Anderson v Chief Executive, Department of Employment, Economic Development and Innovation (No 2) - [2010] QCAT 645

CITATION:

Anderson v Chief Executive, Department of Employment, Economic Development and Innovation (No 2) [2010] QCAT 645

PARTIES:	Mr Stephen Anderson
v
Chief Executive, Department of Employment, Economic Development and Innovation

APPLICATION NUMBER:

FHR083-09

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

17 June 2010

HEARD AT:

BRISBANE

DECISION OF:

Mr J Allen - Presiding Member
Ms J Ford – Member
Ms A Jarrett - Member

DELIVERED ON:

20 December 2010

DELIVERED AT:

BRISBANE

ORDERS MADE:

The Respondent’s decisions of 23 September 2009 to remove the C1 and L1 symbols are set aside and decisions are substituted that the commercial fishing boat licence held by Mr Stephen Anderson endorsed with boat mark FCDX will not be amended to remove the CI and L1 fishery symbols.

CATCHWORDS :

Amendment of C1 and L1 symbol, Fisheries Act 1994 section 63

APPEARANCES and REPRESENTATION (if any):

APPLICANT :	Mr Stephen Anderson Mr Samantha Evans assisted Mr Anderson
RESPONDENT:	Chief Executive, Department of Employment, Economic Development and Innovation represented by Ms Stephanie Slade and Mr Phil Gaffney

REASONS FOR DECISION

Mr Stephen Anderson has devoted his life to the fishing industry since a young age. He has held a skippers ticket since the age of 18 and has owned his own boat since 1996. This would not be unusual accept that Mr Anderson suffered severe injuries to both of his feet as a result of a car accident in 1988 and his doctors were of the opinion that he would be in a wheel chair by the age of 30. This application concerns his original fishing boat licence 12063 with boat mark FCDX which was purchased in 1996 and is in regard to the removal of the C1 and L1 symbols from that licence. This application was heard with a separation application in regard to Mr Anderson’s licence 13105 with boat mark FXRZ. That application concerned the removal of an L1 symbol from the licence and the tribunal has confirmed that decision in a separate decision in respect of application GAR005-09.
The respondent introduced the “Policy for the Removal of Excess Fishing Capacity in Queensland’s Line, Crab and, Beam Trawl and Eel Fisheries” on 18 July 2008. Following a show cause process commenced under that policy on 1 August 2008 a delegate of the respondent made separate decisions on 23 September 2009 to remove the C1 and L1 symbols from licence 12063. The L1symbol in accordance with the Fisheries Regulations 2008, enables the holder of it to use fishing lines to fish for Fin Fish, other than Spanish Mackerel or regulated coral reef fin fish in the designated areas. The C1 symbol in accordance with the Fisheries Regulations 2008, enables the holder of it to take crabs, other than spanner crabs, by crab or dilly.
Mr Anderson has made application to the tribunal to review the decision of the respondent to remove the C1 andL1 fishery symbol from his licence.

THE LAW

This application was originally made to the former Fisheries Tribunal which was abolished upon the commencement of the Tribunal. In accordance with section 271 of the Queensland Civil and Administrative Tribunal Act 2009 the Tribunal has, and only has, the functions that the former entity had in relation to the matter under the former act and the tribunal can, and can only, make a decision the former entity could have made in relation to the matter under the former act. Section 196 of the Fisheries Act 1994 (prior to its amendment) dealt with the grounds of appeal in respect of decisions made under that Act and section 198 sets out the powers of the former Fisheries Tribunal. Section 196(2) of the Fisheries Act 1994 provides that amongst others a decision of the chief executive about policy can’t be appealed against The grounds of appeal under section 196 are:

aThe decision of the chief executive was contrary to this Act;
bThe decision of the chief executive was manifestly unfair;

cThe decision of the chief executive will cause severe personal hardship to the appellant

Mr Anderson raised grounds (b) and (c) in his notice of appeal.

The powers exercisable by the Tribunal in accordance with the former section 199 of the Fisheries Act 1994 were to

aconfirm the decision appealed against;
bset the decision aside and substitute another decision; or
cset the decision aside and return the matter to the chief executive with directions the tribunal considers appropriate.

Section 199(2) states that in substituting another decision, the Tribunal has the same power as the chief executive. This implies that the Tribunal when exercising its powers under the Fisheries Act 1994 is to do so by way of a fresh hearing of the matters as it would if exercising power under section 20 of the Queensland Civil and Administrative Act 2009.

