Iwasaki Sangyo Co (Aus) Pty Ltd v Department of Environment and Resource Management
[2011] QCAT 710
•24 June 2011
| CITATION: | Iwasaki Sangyo Co (Aus) Pty Ltd v Department of Environment and Resource Management [2011] QCAT 710 |
| PARTIES: | Iwasaki Sangyo Co (Aus) Pty Ltd |
| v | |
| Department of Environment and Resource Management |
| APPLICATION NUMBER: | GAR258-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Member |
| DELIVERED ON: | 24 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Pursuant to s 62(1) of the Queensland Civil and Administrative Tribunal Act 2009, the tribunal will hear the proceeding with reference to the proposed new PMAV and the parties are at liberty to adduce evidence and address the tribunal on the applicability of the proposed new PMAV. |
| CATCHWORDS: | VEGETATION MANAGEMENT – where PMAV issued in relation to alleged vegetation clearing offence – where land owner challenged accuracy of the PMAV – whether tribunal can consider new PMAV prepared as a result of expert work during compulsory conference JURISDICTION – whether tribunal has jurisdiction to consider new PMAV – whether tribunal has jurisdiction to consider more onerous decision – power of tribunal on review Queensland Civil and Administrative Tribunal Act 2009, ss 19(c), 20(1) and (2), 23, 24(1), 62, 64, 69, 74 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd 1976 135 CLR 616 Murray v Greyhound Racing Control Board of Queensland [1979] Qd R 111 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The parties have agreed that, although I am the member chairing the compulsory conference, I should also be the member to hear the application. Therefore, the rule in section 74(1) of the Queensland Civil and Administrative Tribunal Act 2009 must be modified to the extent that the parties’ submissions refer to matters raised in compulsory conference.
It is common ground between the parties that Iwasaki carried out vegetation clearing on its land in 2009. On 20 April 2010, the Department issued an information notice advising Iwasaki of a decision to make a Property Map of Assessable Vegetation (PMAV) pursuant to section 20B(1)(g) of the Vegetation Management Act1999 on the grounds that the chief executive held the reasonable belief that a vegetation clearing offence had occurred.
Iwasaki sought an internal review of that decision and, on 30 June 2010, the Department issued an amended PMAV. Iwasaki sought a review of that decision by application to this tribunal.
The tribunal referred the application to a compulsory conference. In the course of gathering information pursuant to an agreed timetable and course of action, it has come to the Department’s attention that the amended PMAV may not contain areas which should have been included. I have been asked to determine whether the tribunal proceedings may include consideration of new areas in the PMAV.
Iwasaki says that the tribunal cannot consider the new areas because:
a) The tribunal has no jurisdiction.
b) The Chief Executive has no power to consider the new areas.
c)There is no evidence of a “reasonable belief” as required by section 20B(1)(g) of the VMA.
d) There is no ability at general law to consider the new areas.
The Tribunal’s jurisdiction
Section 63B of the VMA provides that a person who is dissatisfied with [an internal] review decision may apply to the tribunal for a review of that decision. Iwasaki says, and I accept, that the only decision the tribunal can review is the decision made on 30 June 2010.
Iwasaki says that the Department’s intention to add areas to the PMAV is an original decision, not a reviewable decision and, therefore, cannot be the subject of a review by the tribunal.
That interpretation would be correct if, in fact, the Department had made a decision to add areas to the PMAV. As I understand the current position, however, the Department’s approach is no higher than an assertion that the tribunal, as the decision maker and in determining the merits of Iwasaki’s application, should set aside the decision of 30 June 2010 and substitute its own decision by imposing the new PMAV.
The Department’s interpretation must be the correct view. It has not made a decision within the meaning of section 20B(1)(g) of the VMA, despite the wording of the Reasonable Belief of an Offence PMAV filed on 8 April 2011.
[10]The QCAT Act provides that:
a)In exercising its review jurisdiction, the tribunal has all the functions of the decision maker for the reviewable decision being reviewed.[1]
[1] Section 19(c) QCAT Act.
b)The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[2]
[2] Section 20(2) QCAT Act.
c)The tribunal 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 by the decision maker.[3]
[3] Section 24(1) QCAT Act.
[11]The combined effect of those provisions is that the tribunal has the jurisdiction to consider the inclusion of the new areas in a PMAV. The decision about the correct PMAV is one for the tribunal.
[12]Iwasaki makes the point that section 23 of the QCAT Act allows the tribunal to extend an invitation to the decision maker to reconsider the decision and no such invitation has been extended in this case. It says that the ability to invite the decision maker to reconsider its decision is limited to situations where either the decision maker did not have all material to hand or where it made an error and that neither situation arises in this case.
[13]Although it is not necessary for me to decide, I do not consider that the Explanatory Notes to the QCAT Bill restrict the operation of section 23 as Iwasaki contends. The fact that the Explanatory Notes outline the “most likely” circumstances cannot be construed as outlining the only circumstances in which section 23 will operate.
