Calypso Fishery Pty Ltd v Chief Executive, Department of Employment, Economic Development and Innovation
[2010] QCAT 534
•13 August 2010
| CITATION: | Calypso Fishery Pty Ltd v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 534 |
| PARTIES: | Calypso Fishery Pty Ltd |
| v | |
| Chief Executive, Department of Employment, Economic Development and Innovation |
| APPLICATION NUMBER: | FHR065-09 and FHR072-09 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 25 June 2010 |
| HEARD AT: | Level 10 BOQ Centre 259 Queen Street BRISBANE QLD 4000 |
| DECISION OF: | Peter Wulf, Annie Jarrett, Susan Bothmann |
| DELIVERED ON: | 13 August 2010 |
| DELIVERED AT: | Level 10 BOQ Centre 259 Queen Street BRISBANE QLD 4000 |
ORDERS MADE: | The Respondent’s decision of 10 July 2009 to amend Licence Number 12106 with Boat Mark FQJS to remove the L1 symbol is affirmed (Appeal FHR065-09). The Respondent’s decision of 1 July 2009 to refuse to grant Licence Number 12106 with Boat Mark FQJS with an N11 symbol is affirmed (Appeal FHR072-09). |
| CATCHWORDS : | Fisheries, Investment Warning, No Catch History, Business Decision |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Darryl Town |
| RESPONDENT: | Chief Executive, Department of Employment, Economic Development and Innovation represented by Ms Stephanie Slade |
REASONS FOR DECISION
The applicant, Calypso Fishery Pty Ltd (Calypso) represented by Mr Darryl Town has appealed against two decisions of a delegate of the Chief Executive, Department of Employment, Economic Development and Innovation to amend Calypso’s primary commercial fishing boat licence 12106 with boat mark FQJS. The two decisions relate to the removal of a L1 symbol from Calypso’s licence dated 10 July 2009 (Appeal FHR065-09) and the refusal to grant a N11 symbol on Calypso’s licence dated 1 July 2009 (Appeal FHR072-09) pursuant to s.63(2) of the Fisheries Act 1994.
The appeal was filed in the Fisheries Tribunal. Effective 1 December, 2009, the Fisheries Tribunal was abolished. Under the transitional provisions of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the Queensland Civil and Administrative Tribunal (QCAT) must deal with the proceeding.
The appeals were heard concurrently.
General Matters Relating to Queensland Fisheries Policy
These appeals relate to two Policy documents adopted by the Respondent relating to various fisheries in Queensland and the management of those fisheries.
It is not the Tribunal’s role to second-guess the adoption of the Policy and the reasons for it. Under s.185(2)(a) of the Fisheries Act,[1] a decision “about policy” cannot be appealed against. This means that the Tribunal cannot review a decision made by the Respondent to adopt a policy.
[1] Previously s 196(2)(a)
However, the Tribunal does have a role in hearing and determining appeals against decisions made under the Policy. In other words, it is open to an applicant/s to argue that a decision made under the Policy involves an error of law or is manifestly unfair or will cause severe personal hardship.
Further, the power to amend a licence under s.63(2) of the Fisheries Act is discretionary. It is fundamental that the exercise of a statutory discretion cannot be fettered by a policy: see, for example, Perder Investments v Lightowler (1990) 25 FCR 150, R v Queensland Fish Management Authority: Ex Parte Hewitt [1993] 2 Qd R 201 at 204, 206. Accordingly, the Policy cannot be construed to limit the circumstances in which a symbol will not be removed where the minimum criteria are not met to those which “prevented a licence holder from meeting the required minimum commercial level”. Any other circumstances that would make it unjust to remove the symbol must be considered.
For ease of reading, the two appeals and the relevant policies are discussed separately.
Background Evidence
The applicant has been involved in the fishing industry for many years. Mr Towns advised the Tribunal that he had fished in Moreton Bay and the East Coast Trawl fishery for in excess of 30 years. Clearly, Mr Towns would be expected to have an excellent understanding of how the industry operated.
