gues Bao" CATCHWORDS Administrative Law - application to review decisions of official of Department of Primary Industry - restriction of fishing licence - natural justice - relevant considerations - whether licencee sufficiently informed of allegations - whether relevant consideration taken into account. Administrative Decisions (Judicial Review) Act 1977 ss.5(1)(a), Stijyte), S(2)(b), 13. Kioa v. West (1985) 159 CLR 550 McVeigh v. Willara Pty Ltd (1984) 6 FCR 587 Minister for Aboriginal Affairs v. Peko Wallsend Ltd (1986) 162 CLR 24 No. SA G8 of 1988 KARINA FISHERIES PTY LTD AND DINKO LUKIN V. GRAHAN CHARLES EVANS FORSTER, J. ADELAIDE 1 JULY, 1988 IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. G8 of 1988 ) GENERAL DIVISION ) BETWEEN: KARINA FISHERIES PTY LTD and DINKO LUKIN Applicants - and - GRAHAM CHARLES EVANS Respondent MINUTE OF ORDER JUDGE MAKING ORDER : FORSTER J. WHERE MADE $ ADELAIDE DATE OF ORDER : 1 JULY 1988 THE COURT ORDERS THAT: The application for review be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. G8 of 1988 ) GENERAL DIVISION ) BETWEEN: KARINA FISHERIES PTY LTD and DINKO LUKIN Applicants - and - GRAHAM CHARLES EVANS Respondent REASONS FOR JUDGMENT CORAM: FORSTER, J.: This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("the Act") to review two decisions of the respondent who is an official of the Department of Primary Industry. The first decision was made, or at least communicated to the applicant, on 12 November 1987 and the second is a decision recorded in a letter dated 20 January 1988 from the Australian Fisheries Service to the applicant's solicitors. The first decision was to limit the area in which Lukin and Sons might fish for pelagic species of fish with the vessel D-Three pursuant to its licence which previously had no restrictions as to area, the only restriction being as to the quantity of Southern Blue Fin tuna which might be taken, which was to be as approved from time to time by the Australian Fisheries Service. The method of fishing pursuant to the licence was to be by long line. The second decision confirmed the first decision. The first applicant carries on business as Lukin and Sons and the 2. second applicant is an officer of the first applicant. The application for review sets out a number of grounds, but at the hearing only two were argued. The remainder were not abandoned but no argument at all being presented with respect to them, I disregard then. The grounds which were argued were first, that arising pursuant to s.5(1)(a) of the Act, "that a breach of the rules of natural justice occurred in connection with the making of the decision", and second, that arising pursuant to s.5(1)(e) of the Act coupled with s.5(2)(b), "failing to take a relevant consideration into account in the exercise of a power". Although two decisions are complained of in argument they were treated as one. Indeed counsel for the applicants made no reference at all to the second decision in argument. Reasons pursuant to 5.13 of the Administrative Decisions (Judicial Review) Act were never sought or supplied with respect to the second decision. The argument of the applicants centred on the decision to restrict Lukin and Sons' licence and I propose to deal with the matter on this basis. A little background information is necessary in order that certain alleged incidents may be understood. The applicant company, which is controlled by the personal applicant ("Lukin"), is engaged under the name Lukin and Sons, in fishing generally, and in particular, in "longline" fishing. A vessel named the "D-Three" is a Japanese-style Honduran vessel, half owned by Lukin and is chartered by him to be used in fishing operations in 3. Australian waters. The D-Three is a large fishing vessel used for longline fishing on a large scale. It is also capable of being used as a "mother ship", or processing ship, such is its size. The longline used consists of a main line of up to seventy-five kilometres in length, suspended from the sea surface by floats with branch lines each carrying a baited hook attached at intervals of forty to sixty metres. A longline used by the D-Three is usually set with eighteen hundred to two thousand five hundred hooks. Small scale Australian longline vessels, such as those involved inshore off the east coast of Australia, usually set between two hundred and five hundred hooks on a