Re Evans and Secretary, Department of Primary Industry (1985) 8 ALD 627

Re Robinson and Secretary, Department of Primary Industry (1986) 10 ALD 302

Re Joiner and McNamara and Minister for Primary Industry AAT No 3858, 23/10/87

Re Sawyer and Secretary, Department of Primary Industry (1987) 12 ALD 523

Re Sawyer and Secretary, Department of Primary Industry (1988) 9 AAR 92

This case has had a long and unfortunate history. It began when, on 25 April 1985, the applicant, Mr Skoljarev applied for endorsement to enable his boat - the "Carole S" - to operate in Eastern Sector, Regions A and B of the South Eastern Trawl Fishery (hereafter referred to as the "SETF"). It took the respondent some twelve months to consider the application and, on 18 April 1986, it was rejected in writing. The applicant then sought a review of that decision and, in due course, a person acting pursuant to a purported delegation from the Minister of Primary Industries and Energy confirmed the original decision not to grant the endorsement. The applicant then applied to this Tribunal to review the delegate's refusal and the matter was in due course heard before Hartigan J. The President affirmed the decision under review on 23 August 1988, finding no special circumstances such as to warrant the grant of the application. It subsequently transpired - although this is not admitted - that there was a defect in the delegation from the Minister, so that (i) the decision of the delegate may have been a nullity, (ii) if so, there was no "reviewable decision" and the subsequent decision of the President is of historic interest only.

2. To overcome what was perceived to be a possible defect in the review of the applicant's case, there was a fresh determination and review, again unfavourable to the applicant. The relevant events for present purposes can thus be said to have commenced on 4 April 1990, when Mr David L. Coutts, Assistant Director, Southern Fisheries Branch, acting as the authorised delegate of the Minister of Primary Industries and Energy, refused Mr Skoljarev's application for an endorsement to operate the "Carole S" in the Eastern Sector of SETF and it is that decision which I am now asked to review. This matter is, therefore, in a real sense, a hearing de novo to review the delegate's decision of 4 April, 1990 pursuant to sec 16A of the Fisheries Act 1952.

3. The parties invited me to read the "decision" of Hartigan J in order to familiarise myself with the historic background and, to the extent that the facts as found by the learned President are common ground and/or correspond with the evidence given before me, I gratefully adopt and repeat them. Likewise his Honour's statement of the relevant law.

4. Mr Relf, who appeared for the applicant, gave me an useful background to the historic development of the fishing industry in this country. Suffice it for present purposes if I content myself with noting that the legislative history and policy background, aimed at regulating, conserving and protecting the resources of the Australian fishing industry, have been fully set out in previous decisions of this Tribunal: See in particular Re Evans and Secretary, Department of Primary Industry (1985) 8 ALD 627 at 643 and Re Robinson and Secretary, Department of Primary Industry (1986) 10 ALD 302.

5. It is common ground that to qualify for the endorsement sought, the applicant, as the owner of the "Carole S", must satisfy the criteria which are set out below:

The holder of a current Commonwealth Fishing Boat Licence for a

boat which has been used to fish commercially for fish or royal

red prawns using trawl gear or Danish seine nets in Region A of

the Eastern Sector between 1 January, 1980 and 6 July, 1981 and

can provide proof that the boat for which endorsement is sought

has continued to operate in Region A of the Eastern Sector.

Criteria for Eastern Sector, Region B:

The criteria for this region are equivalent to those of

Eastern Sector, Region A. However, applicants seeking endorsement

to operate in this Region will be required to provide documentary

evidence of their participation in the Region with their

application for endorsement.

6. Turning to criterion A for region A, it can be seen that two important requirements in the criterion are that:

(a) the holder of a current Commonwealth Fishing Boat Licence

must have used that boat to fish commercially using trawl gear or

Danish seine nets between 1 January, 1980 and 6 July, 1981; and

(b) he can provide proof that the boat has continued to operate in

Region A of the Eastern Sector.

