White and Australian Fisheries Management Authority
[2006] AATA 988
•21 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 988
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2004/161
) No T2006/39
) No T2006/46
GENERAL ADMINISTRATIVE DIVISION ) Re Ronald Michael White Applicant
And
Australian Fisheries Management Authority
Respondent
DECISION
Tribunal Justice Downes, President
Mr J Handley, Senior Member
Associate Professor B W Davis, MemberDate21 November 2006
PlaceHobart
Decision The decision under review is affirmed.
..............................................
President
CATCHWORDS
FISHERIES – application for increase of quota in 2006 – application of conversion factor to processed stock – application of discount factor when years other than 1994 to 1997 have been substituted – relative economic position of the applicant – decision affirmed
Fisheries Management Act 1991(Cth) ss 3, 32 and 165
Fischer and Tapley and Australian Fisheries Management Authority (2005) 89 ALD 324
White and Australian Fisheries Management Authority [2005] AATA 174REASONS FOR DECISION
Justice Downes, President
Summary
1.Ronald White is a fisherman who takes part in what is now the Southern and Eastern Scalefish and Shark Fishery. The regulation of the Fishery has changed from input controls (limits on equipment) to output controls (limits on catch). A brief history of the Fishery, including an explanation of input controls and output controls, appears in my decision in Fischer and Tapley and Australian Fisheries Management Authority (2005) 89 ALD 324; [2005] AATA 936. I will not repeat here what is set out in that decision although reference to it will be necessary to understand some of these reasons.
2.As a result of the change from input to output controls, Mr White was allocated, by the respondent (AFMA), a quota of school shark and gummy shark that he could catch in the 2001 year and thereafter. The method of calculating quota was controversial at the time. It has now, however, been settled. No issue relating to the method arises in this case.
3.A significant component in the calculation of the quota amount is each fisherman’s catch history. Catch history has generally been taken from the best three years out of 1994 to 1997. In previous proceedings in this Tribunal (White and Australian Fisheries Management Authority [2005] AATA 174) Mr White successfully argued that in his case, as the result of illness, it would be inappropriate to calculate catch history on the above basis. The Tribunal decided that the years 1990 to 1993 should be substituted for the years 1994 to 1997. AFMA proceeded on this basis in calculating catch history for Mr White for 2006. The actual calculation involved an adjustment. Mr White now seeks to challenge the quota allocation arrived at. He challenges the appropriateness of the adjustment (which was negative) and claims another adjustment (which would be positive). In my opinion, the decision of AFMA should be upheld.
4.Mr White predominantly targets school shark and not gummy shark. As such he is unusual if not unique. Most fishermen target gummy shark. School shark are simply a by-product of that catch. Mr White’s records apparently did not separate gummy shark and school shark. It has, however, been agreed that his catch records ought to be apportioned as 86 percent to school shark and 14 percent to gummy shark. Since at least 1990, more gummy shark have been caught by all fishermen than school shark. The respective proportions fell steadily until 2001 and are probably still falling.
5.Mr White makes two specific complaints and, in support, seeks to rely on particular evidence he has adduced:
1)In assessing the weight of catch for the years 1990 to 1993 there should be a small increase by applying a conversion factor of between 1.076 and 1.13 to compensate for the fact that the fish had been partly processed with fins removed.
2)In converting the amount of catch for calculation of quota units no reduction factor referable to the reduction of total catch for the whole fishery between 1990 to 1993 and 1994 to 1997 should have been applied.
3)The relative catch position between 1990 to 1993 and 1994 to 1997 of a South Australian fisherman, Robert Wilson, should have been treated as comparable to the position Mr White would have been in without illness and relied upon in determining any adjustment.
Background
6.The ultimate decision of the Tribunal relating to the previous challenge to Mr White’s quota allocation for 2001 was as follows:
“The decision under review is set aside and in substitution IT IS DECIDED –
(i)that the application be remitted to the respondent with the Direction that quota be allocated for the 2001 year by reference to the aggregate catch of the best three years in the period 1990 to 1993 inclusive; and
(ii)that there be an apportionment in quota when allocated between school and gummy shark by reference to the evidence heard in these proceedings” (emphasis added).
In their reasons the Tribunal said “that the best of the three years between 1990 and 1993 inclusive should be considered in allocating quota to Mr White” (emphasis added). There was no issue as to the apportionment between school and gummy shark.
7.The applicant subsequently applied to the Tribunal to add the words “by reference to the evidence heard in these proceedings” to the end of paragraph (i) of the decision. In a Direction and Reasons dated 2 June 2006, the Tribunal declined to do so on the basis that the review was completed and could not be reopened. However, in its reasons, it said:
“28. In the circumstances we regard it as implicit and manifestly obvious that by making the decision to direct the respondent to allocate quota by reference to the aggregate catch history for the best of the three years in the period 1990 to 1993, we had found the evidence of the applicant with respect to his catch history to be truthful and it should be adopted by AFMA. We are disappointed that AFMA has apparently chosen not to accept our findings and has put the applicant, subsequent to our decision, to proof of his catch returns for those years. Whilst it now accepts that the applicant cannot provide primary documents for the years in question (having regard to its catch verification policy) it is insisting that the applicant provide his log books and any other documents that he has or might reasonably obtain.
29. We regard that process as being onerous and manifestly unfair. We again direct the respondent to our Reasons for Decision that the quota for Mr White should be allocated by reference to his catch history in the period 1990 to 1993. We made that finding by reference to the evidence heard and which was not disputed by the respondent’s representative.”
The Tribunal was referring to a practice by which AFMA required catch history to be verified before it would be accepted. As a result of this supplementary direction of the Tribunal, AFMA did not require further verification of catch and adopted the quantities which the Tribunal had accepted.
8.Later, in its supplementary reasons, the Tribunal said (at para [33]):
“We acknowledge – as did Mr Crisp [representing Mr White] – that AFMA will undertake, correctly and properly, a process of conversion and allocation as Mr Bowen [representing AFMA] submitted in his written submissions at paragraphs 2.2 – 2.11 inclusive but that will only occur after it has become satisfied of the applicant’s catch returns in the period 1990 to 1993. We would suggest to AFMA that it can now be satisfied of those returns because of the evidence heard and because of our findings” (emphasis added).
9.Prior to the original hearing of the application, in submissions dated 26 August 2004, AFMA made it clear that where AFMA had departed from using the 1994 to 1997 period for the determination of catch history, it had made adjustments. The submissions contained the following:
“Outline of AFMA’s approach where cogent reasons established
Where AFMA’s delegate has found cogent reasons to depart from the allocation policy, AFMA in determining the applicant’s catch history has substituted one or more years from the qualifying period set by the AAP.
