1995
30/06/1995	$5845.00
13/01/1997	$6000.00	13/01/1997
25/02/1997	$1000.00	04/02/1997
11/03/1997 13/06/1997	$4500.00 $3645.00	11/03/1997 13/06/1997
08/01/1998	$5395.00	13/02/1998
03/08/1998	$4450.00	18/05/1998

23.     Mr Hammond gave evidence that the payment in April 1995 was a prepayment. He said that the work “would have been well after ’95. It would have been ’96 probably.” He said: “Well, we finished in ’98 I think.” This was in his evidence in chief. In answer to the question how long would he have worked on the vessel as a total time period, he said: “I would say four or five months.” The boat was not out of the water. In answer to the question: “How long was it unseaworthy in total throughout this period?”, he said: “I would say probably it would be a couple of months at least … in various periods.” Then he said: “Yes, it would be easy two or three months ...” When asked exactly when the work was carried out he said: “I couldn’t honestly tell you.” Much of his evidence conflicted with a statutory declaration he had made.

24.     Towards the conclusion of the cross-examination of Mr Friend I took the unusual course of permitting Mr Friend’s counsel to confer with him for the purpose of considering whether it was appropriate to prepare a further proof of evidence for Mr Friend. I did this because of the contradictions in the evidence he had given. This particularly related to the problems which had been exposed in cross-examination as to how the evidence relating to the time at which the work was carried out on the Sharben could fit in with documents coming from Mr Friend’s records.

25.     The following day, at the conclusion of the cross-examination, counsel for Mr Friend sought leave to call further evidence in chief from Mr Friend in accordance with an outline of evidence which had recently been served on AFMA. The application was opposed by AFMA. I allowed the application and gave reasons.

26.     In his further evidence, Mr Friend gave, as the relevant times for the two periods of boat renovations, from about 13 September 1995 until mid to late November 1995 (causing him to miss a potential fishing expedition before the full moon on 7 November 1995 and two other full moons) and from early March 1996 for approximately fourteen weeks until mid – June 1996 or a little later.

The Second Basis

27.     The second matter upon which Mr Friend relies is an incident in 1997 when the Sharben was boarded in Bass Strait by Tasmanian Fisheries Compliance Officers. The vessel was taken to Stanley where the nets were removed. The vessel was then required to sail to San Remo in Victoria where the catch was sold. Mr Friend says the catch was sold below value. Meanwhile, the nets had been taken to Hobart for measuring. Mr Friend had to travel there. When the nets were measured they were found to comply. No action was taken. Mr Friend says this incident and its aftermath caused him to lose three weeks of fishing.

The Third Basis

28.     The final matter which Mr Friend relies upon relates to his health. His marriage was failing and he ultimately went through a difficult divorce. He says he suffered from severe depression. The compliance issues, forming the second basis of Mr Friend’s claim, exacerbated his condition.

29.     Mr Friend consulted a doctor and was prescribed an anti-depressant. He also consulted Mr G. de Jonge. Mr de Jonge was then a Clinical Member of the Victorian Association of Family Therapists. He has no medical qualifications and is not a qualified psychologist. His qualification was gained from a two year part-time course and 250 to 300 hours of supervised counselling. The course Mr de Jonge attended was conducted by the Williams Road Family Therapy Centre.

30.     Mr de Jonge saw Mr Friend on several occasions beginning in March 1997. In a report he said this:

“Discussions with Rodney and Suzanne [his then wife] indicated that Rodney was under extreme stress, both at work and within his marriage.

I have no doubt that the dual sources of stress impacted severely on his work and his relationship.”

31.     In an affidavit dated 19 May 2005 and to which the report was annexed, Mr de Jonge said this:

“In my view it was not a sudden incident that caused Rodney and Susanne the serious marital difficulties they had been experiencing but rather a personality clash that would have been of a long-standing nature, and would have had an impact on their relationship over a long time.”

32.     There is little evidence as to the effect of Mr Friend’s depression on his fishing. At one point he said: “I wasn’t putting the time in at sea.” In answer to the leading question from his counsel: “And you were still doing short trips fishing in March 1997?”, he said: “I think we did work then and caught a few sword sharks I think, if I remember.”

Analysis of the Issues

33.     I accept the basic factual premises upon which Mr Friend’s claim is based. There is no doubt that he had substantial modifications made to the rear of the Sharben to build a poop deck and construct and install a new galley as well as various other work. There is no doubt that the totality of the work took some time over an extended period. I also accept that the compliance incident took up time. It may have taken a total of up to three weeks. I also accept that he went through a difficult marriage break-down which affected his ability to function, reducing his ability to work as a fisherman.