line ten to twenty-five kilometres in length. With lines as long as_ those indicated there is an obvious potential for the occurrence of tangles or what seem to be called "gear conflicts", either because the line of one vessel is laid in the sea over the line of another, or because one line drifts into contact with another. In September 1987 Mr Burns, the Manager of the Licensing and Surveillance Section of the Australian Fisheries Service, received a number of formal complaints from fishermen concerning gear conflict involving large Japanese-style longline vessels, including D-Three. A meeting took place in Brisbane on 28 September 1987 between representatives of Government and the operators of the large longliners and local fishermen involved in the incidents which led to the complaints being laid. Discussions took place. Lukin attended the meeting and undertook, together with the other fishermen present, to attempt to resolve the gear conflict problem on an informal basis. Undertakings were given by Lukin and others that the large scale 4. longliners would fish in such a manner as to avoid conflict with inshore fisheries, particularly trawl and longline. This undertaking carried a plain consequence that the large longliners would not fish inshore. On 29 October 1987 something occurred in the waters off Coffs Harbour involving the D-Three and three local inshore longliners. Two of the local fishermen concerned spoke by telephone to Miss Harwood of the Fisheries Division of the Department of Primary Industry and complained that three local fishermen had been involved in gear conflict with the D-Three and gave some details. Miss Harwood asked that the skipper of each vessel concerned make a short formal statement to be witnessed at the Coffs Harbour Fisheries Inspector's office. Each of the three skippers made statutory declarations on the topic of the gear conflict, as also did a fourth skipper who was in the area, received a report by radio from one of the locals, and spoke by radio to the D-Three. These declarations were made on 2 November 1987 and sent to Miss Harwood with a covering letter by Mr Nyssen, the Senior Inspector of Fisheries at Coffs Harbour. On 29 October Miss Harwood spoke by telephone to Mr Richardson, Lukin's shore manager. Miss Harwood said that Richardson appeared to be unaware of the need for the D-Three to stay clear of inshore fisheries. In the minute recording this conversation, Miss Harwood does not say specifically that she informed Richardson of the alleged incident of gear conflict, but since her minute commences, "Following the report of Bill Hutchins (Coffs Harbour Co-op.) of conflict between the D-Three 5. and three Coffs based longliners I phoned Mr Richardson". I am prepared to infer that she did inform Richardson of the incident as it had been reported to her, i.e., as amatter of gear conflict. On 30 October Mr Scott, the Manager of the Tuna Fisheries section of the Australian Fishing Service sent to Lukin and others a telex in the following form : "Based on evidence presented to the AFS, we understand that the D-three was yesterday involved in an incident of serious gear conflict with three local longline vessels in inshore waters off Coffs Harbour. Trap fishermen may also have lost gear as a result of D-three's activities. Fouling of longlines is reported to have occurred in waters as shallow as 50 fathoms. The occurrence of another gear conflict incident involving the D-three is of major concern to the Australian Fisheries Service. I remind you of the condition placed by the then Minister John Kerin on approval for D-three to be temporarily imported, i.e. 'provided ... that there are no adverse effects on the operations of current and developing Australian modified longline operators and trawler and trap operators.' I would also remind you of the undertaking given at SBTUNAMAC, ECTUNAMAC and the meeting held in Brisbane on 28 September, that the large-scale longliners would fish in such a manner as to avoid conflict with inshore fisheries, particularly trawl and longline. It is important that the D-three move away from areas of possible conflict while we resolve this issue. Consideration must now be given by AFS to the development of an effective method for avoiding further conflict. I await your urgent response on this matter." On 2 November 1987 Scott sent another telex to Lukin