In substituting years during the qualifying period:
…
·a discounting factor was applied to the catch history so that the catch history was comparable to that applied to other fishers. This factor took into account the considerable change in catch rates in the fishery and the substantial reduction in school shark stocks and the slight increase in gummy shark stocks.”
In letters dated 23 March 2005 to Mr White’s solicitor and 28 April 2005 to Mr White, which were sent before the supplementary hearing, AFMA said that it would:
“6. [S]tandardise the catch history to 1994-1997 levels, by dividing the catch history by a discounting factor of 1.131 (gummy) and 1.501 (school) to account for higher catches by the entire fishery during the 1990-1993 period. This will provide [the applicant’s/your] verified catch history (VCH);”
A similar statement was included in AFMA’s Statement of Contention, filed before the supplementary hearing.
10.It is the process of “conversion and allocation” (the Supplementary Reasons) to be made “by reference to” (the Decision) or in which “the best of the years between 1990 and 1993 should be considered” (the Reasons) with which the Tribunal is now concerned.
Reasoning
11.I have had the advantage of reading in draft, the reasons for decision prepared by Senior Member Handley and Associate Professor Davis. I agree with their proposed decision and the reasons they have given. However, I would like to summarise my reasons in my own words and add one or two further observations.
Issue 1: Weight
12.Because this is not a case in which only one decision is possible, the Tribunal’s task is to determine what is the preferable decision as to the way in which quota allocation, based on the Tribunal’s previous decision, should be made.
13.The probabilities are that the weights accepted by AFMA for Mr White’s 1990 to 1993 catch were rounded estimates. In the absence of precise weights recorded in a contemporary log, or specified in sale records, the question of how the weights were arrived at, naturally arises? The evidence provides no clear answer.
14.The closest to primary evidence we have is copies of the logbook (Form 16), submitted under the Fisheries Act 1959 (Tas). We have this log for the years 1990 to 1993. It is worth setting out the weight of catch in kilograms for school shark shown for 1992 which seems reasonably representative (no gummy shark are shown):
January 1992
2000
February
4000
March
12000
April
9800
May
21000
June
18200
July
5200
August
6500
September
11700
October
5500
November
0
December
0
TOTAL
95900
It is apparent that figures have been rounded to hundreds and thousands. It is also worth noting that the return for each month in 1990 is dated 2 February 1991.
15.These are not records to which it seems to me appropriate to apply an uplift factor of 1.078 or 1.131 to account for the fact that it is likely that when landed the shark had been processed with their fins removed. It is not appropriate to apply a small and precise adjustment to such estimated and rounded figures.
16.Accordingly, while I accept that it is likely that at the time the shark were landed the fins had been removed, I do not accept that, given the lack of precision in the weighing, an adjustment to weight to recognise that most fishermen weigh their shark with fins on, is appropriate.
Issue 2: Conversion
17.Mr White was a longline fisherman. Most fishermen in the Fishery used gillnets. In 1990 to 1993 Mr White’s Commonwealth licence permitted him to use 3000 hooks. By 1994 to 1997 he was only permitted to use 2000 hooks. Logic would suggest that although the impact of this change would not necessarily reduce catch by one third, it would have had some effect.
18.The total catch of school shark and gummy shark for the whole Fishery was reduced between the periods 1990 to 1993 and 1994 to 1997 by 1.501 percent for school shark and 1.131 percent for gummy shark. This probably partly reflects a reduction in the biomass of the fish. The evidence is such that school shark have been more vulnerable to stock reductions than gummy shark. This accords with the greater fall in the catch of school shark. School shark stocks are at extremely low levels and there is serious concern whether they can recover. However, for whatever reason, the catch fell between the two periods. In addition, the figures for school shark between 1986 and 2001 show a steady reduction in the catch over most years and a substantial reduction overall.
19.In most other cases where a decision has been made to substitute other years for 1994 to 1997 for the purposes of calculating quota for individual fishermen, an adjustment has been made to reflect changes in the total catch between the two periods. This is to achieve standardization. Where there is a change in the total catch, it is likely that individual fishermen will be similarly effected. Moreover, quota allocation needs to be relative. Individual allocations are a proportion of the total catch from the years 1994 to 1997. Individual catch history based on different years needs to be related to the total catch and the catches of other fishermen during the 1994 to 1997 period. Relativity is only achieved if individual catches for different years are adjusted as accurately as possible, in the absence of actual figures, to bring them into line with the catch for 1994 to 1997.
20.One approach would be to assume that a competent fisherman would continue to catch the same quantity. However, in the present case there are reasons to doubt that. First, the total catch for the Fishery fell, from which it follows that the catch of other competent fishermen fell. Secondly, there is reason to think that the biomass of gummy and school shark, and particularly school shark, fell over the period. Thirdly, the amount of equipment that fishermen, including Mr White, could use, was reduced with the express purpose of reducing catch. Fourthly, Mr White’s percentage of the Fishery in 1990 to 1993 was 5.05 percent for school shark and 0.53 percent for gummy shark. The quota allocation under review reflects 5.17 percent and 0.57 percent, respectively, of the total Fishery. If Mr White succeeded in his argument in this case, his share would be 8.29 percent and 0.59 percent respectively. That would give him easily the highest quota of any fisherman in the Fishery for school shark. It would be about 50 percent higher than the next highest quota, which is held by a gillnet fisherman and it would be approximately ten times higher than any other longline fisherman. Although the applicant suggests that we should proceed on the basis that Mr White’s catch, had he not been ill, would have increased or at least remained the same over the period under consideration I do not think that the evidence justifies such a finding. The appropriate way to proceed is to make the adjustment which AFMA made.
Issue 3: Mr Wilson
21.The reason why AFMA uses movements in the total catch over a period as a standardization measure is because it reduces the effects of individual factors which are not representative. I think they are right in doing it this way. It will rarely be appropriate to use the history of one fisherman. I am certainly of that view in this case. I know that Mr Wilson did not give evidence before us although significant efforts were made to secure his attendance. However, I do not think his giving evidence would have had any effect on the result. I am prepared to proceed on the basis that Mr Wilson’s evidence, if Mr Wilson’s performance was treated as comparable to the performance which Mr White would have achieved, would result in a finding that Mr White’s catch would not have reduced. However, the variables affecting an individual fisherman are such that no individual can be as good a guide as the average. I am conscious of the fact that Mr Wilson was a fisherman who targeted school shark and to that extent he was like Mr White whereas most of the other fishermen were not. However, Mr Wilson was a gillnet fisherman who fished in South Australian waters. If the two were similar in one respect they were certainly not comparable in other respects. The evidence suggests that school shark may have been more robust in South Australia than in Victorian/Tasmanian waters. I think that AFMA were right in rejecting the use of Mr Wilson’s record as a guide to the likely performance of Mr White over the period.