When the Tribunal is exercising its review jurisdiction in accordance with section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) the purpose of the review is to produce the correct and preferable decision and the Tribunal must hear and decide the matter by way of a fresh hearing on the merits. The Tribunal must in accordance with section 19 of the QCAT Act decide the review in accordance with the Act under which the decision being reviewed was made and has all the functions of the decision-maker for the decision being reviewed. The Tribunal then steps into the shoes of the decision maker in making a fresh decision based on the framework under which the decision was made having regard to the evidence before the original decision maker and any other evidence which is accepted by the Tribunal.
The amendment of an authority in accordance with section 63 of the Fisheries Act 1994 requires that the chief executive take certain steps before the decision is made including the issue of a show cause letter stating the proposed amendment and the reasons for it and outlining the facts and circumstances forming the basis of the reasons and inviting the holder to show why the authority should not be amended. In this case submissions were received by the respondent on 9 October 2008 from the firm of Law Essentials with further submissions provided on 6 November 2009.In accordance with section 63(2) of the Fisheries Act 1994 the chief executive may amend the authority if, after considering all representations made within the stated time, the chief executive still considers the authority should be amended in the way mentioned in the show cause notice or in another way, having regard to the representations.
The chief executives power to amend authorities is broad and not on its face subject to limitation. The exercise of the chief executives power is then having regard to the decision in R v Queensland Management Authority, ex parte Hewitt Holdings Pty Ltd 1993 2 QR 201 to be determined in accordance with the subject matter scope and purposes of the statute as expressed in the policy of the department in respect to the particular subject matter then under consideration, which in this case are the C1 and L1 fishery symbol.
The objectives of the Fisheries At 1994 are set out in section 3 of that Act and are –
To provide for the use, conservation and enhancement of the community’s fisheries resources and fish habitats in a way that seeks to apply and balance the principles of ecologically sustainable development and promote ecologically sustainable development
The Policy for the Removal of Excess Fishing Capacity in Queensland’s Line, Crab and, Beam Trawl and Eel Fisheries (the Policy) in its background states that:
“excess fishing capacity (latent effort) has been identified in Queensland’s Line, Crab, Beam Trawl and Eel Fisheries where significant numbers of the respective fisheries symbols are not being utilised, or if they are to a very low level. Conversion of this latent effort into real fishing effort would likely result in detrimental impacts to the fisheries and their users
Removal of latent effort is the most effective mechanism to ensure that fisheries management continues to meet the objectives of the Fisheries Act 1994 by ensuring the identified excess fishing capacity is not converted into real fishing effort which could effect:
Future economic viability of current fisheries symbols;
Fair access to the resources for other resource users; and
Biological sustainability for certain species.”
The policy also referred to an investment warning stating that:
The investment warning advised potential investors, current commercial fishers and boat owners authorised to fish in Queensland’s crab fishery.., that from the date of the warning (12 September 2003) any expansion of fishing effort or increased investment in these fisheries may not be recognised in long-term management arrangements being developed for these fisheries.
The policy was to be implemented by:
Assessing all commercial fishing boat licences with the respective symbols against the eligibility criteria outlined in the policy and use a ‘show cause’ process to propose the removal of symbols from those licences that don’t meet the criteria. Decision makers will propose the removal of the symbol if they are satisfied the fishing history for the licence fails to meet a minimum level of activity in the fishery in the identified periods. The minimum level of fishing activity will ordinarily be determined by decision makers based only on statistical returns (logbooks), which are legally binding.
The assessment criteria for the C1 symbol was stated to be as follows:
250kg or more of crab taken under a C1 symbol in three of the following four periods:
13 September 1999 to 12 September 2000
13 September 2000 to 12 September 2001
13 September 2001 to 12 September 2002
13 September 2002 to 12 September 2003
Or
1500 kg or more of crab taken under a C1 symbol in the period:
13 September 1999 to 12 September 2003
AND
500kg or more of crab taken under a C! symbol in any one of the following periods:
13 September 2003 to 12 September 2004
13 September 2004 to 12 September 2005
13 September 2005 to 12 September 2006
13 September 2006 to 12 September 2007
OR
1000kg or more of crab taken under C1 symbol in the period:
13 September 2003 to 12 September 2007.
The assessment criteria for the L1 symbol was stated to be as follows:
The holder has reported any catch under the L1 fishery symbol in any three of the following periods
1 July 1999 to 30 June 2000
1 July 2000 to 30 June 2001
1 July 2001 to 30 June 2002
1 July 2002 to 30 June 2003
1 July 2003 to 30 June 2004
1 July 2004 to 30 June 2005
1 July 2005 to 30 June 2006
1 July 2006 to 30 June 2007
AND
The total catch taken for the period 1 July 1999 to 30 June 2007 is 3000kg or more
The Policy states that:
In response to the show cause notice, any further information the holder wishes to provide, including any reason why the policy should not apply to the holder such as a special circumstance affecting the holder’s usual fishing pattern during the above periods will be considered by the decision maker.
The Respondent produced a set of Guidelines for Applying Special Circumstances in relation to the Policy. It is stated that
“This document was developed to provide guidance for decision makers in cases where the decision maker has found that the licence holder has been able to demonstrate a special circumstance that warrants the provisions in the policy being set aside. These guidelines have been developed primarily to provide consistency in the decision making process.”