34.     Accepting all these matters does not, however, make out a basis for a variation of the fishing quota allocated to Mr Friend for 2004. That allocation was based, as was his allocation for each of the years from 2001, on his verified catch history for the best three of the years 1994 to 1997. The question for me is whether that basis for allocation should be displaced. That, in turn, depends on whether the years 1994 to 1997 are sufficiently representative. That will depend largely on whether the fish caught by Mr Friend during three of the four years are reasonably representative of his ordinary fishing practices.

The Importance of Records

35.     The Jenkinson panel, with the support of the industry, as I understand it, decided that catch history for the purpose of quota allocation would need to be verified. The Lockhart panel endorsed such an approach. It follows that quota allocation for the bulk of fishermen in the Fishery was determined from records. It was not just any records but records which were verifiable in some way. Informal records, which might have been based on an estimation after events had taken place, for example, would not usually be satisfactory.

36.     It follows that quota allocation for the Fishery was very much record driven. In the circumstances, records seem an appropriate and neutral starting point for looking at the fairness of using the best three years of 1994 to 1997 in the determination of individual quota. First, they should provide an accurate assessment of the catch between 1994 and 1997. Next, they should permit comparison with records for prior and subsequent years.

Mr Friend’s Records

37.     Unfortunately, Mr Friend’s record keeping is not good. He apparently wrote up few records himself. Those records which exist were apparently largely written by his wife or his mother although he has signed some of them. His evidence was peppered with answers to the effect that he knew little about the records. He could not provide more concrete evidence when he said the records were wrong.

38.     On 21 September 1999 Mr Friend signed a Claim for Shark Catch History form. The purpose of completing this form was to notify AFMA of the catch he claimed for 1994 to 1997 to enable the initial allocation of quota to be made. The form contained the following claim for gummy shark:

1994       20102

1995       19500

1996       26895

1997       25619

These figures accord exactly with the totals in Exhibit 4. At the time the Claim form was made no complaint was communicated that his catch in the years 1994 to 1997 was not representative.

39.     The relatively few catches shown in the document do not appear to bear out a claim that the years 1995 to 1997 were years in which Mr Friend was unable to fish as much as he used to if the catch for 1994 is correctly recorded. That was the year Mr Friend said he made a large profit. It is true that Mr Friend also caught scallops and that might have been the source of the large profit. However, the scallop log for the Sharben for 1994 to 1997 shows that the scallop catch for 1994 was by far the lowest.

40.     The most detailed record before me is the Victorian Commercial Fishing Return lodged by Mr Friend between January 1994 and July 1997 (Exhibit 5).This document appears to support Exhibit 4 although some entries in Exhibit 5 have not been carried across to Exhibit 4. A small number of entries in Exhibit 4 do not appear in Exhibit 5.

41.     Turning to the periods when Mr Friend ultimately said the Sharben was under repair and unseaworthy, namely September to November 1995 and March to June 1996, Exhibits 4 and 5 show the following:

1995	Exhibit 4 Gummy Shark (kilograms)	Exhibit 5 Gummy Shark (kilograms)	Exhibit A Scallop Logbook (bags)
September	-	-	200
October	-	-	-
November	-	-	-
1996
March	4000	4000	-
April	3853	No Sheet	-
May	-	No Sheet	-
June	-	No Sheet	-

42.     Mr Friend’s evidence that work was done on the Sharben in March or April 1996 was very firm. He said in his original evidence in chief:

“It was April, and I can also say it was summer time when I started because I actually had to take the rudder off the boat and I didn’t – I used the hookah gear but the water was that warm I didn’t even need any wetsuit at all …”

I asked him if he regarded April as summer and he said: “Well, the end of summer, we would – in fishing terms, we would call it through to April.”

43.     In his supplementary outline of evidence dated 5 October 2006, Mr Friend said this:

“21.   I believe it was around early March 1996 that I took the Sharben back to the old Butter Factory Wharf to start stage two of the refit. The first part of the work required me to pull the rudder off so the rudder shaft could be extended. I clearly remember removing the rudder and replacing it around a week later. In particular I remember that the water temperature when I did this work was very pleasant and I did not require a wetsuit. I believe this would have been in March 1996 that I removed and replaced the rudder.”

44.     When cross-examined about his records, Mr Friend said that for 1994 the records understated the catch he had actually taken. This creates a number of problems. First, if accepted, there is no evidence of what his actual catch was. There really is simply no evidence of what Mr Friend’s actual catch was if the records before me are unreliable. Secondly, if the 1994 catch is understated, why should not the same conclusion be drawn with respect to the catches in later years? I do not think that understatement in records is itself a reason for departing from the catch year chosen by the Jenkinson Panel. There was a deliberate decision by that Panel to require catch history to be verified even though that would penalise some fishermen. In any event, it is not Mr Friend’s case that his quota should be revised because his records understate his catch.