7. In other words, to qualify for endorsement requires, inter alia, evidence of a commitment to fishing commercially in the Region. In Re Sawyer and Secretary, Department of Primary Industry (1987) 12 ALD 523 at 525, this Tribunal noted that: "The rationale underlying the eligibility criteria is that fishermen who have shown a commitment to the fishery should be able to continue within the new restructured regime, to the exclusion of others and that where an applicant does not fall within the formal requirements, the Tribunal should not grant a licence unless the applicant has demonstrated a commitment to the fishery."

8. The effect of Sawyer was that in the absence of "special or unique circumstances", the policy enunciated by the Minister for Primary Industries and Energy ought to be applied.

9. In issue in this case is whether or not the applicant was, at the relevant time fishing commercially in region A of the Eastern Sector "using trawl gear or Danish seine nets". Trawl fishing, I was informed from the bar table, involves a fishing boat using a net over the stern into the water with effect that bottom fish are caught in a net and hauled on board the boat.

10. As noted before, Hartigan J usefully summarised the background and the law relevant to this case, and I can do, no better than to repeat and/or paraphrase it.

11. Pursuant to sub-sec 7(1) of the Fisheries Act the Governor-General may, by proclamation, declare certain waters to be proclaimed waters for the purposes of the Act. Pursuant to sub-sec 8(1) the Minister, by notices numbered 142 and 143 published in the Commonwealth Government Gazette of 28 May, 1985, prohibited the taking of certain species of fish from the proclaimed waters set out in the schedule to the notices.

12. Pursuant to sub-sec 9(4) of the Act the Minister or his delegate may endorse a licence to operate a vessel, or to fish, granted under sub-sec 9(2) or sub-sec 9(3) respectively, so as to permit the holder thereof to operate a vessel or to fish in an area the subject of a notice under sub-sec 8(1), those activities being otherwise prohibited. Sub-sec 9(4) of the Act confers on the Minister or his delegate a discretion as to whether a licence will be granted.

13. To assist in the exercise of this discretion, the Minister announced on 21 August 1984 that a management plan for the SETF would be adopted. The management plan was implemented on 3 June 1985. Application forms to operate in the SETF had to be submitted by 31 December 1984. The plan further stated that after 31 March 1985 the area would be closed to all those without a licence endorsement.

14. The plan divided the fishery into two sectors - the Eastern and the Western Sector. The Eastern Sector, the subject area of this appeal, was subdivided into Regions A and B. The background to the policy raised in this case has been set out in detail in Re Robinson and Secretary, Department of Primary Industry (supra) and it is not necessary that all the matters so fully canvassed in that case be set out again; see also the summary set out in the reasons of the Tribunal in Re Joiner and McNamara and Minister for Primary Industry AAT No. 3858.

15. The Full Court of the Federal Court in its reasons for judgment in Sawyer v. Secretary to the Department of Primary Industry (1988) 9 AAR 92 considered that it was proper for the Minister to formulate the entry criteria as guidelines for consideration by him and his officers and that the Tribunal was entitled to have regard to these criteria. The Full Court approved the fact that the Tribunal had not sought slavishly to apply the criteria in dealing with the applicant's case, but instead had carefully considered the applicant's submission that his case was a special one by reason of his long association with trawl fishing. After due consideration of the evidence, the Tribunal had rejected that submission.

16. Although not conceded, it is clear from the evidence in this case that the applicant does not strictly meet the entry criteria, if only because he had not trawled in the SETF during the relevant dates, although had fished for tuna in the area throughout the period. However, it is put to me that special and unique circumstances exist to justify the approval of the application. The special circumstances are said to consist of (i) the substantial capital value tied up in the "Carole S", the use of which would be rendered unprofitable in the absence of the sought after endorsement, and (ii) Mr Skoljarev's long involvement in the fishing industry and in particular with trawl fishing on the New South Wales coast prior to the period referred to in the criteria. Mr Skoljarev also pointed to evidence of his commitment to the South East Trawl Fishery and trawl fishing generally along the East Cost. It was submitted, as I understand it, that one or other of these facts, if found by me either alone or in combinations, would give rise to "special or unique circumstances".

