Calypso Fisheries Pty Ltd v Chief Executive Department of Employment, Economic Development and Innovation

[2011] QCATA 24

CITATION: Calypso Fisheries Pty Ltd v Chief Executive – Department of Employment, Economic Development and Innovation [2011] QCATA 24

PARTIES:	Calypso Fisheries Pty Ltd (Applicant/Appellant)
v
Chief Executive – Department of Employment, Economic Development and Innovation (Respondent)

APPLICATION NUMBER: APL302-10

MATTER TYPE: Appeals

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Justice Alan Wilson, President
Peta Stilgoe, Member

DELIVERED ON: 11 February 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS : 

APPEAL – LEAVE TO APPEAL – whether error of law, substantial error or question of importance to the public

FISHING LICENCE – Where Department removed L1 licence and refused to grant N11 licence – where Applicant was rebuilding vessel during period of relevant fishing history – whether a “special circumstance”

Policy for the Removal of Excess Fishing Capacity in Queensland’s Line, Crab, Bream, Trawl and Eel Fisheries

Queensland Civil and Administrative Tribunal Act 2009 ss 32,142

Cachia v Grech [2009] NSWCA 232, cited.

Calypso Fishery Pty v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 534, cited.

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied.
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited.
QUYD Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41, cited.

APPEARANCES and REPRESENTATION (if any):

By order of the Appeal Tribunal the matter was heard and determined on the papers under s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

President:

1. I have had the advantage of reading the reasons of Ms Stilgoe in draft.  I agree with those reasons, her conclusion and the order she proposes.

Member Stilgoe:

1. On 13 August 2010, the tribunal confirmed the Department’s decisions to amend the Applicant’s fishing licence by removing the L1 symbol, and to refuse to grant an N11 symbol to that licence.  Through its principal, Mr Town, the Applicant has sought leave to appeal the tribunal’s decision.

1. The Applicant’s grounds for appeal are simply stated: it wants to keep the L1 symbol and avail itself of the N11 symbol and:

a)    It has spent a lot of money refurbishing its vessel and had planned to use the licences when the vessel was up and running;

b)    Mr Town considered the licences as a form of superannuation.  If the symbols are removed, he will be left with nothing;

c)    When the Policy for the Removal of Excess Fishing Capacity in Queensland’s Line, Crab, Bream, Trawl and Eel Fisheries (the Line Policy) was introduced (on 18 July 2008), the Applicant’s licence was not “bought out” in accordance with Mr Town’s understanding; and

d)    Mr Town is dependent upon the licences for his livelihood; fishing is all that he knows.

1. The Department says that all of the matters raised by the Applicant in this appeal were raised before the tribunal at first instance.

1. Leave to appeal is necessary unless the Applicant appeals on a question of law: QCAT Act, s 142. The Applicant has not identified, or attempted to identify, any error of law in the tribunal’s decision of 13 August 2010 and in my view leave is necessary.

1. The question whether or not leave to appeal should be granted is usually addressed according to established principles.  Is there a reasonably arguable case of error in the primary decision?[1]  Is there a reasonable prospect that the Applicant will obtain substantive relief?[2]  Is leave necessary to correct a substantial injustice to the Applicant caused by some error?[3]  Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]

   [1]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [2]        Cachia v Grech [2009] NSWCA 232 at [13].

   [3]        QUYD Pty Ltd v Marvass Pty Ltd (supra).

   [4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.

1. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect that the Applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the Applicant, caused by some error?

1. The purpose of the Line Policy is to remove excess fishing capacity.  That purpose is achieved by removing symbols from licences in cases where the minimum fishing criteria are not met.  The Line Policy makes provision for special circumstances affecting a licensee’s usual fishing pattern and/or ability to meet the minimum fishing criteria.  The special circumstances are listed:

a)    Logbook clarification;

b)    An event outside of the licensee’s control, such as illness or damage to a vessel;

c)    Recent entrant;

d)    Multi-endorsed or diversified fishing operations;

e)    Other circumstances, including licensee holding RQ and/or SM symbols demonstrating a reliance on the L1 symbol.

1. Mr Town concedes that the Applicant did not meet the minimum fishing criteria.  He relies on the fact that his vessel was not seaworthy and that he invested considerable time and money to bring it up to the relevant standard as being “special circumstances”.  That argument was rejected by the tribunal because:

a)    By Mr Town’s own admission, he bought the vessel “sight unseen”, without undertaking due diligence as to the condition of the vessel or its catch history.[5]

b)    The Applicant was an experienced fishing operation.  It had other vessels that it used in other fisheries.  Therefore, the tribunal found that Mr Town should have knowledge of the investment warnings that preceded the Line Policy.

c)    The tribunal considered it strange that the Applicant continued to spend money in the vessel in the face of a show cause notice from the Department as to why the L1 symbol should not be removed.

[5]Calypso Fishery Pty Ltd v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 534 at paragraph 26.

1. The Applicant had an N6 symbol.  The Policy for the allocation of N4, N10, N11 and S fishery provided that the N6 symbol would cease to exist as at 1 July 2009 and would be removed from all licences.  The Department intended to allocate L11 symbols based upon the fishing history of licensees with the N6 symbol.

1. The Applicant’s argument in relation to the grant of the N11 symbol is not articulated in any detail but it is implicit from Mr Town’s submissions that it relies upon the same special circumstances as it has identified in relation to the L1 symbol.

1. I have considered the tribunal’s decision carefully.  As the Department has pointed out, the Applicant has not assisted the Appeal Tribunal by simply restating the arguments advanced before the tribunal at first instance.  I can find no error in the primary decision; there is no prospect that the Applicant will obtain substantive relief; and there is no question of general importance from which the public would benefit by having a decision of the Appeal Tribunal.

1. I acknowledge that the Applicant considers that an injustice has been visited upon it.  The application of a policy will often have unfortunate financial consequences but that is not the test to be applied by the Department’s decision-maker, the tribunal at first instance or the appellate tribunal.  Leave to appeal should be refused.