Mr Friend’s Claim Relating to the Records

45.     Mr Friend challenges the records relating to the catch for the years 1994 to 1997. Those records show that 1994 is the year in which he caught the least amount of shark. However, he says that the 1994 records understate his catch. He cannot give evidence of how much they understate his catch although I think he says it is substantial. Nevertheless, these were the quantities claimed in a document signed by him and which was lodged with AFMA as his recorded catch history for the purposes of quota allocation. Mr Friend has not put any positive case to me as to what I should conclude relating to the records for 1994 to 1997.

46.     What Mr Friend primarily seeks to rely upon in the assessment of his catch history are his catches for the years 1999 to 2002. He seeks to verify these by reference to the records of his sales to the Lakes Entrance Fisherman’s Cooperative. The records in evidence also include 1998. The records show as follows:

1998	1999	2000	2001	2002
Gummy HG	10041	26778	55502	17042	1606
Gummy TR	14034	8059	6750	35004	26389
Gummy – no code	-	2405	-	-	1175
24075	37242	62252	52046	29170

The descriptions HG and TR relate to the way in which the shark had been prepared prior to sale.

47.     AFMA’s new quota system was in place for 2001 and 2002. It was known that it was coming in 2000 and for much of 1999. Mr Friend specifically asks that his quota be calculated by reference to his catch in 1999 to 2001. Of course, his catch in 2002 was affected by his previously determined quota, although he could buy or lease quota to cover any excess.

48.     The evidence (Exhibit 8), includes an extract of the records of the Catch and Effort Unit, Marine and Freshwater Systems, Primary Industries Research Victoria for Mr Friend for the period January 1990 to November 1993. Those records, for both school and gummy shark show:

1990	1991	1992	1993
Shark	22199	11942	14570	3798
Scallop	307	-	18534	10547

These figures are in kilograms.

49.     The gross receipts listed for Mr Friend’s fishing business for 1995 to 2005 as shown in his tax returns are as follows:

Year	Gross Receipts
1995	$386967.00
1996	322382.00
1997	316144.00
1998	348321.00
1999	330774.00
2000	-
2001	551027.00
2002	309500.00
2003	292163.00
2004	340203.00
2005	360675.00

50.     The primary claim which Mr Friend makes is that in place of the years 1995 to 1997 being used to calculate his verified catch history the years 1999 to 2001 should be used. The actual catch history accepted as verified by AFMA for Mr Friend for gummy shark was drawn from the years 1995 to 1997. It was larger in total than the amount claimed although the individual figure for 1996 was reduced. The actual accepted amounts were:

1995	1996	1997
27739	24101	27719

The catch which Mr Friend relies upon for 1999 to 2001 for gummy shark is as follows:

1999	2000	2001
37242	62252	52046

Assessment of the Claim Relating to the Records

51.     Using the adjusted figures accepted as verified by AFMA, the records before me show the following catch for gummy shark (school shark are included for 1990 to 1993) for Mr Friend from 1990 to 2002:

1990	22199
1991	11942
1992	14570
1993	3798
1994	20102
1995	27739
1996	24101
1997	27719
1998	24075
1999	37242
2000	62252
2001	52046
2002	29170

52.     It can be seen that the three years selected by Mr Friend are the years evidencing the largest catches. I recognise, however, that these records are much more satisfactory than the records from previous years. This may have also been so for other fishermen as these were the last years in which there were no output controls and this was known at the time. The Jenkinson and Lockhart Panels chose years preceding the announced introduction of output controls.

53.     The actual quota allocation made to Mr Friend for 2004 reflected the settlement of the divorce proceedings between him and his wife. Under that settlement he transferred half the quota entitlement that he had to his former wife. This is why his 2004 quota is so much lower than he would have had from his accepted verified catch history.

54.     The relativities, between fishermen, of quota entitlement are determined by calculating quota in units. Originally, one unit equalled one kilogram. However, that has changed because each year a total allowable catch is determined and that total is then divided between the fishermen in the proportions of the quota units. Mr Friend’s entitlement to quota units which informed his quota allocation for 2004 was 16,805. That converted, for 2004 only, to 13,176.24 kilograms of gummy shark.

55.     Based on his catch from 1999 to 2001, Mr Friend seeks a unit quota for gummy shark of between 30,610 and 33,160 units. This is on the basis that his average catch between 1999 and 2001 was almost twice the average catch between 1995 and 1997. Naturally, if the Tribunal does not accede to his request, Mr Friend seeks whatever the Tribunal considers appropriate. He accepts that the Tribunal may come to a decision without basing its calculation on the years 1999 to 2001 but, for example, by assessing an appropriate increase from the 1995 to 1997 figures.

56.     Figures provided by AFMA show that Mr Friend’s quota allocation for gummy shark, prior to the division of his quota with his former wife in 2004, put him in about the middle of the quota allocations made to fishermen with A10 licences. If he were to be given the additional quota he now seeks, when it is adjusted for comparison by adding back in the half he gave up, he would have close to the highest quota.

