Eastern Leader Co Pty Ltd v Department of Agriculture, Fisheries & Forestry

[2013] QCAT 463

CITATION: Eastern Leader Co Pty Ltd v Department of Agriculture, Fisheries & Forestry [2013] QCAT 463

PARTIES:	Eastern Leader Co Pty Ltd (Applicant)
V
Department of Agriculture, Fisheries & Forestry (Respondent)

APPLICATION NUMBER: GAR139-13

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: K O’Callaghan, Senior Member

DELIVERED ON: 23 July 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.     The application to extend time to review a decision is refused

CATCHWORDS:

PROCEEDURE – application to extend time – Application refused – not in the interests of justice

Fisheries Act 1994 (Qld) section 67, 68, 118, 185
Queensland Civil and Administrative Tribunal Act 2009 (Qld) section 19(a)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Ronald and Raylene Forster of Eastern Leader Co Pty Ltd (Eastern) sought to review a decision of the Department to suspend Eastern’s commercial fishing boat licence.  The notice of suspension was dated 21 February 2013 and received by Eastern on 25 February 2013.  The application to review was filed 23 days late.  Eastern applied for an extension of time to lodge the review.  I decided on 23 July 2013 to refuse that application to extend time.

2. Eastern has sought reasons for that decision and these are those reasons.

Background

1. Unfortunately for Eastern its vessel sunk during a period when the licence was suspended.  This has resulted in a refusal by its insurers to pay a claim.  It is apparent that it is these unfortunate circumstances that have resulted in Eastern’s application to review the suspension rather than a genuine concern as to the correctness of the decision to suspend the licence. 

2. The decision to suspend was made on the basis that Eastern had failed to provide to the Department log book entries for the period 1 February 2012 to 29 February 2012 as required by the statutory reporting requirements.[1]

   [1]        Fisheries Act 1994 (Qld) section 118: Fisheries Regulation 2008 chapter 14 parts 1 and 2: and to the guidelines set forth in the Department’s East Coast Trawl Fisheries Log Book.

3. The Chief Executive can suspend a licence if they are satisfied that the suspension was necessary or desirable for the best management, use, development or protection of fisheries resources or fish habitats.[2] 

   [2]        Fisheries Act 1994 (Qld) s 67.

4. Before suspending a licence the holder must be given an opportunity to show cause why the licence should not be suspended.[3]  There is some dispute between the parties as to whether the log books had in fact been sent prior to the suspension and whether or not Eastern received 2 warning letters that had been sent by the Department, one on 23 August 2012 and the show cause letter of 25 September 2012.  It is noted that the show cause notice and the warning notices were in relation to log books covering a period in excess of those that were the subject of the suspension notice.  Eastern therefore did in fact appear to respond to the letters and notices although it did not provide all of the log books. 

   [3]        Fisheries Act 1994 (Qld) s 68.

5. There is no dispute that on 25 February 2013 Eastern received the notice dated 21 February 2013 advising that the licence would be suspended on 28 February 2013 unless the log books were received.  Eastern submits that it did not realise that that was the effect of the notice and rather the Forster’s concentrated on the fact that a fine was attached to the notice.

6. The licence was suspended in accordance with the notice on 28 February 2013.  The vessel sunk on 11 March 2013.  The Department received the missing log book entries on 15 March 2013 and the licence was reinstated. 

7. On 11 April 2013 legal representatives for the insurers advised the legal representatives for Eastern that its claim arising out of the sinking of the vessel was rejected effectively because the vessel had been operating when the licence was suspended. 

8. On 17 April 2013 the application to review the decision to suspend was filed. 

9. The Tribunal has power to extend the time for filing of the review.[4]

   [4]        Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61.

Should an extension of time be granted

1. The factors to be taken into account when deciding whether to grant an extension of time have been formulated in previous Tribunal and Court decisions as follows:[5]

   §Whether there is an acceptable explanation for the delay:

   §Length of the delay;

   §Any action taken by the applicant other than by making an application for review under the Act to inform the decision maker that the finality of the decision is contested;

   §Whether there is prejudice to other parties;

   §Strength of the applicant’s case;

   §Whether it is in the interests of justice to grant the extension.

   [5]        Hunter Valley Developments Pty Ltd v The Honourable Barry Cohen, Minster for Home     Affairs (1984) 3FLR 344, Cavalier Homes Brisbane Pty Ltd v Queensland Building Services Authority [2012] QCAT 6: Pignat v Tableland Regional Council [2012] QCAT      254.

Explanation for the delay

1. Eastern in its application to review stated that they were outside the appeal period because the outstanding log book pages were provided on 15 March 2013 (prior to the expiration of the review period) and the suspension was lifted.  This position was reiterated by their solicitor in the letter to the insurers dated 8 April 2013.  They said that their client did not formally appeal the decision as the suspension was lifted upon the log book being provided. 