in the following terms ; 6. "FURTHER TO MY TELEX OF 30 OCTOBER 1987, CONCERNING GEAR CONFLICT INVOLVING THE ''D-THREE' OFF COFFS HARBOUR. PLEASE SUBMIT, AS A MATTER OF URGENCY A FULL REPORT FROM THE 'D-THREE' OF THE RECENT INCIDENT OFF COFFS HARBOUR. THE REPORT SHOULD INCLUDE DETAILS OF THE LOCATION AND EXTENT OF GEAR FOULING WITH LOCAL VESSELS AND THE FISHING OPERATIONS OF THE ''D-THREE' DURING 26-29 OCTOBER. SIMILAR STATEMENTS ARE BEING SOUGHT FROM THE OPERATORS OF THE SMALL LONGLINERS INVOLVED IN THE INCIDENT WITH THE 'D-THREE'. YOUR REPORT MAY BE FAXED TO AFS ON 062-725175 AND SHOULD REACH THIS OFFICE BY COB TOMORROW (TUESDAY) ." Lukin responded on the same day with a telex in the following terms : "PLEASE BE INFORMED THAT WE ARE TRYING OUR BEST TO OBTAIN FISHING MASTER'S REPORT TO YOU QUICKLY. ALL INFORMATION WAS GIVEN TO JAPAN AND WE REQUESTED THAT FISHING MASTER'S REPORT COMES IN NO LATER THAN TOMORROW, BUT PLEASE UNDERSTAND IF WE DO NOT COME TOMORROW WITH REPORT WE WILL INFORM you so. LAST WEEK WE HAD VERY POOR RADIO COMMUNICATION. WE DO NOT KNOW WHETHER RADIO LOST ITS VALUES OR JUST BAD RADIO COMMUNICATIONS. IN ANY EVENT, I AM DISGUSTED WITH HIS POSITION TO BE OFF 'COFFS HARBOUR' AT THIS TIME OF THE YEAR, AS WE WERE STANDING BY TO MEET HIM OFF SOUTHERN N.S.W. COAST SHORTLY. AS WELL WE WERE PLANING (sic) TO REPLACE THE FISHING MASTER BUT DUE TO IMMIGRATION DELAY WE NEVER GOT TO DO THAT IN TIME. IN ANY EVENT IF THERE ARE GOING TO BE ANY CHARGES PRESSED AGAINST HIM, MAKE SURE THAT HE DOES NOT LEAVE THE COUNTRY." On 3 November Lukin sent a further telex to Scott in the following terms : 7. "AS ADVISED YESTERDAY THAT I WILL COME WITH REPORT RELATED TO D THREE OFF COFFS HARBOUR. ADVISED JAPAN WITH ALL INFORMATION THAT CAME FROM YOU AND TO REQUEST D THREE FISHING MASTER TO SEND BACK FULL REPORT OF INCIDENT. JAPAN IS HAVING A HOLIDAY TODAY AND MAKES IT INCONVENIENT TO RECEIVE REPORT TODAY. so I SUGGEST PLEASE WAIT. I SPOKE TO THE CAPTAIN OF D THREE AND HE INFORMED ME THAT THEY SAW NO ONE AND HAD NO CONFLICT WITH OTHER FISHERMEN. I WOULD NOT TAKE IT SERIOUSLY UNTIL WE RECEIVE FISHING MASTER'S REPORT. ALSO CAPTAIN ADVISED ME THAT THEY USED VERY SMALL FISHING LINE AND THEY WERE ONLY TESTING THE FISHING GROUNDS. MY COMMENT TO ALL THIS IS: I SPENT A LIFE TIME IN THE FISHING INDUSTRY AND I HAVE NEVER EXPERIENCED SUCH SELFISH FISHERMEN AND HATERED (sic) THAT THEY CAN NOT EVEN STAND THE PRESENCE OF OUTSIDE PISHERMEN. I WILL SAY THAT THERE IS MUCH MORE NOISE THAN THE REAL THING IS. ANYWAY AS SOON AS THE REPORT COMES TO HAND I WILL PASS IT ON TO YOU." On 4 November Lukin sent a further message to Scott which forwarded what was said to be part of the report from Japan. follows This part report had an entry for October 29 as "Oct 29 ( 30.47 30.10) They saw one local boat on > final state of setting (153.15 153.31) lines. They changed sailing course and avoided collision. This boat wasn't there while picking up lines." Later on the same day Lukin sent a_ further telex to Scott in the following terms : "TOWARDS THE END OF NET SETTING SAW ONE LOCAL BOAT AND AFTER RADIO CONTACT AVOIDED IT. WHILE RECOVERING LINES DID NOT SEE THIS BOAT. AFTER RECOVERING 55 BASKETS FOUND LINE CUT. STARTED TO RUN FOR 1 HOUR AND SAW ONE LOCAL BOAT AHEAD WITH ANOTHER A LITTLE FURTHER AWAY. WHEN APPROACHING FOUND ONE OF THEM RECOVERING LINES WITH BUOYS LOOKING SIMILAR TO OUR OWN. FORWARDED TP THE FURTHER END TO GET HOLD OF THE LINES TO ON FINDING WHAT WE DID THE TWO BOATS STARTED RUN AWAY AFTER CUTTING THE LINE. CHASED AFTER THEM FOR A WHILE AND TRIED TO COMMUNICATE WITH ONE OF THEM VIA VHF WHICH DENIED ITS ACT. WITH ANOTHER ONE AT LARGE HAD TO GIVE UP CHASING THIS ONE BY ONLY PHOTOGRAPHING. THEN AFTER RECOVERING 48 BASKETS FOUND AGAIN THE LINE CUT WHEN SPOTTED ANOTHER BOAT AHEAD AFTER WHICH WE RAN AT FULL SPEED BUT IT NOTICED US AND RAN OFF TOWARDS LAND. SEARCHED IN THE AREA FOR THREE HOURS AND FOUND 53 BASKETS SHORT AND LOSS OFLINE SOME 15.953 METRES AND 53 BUOYS AND 318 BRANCH LINES WITH FULL SETS OF GEARS. THERE HAS BEEN NO ENTANGLING OF LINES WITH 3 LOCAL BOATS SINCE WE FOUND NO REMAINDER AT ALL AND NOTICED NONE OF THEM SEARCHING THEIR OWN FISHING GEAR. NO ENQUIRIES MADE OVER SSB/VHF BY THEM. IKEMATSU. " On 6 November 1986 Scott sent a telex saying that as a consequence of the reports of four incidents earlier in October off Queensland and the incident of 