It is noted from the policy that the special circumstances are said to be those affecting the holder’s usual fishing pattern during the above periods.

There are a number of relevant special circumstances as follows:

aLogbook clarification (all fishery symbols)

In the case that logbook records received by DPI & F does not match an operators catch records, the applicant may provide supporting documentation to demonstrate logbook errors. Examples of supporting documentation include copies of logbooks, unloading dockets and other information used to prepare annual taxation returns etc.
bEvent

An applicant would meet an event special circumstance if they are able to demonstrate that for a specified period during the policy criteria period no fishing was undertaken under any fishery symbol on the licence because of a specific reason out of the control of the operator. These reasons may include illness of the owner or a family member, the boat attached to the licence was destroyed or could not have been used for a commercial purpose or another unforeseeable or uncontrollable reason. The applicant may provide supporting documentation to clarify the event. Examples of supporting documentation include medical certificates, boat insurance claims, receipts from boat repairers etc.
Minimum continual periods that constitute an event:
Line, Beam trawl and eel fisheries – 6 months
Crab fishery – a 6 month period prior to the investment warning and/or the entire criteria period after the investment warning.
cRecent entrant

Where a licence holder has not met the entry criteria due to insufficient opportunity to achieve the required catch levels because they did not hold the licence or the fishery symbol long enough.
dMulti-endorsed and diversified fishing operation

Considerations may be given to operators who have a consistent level of catch history for the fishery symbol under show cause but failed to meet the criteria for that fishery symbol because they relied on operating in a number of fisheries during the criteria period to a consistent level.
eOther circumstances relevant to the L1 fishery

Consideration may be given to trawler operators who are able to demonstrate a reliance on line caught product prior to the introduction of permitted species provisions in the Fisheries (East Coast trawl) Management Plan 1999…
fOther

Any other special circumstances that prevented a licence holder from meeting the required minimum commercial level during the criteria period. The applicant may provide supporting documentation to demonstrate any other event.

There is then a set of adjusted criteria provided in respect of most of the special circumstances which notes that the “decision maker is not bound by the following guidelines and can always apply other reasoning to determine a final outcome.”
It is then for the Tribunal to apply the policy to the facts as accepted by the tribunal to determine the matter.

EVIDENCE

The Respondent in its show cause letter of 1 August 2008 in respect of his L1 symbol advised Mr Anderson that the catch under that fishery symbol was as follows:

99/00	00/01	01/02	02/03	03/04	04/05	05/06	06/07	Total
0	0	0	0	0	0	0	0	0

The respondent in its show cause letter of 1 August 2008 in respect of his C1 symbol advised Mr Anderson that the catch under that fishery symbol was as follows:

99/00	00/01	01/02	02/03	Total
12	79	225	19	335

03/04	04/05	05/06	06/07	Total
0	0	0	0	0

In their response dated 9 October 2008 to the show cause letter in respect of the C1 symbol Law Essentials on behalf of Mr Anderson raised several special circumstances; logbook clarification, event, multi-endorsed and diversified fishing operations, other special circumstance relating to injuries Mr Anderson had suffered in 1988. In regard to logbook clarification several additional pages being pages 7 to 13 from the C1 logbook were submitted. These pages disclosed catch during the period from 17/8/02 to 28/12 05. It was stated that Mr Anderson was illiterate and that he had relied on his crabbing partner to complete the logbook pages.
There were also three event special circumstances raised. One event was when Mr Anderson had broken his foot in January 2000 and a skipper was put on the boat. Other event were in 2001 when a skipper was required during the periods 3/1/1/01 to 11/5/01 and 4/11/01 to 27/3/03 so that Mr Anderson could skipper another boat to meet special conditions imposed by the government.
The multi-endorsed and diversified fishing operations special circumstance was also raised. This was on the basis that Mr Anderson operates in both the Trawl and also C1 fishery and that he had demonstrated reliance on both these fisheries over the show cause period, although he did not meet the requisite minimum catch history.
In regard to the Other special circumstances it was stated that Mr Anderson suffered extensive injuries to both of his ankles in a car crash when he was 19 years old. These injuries are described as follows by Dr Michael Holt, orthopaedic surgeon, in a report dated 19 September 2005:
Stephen Anderson had a fracture dislocation of his ankle and talus, which required internal fixation to stabilise his ankle and to achieve an optimal outcome for him.
A fracture dislocation of the talus is a severe injury and prone to late complications.
Despite good treatment Mr Stephen Anderson has gone on to develop traumatic osteo-arthritis of the ankle joint, secondary to avascular necrosis of the talus which has been occurring slowly over the last 20 years.
Mr Stephen Anderson has a very stiff and painful ankle and he will require further reconstructive surgery and a fusion of the ankle to continue to function in any sort of capacity.
This will leave him with a permanently stiff ankle, but hopefully a painless joint to allow him to ambulate successfully
A report form Dr Lewis Lassig, Mr Anderson’s general practitioner, dated 17 September 2008 was also provided it confirmed the history of severe ankle and foot injuries to both legs which has left Mr Anderson with a significant mobility impairment. It stated:
Mr Anderson’s level of disability will only increase with time. His disability precludes being able to work in most occupations. It is most commendable that he continues to operate a trawler. It would be in the best interests of Mr Andersons physical and mental well being to retain a line and crab licence as this is vital in supplementing his income. As time passes Mr Anderson may function less well with the trawling aspect of his job, and rely on line and crab work.
Law essentials submitted that Mr Anderson’s injuries has a serious impact on his ability to continue to operate a trawler into the future and that he holds every intention of shifting his focus from the trawl fishery to the line and crab fishery. They also mentioned that Mr Anderson had intended to purchase a new boat in 2005 and had obtained a loan from the QRAA but the transaction failed resulting in Mr Anderson suffering a $14,000 loss.
It was also noted that Mr Anderson is illiterate and that he has no experience outside of the fishing industry and that the removal of the symbol would reduce his ability to continue to support his family.
An earlier decision of the former Fisheries Tribunal as a result of which Mr Anderson had an N1 symbol removed from his other licence was also referred to. It is noted that this decision accepted that Mr Anderson has very few prospects for employment should he no longer be able to earn a living from commercial fishing.
Law Essentials on behalf of Mr Anderson In their response dated 9 October 2008 to the show cause letter in respect of the L1 symbol raised several special circumstances the Other special circumstances relevant to the L1 fishery and the Other special circumstance. In regard to the L1 Other circumstance it a stated that the licence has a T1 symbol attached to it and consideration should be given to the fact that the permitted species provisions in the trawl plan has impeded our client from recording any significant history on their L1 symbol. The other special circumstances repeated those in regard to Mr Anderson’s injuries which are set out above.
The decision maker recited the facts outlined above in regard to the C1 fishery symbol and considered the special circumstances raised on behalf of Mr Anderson in regard to that symbol and decided not to set aside the policy and to remove that symbol. In regard to the logbooks pages which were not lodged the decision maker confirmed that page 7 had previously been lodged but the other pages would not be taken into account as the intent of the circumstance is not to provide an avenue for fishers who did not legally report their catch to submit late logbook returns. In regard to the claim that Mr Anderson was illiterate and had relied on his fishing partner to complete returns. It was also noted that trawl returns had been submitted during the period in question. The event special circumstances were considered but as there was catch recorded in the trawl fishery during the periods and there were no periods of greater than six months without fishing activity this special circumstance was taken not to apply. The multi-endorsed and diversified fishing operation special circumstance was said not to apply except in two years prior to the investment warning. This was on the basis that there was no consistent level of catch for the C1 symbol as there was no catch after the investment warning. While acknowledging Mr Anderson’s reliance on the fishing industry and the claim that he intends to shift from fishing in the trawl fishery to the crab and line fishery at a time when trawling is too physically demanding, the decision maker considered that there were appropriate arrangements available in regard to the sale and lease of symbols to allow Mr Anderson to continue fishing without imposing severe personal hardship.