Result
22.The preferable decision in the case is the decision made by AFMA which should be affirmed.
REASONS FOR DECISION
Mr J Handley, Senior Member
Associate Professor B W Davis, Member23. Separate reasons for decision in this application will be delivered by the President, The Honourable Mr Justice Downes AM, which we have had the advantage of reading. We agree with his findings, his conclusions and his decision.
24. On 22 December 2005, the Respondent (AFMA) issued a permit to the applicant which allocated a quota for the 2006 fishing season in the Southern and Eastern Scale Fish and Shark Fishery (“the fishery”) of 9735.340kgs of gummy shark and 11,461.150kgs of school shark. The quota had regard to units held by the applicant at the end of the 2005 season.
25. The permit was issued by AFMA on 22 December 2005 pursuant to s32 of the Fisheries Management Act 1991 (“the Act”). A review of that decision was sought by the applicant’s solicitors. On 23 February 2006, an officer of AFMA affirmed the decision made in December 2005. That decision is a “reviewable decision” within the meaning of s165 of the Act. The jurisdiction of this Tribunal has been enlivened because the applicant has sought review of the reviewable decision (refer s165(7)). This review does not concern a decision made on 19 December 2005 by legislative instrument to determine the total allowable catch (“TAC”) for the 2006 fishing year. The quota allocated to the applicant in the 2006 year had regard to his pre-existing units and the TAC (relevantly) as determined by the legislative instrument. The applicant asserted by these proceedings that he should have been allocated a greater quota in 2006.
26. The allocation of quota to the applicant had regard to the findings made in a previous decision of the Tribunal (Re White and Australian Fisheries Management Authority [2005] AATA 174). The Tribunal then decided to substitute the best three years of the period 1990 - 1993 in lieu of the period 1994 – 1997. No complaint was made about that process. The challenge to the decision under review in these proceedings is made on the basis –
(i)a conversion factor of either 1.076 or 1.13 should have been added to the weight of catch to compensate for shark which had been landed in a processed state and
(ii)a discount factor of 1.501 and 1.131 for school and gummy shark respectively should not have been applied, as it was, by AFMA with the intent of standardizing the aggregate of the applicant’s catch between 1990 – 1993 with the aggregate catch of other members of the fishery between 1994 – 1997.
The applicant also sought to establish his relative economic position in the fishery by comparing his catch with Robert Wilson, a shark fisher from South Australia.
27. The history of quota allocation in this fishery has been the subject of previous decisions of the Tribunal, most recently by the President in Re Fischer and Anor and Australian Fisheries Management Authority [2005] AATA 936 (“Fischer”) decided on 27 September 2005. Mr Timmiss, the current manager of the Gill Net Hook and Trap Fishery, who gave evidence in these proceedings, referred also to the history of quota allocation in his outline of evidence lodged prior to the commencement of the hearing.
28. By reason of AFMA adopting a policy of moving away from “input controls” to “output controls”, as a means of avoiding exploitation and consequent depletion of fish stocks, a Management Advisory Committee (“the Jenkinson Committee”) was established to determine an appropriate method of quota allocation. The Jenkinson Committee recommended, which AFMA adopted, a basis for quota allocation having regard to the best three of the four fishing years between 1994 to 1997 inclusive. The Committee recommended that such a method of quota allocation would “accurately reflect the present relative economic position of concession holders within the fishery”. The Jenkinson Committee acknowledged that catch history for a period of years outside the period 1994 to 1997 would be permitted if a fisher could demonstrate that his circumstances were exceptional.
29. In his application to this Tribunal in previous proceedings, the applicant successfully demonstrated that his circumstances were exceptional and his catch returns for the period 1994 to 1997 should not be considered when allocating quota. The basis for his application was by reason of illness within that period of time largely prohibiting him from being able to engage in fishing at a level similar to that which he had previously engaged. It was decided that the years 1990 to 1993 be substituted and quota for the 2001 year be allocated by reference to the aggregate catch of the best three of the years between 1990 to 1993 inclusive. It was also decided that an apportionment of quota between school and gummy shark be made by AFMA having regard to the evidence heard in those proceedings. AFMA subsequently decided that the apportionment between school and gummy shark be 86.4 per cent and 13.6 per cent respectively. Those calculations were not in dispute in these proceedings.
30. At the hearing of this application Mr Crisp appeared on behalf of the applicant and Mr Niall appeared on behalf of AFMA. The applicant was ill and evidence was given by his wife. Mr Timmiss gave evidence on behalf of AFMA. The hearing involved interpretation of a number of documents which were received into evidence and will be referred to in these reasons.
31. In a proof of evidence lodged prior to the commencement of the hearing, Mrs White asserted that the catch as landed by her husband was with heads, fins and trunks removed. She recorded that such a practice by her husband was “habitual”. She asserted that AFMA applied a policy of assuming that catch as landed did not have fins, heads and trunks removed and it was therefore wrong for it not to apply a conversion factor. Mrs White relied on a report published by AFMA and written by Messrs Lynch and Bland entitled “Comparison Between The Verified Catch History (1994/1997) And Catches Recorded In Vessel Log Books For Shark And Ray Species In The Southern Shark Fishery South Eastern Trawl Fishery And The Great Australian Bight Trawl Fishery”. She contended that that report was authority for the proposition that “trimmed carcass weights” are converted to “untrimmed carcass” weight by applying a conversion factor of 1.13 between 1973 and 1999 and 1.08 between 2000 and 2002. She produced photographs of shark as landed by her husband which depict them in a “trimmed” state.
32. Additionally, it was asserted that by reason of AFMA accepting her husband’s catch history for the period 1990 to 1993, “there was no reason to suppose that he would not have maintained his catch history at the same levels in the year 1994 to 1997”. She referred to the catch history of another shark fisher, “Robert Wilson” and by reference to his catch history it was asserted that her husband’s relative economic position has not been maintained by the quota allocated to him. In her proof of evidence, a number of tables were recorded which purport to demonstrate the manner in which quota to her husband should have been allocated. In summary it was contended that for the 2006 year her husband should have been allocated an additional quota of 7889.8kgs of school shark and an additional quota of 2188.5kgs of gummy shark.
33. In evidence, Mrs White confirmed that she travelled with her husband on a number of occasions when he fished and on other occasions met him when he returned to port. She said that he “always” trimmed his catch by removing the fins, heads and trunks. She said this was the common practice amongst Tasmanian fishers.