29 October, it was proposed to restrict the D-Three's licence with effect from 12 November giving Lukin an opportunity to make a submission against this proposal by close of business on Tuesday 10 November as it was proposed to make a final decision on 11 November. Lukin sent two facsimile messages to Scott on 9 November 1987. The first acknowledged Scott's telex of 6 November and asked for the supply of maps and charts' so that the details of 9. the restriction could be plotted and also contained the following, "Finally Mr Scott it would be very great pleasure obtaining from you all those written complaints, I hope you understand that this might be very important to us". Lukin's second message of 9 November acknowledges receipt of a map, asks for more time to make a full submission and also contains the following, "I am very concerned that reports given by small vessels off Coffs Harbour are very important for our observation and I am asking you if we can have a copy of these complaints". Scott sent a facsimile message to Lukin on 10 November 1987 telling him that a decision as to whether or not to restrict the licence of the D-Three would be made on Wednesday 12 November 1987. It goes on, "If you wish to make a submission it should reach AFS by c.o.b. today 11 November". It will be seen that either the word "today" is a mistake or the date "11 November" is a mistake. However that may be, it seems that Lukin's solicitors thought that at the least 10 November was indicated because they sent to Scott by facsimile transmission a letter dated 10 November 1987. The solicitors offered an undertaking that their client (presumably meaning the D-Three) would stay within the area permitted by Scott's telex of 6 November until the matter was sorted out and asked for more time to make submissions. The letter also asks "Would you please provide us with the particulars of the alleged incidents in Queensland involving the 10. D-Three referred to in your telex. Could you also please provide us with particulars as to how the D-Three has allegedly had an adverse impact on the developing Australian longline fishery and as to how it has allegedly not respected the wishes of New South Wales fishermen". It is to be noted that nowhere in this letter is a request made in terms for copies of the declarations of the Coffs Harbour fishermen but for particulars of the Queensland incidents. It is conceded by the respondent's counsel and, in my view quite properly so, that since the decision in question affects a property right of considerable value, which is a licence to engage in a particular gainful activity without geographic limitation, the decision-maker is obliged by law to accord to the holder of the licence natural justice or procedural fairness when he is considering forfeiting or restricting that licence. The claim made that a breach of natural justice has occurred here, was based in argument solely on the fact that notwithstanding two requests from Lukin anda rather oblique request from his solicitors, copies of the statutory declarations of the four Coffs Harbour fishermen were never supplied to Lukin. It is conceded by the respondent's counsel that the decision-maker had an obligation in general terms to let' the applicants know what was said against them so that the accusation might be dealt with. The question on the natural justice or procedural fairness point is, was sufficient particularity given 11. to enable the applicants to give an answer fairly putting their case? What does or does not amount to procedural fairness in a particular situation depends upon the circumstances. There are and can be no fixed rules applicable to all cases (see Kioa v. West (1985) 159 CLR 550). In the telex of 30 October 1987 set out above Lukin was told that the Tuna Fisheries Section of the Australian Fisheries Service understood that the D-Three was involved on 29 October in an incident of serious gear conflict with three local longline vessels inshore in waters off Coffs Harbour. Counsel for the applicant complains that this and the later messages give insufficient details of what the D-Three is supposed to have done and that administrative fairness demanded that copies of the statutory declarations be supplied. It was said in argument that examination of these declarations might have enabled the applicants to establish internal inconsistencies and thus cast doubt on the facts declared. In particular, it was said that if the applicants had known that Larvill, the skipper of the "Sara-A" had declared that his gear became entangled with that of the D-Three "12. km off land and 16 kmn.e. of South Solitary Island" it might have been possible by plotting the position to demonstrate that the depth was more than the 68 fathoms declared and that the gear conflict could not be said to have taken place inshore or in that depth. The same possibility is said to exist with respect to the other three declarations. 