2. The other reason put forward by the solicitors as to why Eastern did not lodge a review upon the decision being made was that Eastern did not realise that the effect of the notice was in fact to suspend the licence. 

3. This is difficult to accept in that it is conceded that Raylene Forster read the notice.  The notice is headed “suspension of licence”. 

4. I consider it more likely that the only reason Eastern did not review the decision was because upon submitting the log books, the suspension was lifted, and the consequences only realised when the vessel sank and the insurance claim was refused.  Whilst this explanation is plausible it does not support a grant of an extension of time when Eastern elected to make no challenge to the merits of the decision during the time permitted.

Length of the delay

1. The delay of 23 days is not extensive.  This factor in itself does not weigh heavily against the grant of an extension.

Any action taken by the applicant to inform the decision maker that the finality of the decision was contested

1. As noted above Eastern concedes that it received the notice advising that the licence was to be suspended on 28 February 2013 but the Fosters say they did not realise this was the effect of the notice and did not realise that the licence was suspended until after the vessel sank on 11 March 2013. 

2. As indicated above I find this hard to accept knowing that the notice was read.  It is put forward on behalf of Eastern that the Forsters had in fact posted the log books prior to the suspension.  There is some confusion in the material about when they say they did this.  It is recorded in the Department’s material that Raylene Forster said she posted the log books on 10 February 2012 however the solicitors letter indicates that their instructions were that they were posted on 10 February 2013. 

3. Eastern also says that the suspension was not valid because the Department knew that the vessel was in fact laid up for refit and therefore was under a VMS exemption during the northern closure period.

4. If they did in fact for these reasons contest that the validity of the notice, one would have expected that they would have been in contact with the Department to express this view prior to the lodging of this review application in April.  This lack of action on their part (until the sinking of their vehicle) does not support an exercise of discretion in their favour to grant the extension.

Strength of the applicant’s case

1. In exercising its review jurisdiction the Tribunal must decide the review in accordance with the QCAT Act and the enabling Act under which the reviewable decision being reviewed was made.[6]

   [6]        Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19(a).

2. The relevant enabling Act, the Fisheries Act, provides that a person dissatisfied with the decision can apply to QCAT to review the decision on 1 or more grounds.

   (a)The decision was contrary to the Act

   (b)The decision was manifestly unfair and/or

   (c)The decision will cause severe personal hardship to the person reviewing the decision.[7]

   [7]        Fisheries Act 1994 (Qld) s 185(1).

3. In reviewing the decision the Tribunal’s objective is to produce the correct and preferable decision.

4. The question arises then as to whether Eastern has a strong case on the material provided that the correct and preferable decision was not to suspend Eastern’s licence.

5. Eastern says that the decision was not the correct decision and was manifestly unfair because the Department knew the vessel was not being used as it was being refitted and was subject to a VMS exemption during the northern trawl closure period.

6. The Tribunal notes the Department’s submissions that the relevant guidelines[8] require licence holders to return logbook entries for periods regardless of whether the vessel was used during the period.

   [8]        Guidelines for the east coast trawl fishing logbook OT09.

7. I accept the Department’s submission that Eastern has been fishing in the east coast trawl fishing industry for more than 10 years and as such would be expected to know what is required from them in terms of record keeping and reporting requirements.

8. The Tribunal accepts the Department’s submission that licence holders’ obligation to comply with record keeping and reporting requirements enables the Department to promote the purposes of the Fishing Act particularly the promotion of ecologically sustainable development.[9]

   [9]        Respondent’s submissions 18 June 2013.

9. I find that the prospects of Eastern overturning the suspension on the basis that it was not the correct or preferable decision on this basis to be slim.

10. Eastern also submits that the decision to suspend was wrong because there was no basis to do that because they had in fact provided the log books prior to the suspension.

11. The Department have no record of having received them prior to when they were sent on 14 March 2013 (after the vessel sank).  In view of the fact that no contact was made with the Department until 14 March 2013 despite having received the notice of suspension I find it unlikely that the logbooks were in fact provided at anytime prior to the suspension.

Is it in the interests of justice to grant the extension

1. I agree with the Department’s submission that whilst Eastern has suffered very unfortunate circumstances, the interests of justice do not warrant the granting of an extension of time.  It is apparent that Eastern only decided to review the decision because the insurance claim was refused.  They had the opportunity to review and challenge the merits of the decision prior to that time but they chose not too.

2. The decision to suspend was correctly made.  It was not manifestly unfair and although the applicant is now suffering hardship I accept the Department’s submission that this hardship was not caused by the decision.

3. The application for an extension of time should be refused.