57.     The total allowable catch for this Fishery is set each year by the AFMA Board. Since 2003 it has been set pursuant to the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003. There is no express appeal from that decision. The total allowable catch is divided between all fishermen in accordance with their quota limits. There is no reserve. It follows that any increase in the quota allocated to one fisherman must have the effect of reducing, perhaps only by a small amount, the quota allocated to every other fisherman. There is even a question as to how the quota allocation to a fisherman for 2004 can be increased when the whole of the total allowable catch has already been allocated. These considerations have not, however, formed any part of my consideration of the merits of this application.

58.     I also note that there is no statutory basis for the determination of total allowable catch although it is done pursuant to the Management Plan. However, AFMA itself has reconsidered quota allocations after the whole of the total allowable catch has already been allocated. In practical terms, my deciding that Mr Friend should have an increased quota in terms of kilograms of catch will be converted into quota units and the larger number of quota units will be allocated to him next year. Because the total number of quota units for Mr Friend will be increased above the total recognised in 2004, it will mean that Mr Friend will in fact be allocated more kilograms and as a consequence, each other fisherman will be allocated slightly less than would be the case if Mr Friend’s claim failed. Logic might also suggest that a similar increase would attach to the amount of quota previously transferred to Mr Friend’s former wife. However, I do not understand Mr Friend to claim that and I understand AFMA to expressly reject it, particularly if there is any suggestion that any increase in the transferred half should benefit Mr Friend. The transferred half might, in any event, have already been sold.

Assessment of the Claim Overall

59.     Although I accept that each of the matters relied upon by Mr Friend will have affected his fishing ability to some extent, I have found it very difficult to assess that extent. Mr Friend’s evidence was extremely vague and uncertain. I do not doubt that Mr Friend was honestly doing his best but that is not a substitute for evidence. The documentary evidence does not appear to support Mr Friend’s claim. It has to be explained away. The records for 1994 are said to show an understatement. The claim that the 1994 year is understated is not particularly persuasive. The claim of a bumper year in 1994 does not seem to be born out by the tax returns.

60.     The independent evidence of witnesses is also unsatisfactory. I have set out only some of the problems with that evidence which were revealed in cross-examination. The evidence suggested that the work was carried out as much as possible to coincide with times when the Sharben was in port.

61.     All fishermen are likely to suffer some interruptions or changes to their ideal schedule over a period of three or four years. The three out of four year selection was calculated to deal with this. There may be breakdowns, crewing problems, family problems. I can think of many more. I should disregard ordinary vicissitudes, which all fishermen will have suffered, because the system was developed to take them into account.

62.     I have come to the conclusion that Mr Friend must fail in these proceedings. I do so on a number of independent grounds. I consider that the evidence presented by Mr Friend in support of his claim was so inadequate that I could not make a finding that in fairness a different means of assessing his quota should be adopted than that determined by the Jenkinson/Lockhart Panels. I take into account the poor and contradictory oral evidence of Mr Friend, the documents which (without explanation) do not support his claim as well as the inadequacy of the attempted explanation. The documentary evidence suggests that the years 1999 to 2001 were simply Mr Friend’s best years and were not representative years. However, the evidence I have does not enable me to come to this conclusion positively.

63.     When I look at the events Mr Friend relies upon, doing the best I can with the inadequate material and evidence, I find that much of the work on the Sharben was carried out when the vessel was in port in any event. I do not think that any period when it was actually precluded from being at sea, at a time when Mr Friend wanted to take it to sea, is outside the ordinary vicissitudes to which all those subject to the catch verification process were subjected. I come to the same conclusion with respect to the compliance incident. It was, in any event, not long enough alone to justify a change in quota allocation. So far as Mr Friend’s marital problems and depression are concerned, I consider they were long term and, although they may have had a greater impact at the end, I do not find that they had a sufficient impact to warrant the adoption of a new basis for the assessment of Mr Friend’s quota allocation. I take into account that there was no precise evidence of the time that the Sharben was unable to go to sea and no evidence of the times it was not at sea as a result of Mr Friend’s depression

64.     I find that in all the circumstances the best three of the years 1994 to 1997, without variation, represent the preferable basis for the quota allocation to Mr Friend. I will affirm the decision under review.

I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President.

Signed:     ............................................
  Associate (Zoë Justice)

Date of Hearing  3, 4 and 5 October 2006

Date of final submissions                   23 October 2006

Date of Decision  10 November 2006

Counsel for the Applicant                  Mr M Grimshaw

Solicitor for the Applicants Thomson Rich O’Connor Solicitors & Attorneys

Counsel for the Respondent             Ms D Mortimer SC, with her Mr R Niall

Solicitor for the Respondent              Deacons Solicitors