Beames v Chief Executive, Department of Primary Industries and Fisheries - [2011] QCAT 472

CITATION:

Beames v Chief Executive, Department of Primary Industries and Fisheries and Ors [2011] QCAT 472

PARTIES:	Mr Douglas Beames
v
Chief Executive, Department of Primary Industries and Fisheries (now Department of Employment, Economic Development and Innovation) (First Respondent) Fred Fragiacomo Mayra Christiansen (Second Respondents)

APPLICATION NUMBER:

FHR001-02

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Ms Michelle Howard, Member

DELIVERED ON:

4 August 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That the application be dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009;

2. That the second respondent have liberty to apply in respect of costs only within 28 days of being given this decision.

CATCHWORDS:

APPLICATION FOR DISMISSAL – where application lacking in substance

Queensland Civil and Administrative Tribunal Act 2009, s 47

APPEARANCES and REPRESENTATION (if any):

The application was heard on the papers pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

An application was filed by Mr Beames in 2002 in the Fisheries Tribunal appealing a decision of the then Department of Primary Industries and Fisheries to authorise the removal by the second respondent of 30 square metres of mangroves and 4 square metres of samphires from Lot 28 on RP 12574, County of Stanley, Parish of Bulimba. The decision was appealed by Mr Beames on the basis that it was contrary to section 52(3) of the Fisheries Act 1994. The successor to the Department of Primary Industries and Fisheries is the Department of Employment, Economic Development and Innovation (DEEDI).
The Fisheries Tribunal (or the former tribunal) was abolished by the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). The Queensland Civil and Administrative Tribunal (this tribunal) became responsible for determining pending proceedings on foot in the Fisheries Tribunal at the time of its abolition.
The first respondent seeks orders dismissing the proceeding under section 47 of the QCAT Act on the grounds that it is an abuse of process due to events since the filing of the appeal.
The permit to disturb marine plants was issued on 12 September 2002. The works were performed by or at the direction of the second respondents, and the marine plants removed on 10 October 2002. Mr Beames filed his notice of appeal on 11 October 2002.
In late 2002, the parties attended a directions hearing and subsequently outlines of argument were filed in the Fisheries Tribunal. The proceeding was listed for hearing by the Fisheries Tribunal on 18 December 2003, but on that date was adjourned to a date to be fixed after the conclusion of Supreme Court litigation. The transcript includes assertions by Mr Beames to the effect that Lot 28 was his land, as well as Lot 29. It appears that he submitted in the alternative that the land was unallocated Crown land. In any event, his case was in essence that a permit should not have issued as it had. The Fisheries Tribunal noted that proceedings were before the Supreme Court of Queensland regarding the ownership of the land.
Since the establishment of this tribunal in December 2009, several directions hearings have been held. On 1 February 2011, directions were made that DEEDI give a copy of its application seeking dismissal of the application to the applicant. DEEDI confirms that it did so with correspondence dated 7 February 2011. The applicant was directed to file his response in the tribunal by 8 March 2011. The application for dismissal was then to be decided on the papers. It does not appear that the second respondent was notified of the directions hearings and nor have they been advised of the application for dismissal.
The second respondent is entitled to natural justice,[1] and in the ordinary course should have received notice of the application for dismissal and had the opportunity to respond to it. However, the rules of natural justice are flexible, requiring in essence, that procedures be appropriate and fair in the circumstances of the case.[2] The broader review application has been, in effect, dormant for many years. I am not considering an application adverse to the interests of the second respondent. There has been no contact by or from the second respondent with the tribunal. In all of the circumstances, I do not consider that observing the rules of natural justice requires that I give them notice of the application for dismissal of the review application. Therefore, I am able to proceed to determine the application for dismissal.
[1] QCAT Act, s 28(3)(a).
[2] Kioa v West (1985) 159 CLR 550 at 584-585.
The applicant has not provided a response to the application for dismissal. His most recent correspondence on the file is dated the day of the directions hearing in February 2011 and is a notice advising that he considers the matter cannot proceed because he petitioned the Queen regarding the validity of the constitution of QCAT in December 2010 and this matter has not been resolved. He also refers to questioning the validity of Supreme Court of Queensland decisions about related subject matter, disputing the validity of the Supreme Court’s constitution.
DEEDI argues that since the marine plants were removed in 2002, there is no live issue for determination. It submits that Mr Beames has failed to identify any orders which he seeks, and that the decisions which the tribunal may make are limited: it may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker. It further submits that if Mr Beames could advance some draft orders, a ‘concilatory position’ may be possible, but in their absence it submits that the proceedings are an abuse of process.
Further, DEEDI submits that the substance of Mr Beames position has been unsuccessfully ventilated by him in courts, including in Beames v Christiansen & Ors;[3] State of Queensland v Beames;[4] Beames v State of Queensland;[5] and Beames v Justice Margaret Wilson & Anor.[6] It is apparent that Mr Beames has raised various issues in the Supreme Court related to the issues which he outlined to the Fisheries Tribunal. In effect, DEEDI argues, Mr Beames seeks in these proceedings ‘to litigate anew a case which has formerly been disposed of by earlier proceedings’.[7]
[3] [2003] QCA 039.
[4] [2003] QSC 399.
[5] [2010] QSC 004.
[6] [2010] QSC 441.
[7]Walton v Gardiner (1992-1993) 177 CLR 378, cited in AWB Constructions Pty Ltd v Abbott [2010] QCAT 167, [15].
Section 47 of the QCAT Act applies if the tribunal considers that a proceeding or part of it is, frivolous, vexatious or misconceived; lacking in substance; or otherwise an abuse of process.
Mr Beames has not articulated a response to the application for dismissal. Indeed, he has not participated in the proceeding since this tribunal has sought to progress it, instead he has questioned the validity of the tribunal, and the Supreme Court decisions through other avenues. I note that the Supreme Court in Beames v Justice Margaret McMurdo[8] considered the arguments challenging its validity ‘preposterous.’[9] That aside, this tribunal has the jurisdiction conferred on it under the QCAT Act or an enabling Act.[10] Its jurisdiction does not extend to determining its own validity. My function is to determine the application before me.
[8] [2010] QSC 441.
[9] [2010] QSC 441 [29].
[10] QCAT Act, s 9.
The proceeding has been on foot for almost 9 years. The mangroves and samphires were removed on 10 October 2002. Accordingly, at this stage, even if the tribunal concluded at a hearing that the decision made by the first respondent in 2002 should be set aside, there is no utility in an order to that effect. Further, I accept that Mr Beames has substantially ventilated related issues he sought to raise through the Supreme Court of Queensland.
Still, I do not accept that the proceedings are an abuse of process. They were regularly filed and proceeded with in the Fisheries Tribunal. However, there is no utility in the proceeding, even if Mr Beames is successful because the marine plants have been removed. I therefore consider that the proceeding is lacking in substance. I am satisfied that it is appropriate to dismiss the proceeding under section 47 and I make orders accordingly.
As the second respondent has not been served with the application for dismissal, I give them liberty to apply in relation to the issue of costs only, within 28 days of being given this decision, should they wish to do so.