34. In cross-examination, Mrs White was examined as to whether she knew of a policy by AFMA to have fishers produce documents so that catch can be verified. Whilst she acknowledged the contents of the guidelines used by AFMA officers to verify shark catch history found at exhibit TAT3 (being an annexure to the proof of evidence of Mr Timmiss), it became apparent that she did not have the level of intimacy with AFMA practices as might have been known by her husband. She acknowledged that there were occasions when AFMA officers visited her home and documents were located and produced by her husband. She assumed that that was part of the verification process. She also acknowledged that the policy at TAT3 included an assumption on the part of AFMA that catch was sold with fins, heads and trunks. She also acknowledged that log books and other documents returned by fishers had certain codes or abbreviations which were intended to identify whether catch had been processed.
35. Mrs White also acknowledged that her husband’s signature appeared on a number of documents found at pages 807 to 836 inclusive which purport to record the monthly catch. She understood that those documents were the returns submitted by her husband to verify his catch for the period 1990 to 1993. She acknowledged that a number of the documents were dated 2 February 1991, being a date well after the month of the date of a number of the returns. Mrs White thought that the information contained in the forms was extracted from log books but thought that the reason why a number of the documents bore the same date was because “he is not a very good book keeper” (Transcript, p85). On reflection, she thought that he may have filled out the forms on the same day from the history recorded in log books and sent them to the Tasmanian Fishery Authority. She said (Transcript, p86):
The State Fisheries didn't mind at all because they had such a backlog and their actual format was all your log book returns had to be in before they would issue your next year's licence. They weren't at all concerned as long as they were in before they issued your next year's licence. That was a stipulation; if they weren't in, the licence wouldn't be issued.
36. Mrs White was also asked to comment on the actual weight of catch as recorded in the forms which appeared to Mr Niall to be rounded to “the nearest thousand”. Mrs White said that the returns were rounded to “the nearest ten”. She disputed a suggestion made that the returns were a “guess” at the fish taken during relevant months and said that her husband was “an excellent judge of the weight of fish”.
37. Mrs White was also taken to the returns of April and May 1991 where the date recorded appears to be incorrect. For example, the return for the month of April 1991 is dated 4 April 1991 and records 350 hours of fishing and a catch of 16,000kgs. The return of May 1991 is dated 3 May 1991 and records 360 hours of fishing and a catch of 10,100kgs (p822). The return of June 1991 is dated 6 June 1991 and records 240 hours of fishing and a catch of 7000kgs (p823). Mrs White agreed that the dates recorded on those forms were incorrect and should have been dated in the month following.
38. Mrs White was then asked to consider a comparison of the total catch in the fishery in the periods 1990 to 1993 and 1994 to 1997. She agreed on the basis of the figures recorded in a report published by the Marine and Freshwater Resources Institute of Victoria (“MAFRI”) entitled “Southern Shark Catch and Effort 1970 to 2002” that the catch in the former period was 1.5 times greater than the catch in the latter period. Mrs White disputed that there was greater fish stock in the former period but said there was greater “hook effort” and more boats operating. She agreed that until 1994 her husband had been using 3000 hooks but was thereafter restricted to 2000 hooks and on some occasions was restricted to 1000 hooks. Mrs White said that her husband’s catch after 1994 would have been reduced because of his illness, not because of the reduced number of hooks that he was permitted to use. She was asked to comment on a letter that he wrote on 22 March 2004 (p555) to a delegate of AFMA complaining of discrimination to hook fishers because they could not exchange hooks for nets. In the letter, Mr White recorded:
If I had of (sic) been given the right to exchange hooks for nets my catch would have been far greater and beneficial to me in the allocation of quota as is evident in the net sector.
Mrs White disputed that those comments suggested that net fishing was more efficient than hook fishing and would have resulted in a greater catch. She said that that letter should be interpreted as him asserting that by reason of his illness he would have found it easier to fish (with nets) but when pressed on this issue, Mrs White did concede that had her husband been permitted to fish with nets, his catch would have been greater (Transcript, p99).
39. Mrs White was then taken to a letter written by her husband on 9 September 2004 to Ms Mary Lack, who was engaged by AFMA as a consultant to investigate and report upon a claim the applicant made for increased allocation of quota in the 2004 fishing year. In the letter, the applicant recorded (p586 ‑ 587) that A10 net operators were advantaged over hook fishers because the latter had their gear reduced from 1 January 1994 by one third in Commonwealth waters and by two thirds in State waters from 1995. Additionally, the applicant asserted that a net operator has ‑
A catching capacity of 72,000 live compared with catching units of 2000 for a 2000 hook permit. Nets are live catching units for the entire duration they are in the water, whereas hooks fish for a maximum two hours.
Mrs White agreed that her husband’s comments should be interpreted as A10 net operators having a “significant advantage” over hook operators in quota allocation and value of permit, but disputed that her husband would therefore catch less with hooks than an A10 net operator because “Ron has caught more all the way through historically than an A10 operator” (Transcript, p101).
40. In conclusion, Mrs White was taken to a graph prepared by Mr Timmiss (TAT7) which records the units of school shark allocated to Mr White before the Tribunal decision of 2005, his current allocation of units and the proposed allocation in the event that his claim presently is accepted. The graph records that if his claim were to be accepted by these proceedings, he would be entitled to 39,378.04 units of school shark whereas he presently holds 23,323 units. The highest A10 net operator presently has been allocated slightly more than 25,000 units of school shark. Mrs White agreed that the graph should be interpreted in this manner. Despite the limitations that would have been placed on her husband as to the number of hooks he could carry after 1994 and the capacity of gill nets, she remained firmly of the opinion that her husband would have caught school shark in a quantity which would have permitted allocation to him as he asserts and as depicted by the graph. She disputed that his relative economic position in the fishery will be significantly greater if his present claim is permitted.
trent timmiss
41. Mr Timmiss is the manager of the Gill Net Hook and Trap Fishery. He provided two proofs of evidence prior to the commencement of the hearing to which a number of tables and graphs were attached.
42. Mr Timmiss recorded that the applicant was advised by AFMA during the hearing in August 2004 that it would apply a discounting factor to his catch. After the decision was delivered, an officer of AFMA wrote to Mr White in April 2005 and advised that the allocation of quota, having regard to the Tribunal’s decision, would involve verifying his catch for the period 1990 to 1993, applying a conversion factor (in order to establish the finned and trunked weight), apportioning catch between school and gummy shark, standardising the catch history and converting to 2001 units.