Calypso purchased the vessel Salvatore as well as its fishing licences (with fishery symbols T1, L1 and N6) on 20 September 2007. Mr Towns advised the Tribunal that he became aware of the sale of the vessel that he had not seen for about 15 years through a friend in Townsville. The vessel was purchased for $82,750.00 (including GST).[2] The fishing licence for the vessel was primarily related to the T1 fishery with 4,589 Total Effort Units and 119 Total Fishing Days.[3] Since that time, the vessel has undergone extensive work.
[2] Exhibit 2
[3] Laudistone Valuers Actioneers document
The aspects of this purchase of the vessel are discussed later in this decision.
Appeal FHR065-09 – Decision of 10 July 2009
On 18 July 2008, the Respondent adopted a written policy entitled “Policy for the Removal of Excess Fishing Capacity in Queensland’s Line, Crab, Beam Trawl and Eel Fisheries” (“the Line Policy”). The Line Policy states that its objective is to remove excess fishing capacity in Queensland’s line, crab, beam trawl and eel fisheries. The objective is to be achieved by providing for a decision- making process to amend commercial fishing licences to remove L1, C1, T5, T6, T7, T8, T9 and E fishery symbols if minimum fishing history criteria are not met.
The Line Policy deals with the problem that there are many commercial fishing licences that entitle the holders to fish in Queensland’s line, crab, beam trawl and eel fisheries and those entitlements are not presently being utilised or are under-utilised. The concern is that these fisheries would be unsustainable if this latent effort is converted into actual effort as fishing entitlements become more restricted in other fisheries,
In this case, Calypso argued that the decision is manifestly unfair and will cause him severe personal hardship.
Under the Line Policy, the minimum commercial level of catch for the line fishery requires that:
(a)the holder has reported any catch under the L1 fisheries symbols in any three of the periods from
(i)1 July 1999 to 30 June 2000;
(ii)1 July 2000 to 30 June 2001;
(iii)1 July 2001 to 30 June 2002;
(iv)1 July 2002 to 30 June 2003;
(v)1 July 2003 to 30 June 2004;
(vi)1 July 2004 to 30 June 2005;
(vii)1 July 2005 to 30 June 2006;
(viii)and 1 July 2006 to 30 June 2007; and
(b)the total catch for the period from 1 July 1999 to 30 June 2007 is 3,000 kg or more.
Where the minimum commercial level of catch is not met, the Line Policy makes provision for special circumstances affecting the licence holder’s usual fishing pattern to be considered by the decision maker. The guidelines for the application of special circumstances acknowledge that licence holders might have specific reasons why they were unable to meet the minimum catch criteria. The guidelines require decision makers to decide whether special circumstances warrant the requirements of the Line Policy being set aside and, if so, what criteria should be used in place of the minimum criteria. The guidelines set out examples of types of special circumstances that may commonly arise, but these are not intended to be exhaustive. These types of special circumstances include:
(a)logbook clarification – where supporting documents show that there are errors in the recording of catches in logbooks;
(b)event – where no fishing activity was undertaken under any fishery symbol during a particular period because of a specific reason out of the control of the operator, such as illness and damage to or destruction of a vessel;
(c)recent entrant – where a licence holder has not met the entry criteria because he or she did not hold the licence or fishery symbol long enough to generate the required catch;
(d)multi-endorsed and diversified fishing operations – where a licence holder has a consistent level of catch history for a fishery symbol, but has failed to meet the criteria because he or she relied upon operating in a number of fisheries;
(e)other circumstances relevant to the L1 fishery – these includes where holders of RQ and/or SM fisheries symbols can demonstrate reliance on the L1 symbol to access coral reef fin fish and/or Spanish mackerel, where catch history is recorded in less than three years during the criteria period but the catches were significantly high, where spotted mackerel were taken in the past by net, and where trawl operators are able to demonstrate reliance on line caught product during certain periods;
(f)other circumstances for all fisheries symbols – any other special circumstances that prevented a licence holder from meeting the required minimum commercial level during the criteria period.
When making an assessment of the catch data for primary commercial fishing boat licence 12106 with boat mark FQJS, the L1 symbol has no catch history during any of the relevant periods and has no overall catch.