12. I should suppose that the position indicators were insufficiently precise to enable a position to be plotted with any accuracy. The position indicators given by the other' two fishermen who alleged gear conflict were similarly imprecise. However this may be, the vice of the alleged conduct of the crew of the D-Three was that the ship was fishing inshore which Lukin had undertaken it would not do. Nowhere in the various responses of Lukin or Richardson or anyone else in the D-Three's interest is there to be found an assertion that the D-Three was not, on the day in question, inshore off Coffs Harbour. The answer given was a denial of gear conflict and an assertion of vandalism of the D-Three's gear. Apart from the first telex to Lukin of 30 October, Richardson, Lukin's shore manager, was told on the telephone on 4 November the names of the three Coffs Harbour vessels which experienced gear conflict. On 5 November Richardson appeared in Coffs Harbour in person and the Inspector of Fisheries in that town supplied him with the names of the vessels and the skippers and suggested he sort out the question of the missing gear of the D-Three with the fishermen directly. This then was the extent of the information conveyed to Lukin, that his ship was alleged to have been inshore off Coffs Harbour and that serious gear conflict occurred with three named vessels, the names of whose skippers were given. The responses of Lukin and his employees of various sorts were confused and confusing. Richardson on 29 October 13. 1987 undertook "to instruct it (the D-Three) to move clear of sight of land and small longliners". In Lukin's telex of 2 November he made no denial of the D-Three's presence off Coffs Harbour but rather said "I am disgusted with his position to be off Coffs Harbour". In a telex of 3 November Lukin said "I spoke to the captain of the D-Three and he informed me that they saw no one and had no conflict with other fishermen". On 4 November the first part of a report from _ the captain transmitted from Japan has some figures opposite "Oct. 29", presumably figures of latitude and longitude. On the same day Richardson telephoned the Department of Primary Industry in Canberra and said that a report from Japan indicated that there was no conflict with local fisherman off Coffs Harbour but that fifteen kilometres of D-Three's line was stolen. Later the same day the rest of the captain's message was sent to the Department which gave some details of the alleged cutting and stealing of the D-Three's gear. Was the information given to the applicants sufficient to enable them to answer the accusations against them? In McVeigh v. Willarra Pty Ltd (1984) 6 FCR 587 there appears at p.601 the following : "In the appellants' submission it was enough that the respondents be informed of their substance and that it was not necessary for the Minister to refer, by chapter and verse, to the material upon which he proposed to rely. We agree that the rules of natural justice do not necessarily require a decision-maker to bring to the attention of persons in the position of the respondents the precise detail of all matters upon 14. which he intends to rely. Rv. Gaming Board for Great Britain; Ex parte Benaim and Khaida [1970] 2 QB 417; In re Pergamon Press utd [1971] ch 388; Herring v. Templeman [1973] 3 AlI ER 569; R v. Secretary of State for the Home Department; Ex pars Hughal [i974] I QB 313; Ansell v. Wells FLR 127. The extent of the obligation will necessarily depend upon the circumstances." It seems to me that in the present case the applicants were informed of the substance of the allegations against them, the particular vice of which, as I have said, was that they were inshore with gear out which tangled with that of other vessels. They have never to this day, so far as I am aware, said