The decision maker in turn outlined the facts mentioned above in regard to the L1 symbol and considered the special circumstances raised in regard to the L1 fishery symbol and decided not to set aside the policy and to remove that symbol. The decision maker looked at the recorded catch in the L1 fishery and finfish catch generally prior to the introduction of the trawl fishery permitted species provisions and found that there was no L1 catch between 1990 and 1999. There was finfish catch recorded in the trawl fishery logbook between 1997 and 1999 of 369kg. This level of catch was not considered to demonstrate consistent or significant commercial reliance on the ability to catch fin fish in the L1 area. The other special circumstance in regard to Mr Anderson’s injuries was also not considered for the same reasons as outlined in regard to the C1 fishery symbol.
Mr Anderson made written submissions in support of his application for review which relevantly provided as follows:

aDue to my injuries I have always tried to have a long-term plan and be one step ahead.
bThere is always a high degree of uncertainty in the fishing industry because of governments ever changing policies. This causes a negative impact on both my business and my family and me.
cBy purchasing a boat and licence with other endorsements I would be able to rely on them as my condition worsened, that is why I purchased Coraki at a cost of $145,000. I paid more for Coraki because of the endorsements I knew would have to rely on the C1 and l1 plus 2. I haven’t been able to use them in the past because of my disability and policy arrangements.
dMy actual reliance in the crab and line fisheries has always been in the future/ I have no other sources of income and I have invested in my future when finances have allowed.
eI have invested money in the crab and line fishery. Purchase of FCDX-2 that is the primary boat for crabbing and also one of the tender vessels for my endorsements of L1 +2. Purchase of a brand new Yamaha 50 outboard motor. Purchase of material to make in excess of 100 crab pots. Purchase of second hand crab pots. Rods, reels, knives winches and tackle. Purchase of license FXRZ at a cost of $32,000. Purchase of 11.5 metre boat for FXRZ.
fHe explained this intention to use his primary vessel with a skipper in the East Coast King prawn fishery and that he was preparing scalloping nets. Mr Anderson would crab for 6 months of the year and line fish form Double island point to the Gold Coast and Moreton Bay. His L1 plus 2 allows him to have two tenders and this increases the value of the L1.
gI am unable to run a business without the help and participation of others so by putting a skipper on my other vessel this will increase my income and allow me to crab and line. My business will be efficient and viable as well as a safe and rewarding.
hI will need to put a skipper on to carry out my usual business in the east Coast prawn fishery as it will become too labor intense and the risks to my safety are increasing.

I am unable to lease out any of my endorsements on FCDX. I will be unable to lease or purchase any other symbols to put on the licence FCDX.

jIn 2006 changes to licences, quota and symbols were made transferable to give greater flexibility in the way we can use our fishing rights. In September 2007 we applied for finance from QRAA, for the purchase of another licence so we could use our endorsements more freely specifically our M1, C1 and L1+2. That application was approved. He enclosed a business plan that was required by QRAA when he applied for FXRZ in 2007. Which sets out that part of his intention in purchasing a new licence was to allow me to use my endorsements more freely without the restrictions of the TI and the potential of a second vessel or leasing. Although separate licences FXRZ and FCDX are part of the same operation.
kWhen purchasing the licence FXRZ he had spoken to department representatives, Mr Jason Lally and Mr Ivan Rudd. He was told that the L1 would be subject to boat length restrictions but the transfer of symbols between the licences would be fine. It was said that next yea there might be something go on with the line but nothing concrete, it may be a boat length restriction.
lWithout my symbols C1 and L1 the purchase of FXRZ is of no use to me, as I will not have sufficient income to look at alternatives due to my disability.
mThat he has never leased a licence before and that in that regard the decision was based on incorrect information. My capacity to derive an income from lease arrangements would not be sufficient to support my family due to my disability. I am incapable of working in the average capacity not just in the fishing industry but in any industry. I live with extreme pain and I work for my own personal reasons. My intention to be in the crab and line fisheries has always been part of my long-tem plans.
nWe have substantial financial support form family members. It has always been evident that the trawl sector would be insufficient to support a family and honour debt to family members that have ultimately kept us afloat.
oI agree that I do not have sufficient activity as per the policy in regard to L1. To line fish I was required to remove all trawl gear. This was an impossibility for me. I am physically unable to do this due to my disability, the trawl boards weigh 200 kg and there is two. The skids weigh 200 kg and there is two. The nets weigh 100 kg by themselves and there is three. No spare nets were allowed on board. I have spare nets. If I did not have to comply with this regulation I have no doubt that I would have met the minimum commercial level of activity. I did line fish in the L1 fishery when I first purchased my boat. Due to the east Coast Trawl plan I was unable to continue. All my effort was put into trying to sustain my trawl nights.
pAll pages of the crab logbook were written up and posted by my crabbing offsider (Peter Buckley and his wife (Heather Buckley. A statutory declaration from heather Buckley confirming that the completed pages of the log were posted was provided to the tribunal. All pages of the logbook were sent to the address on the front of it. I do have more unload dockets for crabs along with bait dockets which do not match, which do not correspond with logbooks and entries should have been made. They were carried out with other crew not the Buckley’s. Our bookwork is not good or organised. This book work has been through two house moves and a break in. These dockets are not going to meet your required commercial levels but do show effort and intent. There are both dockets for crabs caught and bait dockets supplied that are not included in returns. The crab logbook has always been with the Buckley’s. I have made approximately 110 crab pots and only have 21 left. 89 crab pots have been stolen. This was reported to the department and police. With them the catch and capacity to increase my catch. Crab pot theft has had a significant impact on my crabbing. I attempted to crab for two weeks and 2003 but was told I would need a VMS on my tender and did not crab. The legislation has since been changed. But to obtain an exemption I still need to remove my nets and boards weighing 500 kg.