The delegate determined that the minimum level of fishing activity and catch history was not sufficient to demonstrate the required catch history under the Policy and therefore made a decision to amend Calypso’s primary commercial fishing boat licence 12106 with boat mark FQJS by the removal of a L1 symbol
Appeal FHR072-09 – Decision of 1 July 2009
The decision was made pursuant to a written policy adopted by the Respondent on 2 April 2009 entitled “Policy for the allocation of N4, N10, N11 and S fishery symbols” (“the Net Policy”). The Net Policy aims to manage the Queensland east coast net and shark fisheries and protect the future sustainability of sharks and other inshore fin fish by limiting the number of fishers taking particular species or using particular fishing gear.
The Net Policy was made against the background of an Investment Warning that was issued on 8 April 2002, warning commercial fishers and potential investors that future catches and future investment in certain fisheries would not be recognised in long-term management arrangements that were being developed. The warning concerned the East Coast net fishery, the fishery for spotted mackerel and the fishery for sharks and other related species.
The investment warning warned people with a current interest or considering investing in any of these fisheries that increases in their commercial and current level of catches or fishing effort might not be recognised in future management arrangements.
The licences the subject of this appeal were transferred after the release of Investment Warning for the N6 fishery on 12 September 2003.
The Net Policy sets a minimum level of commercial fishing activity required for the allocation of a N11 symbol, this being that the licence holder must demonstrate utilisation of the N6 fishery symbol to take fish for commercial sale (including evidence of sale) in the period 12 April 1997 to 11 April 2008.
When making an assessment of the catch data for primary commercial fishing boat licence 12106 with boat mark FQJS, the N6 symbol has no catch history or utilisation during any of the relevant periods and has no overall catch.
The delegate determined that the minimum level of commercial fishing activity and catch history was not sufficient to demonstrate utilisation of the N6 fishery symbol to take fish for commercial sale (including evidence of sale) under the Net Policy and therefore made a decision to not endorse Calypso’s primary commercial fishing boat licence 12106 with boat mark FQJS with an N11 symbol
Decision
The evidence of the applicant was that the purchase of the vessel and licence in 2007 was for use in the L1 and N11 fishery. The Tribunal is extremely concerned as to the business decisions made to purchase the vessel and licence, especially considering the significant amount of financial commitment made by the applicant. It would seem that it was very unwise to purchase a vessel sight unseen and on the reliance of others without first undertaking due diligence about the vessel, its history and catch data. The applicant stated that he knew the vessel about 15 years ago but had not seen it after that time. By the applicant’s own admission, he was totally unaware that the vessel was unseaworthy and as a result of this, the vessel was unable to undertake the activities that it was supposedly to be used for. Making such a large financial commitment on one’s future without this knowledge appears to be an extravagant business venture.
More importantly, the applicant was an experienced fishing operation. It has other vessels that it uses in other fisheries. Based on that, it would reasonably be expected to have knowledge of any investment warnings and current changes in fisheries policy. To purchase a vessel that was used only in the T1 fishery (based on its catch history from 1991 to 2007)[4] without undertaking an investigation of its fishing history was a misguided business decision. The Tribunal cannot accept this as a reason why the licence with no catch history for the relevant symbols should be granted these licences in these appeals.
[4] Exhibit 1 – Appeal Book for FHR065-09 - Page 23 and 24
Further, it would appear strange that the owner of an unseaworthy vessel would continue to spend money on that vessel to be used in a fishery when it had been advised on 1 August 2008[5], less than 12 months after the purchase of the vessel that it was unlikely that the L1 symbol would not be removed.
[5] Exhibit 1 – Appeal Book for FHR065-09 - Page 6 through 9
The applicant also argued that the Investment Warning and Net Policy did not relate to bait as it was not part of the net fishery. This Tribunal does not hold that view. The Net Policy was developed to manage all aspects of the net fishery including bait and therefore this argument fails.
The Tribunal finds that no special circumstances exist in this case. All decisions made by the applicant should have involved due diligence as to the vessel and its catch history. The purchase of the vessel appears to have been made on some misguided belief that the applicant would be granted the symbols it seeks from these appeals.
Accordingly, the Respondent’s decision of 10 July 2009 to amend Licence Number 12106 with Boat Mark FQJS to remove the L1 symbol is affirmed (Appeal FHR065-09) and the Respondent’s decision of 1 July 2009 to refuse to grant Licence Number 12106 with Boat Mark FQJS with an N11 symbol is also affirmed (Appeal FHR072-09).
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