43. Mr Timmiss recorded that the catch verification policy was applied to every other member of the fishery for the 1994 to 1997 period or other period if substituted by review. However, in the applicant’s case, his catch was not verified at all between 1990 and 1997 because AFMA ultimately decided that it would not implement its policy of verification and was prepared to accept his log books as evidence. However, AFMA decided that it would not apply a conversion factor to the catch because of its policy of assuming catch was landed without fins, head and trunks removed. If AFMA had been provided with evidence that shark had been processed it would have applied a conversion factor of 1.076. It would have also had regard to the recorded weights of fish caught in order to apply the conversion factor, but it did not do so in the case of the applicant because it appeared that entries in fish returns were completed 12 months subsequent to the landing of the catch, the method of processing had not been indicated, entries appeared to be rounded numbers (and therefore estimates), there was difficulty interpreting some of the recorded data in the returns and it appeared that some returns were signed a number of days after the commencement of a month but otherwise recording considerable catches and hours of fishing.
44. Mr Timmiss also recorded that AFMA engaged a process of “standardisation” in order to maintain the relative economic position of the applicant against other members of the fishery. That process in this case was complicated because the years 1990 to 1993 were substituted in lieu of the years 1994 to 1997 over which the majority of members of the fishery had quota assessed. It was considered by AFMA that unless there was a process of standardisation, the applicant would be advantaged against other members of the fishery because he would be entitled to rely on catch during a period of time where the level of catch in the fishery was greater than it was during the period 1994 to 1997. That is to say, the applicant’s relative economic position would not be truly reflected unless there was a process of standardisation. Additionally, it was noted that the applicant was entitled to use more hooks during the period 1990 to 1993 than he was, or would have been, between 1994 to 1997. Accordingly the process of standardisation involved an examination of the catch histories extracted from the MAFRI publication for the years 1990 to 1993 for school and gummy shark and extracting figures for the same species for the years 1994 to 1997 from the same publication. The figures for the first period were divided by the figures for the second period which produced a discounting factor of 1.501 for school shark and 1.131 for gummy shark. That is to say, the fishery as a whole caught 1.501 and 1.131 times as much school shark and gummy shark respectively for the period 1990 to 1993 than it did for the period 1994 to 1997. When the discounting factor under that process of standardising was implemented it was possible to convert catch into units.
45. The nett result of that exercise was to permit a comparison of the percentage of actual catch in the period 1990 to 1993 standardised against the actual catch of the fishery between 1994 to 1997. The comparison showed that in the former period, the applicant had 5.05 per cent and 0.53 per cent of school and gummy shark, yet in the subsequent period (having regard to the catch as found in the previous proceedings), the applicant would have had 5.17 per cent and 0.57 per cent of the fishery with respect to school and gummy shark respectively. It was understood that having regard to the claim being made with respect to quota allocation for 2006, the applicant seeks 8.29 per cent of the fishery with respect to school shark and 0.59 per cent of the fishery with respect to gummy shark. The proportion was more than 50 per cent greater than the next highest school shark allocation to a member currently within the fishery and on the material made available to AFMA, it was thought that the claim could not be supported.
46. In a second outline of evidence (in response to the proof of evidence of Mrs White and the proof of evidence of Robert Wilson), Mr Timmiss recorded that stock assessments are made from time to time to permit decisions being made concerning the management of the fishery and setting a TAC. Additionally, on 14 December 2005, the Minister for Fisheries, Forestry and Conservation, issued a direction to AFMA “to take decisive action to ensure the sustainability of fish stocks and to secure the Australian fishing industry future”. Mr Timmiss recorded that the TAC for school and gummy shark has been reduced in each year since 2001 when TACs were introduced. Additionally, AFMA has recently decided to close parts of the shark fishery to protect stock.
47. Consistent with the recording of Mrs White in her proof of evidence that her husband had sold part of his school and gummy shark quota, Mr Timmiss recorded that 57 per cent and 77 per cent of his school and gummy shark allocation respectively had been sold at 9 October 2006. AFMA records also indicate that Mr White has not fished this year.
48. With respect to the contention that a conversion factor should be applied with respect to shark alleged to have been processed when landed, it was noted that a factor of 1.076 was appropriate but it was not implemented because the log book history of Mr White tended to indicate that the fish returns were estimates rounded up to the nearest 10, 100 or 1000kgs. That is to say there was no accurate return of fish weight.
49. In anticipation that the applicant would seek to compare his returns against Robert Wilson, a South Australian net fisherman, it was submitted that a valid comparison could not be made. It was noted that Mr Wilson fished in different waters, he fished by nets and school shark catches in South Australia have declined, because of imposed restrictions in the size of nets, after 1997.
50. In his evidence, Mr Timmiss relied on a number of graphs and charts which he prepared and which were annexed to his proofs of evidence. At TAT6 is a bar graph which depicts the total catch of the fishery in the period 1990 to 1993. Significantly, it depicts the units allocated to the applicant as a percentage of the fishery in the years 2004, 2005, and 2006 and the units that would be allocated if the current application was successful. The units allocated in 2004 are slightly less than 4 per cent of the fishery. The units allocated after the previous decision demonstrate him to have more than 5 per cent of the units in the fishery and the units allocated in 2006 are approximately 5 per cent. The proposed units to be allocated if the applicant succeeds in this appeal will exceed 8 per cent. A graph at TAT7 permits a similar understanding of the position of the applicant in the fishery as determined by the number of units. It demonstrates that before the previous hearing he had been allocated approximately 17,000 units and subsequent to the decision he had been allocated approximately 23,000 units. If his current application succeeds he will be entitled to approximately 38,000 units. That allocation is far in excess of the person against whom he would prefer to be compared, Mr Wilson, who is shown by TAT7 as having a current entitlement of approximately 26,000 units.
51. A graph at TAT12 is a depiction of the school shark catch in South Australia and Tasmania between 1990 and 1997. (The figures were extracted from the MAFRI report). The graph also depicts the applicant’s catch during the same period and the Tasmanian catch without including the catches of the applicant. The graph was intended by Mr Timmiss, not to demonstrate relativity of economic position, but rather to demonstrate that the Tasmanian catch of school shark has declined at a far greater rate than South Australia. Indeed, between 1995 and 1997 the catch in South Australia increased whereas the catch in Tasmania declined. The graph also depicts two lines of significance. A blue line represents the school shark catch in Tasmania to the exclusion of the applicant and a yellow line depicts the school shark catch of the applicant only. The year 1995 shows the applicant as having caught more school shark than the whole of the Tasmanian fishery but that is explained by him engaging a skipper in that year. But for that year, there is no parallel between the Tasmanian catch in the absence of the applicant’s returns and the line which depicts the applicant’s returns only. It was therefore interpreted by Mr Timmiss that the decline in school shark returns in Tasmania could not be explained by the applicant largely being unable to engage in fishing between 1994 and 1997 (but for the 1995 year). Mr Timmiss said that the figures used to depict the applicant’s catch in the years 1990 to 1993 were taken from his log books but the figures for the years 1994 to 1997 were verified.