17. The evidence before Hartigan J, which was repeated before me, is to the effect that the applicant came to Australia from Yugoslavia in 1961. Shortly after his arrival in this country he gained employment as a deckhand on a trawler, working off Sydney, and that he has been involved in the fishing industry for well over two decades.

18. In 1978, the applicant bought the vessel "Carole S", the subject of this application. The Boat was then eight years old. Until 1981, the applicant operated in the New South Wales trawl fishery and (mainly) in the South Australian tuna fishery. Towards the end of 1981 he took the "Carole S" to South Australia for the 1981-82 tuna season. Upon his return to Sydney in 1982, the applicant discovered that his trawl gear, which he had stored regularly in the off-season in a yard in Bank Street, Pyrmont, Sydney, whilst he was fishing for tuna, was missing. This gear was worth at least $17,000. It was not insured, the police were not informed and it was never recovered.

19. It is this missing trawl gear which looms large in the applicant's submission that there are here unique and special circumstances which would justify granting the application. Thus, it was said that it was the missing trawl gear which prevented the applicant from continuing to fish by the otter board trawl method. I therefore propose to deal with that aspect of the evidence in some detail.

20. Exhibit "G" is a statement by a Mr Larcos, of Marine Foods Distributors Pty Ltd, dated October 1989 stating that:

In 1981 Ivo Skoljarev left some fishing gear for storage in the yard

of our old premises at 21-29 Bank Street, Pyrmont. In 1982 he looked

for it but it could not be found. It was amongst freezer panels and

other equipment of ours which was stolen in 1982.

21. Mr Larcos was not called as a witness and there was a suggestion in an affidavit from a Mr Souris to the effect that this equipment may have been taken away with other stored material when the yard was cleared. Be that as it may, I am satisfied on the evidence that this trawl gear was removed from the Bank Street yard some time in early 1982 by a person or persons unknown.

22. I find that the missing trawl equipment had been specially made and fitted for the "Carole S" by the applicant with substantial help from a friend with engineering skills. On and off, it took some considerable time to manufacture. It was demountable and had been taken off each year at the beginning of the tuna season and stored in the Bank Street yard. I find further that when the applicant returned from Port Lincoln at the end of the 1981/82 tuna season, i.e. some time in early 1982, he discovered that the trawl equipment was not in the yard where he had left it and that he made some desultory enquiries as to its whereabouts. He was not unduly worried: "Well, I always thought it's got to be somewhere. It's not something small that you hide it somewhere that's very hard to find. But I always thought probably it'll turn up somewhere, surely".

23. Contemporaneously with discovering the trawl gear was missing, the family went off on a long vacation to Yugoslavia. The trip had been planned well in advance. It was estimated to have cost about $10,000. Hartigan J noted: "This evidence disturbs me, given Mr Skoljarev's assertion that he could not obtain finance for his trawl gear". However, given the chronology of events as deposed before me, I find nothing sinister in the family's holiday abroad after discovering the trawl gear was missing. The applicant believed, however ill-founded, that the missing gear would turn up somewhere. In any event, there was no need to replace it there and then since he intended to spend much of the trawl season abroad (the family was out of the country between 7 May and 9 July 1982).

24. Much was sought to be made by the respondent during both hearings about the failure to explore the possibility that the missing gear was covered by insurance and the failure to notify the police. Again, I find nothing sinister in this. I accept the applicant's evidence on this aspect as truthful, supported as it is by his wife. What a more prudent commercial fisherman would or would not have done in similar circumstances is therefore hardly relevant; I find these omissions are "neutral" on the evidence of "commitment" to trawling.

25. It was not until after the applicant returned from his holiday abroad that it dawned on him that he had no trawl gear and as "I can't sort of put the trawl gear back on, I might as well do something to the main engine, which was already 13 years old and I done recondition on it for the rest of the winter". It seems that this was an unavoidable expense because it was soon realised that had the engine not been overhauled, it would have been extremely dangerous to venture out to sea. Hartigan J noted that the applicant "chose to have the work done on his engine rather than replace the trawl gear". This, of course, is true. But again, if this is thought to suggest a lack of commitment to commercial fishing using trawl gear, I am not prepared to draw that inference in the circumstances outlined above at that point in time.

