Fishing for more data: fishermen versus Gladstone Ports Corp
A CLASS action by Queensland commercial fishermen and associated businesses against government-owned Gladstone Ports Corporation is being slowed by delays in disclosing information.
But it's not just GPC that is behind the timetable for disclosing information.
Lawyers for the fishers are pushing for a court order to make the government's Department of Agriculture and Fisheries release data. The data, the lawyers argue, is required by a fishing population expert, Ian Knuckey, to compile a report due late May.
The action of more than 150 fishermen and associated businesses against GPC is expected to go to trial in 2021 and initially take 11 weeks.
More than 150 seafood industry members from Queensland and NSW - from Bowen to Sydney - are seeking $100 million-$150 million from GPC, saying works carried out by the corporation in the Gladstone Harbour about 2010 negatively impacted the water quality, fish health and fish numbers, which impacted the industry members' businesses.
Lachlan Armstrong, for the plaintiffs, said the expert reports depended on getting information from GPC and other parties such as DAF.
"It's proving difficult," Mr Armstrong said.
"DAF is having a 'leisurely' response to the notice."
Mr Armstrong said the class action case alleged there was a decline in certain fish species as a result of the Gladstone port expansion.
DAF has provided two sets of data to the plaintiffs to date, but Dr Knuckey said he required more in-depth data for his report.
The time frame of data now sought is January 2005 to September 30, 2019.
Mr Armstrong said Dr Knuckey needed to look at log books to see what different species fishermen moved onto when they noticed decrease in the species they usually caught for commercial purposes.
The application for more in- depth information would mean the data would include "aquarium" species of fish to analyse the impact on the fish food chain and see if there was an "ecology-wide impact".
"I'm not suggesting aquarium fish are going to be a big part of the case," Mr Armstrong said.
He said the response from DAF, which was received by plaintiff lawyers on Thursday night, outlined issues DAF had with the request.
The court was told the issues included the department needing to write a new computer code to encompass the search perimeters outlined by the plaintiffs; the data input of the department was three to four months behind; that "running these searches might slow down the department's usual processes"; and the results would likely be large and that once the data had been extracted, it would need to be formulated into readable content.
Mr Armstrong said DAF took eight weeks to collate the data from the previous two subpoenas and there were discussions with the department prior to the subpoenas.
He said there were no complaints of those searches interfering with the department's day-to-day processes.
Mr Armstrong said the plaintiffs had provided an external hard drive for the data to be put on, with 2GB containing five million rows of data already provided.
He said the DAF issues of this request included speculation the "Queensland Government was going to implement further regulations in the coming months".
"The department seems to be throwing up all sorts of possible problems," Mr Armstrong said.
"We need this ASAP.
"One level of experts held up is going to have a downstream, no pun intended, effect on other experts."
DAF also argued providing the data would breach confidentiality and privacy laws, but Mr Armstrong argued legislation provided disclosure if it was required or permitted by law.
DAF's lawyer Sean Russell said there was an absence of evidence to show whether the plaintiffs needed all of this evidence.
"This department is a stranger to litigation," Mr Russell said. "The department is coming in cold."
Mr Russell said the application had to be weighed against relevance of data being requested, the department's time to collate the date, the expense and inconvenience.
He said another problem with the data request was the use of difference types of log books by fishermen with some data not indexed.
"They contain a significant amount of data," he said.
He said they included personal information such as skipper names.
"This is not your ordinary disclosure exercise," he said.
Mr Russell said the previous two subpoenas were responded to by Genevieve Phillips who was the data co-ordinator, who finished working for the department this year.
Mr Russell said the person who had responded to the plaintiffs' latest request was an interim replacement.
"What the plaintiffs want to do is obtain the perfect data set," he said.
Mr Russell accused the plaintiff lawyers of "trying to trap all commercial fishers in Queensland in the last 15 years".
He alleged the information requested would identify information about commercial fishermen with whom the plaintiffs would otherwise be in competition.
Justice Graeme Crow said the purpose of advertising prior to this request was to identify anyone who was opposed to the information being disclosed and there was no one in the courtroom doing so.
"That doesn't relieve the department of its obligation," Mr Russell said.
"What the plaintiffs want is everything they can get their hands on, whether it's in the scope or not."
Mr Armstrong said the data being requested was data that was the government department's function to collate.
"Once the data is received, it will be subject to the Harman undertaking," he said.
The Harman undertaking is where information obtained via discovery or subpoena cannot be used for purposes other than the proceedings for which it was requested.
Justice Crow has reserved his decision, advising the parties he hoped to get it to them in the coming days.