52. With respect to the policy of verification, Mr Timmiss was taken to the statement of verified shark catch history for 27 October 2000 (Exhibit 6). It records a summary of the claimed and verified catch for the years 1994 to 1997 inclusive. Those figures are recorded separately at p626 of the T‑documents. The return also demonstrates the processing method namely, stock which has been landed with fins off and trunked and beheaded are described as “FT”. Mr Timmiss said that AFMA did verify catch for those four years because the applicant was able to produce documents which verified weights and the processing method. A conversion factor of 1.076 was applied to equate the stock to other shark which had been landed with fins on and which had not been beheaded or trunked. That conversion factor was universally applied across the fishery and was calculated on the basis that the average weight of the fins was 7.6 per cent of the carcass weight.
53. A conversion factor was not applied with respect to the claim for shark catch history for the years 1990 to 1993 dated 25 July 2005 (T95) because AFMA maintained its policy of presumption that stock was landed unprocessed. Mr Timmiss said that the applicant did not provide any evidence that the stock was processed and receipts and other documents submitted did not demonstrate the processing method. Additionally, it was the case for AFMA that the catch weights as depicted in the monthly returns (p804 – 836) were estimates because they were clearly rounded and were therefore not reliable or accurate. Mr Timmiss said that in his experience fishers and processors do have accurate documented information because it is in their respective interests to have evidence of the carcass weights being sold and purchased.
54. In cross-examination, Mr Timmiss acknowledged that the Tasmanian practice was to land fish stock in a processed state but AFMA would continue to maintain its presumption in the absence of other evidence. Additionally, it was his evidence that AFMA continued to use a conversion factor of 1.076 throughout the whole of the fishery and throughout the whole of the quota process despite a conversion factor suggested by the MAFRI report of 1.13 for the years 1970 to 1999. Mr Timmiss assumed that the figure of 1.13 was calculated by Messrs Bland and Walker.
55. With respect to the recorded weights by the applicant in his monthly returns of shark catch, Mr Timmiss agreed that there was no evidence of any misreporting by the applicant except that it appeared that the returns were based on estimated weights only. He said those returns therefore could not be regarded as being accurate and there was no basis for AFMA to properly apply a conversion factor, even if it was prepared to disregard its policy of presumption.
56. As to the comparison made by the applicant with Mr Wilson, Mr Timmiss said that a relative economic position could not be achieved because Mr Wilson fished in a different location where there was a different shark population and different shark behaviour. Additionally, Mr Wilson was a net fisherman whereas the applicant fished by hooks.
57. A long discussion then followed between Mr Crisp and Mr Timmiss in an attempt to compare what was asserted to be the relativity between the applicant and Mr Wilson. It was suggested that the applicant caught more school shark in the period 1990 to 1993 than Mr Wilson for the same period. It was also submitted on the figures of both the applicant and Mr Wilson that the latter caught more school shark in the period 1994 to 1997. Mr Timmiss disputed the assertion that the relative economic position of the applicant had been reversed. He said that the applicant’s position in the fishery had been maintained whereas Mr Wilson had increased his relative position, not only compared as against the applicant, but within the whole of the fishery. (When re-examined later on this issue, Mr Timmiss said that the data analysed by him from the MAFRI report indicated that the stocks of school shark in South Australia between 1990 to 1997 were greater than in Tasmania, it was therefore easier to exploit shark from the fishery and it would have been easier for Mr Wilson to maintain his catch throughout that period than it would have been for the applicant who principally fished out of Tasmanian waters. It was also noted that the applicant was a hook line fisher whereas Mr Wilson was a net fisher and the number of hooks available for use by fishermen were reduced in 1994 because of concerns about the stock numbers of school shark).
58. Mr Crisp then asked Mr Timmiss to consider the applicant’s relative position against the whole of the fishery by comparing his catch for the period 1990 to 1993 to what it may have been for the period 1994 to 1997. It was suggested that by reason of the applicant having caught approximately 5 per cent of the total catch of the fishery in the period 1990 to 1993, which was in the vicinity of 5M kilograms, that it was possible that he could also achieve a catch of 5 per cent in the period 1994 to 1997 which was of approximately 3M kilograms. Mr Timmiss agreed that the catch in 1994 to 1997 was down because the applicant was mainly not engaged during that period. Additionally, he said that it was possible that the applicant could have achieved 5 per cent of the catch between 1994 to 1997. He also agreed that it was possible that he may have increased his catch. However, it was suggested by Mr Timmiss that referring to the applicant’s catch in 1995 only as an indicator of what might have been caught in the period 1994 to 1997 was invalid because the Jenkinson Committee decided that the best three of the four years should be considered in aggregating catch. Mr Crisp suggested that 1995 could be adopted as an indicator of what could reasonably have been caught on an average yearly basis within the period 1994 to 1997 but for the applicant’s illness. Mr Timmiss said that the year 1995 only may reflect the applicant’s relative position to other fishers.
submissions
59. Mr Crisp submitted that in an application of this type, there is no formula nor mathematical basis to precisely permit calculation of an increase in entitlement to quota. He submitted that a broad brush approach should be adopted in calculating a quota increase of which he submitted on the evidence the applicant was entitled. It was his contention that Mr White held a unique position in the fishery, a factor in itself prohibiting direct comparison with another fisher. Indeed, he submitted that it was wrong to equate Mr White to other members of the fishery because of his superiority in terms of catch that he was able to achieve and by reason also of him targeting school shark rather than, in many instances, it being regarded as a by‑catch.
60. In so far as Mr Crisp attempted to compare the applicant with Mr Wilson, it was submitted that the location of Mr Wilson’s catch in South Australia was irrelevant. He submitted that the common feature between the applicant and Mr Wilson was both of them having targeted school shark as their catch. It was submitted that a comparison of the percentage of the fishery held by his client in the period 1990 to 1993 compared to the percentage of the fishery had by Mr Wilson in the period 1994 to 1997, demonstrated that but for his client’s illness, in the latter period, a superior economic position would have been achieved thereby entitling a greater allocation of quota. It followed therefore that upon this comparison, his client’s relative economic position had not been maintained.
61. Additionally, it was submitted that AFMA had not adopted the findings made in the decision following the previous hearing because it applied a policy of conversion concerning the shark caught, by assuming that the stock had not been processed. He said it was open to the Tribunal to find as a fact, upon the evidence of Mrs White, that the stock, when landed, had been processed and a conversion factor should have been applied. Additionally it was submitted that it was wrong on the part of AFMA to impose a discount factor of 1.501 and 1.131 for school and gummy shark respectively in its approach of standardising the catch in the period 1990 to 1993 with the period 1994 to 1997.