26. By the time the engine was replaced in 1982, the trawling season was finished. The applicant therefore sailed to South Australia for the tuna season, fishing all the way to the Western Australia border. This turned out to be financially unprofitable because fish prices had "gone down from $1,000 to $500".

27. The applicant returned to Sydney in 1983, by which time the vessel struck refrigeration problems and he lost a lot of fish in consequence.

28. The applicant continued to fish when the boat was not under repair, which included fishing in Eastern Sector Region A. But of course, his fishing did not involve trawling. As Hartigan J found, in 1983-84, he fished for tuna off New South Wales, and then in January, 1984 he went to South Australia and experienced a bad season. In an effort to earn some money he took up drop-line fishing on the edge of the Continental Shelf off New South Wales. He kept this up until October, 1984, but the prices were so low as not to cover costs.

29. In the summer of 1984/85, he was persuaded by a friend, Vic Glasso, to try fishing, using drop-line gear. I gather the venture proved unsuccessful from a financial point of view.

30. I now turn to the replacement of the trawl gear. Not being aware of the coming into effect of the new licence endorsement system and its strict requirements, the applicant saw no need to give a high priority to replacing the missing trawl gear. Indeed, it took him well over twelve months after he discovered the gear was missing before he set about, in a most leisurely way, to build new trawl gear, buying bits here, there and everywhere. He did not complete the job until 1985. In late 1985 he recommenced trawling ("Well, I think that was when I finished with the trawl gear, building it, and we just fish in - it was only have a trial on that before Christmas, end of '85"). He then recommenced trawl fishing in the restricted area, which by then was closed to all those without licence endorsement.

31. The evidence why the applicant took so long to replace his trawl gear is confused and contradictory. Thus he maintained throughout that he spent some $50,000 on the replacement trawl gear in 1985. Hartigan J noted that the applicant "said that if he could have got the trawl gear together before this then there was no doubt he would have started fishing at that earlier point in time." Again, in a letter dated 25 September 1986 to the review panel, the applicant claimed to have installed trawl gear the year before at a value of $50,000.

32. On the other hand, in her affidavit, Mrs Skoljarev, the applicant's wife, who kept all the books, deposed that the trawl gear and associated work cost $17,693.38. She was closely examined on her assertion that the failure to replace the trawl gear at an earlier point in time was due to financial constraints. At p 64 of the transcript, I asked the witness whether the gear could have been replaced for $20,000. She replied:

$20,000, yes probably would have replaced it, but it takes

quite a while, and my husband wanted to do it himself because he

had, you know, ideas how exactly he wanted it, and I suppose he

thought he could do it more cheaply himself. It took - I think it

ended up taking five or six months to build the gallows and winch.

33. When asked by counsel whether any attempt had been made to find out how long it would have taken a shipbuilder to install the gear, she replied:

I don't think I myself was ever interested because my husband

would do it when he was able to do it and I didn't realise the

urgency of the situation.

34. It was suggested to Mrs Skoljarev that the bank overdraft facility at that time would have enabled the partnership to replace the trawl gear without undue strain on their financial resources, a proposition to which she reluctantly agreed.

35. Mr Skoljarev admitted that he was aware that there were "people that built complete trawl gear". He was asked whether he had "ever gone to a shipyard that makes trawl gear to find out the cost or how long it takes to do?" (p 157 tr). He answered that by stating that he had gone to Brown Bros, boat builders:

More just, you know, get some information about where I can

get some stuff, maybe where I can get, you know, just to get

advice more, like, than anything else. And probably even ask him

what he thinks and how much would it cost or whatever, but I can't

exactly say the figure what he - you know, even he wouldn't know

without writing everything what it was.