Mr Anderson also provided statements from his mother and Ms Evan’s parents confirming his circumstance and that the various families have lent Mr Anderson considerable sums of money which are still outstanding to support his fishing business
The Respondent also made written submissions to the tribunal relevantly in regard to the issue of logbook clarification. The previously unprocessed logbook pages and a large number of invoices and receipts provided by Mr Anderson in support of his claim that he had a reliance on the C1 fishery symbol were analysed by an officer of the department. It was stated that the receipts have little overlap and as a result they do not corroborate catch outlined in logbook pages 8 – 13 which were supplied by the applicant. It was also noted that a high proportion of the receipts submitted by the applicant have not been recorded in the logbook records. The Respondent set out a number of reasons why it did not support the use of sales receipts to justify the inclusion of catch. The Respondent noted that Mr Anderson should be well aware of his obligations in regard to log books as he has received multiple breach notices in regard to submitting them on time. In regard to the additional logbook pages the tribunal notes that the crab catch recorded on those pages is as follows:
03-04 = 273kg
04-05 = 322kg
05-06 = 265kg

The respondent submitted that Mr Anderson did not meet the multi-endorsed and diversified fishing operation criteria in respect of either crab or line fishery symbols. The C1 criteria required catch of 100kg in at least 2 years before and after the investment warning of 12 September 2003. The L1 criteria required catch of at least 100kg in at least four years between 1999-2007. In regard to the event special circumstance the respondent submissions was that there were no periods were there was no catch under any symbol and in any case a majority of the circumstances raised by Mr Anderson did not constitute events. The respondent also submitted that the circumstances raised by Mr Anderson in respect of his crabbing activities such as theft, problems with VMS and the purchase of the new licence and the business plan and reasons for not accepting them as other special circumstances were outlined. It was noted that Mr Anderson only fished in the crab fishery for 24 days between 13 September 1999 and 12 September 2003 and did not fish in the C1 fishery from 13 September 2003 to 12 September 2007.

Mr Anderson’s injuries were also considered as another special circumstance by the respondent. It was noted that the circumstances in regard to injuries relate to Mr Anderson’s future use or intended reliance on the C1 and L1 fishery symbols. As a consequence, if the department were to return the C1 fishery symbol and/or the L1 fishery symbol, it would be doing so on the understanding that the appellant was intending to increase effort on these symbols. The submissions refer to the Fisheries Tribunal decision of 2006 and then state the department considers that the viability of Mr Anderson’s current operation has not been compromised by the removal of the C1 and L1 symbols. Catch records show that both licences operate in almost exclusively in the trawl sector. The business plan indicates that his most significant investment has been within the trawl fishery. It is noted that Mr Anderson has indicated throughout his application that the premise of the appeal is that his injuries will require him to move into the Crab and Line fishing industries as trawl fishing will place too high a demand on his body. The department then sets out the other options it considers available to Mr Anderson, such as the sale of his trawl symbols and purchase of C1/L1 symbols which have passed the latent effort test or leasing arrangements. In regard to Mr Anderson’s preferred option of having a skipper on one boat operating in the trawl sector with him operating in the crab line and injuries permitting trawl(in Moreton Bay) the departments considers this is his preferred business set up not a special circumstance that warrants setting aside the policy.
The applicant made statements and submissions at the hearing relevantly as follows :

aHe bought FCDX in 1996 specifically for trawl and extra endorsements. Since then we have lost a lot of endorsements N1 L3 (no quota).
bWhile Mr Anderson’s interest is predominantly in trawl knew that sooner or later he may have to do other things. He can’t read or write, he is illiterate.
cHis injury is that bad he can’t do other work. He struggles to stand for long periods of time. The boat is hard work but he does it at his own pace. He tried to work for others buy they wanted a bigger effort than he can produce.
dThey don’t have a lot of money and no superannuation.
eHe will rely on the C1 for him to be physically active in the industry.
fThey have looked at other options but can’t see how to be profitable or viable. Looked at prices to sell and buy back. Could not pay bills if only had C1 and L1. Boats are costly with a lot of overheads.
gHe needs both boats one boat to make a profit the other for him to make some money using the C1, l1 and M1.
hIn the future sooner or later he will be in a wheelchair. The doctors are surprised he is still working. He needs another operation with 6 months off his feet but we can’t afford it at the moment.