62. Mr Niall on behalf of AFMA submitted that his client did comply with the previous decision of the Tribunal because it did verify the catch by reference to log books only and in so doing, that is, by not considering any other documentation, gave the applicant a benefit that was given to any other member of the fishery. Additionally it was submitted that the applicant and his representatives knew that there would be a discount by standardising the catch in the period 1990 to 1993 to the period 1994 to 1997 and it was known that there would be a conversion factor imposed with respect to the assumption that AFMA would draw of stock being landed in an unprocessed state.
63. It was submitted that the relative economic position of fishers, no less the applicant, is to be determined by the best three of the years between 1994 to 1997. The report of the Jenkinson Committee was authority for that proposition. Whilst the applicant was entitled to rely on the best three of the four years between 1990 to 1994 for the reasons expressed in the previous decision, in order to achieve relativity of his economic position with all other members of the fishery, a comparison had to be made by a reference to the 1994 to 1997 years. That, it was submitted, could only be achieved by the process of standardising undertaken by Mr Timmiss. Put another way, it was submitted that the figures from the former period could not be translated equally to the figures of the latter period because of declining stock numbers, the decline in the Tasmanian fishery compared to the South Australian fishery and the imposition of gear restrictions.
64. With respect to whether it was appropriate to convert the applicant’s catch by disregarding the presumption that stock landed was not processed, it was submitted that conversion had regard also to the weight of stock declared. In that regard it was submitted that the returns submitted by the applicant were unreliable because they were obviously estimates and accuracy in calculating could not be achieved.
65. It was submitted that by reason of the applicant’s returns in the period 1990 to 1993, he had achieved approximately 5 per cent of the total fishery. The number of units presently allocated to him equate with approximately 5 per cent of the totally fishery. It was submitted that there was no validity in comparing the applicant to Mr Wilson and there was nothing which pointed to the applicant’s relative economic position having improved. Accordingly it was submitted that there was no basis for the applicant to successfully assert that he should be allocated greater quota which, on his contentions, would equate to approximately 8 per cent of the fishery.
conclusion and reasons for decision
66. During the first day of the hearing in this proceeding, concern was expressed that AFMA was attempting to resile from the findings made in the previous application concerning the weight of the applicant’s catch in the period 1990 – 1993 (refer transcript p88 – 90). We decided during these proceedings, as we do now, that we are not restrained or estopped from making findings concerning the accuracy and reliability of the catch weights in that period as declared by the applicant. An examination of the decision in the previous proceedings suggest that the catch returns for 1990 – 1993 were not examined or scrutinized in the same manner, if at all, as they were in these proceedings.
67. A finding as to catch weights is critical if there is to be a conversion factor applied to processed stock in the period 1990 – 1993. (The applicant contends that a conversion factor should be applied).
68. On the last day of the hearing, in closing submissions, the debate had emerged to an attack on AFMA by its adjustment of the weights between 1990 – 1993 by applying the discount factor. AFMA did eventually verify the applicant’s catch based on the same material that gave rise to the evidence heard in the pervious proceedings concerning catch weights. It did apply a discount factor and after Mr Crisp reviewed his file from the earlier hearing, he acknowledged that the discount factor was properly before the Tribunal in these proceedings (transcript p241).
69. At the commencement of this hearing, the applicant sought to review three decisions of AFMA with respect to quota allocation for the years 2004, 2005 and 2006. The applications with respect to the years 2004 and 2005 were withdrawn. There was no utility, in October 2006, reviewing those decisions. The application proceeded only to review the decision with respect to the 2006 quota allocation. The allocation for that year had regard in the units held by the applicant at 2005 and the TAC which had been struck for 2006. It is therefore appropriate to consider the basis upon which the units were calculated for the 2005 year.
70. In a letter to the applicant of 28 April 2005 (T88), Ms Shoulder, the Senior Manager of Southern Fisheries, wrote a detailed letter to the applicant which principally explained the process of verification of catch history in so far as it concerned the units to be issued with respect to the quota at 2001. It also notified the process of converting units as determined with respect to the quota at 2001 into units in 2005.
71. The applicant was notified that the verification policy with respect to the years 1990 to 1993 would be undertaken, a conversion factor with respect to unprocessed weights would be applied, there would be an apportionment between school and gummy shark, the aggregate of the catch for 1990 to 1993 would be standardised against the catch history for 1994 to 1997 and a discount factor of 1.50 and 1.31 with respect to school and gummy shark would be applied. At that stage, an allocation factor of 0.153 and 0.354 for school and gummy shark would be applied to convert the catch history as calculated into 2001 units.
72. As recorded earlier, AFMA later decided to depart from its catch verification policy with respect to the years 1990 to 1993 and accepted the applicant’s remaining documents for that period together with his sworn evidence at the Tribunal in the earlier proceedings as a basis to depart from its policy.
73. The conversion of 2001 units into 2005 units, occurred by a conversion factor that was devised and applied to all members of the fishery from 2003 after the Southern Shark Fishery and the South Eastern Non Trawl Fishery was merged to become the Gill Hook and Trap Fishery. Regard also was given to the recommendation of the report in 2003 of the Independent Allocation Review Panel (“the Lockhart Committee”) which made recommendations with respect to quota allocation being based on a combination of an entitlement to fish and a history of catch. Specifically, the Lockhart Committee recommended that permit holders would receive a quota as a proportion of the value of their permits and the quantum of catch history based on the best three years between 1994 and 1997. In effect, that recommendation upheld and preserved the recommendations made from the Jenkinson Committee but introduced a concept of permit value. Those proposals which became the policy of AFMA were found by the President to be “the preferable way to allocate quota” (refer Fischer).
74. Whilst all of the foregoing considerations are relevant to our review, a fundamental principle dominates quota allocation and that is the relative economic position of members of the fishery. That is a principle which emerges both from the objectives under the Act (s3) and both the Jenkinson and Lockhart Committees.
conversion factor
75. As referred to earlier, AFMA has at all relevant times invoked a policy of assuming that fish stocks, when landed, were not finned, trunked or headed. It was prepared to set aside that presumption if evidence pointed to stock being processed. If it became so satisfied, a conversion factor would be applied of either 1.076 or 1.13 to equate the processed catch with catch which was not processed. The calculations undertaken by Mr Timmiss at T98 do not record the application of a conversion factor. That is consistent with his advice to the applicant by letter of 30 September 2005 that AFMA would presume that stock landed had not been processed.
76. During the hearing we heard evidence from Mrs White that her husband’s practice was to process his stock. She produced photographs demonstrating this to be so. We are satisfied on the probabilities that the stock was processed.
77. However, the policy with respect to conversion also involves the application of the conversion factor to the weight of the stock. For the reasons heard in these proceedings, we have no confidence that the catch during the period 1990 to 1993 is reliably or accurately recorded in the documents completed by the applicant and which have been referred to earlier.