He agreed he never obtained a quote from anyone else. I finally intervened when the witness became somewhat irate and asked him:

No, Mr Skoljarev, the sole issue is really not your expertise

in building trawl equipment, but purely the cost of commercial

replacement, and you agree that you didn't obtain a quotation -

your expertise is not in question - you were simply asked what

would the cost have been?--- Well, it's all right. I heard of

people talking about it, and then you - they give you, say

$20,000, $30,000, 40,000, and then you find your gallows on the

deck and they don't even guarantee you for it and you lose so many

extra time again, so what? So if I build it and it fall down, at

least I know I did it and I done my own damage. And this way they

do your damage and you can't even claim it.

36. Mr Marien, of counsel for the respondent, asked the applicant:

Why then did it take that time for you to install the trawl

gear back onto the Carole S?--- You heard everything before. That

first year - I couldn't done it because the gear wasn't there, it

was gone, missing, disappear. Then, if I knew somebody stole it or

somebody destroyed it, it may be - one thing that ....inaudible...

I could've maybe done something about it, maybe. But when you

think you're going to find - if you're going to spend $50,000 on

another gear and you're going to find this one following season -

if somebody told me you're not going to have it, it would be a

different story, but when you know that it's going come up maybe,

maybe I'll find it next week, next month, next six months, it's a

different thought in your mind that why spend $50,000 if I don't

have to and plus that you don't have it.

Well, when did you first believe that you weren't going to see the

trawl gear again?---Well, I don't know. Probably I still have a

feeling that I might still see it somewhere.

37. Two things emerge from the evidence. First, the replacement gear did not cost $50,000 or anything like it. Secondly, the failure to replace it until 1985 was in no sense due to any lack of finance, even accepting the applicant's evidence that at this time:

"I was borrowing money, I didn't have money of my own. I had to

look for money from friends and brothers and cousins and things

like that, and from I think maybe even through Heinz (HJ Heinz and

Co Ltd) or somebody. I don't know, I was getting money

everywhere".

38. Once I am satisfied that the applicant was in a financial position to replace the trawl gear soon after he discovered it was missing, his failure to do so is clear evidence of a lack of commitment to trawling in the specified region, and it is no answer to say: "I would have replaced the gear sooner if I had known it was critical to obtaining the endorsement I now seek".

39. On that finding, I do not propose to deal with the voluminous evidence that was adduced relating to this couple's finances, the sale of their house in South Australia, what became of the proceeds of a substantial insurance claim, and the proceeds from the sale of their tuna licence.

40. Turning now to the question of awareness of the requirement for endorsement, I am satisfied on the evidence that neither the applicant nor his wife were aware that the rules had changed, and that henceforth fishermen required endorsement to fish in the relevant area, until early 1985 - the applicant struck me as a taciturn man who had little human contact outside his family and no contact with other fishermen. Thus it was not until early in 1985, when the applicant sought a renewal of his fishing licence, that he was told for the first time that he was excluded from commercial fishing using trawl gear in Region A. He thereupon made an application for endorsement in April 1985 and continued to trawl wherever his fancy took him until receipt of a the letter from the Department in April 1986, advising him that his application for endorsement had been refused.

41. For the sake of completeness, I should mention that the Crown called one CA McGregor, the manager of the South East Trawl, Southern Shark and Scallop Fisheries. Although his evidence was interesting, I do not believe it added anything to the outcome of this application other than an additional half day of hearing.

42. I now turn to the facts of this case in order to decide if the applicant should receive the endorsement he seeks. Hartigan J found on the evidence before him "that taking all the evidence relating to Mr Skoljarev's financial commitments and his resources into account, and bearing in mind the evidence of the holiday referred to above, I am satisfied that Mr Skoljarev could have obtained the trawl gear at or not long after the completion of his engine refurbishment had he turned his mind to it. I am satisfied that if Mr Skoljarev had wished to return to trawl fishing along the New South Wales coast at that time, he could have done so, and done so much earlier than the 1985/86 season when his gear was complete."

43. That finding - with the exception of the words underlined relating to the holiday in Yugoslavia, which, it is common ground, is out of sequence and must be ignored - is unexceptionable and applies with equal force to the evidence given before me.

