Bartholomew v Chief Executive, Department of Employment, Economic Development and Innovation

[2009] QCAT 36

CITATION: Bartholomew v Chief Executive, Department of Employment, Economic Development and Innovation [2009] QCAT 36

PARTIES:   Mr Ross  Bartholomew

v

Chief Executive, Department of Employment,
  Economic Development and Inovation

APPLICATION NUMBER:            FHR041-09

MATTER TYPE:   

HEARING DATE:   23 December  2009

HEARD AT:   Brisbane

DECISION OF:   Ms S Gardiner

DELIVERED ON:   24 December 2009

DELIVERED AT:   Brisbane

ORDERS MADE:   Application dismissed

CATCHWORDS:  Fisheries Act, stay of decision pending
  hearing of appeal

APPEARANCES and REPRESENTATION (if any):

This application was heard in the absence of the parties

REASONS FOR DECISION

[1]Mr Ross Bartholomew is a commerical fisherman who runs his business on his evidence, co-operatively with his son Daniel, also a commercial fisherman.  Mr Bartholomew and Daniel currently each own a boat and a license.  Mr Bartholomew owns the 8 metre vessel “Karen Ann” which is licensed under Mr Bartholomew’s license14332 with the boat mark  FRMQ.  Daniel owns the 9.6 metre vessel “Carol K” licensed under Daniel’s license with the boat mark FYAN.

[2]Until recently Mr Ross Bartholomew also owned a 55 foot conquest cray boat, the “Illusion” and this vessel was worked under Daniel’s license FYAN.  The “Illusion” was purchased by Mr Bartholomew in August 2006 and sold in December 2008 due, Mr Bartholomew says, to the high fuel prices.  When the decision was made to sell the “Illusion”, Daniel bought his current vessel and transferred his license FYAN to that boat.

[3]Mr Bartholomew’s license14332 had the fishing symbols C2, L1, L3 and N6 attached to it.  On 1 August 2008 the Department of Primary Industries and Fisheries (“the Department”) issued a notice to Mr Bartholomew asking him to show cause by 5 September 2008 why  the fishing symbol L1 should not be removed from his license.  In issuing this notice, the Department was implementing a Policy for the Removal of Excess Fishing Capacity in Queensland's Line, Crab, Beam Trawl and Eel  Fisheries (“the Policy”) due to concerns that were held about the amount of unused or latent licensed capacity in the industry and the effect this would have on future sustainability if this latent capacity was taken up.

[4]This show cause period was later extended to 26 September 2008 after guidelines for applying special circumstances were issued in relation to the Policy. 

[5]Also on 1 August 2008, a notice was issued to Daniel from the Department’s delegate informing Daniel that the decision had been made not to amend his licence by removing the L1 fishery symbol.

[6]On 24 September 2008, Mr Bartholomew wrote to the Department objecting to the removal of this fishery symbol from his licence and stating his reasons to support this objection.

[7]Under the criteria set out in the policy, on 4 June 2009, the Department through its delegated Fisheries Management Officer Mr Ian Jacobsen, wrote to Mr Bartholomew informing him that the decision had been made to remove the L1 fishery symbol from his licence.

The Review and Stay Applications

[8]On 13 July 2009, Mr Bartholomew filed a Form 1 Notice of Appeal with  the then Fisheries Tribunal.  On 30 November an application was received by the Fisheries Tribunal from Mr Bartholomew seeking a stay of the Department's decision pending the final hearing of this matter.

[9]On 1 December 2009 the Fisheries Tribunal was amalgamated into the Queensland Civil and Administrative Tribunal (QCAT) and the review application came before this QCAT at a callover on 10 December 2009.  On that day a number of directions were made and the review application is set for a hearing in Brisbane on 25 January 2010. 

[10]The QCAT registry was directed to provide the Department with a copy of the stay application and the Department was directed to file and serve Mr Bartholomew with any response to that stay application by 15 December 2009.  The application was then to be heard on the papers not before 15 December 2009. Submissions were emailed to this Tribunal from the Department on 16 December 2009 and provided to Mr Bartholomew.

Submissions on the Stay

[11]Mr Bartholomew raises three reasons why a stay order should be made.  They are:

(i)that another fisherman successfully had a stay granted where that fisherman is appealing the removal of the L1 fishery symbol;

(ii) that he (Mr Bartholomew) intended to rely on the L1 fishery during slow periods or closures in the C2 fishery;  and

(iii) the removal of the L1 fishery symbol is manifestly unfair to Mr Bartholomew.

[12]In response opposing the granting of a stay, the Department says:

(i)  it acknowledges that in certain circumstances a stay order may be appropriate but Mr Bartholomew must show it is appropriate in this case;
(ii)  the closure period for the C2 fishery is 20 November to 20 December and is therefore over;
(iii)  Mr Bartholomew’s son Daniel has retained his L1 fishery symbol and the Department suggests Mr Bartholomew fish with Daniel until the review is determined;
(iv)  the issue of the fairness of the decision is a matter for the hearing in January.

Discussion of Submissions

[13]The review application will be heard by QCAT under Part 9 of the Fisheries Act 1994. Prior to this hearing, this Tribunal may stay the operation of a reviewable decision under section 22 (4) of the Queensland Civil and Administrative Tribunal Act 2009 only if it considers it desirable after having regard to the interests of any person whose interests may be affected, the submissions of the decision maker and the public interest. 

[14]The submissions of the decision maker are listed above.  In essence the Department says Mr Bartholomew has to make his case at the hearing and that in the meantime, the Department can see no great loss to Mr Bartholomew – the closure period is over and in any event, Mr Bartholomew can fish with his son whose licence remains until the matter is determined.  The Tribunal acknowledges Mr Bartholomew’s interests contained in his argument concerning his L1 symbol as an alternate source of income but it seems to the Tribunal that Mr Bartholomew could limit his losses while awaiting his review hearing by fishing under his son’s licence by negotiation with Daniel.  Mr Bartholomew’s own evidence is that he and his son co-operate in their business endeavours even to the extent that in the past his catch has been logged under his son’s quota.

[15]The Tribunal also acknowledges that the closure period for the C2 fishery is over and that it is this fishery symbol that, on his own evidence, is the mainstay of Mr Bartholomew ‘s income earning catch.  The Tribunal notes that the hearing of this review is a short one month hence. The Tribunal is not satisifed that Mr Bartholomew has provided sufficient evidence to support a stay in this matter pending the final hearing.

[16]The public interest in this review is represented by the implementation by the Department of the Policy for the Removal of Excess Fishing Capacity in Queensland's Line, Crab, Beam Trawl and Eel Fisheries due to its concerns about the amount of unused or latent licensed capacity in the industry and the effect this would have on future sustainability if this latent capacity was taken up.   The Tribunal is mindful that the implementation of this public interest policy has had a specific effect on Mr Bartholomew’s interests but is again, not satisfied that a stay of the implementation one month from the hearing of Mr Bartholomew’s review application, sufficiently disadvantages him personally to mitigate against the wider public interest in the application of the specific policy. 

[17]For the above reasons. the application for a stay pending the final hearing of this matter received from Mr Bartholomew on 30 November 2009 is dismissed.