that they were not inshore on the day in question, with the possible exception of the figures in the first half of the report from Japan which an expert with the appropriate map could no doubt interpret as an assertion of position on the day in question. There is no evidence before me of what those figures mean but it seems to me likely that if they constituted an assertion that the vessel was not inshore this would have been proved as it easily could have been. If, as is the fact, the defence of the applicants to the charges made against them is that it did not happen this defence could be made, as indeed it has been, without knowing the detail of the statutory declarations. Also the fact, if it be the fact, that the vessel never came inshore off Coffs Harbour could have been asserted without seeing the statutory declarations. Whether or not the decision to restrict the licence is a correct one is, of course, no concern of this Court's. Whether or not the decision-maker should have believed the local 15. fishermen that gear conflict occurred and that it occurred inshore, or should have believed the assertion on behalf of the applicants that no gear conflict occurred anywhere is not my concern. I am unable to find that to fail to supply details of the accusations of the local fishermen by supplying copies of their statutory declarations was, in the circumstances of this case, a denial of procedural fairness or in the words of the Act, a breach of the rules. The first ground argued fails. The second ground which was argued was, as I have said, that the decision-maker failed to take into account a_ relevant consideration. The two matters argued under this head are first, that the decision-maker did not resolve the conflict between Lukin's explanation that no gear conflict occurred and the assertion of the Coffs Harbour fishermen that such conflict did occur and second, that he did not take into account Lukin's assertion about vandalism and larceny of some of the D-Three's gear. So far as the first matter is concerned it is true that the section 13 reasons do not contain a statement such as "I believed the Coffs Harbour fishermen and disbelieved the applicants" which would have been an effective way of resolving the conflict. On the other hand the decision-maker says that he took into account everything which the applicants put and refers specifically to the various telexes and faxed messages and letters sent. I can have no reason to suppose that the decision-maker is being untruthful when he says he took into account the material put by the applicants. It is not convincing to argue back from the decision and say that the 16. decision-maker could not have taken what was said into account because if he had he would have decided differently. I point out again that Lukin never denied that the D-Three was inshore on the day in question. His explanation of what occurred was' to this extent incomplete but I am unable to say that it was not taken into account. The second point is somewhat more easily disposed of. Iam inclined to doubt that Lukin's claim that the D-Three's fishing gear was subject to vandalism and theft is a_ relevant consideration for present purposes. I do not think that it is something which the decision maker was bound to take into account (see Minister for Aboriginal Affairs v. Peko Wallsend Ltd (1986) 162 CLR 24 per Mason J. at 39). The question for the decision-maker was whether or not the D-Three had been involved in gear conflict inshore off Coffs Harbour. Whether or not' the gear of the D-Three was in turn subject to vandalism or theft seems to me irrelevant to the issue before the decision-maker. In any event, in view of the recital of Lukin documents considered by the decision-maker in which the claim of vandalism and theft were made, I do not find it possible to say that' the matter was not taken into account. This ground also fails and the application is dismissed with costs. I certify that this and the '¥ preceding pages are a true copy of the Reasons for Judgment of Mr Justice Forster. . Associate: Ci Fip— Dated: (7/88 17. Counsel for the applicants Solicitors for the applicants Counsel for the respondent Solicitors for the respondent Dates of hearing Mr M.L. Abbott Q.C. with Mr C.R.McDonald and Mr M.J. Roder Nicholls, Gervasi & Co. Mc J.J. O'Halloran Australian Government Solicitor 7 & 8 June 1988