He can’t sell his licence as no-one wants to enter the trawl industry.

jMs Evans purchased a sea food van to increase the amount of return from the prawn trawler for the family. She only sells Mr Anderson’s prawns.
kOrthopaedic specialist David Morgan told Mr Anderson that he would be in a wheel chair by the time he was thirty and when told what type of work he does told him to give it up. Specialists today don’t know how long he will be on his feet. He does not want to go onto the pension. He wants to be able to continue his participation in the fishing industry preferably with someone he trusts to operate the boat does not want to sell it off.
lIn regard to the investment warning in the C1 fishery Mr Anderson said, I thought I can’t afford to spend any more money on something that us not going to give me a return. I was spending other people’s money; his mother bought an outboard motor.
mWhen was starting to crab used someone else’s boat to see if he could do it. Found that he could and then crabbed with a partner. Bought a boat September 2002 and then the outboard February 2003. Built crab pots but they continued to be stolen. That was why bought a faster motor so that could beat the thieves. He accepted that he did not rely on it commercially or got income from it but he knew he would need it in the future. He confirmed that as far as he knew Ms Heather Buckley had been keeping and sending in the crab log books but both he and peter Buckley his crabbing partner were illiterate. He referred to a statutory declaration filed by Mrs Buckley confirming that she had sent the log book pages to the address on the front of the book.
nIn regard to the trawl log books M Anderson confirmed that these were maintained by Ms Evans. They had not thought there was an issue with the crab logbooks as they were receiving notices for the trawl books. In regard to the receipts and invoices supplied it was stated that they were to show that Mr Anderson did try.
oThe reason why there were discrepancies between the log books and the invoices and receipts provided was that Mr Anderson is illiterate and Ms Evans is a mother of two , does two GSTs, two taxes runs own business and she has to do all of the work around the house and yard due to Mr Anderson’s feet.
pThe VMS was a problem with crabbing as would still have to remove the trawl gear from Coraki. This would only be remedied once had the second license.
qIf all of my effort in towards the mud crab fishery had paid off in the Brisbane area I would have continued to mud crab to make money. I did not just do it to get history it wasn’t making me anything in Brisbane. But if he can focus on it he can make it work but he needs to be able to move symbols.
rWhile there is no commercial reliance on line fishing I am going to use the L1 to co-fed business to keep it viable. I can line fish and crab in a wheelchair but can’t prawn. Those are the parts of my licence I will rely on once my feet won’t me to be in the trawler industry. If I put a skipper on the trawler it has to catch a quarter more as he takes a quarter. Hence when I saw a licence with a small amount of effort units and small catch that was one in my price range. L1 licence on FCDX has tenders. I could have two fishermen on tenders I don’t need to line fish.
sIn regard to the sale of the T1 symbol it would currently bring 200 with efforts units at about $12. The cost of a C1 symbol is $35,000 and an L1 symbol $7,000-$9,000.

The respondent representative made the following relevant submissions at the hearing:

aWhile the address had changed in regard to the C1 log books the returns were forwarded on for some years.
bIn regard to the L1 this licence was held for a long time and there was no catch history in relevant period and only one day in 1998. While there is no dispute that his capacity to fish generally is reduced, there is not even a low level of activity. If basing decision on past reliance which is what we are required to do under the policy, there is not a way to adjust catch history and demonstrate licence meets criteria.
cIn regard to his disability, the department is not satisfied that future reliance is there in a clear way. Not convinced that if could not go trawling could go line fishing.
dIn regard to the C1 symbol department does not believe that its removal will have severe personal impact.