78. Whilst we acknowledge that AFMA did verify the applicant’s catch for the period 1990 to 1993, the documentation upon which that verification was undertaken is not apparent to us. Mr Timmiss in his letter of 30 September 2005 recorded that he was prepared to accept the applicant’s log books as evidence of catch levels. We did not see log books but rather the T‑documents contain a number of monthly returns which purport to disclose the weight of fish caught but which we regard as unreliable. The figures as recorded do in fact disclose, as was asserted by Mr Niall, that the returns were rounded, either up or down, to the nearest 10, 100 or 1000. Mrs White suggested that her husband was “an excellent judge of the weight of fish”. That explanation is difficult to comprehend. Does it for example suggest that the fish was not weighed but rather estimates only were made. If they were estimates of the weight, the data could not be regarded as being reliable or accurate. Additionally the monthly returns were completed on many occasions well after the month recorded on the return. Mrs White also thought that the information contained within the monthly returns had been extracted from her husband’s log books. Mr Timmiss recorded that he was prepared to accept the applicant’s log books “on the basis that they are the only remaining records available” for the period 1990 to 1993. If those log books were available in 2005, we are disappointed that they were not made available to us at the hearing. The only evidence we had in this proceeding of stock caught during that period were the monthly returns found between pages 804 and 836 of the T‑documents and the yearly returns at T95, completed in July 2005 which record the same annual catch as disclosed in the previous hearing.
79. It is regrettable that the applicant was ill and unable to give evidence in these proceedings. It is our view that his wife would not have had the intimacy of knowledge that would have been possessed by the applicant. Whilst there is little doubt that the applicant is a very significant and successful shark fisher, his book keeping practices with respect are poor. The applicant’s solicitor in a letter to AFMA of 7 September 2005, apparently in anticipation that allegations concerning the accuracy of the records would be made, recorded:
Those log sheets were compiled at a time when it must be said nothing depended upon their accuracy. . . There was no reason or incentive for him to provide incorrect information at that time.
We do not suggest for one moment that the applicant has in any way been mischievous or dishonest. We doubt that the catch for the period 1990 to 1993 would have been verified if it had been scrutinised in a manner similar to that which was undertaken during these proceedings.
80. In conclusion on this issue, we are of the view that the decision not to impose a conversion factor was correct or preferable. The applicant should not be entitled to relativity with other fishers by the benefit of a conversion factor when he is unable to prove with any accuracy, or degree of reliability, the catch weights for the period 1990 to 1993. He has apparently been given the benefit of verification in a manner which was not available to other members of the fishery. We do not believe that that benefit should be extended any further.
discount factor
81. The process of standardising the applicant’s catch for the period 1990 to 1993 with the years 1994 to 1997 involve the application of a discount factor. The practice of standardising emerged when members of the fishery were permitted, either by AFMA or by the Tribunal on review, to have years other than the period 1994 to 1997 adopted as the basis for calculating quota. The process of standardising is to ensure relativity amongst members of the fishery. It is a process which ensures that fish returns for a period are standardised against the period 1994 to 1997 which was the period of time recommended by the Jenkinson Committee as the period over which catch should be considered when allocating quota.
82. In the present case, Mr Timmiss completed a mathematical process involving an examination of the aggregate of the applicant’s best three years of the period 1990 to 1993 against the best three years of the period 1994 to 1997 of the fishery as a whole. Those figures were extracted from the MAFRI report. Mr Timmiss’ calculations are found at page 98. It involved a seven stage process of calculation. The only stage in dispute was the application of the discount factor.
83. On the basis of the evidence heard in these proceedings it is our view that the process of standardisation and the application of discount factor was correct or preferable.
84. The applicant caught shark in the former period using 3000 hooks. In the latter period he would have been restricted to 2000 hooks and when fishing in Tasmanian waters would have been restricted to 1000 hooks. During the latter period, school shark stocks were reduced compared to the stock assessment in the former period. We are of the view that it would be wrong to ignore the fishing methods and the quantity of stock available in the former period, if standardising was not undertaken, because the applicant would have been given an advantage not available to other members of the fishery against whom quota was calculated based on their returns for the period 1994 to 1997.
85. On the aggregate of the best three years in the period 1990 to 1993, the applicant held 5.05 per cent and .53 per cent of school and gummy shark catch respectively in the whole of the fishery. In the latter period, after standardising, he achieved 5.17 per cent and 0.57 per cent of school and gummy shark of the fishery. The expression “discount factor” in those circumstances might seem to be inappropriate because the applicant’s relative position was improved by the process of standardising. But it was the applicant’s case that his position in the fishery should be greater than 8 per cent. For the above reasons we believe that claim is inappropriate and unsupported by the evidence.
robert wilson
86. The applicant sought to compare his catch against that of Mr Wilson a shark fisher from South Australia. It is our view that the comparison was not valid.
87. The applicant predominantly fished in waters adjacent to Tasmania whereas Mr Wilson fished in South Australian waters. From the evidence heard in these proceedings and read, shark stocks were greater during the relevant period in South Australia than in Tasmania. Mr Wilson fished by nets whereas the applicant fished by hook. In the period 1994 to 1997, the applicant would have been permitted to use less hooks than he did in the former period whereas it was likely that greater quantities of stock would have been caught by nets. Graphs and tables produced during the hearing of these proceedings indicated that school shark stock in Tasmanian waters was of a much lower volume and declining at a much greater rate than in South Australia. We reject the contention put on behalf of the applicant that the applicant’s position as a direct comparison with Mr Wilson was “reversed” after the period 1990 to 1993 to the period 1994 to 1997. We prefer the view on the evidence that by reason of the fishing activities of Mr Wilson, his relativity within the fishery as a whole increased.
88. We did not hear any evidence in these proceedings from the applicant or from Mr Wilson. Whilst we can reach conclusions based on numbers of hooks, length of net and fish stocks in differing locations at differing periods of time, we heard nothing about size of boats, crew, frequency of fishing, weather, currents and a range of potentially other matters which would influence, positively and negatively, the ability to catch fish. On the information made available to us during the hearing, we have decided that it would be inappropriate to determine the applicant’s relative economic position in the fishery against one person only.
conclusion
89. On the basis of the above reasons we are satisfied that the decision under review should be affirmed.
I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President, Senior Member Handley and Associate Professor Davis.
Signed: .............................................
Associate (Zoë Justice)Date of Hearing 11, 12 and 13 October 2006
Date of Decision 21 November 2006Counsel for the Applicant Mr M Crisp
Solicitor for the Applicants Page Seager LawyersCounsel for the Respondent Mr R Niall
Solicitor for the Respondent Deacons Lawyers
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