44. Before Hartigan J, it was common ground that the applicant did not meet the requirements of Criterion A. Before me, Mr Relf, who argued the case for the applicant with considerable skill, put the case in two ways. Firstly, he submitted that the applicant did indeed fall within Criterion A in that (i) he was at all relevant times the holder of a Commonwealth Fishing Boat Licence, (ii) fished by the otter board trawl method in the period 1 January 1980 and 6 July 1981 and (iii) "has continued to operate in Region A of the Eastern Sector". Requirement (iii) is said to be made out by virtue of the fact that taking trawl gear off and storing it and putting tuna gear on is an incident of commercial fishing, and that when the applicant became aware of the missing trawl gear, he went out to look for it and, unable to find it, he set about building replacement gear. Meanwhile he continued to engage in "drop-line fishing". All this, put end to end, contends Mr Relf, indicates a continued operation in the relevant region. Should that argument fail, he submitted that the case presents special and unique circumstances.

45. The submission that the applicant had "continued to operate" in the Region, and thus satisfied Criterion A must be rejected, if only because the most critical element - trawl fishing in the area - is missing. The requirement is not satisfied by adopting the kind of "cut and paste" approach suggested by Mr Relf. Indeed, if one thing clearly emerges from the evidence it is that Mr Skoljarev had not trawled the SETF, albeit he continued to fish for tuna by other means in the area from 1971 to 1984. That is not enough.

46. That brings me to "unique and special circumstances". Hartigan J dealt with that aspect succinctly, and I gratefully adopt what his Honour said on the previous occasion as being equally applicable to the evidence led before me. Thus his Honour noted:

Accepting as I do Mr Skoljarev's account, it follows that he did

not operate in a trawl fishery from the time he departed for the

South Australian tuna fishery in 1981 until he completed the trawl

gear work in 1985 after the drop-line season in New South Wales.

I find that Mr Skoljarev had taken a decision to turn his face

against trawl fishing in the relevant area in favour of tuna

fishing or drop-line fishing. In doing this I consider he made a

commercial decision to follow fishing outside the relevant fishery

and of a type other than trawl fishing. No doubt the loss of gear

and financial problems which were experienced by Mr Skoljarev

played a part in his decision. I am satisfied that if Mr

Skoljarev had a commitment to the SETF or, for that matter, trawl

fishing along the New South Wales coast, this would have been

demonstrated by a greater effort on his part to return to the

fishery instead of continuing with tuna fishing and drop-line

fishing. I am satisfied that Mr Skoljarev could have returned to

trawl fishing earlier than the 1985/86 season if he had turned his

mind and his attention to achieving that end. The subsequent sale

of the tuna quota for a figure between $520,000 and $540,000

suggests very strongly to me that Mr Skoljarev could in fact have

taken steps to re-enter the relevant trawl fishery earlier than

1985. I am satisfied on all of the evidence before me that at all

relevant times there has been no commitment to the fishery on the

part of Mr Skoljarev such as to ground special circumstances in

this case. I take into account all of the matters raised by Mr

Skoljarev, including his long history in the industry, the value

of the "Carole S" the actual fishing histories of Mr Skoljarev

and the "Carole S", the circumstances of the loss of the trawl

gear and his financial difficulties.

47. On that finding, his Honour was satisfied that there were no special or unusual circumstances such as to require granting Mr Skoljarev's application.

48. I have come to a similar conclusion on the evidence, albeit with some regret since I realise that the applicant is, to a large measure, a victim of circumstances and is now saddled with a boat which is unlikely to yield him the profitable returns he could achieve by trawling in the restricted area. However, Mr Skoljarev has not persuaded me that he has the historical commitment - the magic password to the fishery - which, for better or for worse, the Plan of Management for SETF demands as the discrimen, limiting entry into commercial fishing using trawl gear to those who can demonstrate a genuine dependence and commitment to the fishery. This the applicant has clearly failed to do. Like Hartigan J, I have found nothing in the evidence to persuade me that the Plan of Management ought not to apply in this case.

49. For the reasons stated above the decision of the Tribunal is to affirm the decision under review.