DISCUSSION

Mr Stephen Anderson has managed to operate a trawler since 1996 in difficult circumstances as a result of a debilitating injury to his feet which occurred in 1988. This injury means that what would be a relatively simple task for most fishermen such as the removal of trawl gear becomes a difficult task for him. It is Mr Anderson’s case that in knowing of his long term poor prospects, that is he would eventually be in a wheelchair, he chose a multi-endorsed fishing licence with amongst other symbols a T1, C1 and L1. It has been his long term intention to put a skipper on his primary boat and use his C1 and L1 symbols to enable him to stay in the industry. Staying in the industry is very important to Mr Anderson as he has been a fisherman since his teens, knows nothing else and is not suited to other occupations due to his lack of academic skills and injuries.
In the past Mr Anderson has attempted to activate his C1 symbol in particular in the years 2000 to 2003. For various reasons his catch was limited and he eventually decided not to pursue it further. There is evidence, which is accepted by the Tribunal, that he bought a boat and outboard motor and made crab pots. The activity in this period is reflected in the log book records which have been received by the department. The Tribunal notes that further log book records for years 2003 to 2006 were submitted after Mr Anderson received a show cause letter and these were not accepted by the department. Even if these logbook records were accepted Mr Anderson would not be able to meet the primary criteria over the full period. Nor would he meet the adjusted criteria for the multi-endorsed and diversified operations special circumstance.
The Tribunal has had regard to the decision Mr Anderson made in 2007 to purchase a new licence and accepts based on the business plan and his testimony that one of the purposes of that licence was to free up his symbols and that this refers to his C1 symbol.
While an event special circumstance does not apply due to it requiring that there be no catch under any symbol during the period and there was always trawl catch The Tribunal accepts under the other special circumstances that Mr Anderson did not pursue fishing under his C1 symbol due to the injury to the injury to his ankles and that this is why he was not able to meet the criteria for the C1 fishery. The respondent submits that if a special circumstance in regard to future reliance is accepted it will result in an increase in effort under the symbol. Where any symbol is returned to a holder by way of special circumstance it will always be on the basis of an increase in effort otherwise there would be need to use a special circumstance.

Mr Anderson submits that for his business to be viable into the future he needs to retain his T1 symbol with a skipper on his primary vessel and that he would use another vessel with his C1 and L1 + 2 tenders under his other licence that he purchased (FXRZ) for $32,000. This new licence has additional effort units to enable this to occur by taking advantage of the symbol trading provisions which were allowed by the department. The Tribunal notes that this purchase was after the investment warning but considers that Mr Anderson would have been able to satisfy the C1 criteria but for his injury in particular in regard to the requirement to remove his trawl gear before crabbing could occur. The department has submitted that Mr Anderson has other options such as the sale or lease of his T1 symbols and the lease or purchase of other symbols he wished to use. Mr Anderson has been in business for 14 years and knows what his financial requirements are. His business is not as profitable as others due to his disability and this is reflected in the financial support he has required from family members.
The Tribunal accepts that Mr Anderson would need to retain all of his symbols when he needs to transition out of the trawl sector. On the reports from his doctors this could be quite soon. The Tribunal acknowledges that the Respondent also submitted that there was doubt whether Mr Anderson would be able to function in the C1 and L1 fishery if he could no longer trawl. It appears that Mr Anderson has for many years surprised his doctors with his capacity and he is obviously the one who knows what his physical limits and tolerances are. The tribunal accepts that Mr Anderson will be able to rely on his C1 symbol if he is no longer able to trawl. While his reliance may be in the future, he will not be in a financial position to absorb the cost of an additional C1 licence considering his current debt including family loans and the amount of $32,000 owing to the QRAA. The Tribunal is satisfied that the removal of Mr Anderson’s C1 symbol will cause him severe personal hardship. The decision of the respondent in regard to the C1 fishery symbol will be set aside.
In regard to the L1 fishery there has been no relevant catch history and there is only a small amount of fishing gear which Mr Anderson has purchased second hand, this was discussed in the decision in regard to FXRZ. The Tribunal has regard to Mr Andersons expressed intention to rely on this symbol once he is no longer able to trawl. The tribunal also accepts that the business plan reflects an intention to rely on the L1 fishery by way of freeing up Mr Anderson’s symbols and that the purchase of the licence FXRZ for an amount of $32,000 is a significant investment in regard to that intention.
The Tribunal notes that there was no investment warning which the department seeks to enforce in regard to the L1 fishery. The Tribunal also notes that Mr Anderson has already lost one L1 symbol as a result of the decision in regard to licence FXRZ and that this should be favourably considered as latent effort will be reduced by that decision. For the same reasons as mentioned above the Tribunal accepts that Mr Anderson will be able to access the L1 fishery when he is no longer able to trawl. The Tribunal also accepts that the only way for Mr Anderson to be financially viable is for him to retain this symbol and that the removal of the L1 symbol will cause him severe personal hardship. The decision of the respondent in regard to the L1 fishery symbol will be set aside.