[14]Iwasaki says that the tribunal’s obligation to make the “correct and preferable decision”[4] can only respond to the decision of 30 June 2010. I agree with that proposition. I do not agree, however, that this means the tribunal cannot have regard to the new areas when coming to that decision. As I have already identified, the Department has not made a decision and its “attempt” to add new areas is either an offer in the course of negotiations within the protection of the compulsory conference procedure or a submission to the tribunal about how its should exercise its discretion. Either way, it is not a decision capable of review or binding on the tribunal or Iwasaki.
[4] Section 20(1) QCAT Act.
[15]I have been addressed on the issue of consolidation of proceedings. For the reasons already expressed, I do not consider that the identification of the new areas gives rise to any consideration of an original decision which may or may not be the subject of a separate review proceeding before the tribunal. That being so, there is no other proceeding before the tribunal which should be the subject of an order for consolidation. Similarly, there is no suggestion that the Department is seeking to amend any tribunal document pursuant to section 64 of the QCAT Act.
The Chief Executive’s Power
[16]I am urged to find that the tribunal’s ability to substitute its own decision for that of the decision maker is limited by section 63A(1)(b)(ii) of the VMA which provides that the chief executive can only amend the original decision within 30 days of receiving the application. The argument, as I understand it, is that the section operates so that the tribunal cannot make a more onerous decision than the one the chief executive has already made.
[17]Iwasaki’s submission in this regard cannot be seriously construed as a submission that the passing of 30 days since the chief executive received the application means that the tribunal cannot amend the chief executive’s decision. To construe the tribunal’s power in that way would make the right of review under section 63B of the VMA a nonsense. If Iwasaki is right, and the section prevents the tribunal from imposing a more onerous decision, then surely it is prevented from imposing a more favourable decision or, indeed, any decision other than the one already imposed by the chief executive.
[18]The approach that an appellate tribunal should take in reviewing a decision has been the subject of exhaustive statements by the appellate Courts. The role of the tribunal in this case falls into that described by Justice Mason[5]:
[5]Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd 1976 135 CLR 616 at 621.
"The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo."
[19]As QCAT member the Honourable James Thomas has observed[6] the provisions of section 20 of the QCAT Act only serve to fortify the interpretation of the nature, function and powers of the reviewing tribunal as being a hearing de novo. Nothing in either the QCAT Act or the VMA expressly restricts the tribunal to making a decision that is no more onerous than the decision under review.
[6]Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384 at [29].
[20]If the tribunal proposes a more onerous decision, then the principles of natural justice require that the parties be given adequate warning beforehand[7] and an opportunity to make submissions on the point[8]. Similarly, if the hearing is to proceed on a different basis, the parties must be given sufficient notice of the proposed change and time to address that change.[9] Iwasaki has not lost those opportunities.
[7] NSW Thoroughbred Racing Board v Waterhouse 920030 56 NSWLR 691.
[8] Nicholson v New Zealand Kennel Club Inc [1968] NZLR 529.
[9] Murray v Greyhound Racing Control Board of Queensland [1979] Qd R 111 at 116.
Evidence of a Reasonable Belief
[21]Section 20B(1)(g) of the VMA provides that the chief may make a PMAV for an area if the chief executive reasonably believes that a person has committed a vegetation clearing offence in relation to the area. Iwasaki submits that the material before the tribunal does not demonstrate that the chief executive could have held that reasonable belief.
[22]There are two answers to this submission; the first is that, because the tribunal is now the decision maker, the reasonable belief of the chief executive is no longer a relevant consideration. If, however, Iwasaki’s argument is that the evidence cannot be the basis for any reasonable belief, then that leads to the second answer; that is, that the proceedings are still at the stage of compulsory conference and this is a substantive question to be addressed by the parties if and when the proceeding goes to a hearing.
The General Law
[23]Iwasaki submits that the Department’s action in raising the possibility of a new PMAV, within the context of a compulsory conference, is not for a purpose as defined by section 69 of the QCAT Act. It is true that adding a possible burden on a party is not often described as an action to “promote a settlement” but it is the practice of the tribunal to use the compulsory conference as a venue for exploring a range of issues. The tribunal’s fact sheet nominates one of the benefits of a compulsory conference as[10]:
[10] at [13].
…a private forum in which the parties can gain a better understanding of each other’s positions, and work together to explore options for resolution.
[24]The process of gaining a better understanding of each other’s positions may involve the parties’ suggesting options that are both conciliatory and inflammatory. If a party chooses to promote something which is an option in a compulsory conference to the status of a submission at the hearing, and the other parties to the hearing have adequate notice of that intention, then the tribunal may, and should, deal with that submission at the hearing.
[25]For reasons already canvassed, I do not accept Iwasaki’s submission that the identification of new areas amounts to an attempt to amend the information notice or accompanying PMAV.
[26]I do not read the Department’s submissions as an application for leave to amend the PMAV at this stage of the proceeding. The better view of the Department’s submissions dated 8 April 2011 is that it is a matter that should be raised within the tribunal process for consideration by the tribunal if and when the proceeding is heard and that is the basis on which I will consider any material relating to the new areas. No doubt, at an appropriate time, the parties will address me on whether I may be satisfied of the matters within section 20B(1)(g) of the VMA. It stands to reason, therefore, that the experts should give consideration to the new areas when preparing their reports.
0
0