Jobfish Australia Pty Ltd v Chief Executive, Department of Employment, Economic Development and Innovation

[2010] QCAT 105

CITATION: Jobfish Australia Pty Ltd v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 105

PARTIES: Jobfish Australia Pty Ltd

V

Chief Executive, Department of Employment, Economic Development and Innovation

APPLICATION NUMBER:            FHR092-09

MATTER TYPE:   General administrative review matters

HEARING DATE:   12 February 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   12 February 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Stay application dismissed, application for legal representation dismissed

CATCHWORDS: Application for stay – section 22 of Queensland Civil and Administrative Tribunal Act 2009 - section 43 – representation of a party

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of parties.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. An application was made to the Fisheries Tribunal on 30 October 2009 by Jobfish Australia Pty Ltd (the applicant) appealing against a decision made under the Fisheries Act1994 by a delegate of the Chief Executive of Queensland Primary Industries and Fisheries to amend the applicant’s commercial fishing licence by removing the E fishery symbol. Queensland Primary Industries and Fisheries is part of the Department of Employment, Economic Development and Innovation. 

1. The applicant has sought a stay of the decision under appeal. 

   3. The applicant has sought leave to be legally represented in the proceedings.  These reasons will address the stay application first and then proceed to the application for legal representation. 

ISSUES AND THE LEGISLATION

1. From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Fisheries Tribunal on the commencement of the Queensland Civil and Administrative Tribunal Act 2009 (the Act).  

2. Under section 256 of the Act, a pending proceeding (being a proceeding commenced in one of the Tribunals abolished by the 2009 Act but not heard by the abolished Tribunal prior to 1 December 2009) is taken to be a proceeding before the Queensland Civil and Administrative Tribunal.  According to section 271 of the Act, the Tribunal only has the functions that the Fisheries Tribunal had had in relation to the pending proceeding. 

3. Under the Fisheries Act1994 the Fisheries Tribunal had the power to stay a decision appealed against to secure the effectiveness of the appeal. A power to stay the operation of a decision has also been provided to this Tribunal in the 2009 Act. Section 22 of the 2009 Act provides that the Tribunal can make an order to stay a decision only if it considers it desirable after having regard to the interests of any person whose interests may be affected by the making of, or declining of, a stay order, having regard to any submissions made to the Tribunal by the decision maker and having regard to the public interest.

SUBMISSIONS ON THE STAY APPLICATION

7. The applicant made two sets of written submissions in support of the stay application.  It submitted that it cannot continue to fish without the eel licence as eel licences are not transferable.  It submitted that the applicant is not in a position to obtain or use another eel licence to lawfully continue its commercial activities in the period until the conclusion of its appeal.  The applicant submitted that its eel licence was in active use by the applicant on 14 October 2009, the day it received notice that the eel symbol had been removed from the licence. 
8. The applicant submitted that it had made commercial catches of eels in 2008 and 2009 and it had caught eels during 1999 to 2007, the criteria period at the centre of the decision made by the respondent.  The applicant contended that historically it had permits and licences to remove eels in an impoundment area of the Kolan River and that it held a current consent to fish eels from the impoundment since February 2006.
9. The respondent made written submissions on the issue of a stay order.  The respondent opposes the making of a stay order.  The respondent contended that the applicant could not satisfy the Tribunal that a stay was necessary to secure the effectiveness of the appeal.  In particular, it relied on authorities to argue that establishing financial difficulty would not be a sufficient ground on which to grant a stay as a stay order was not designed to purely relieve hardship or distress.     
10. The respondent submitted that the applicant had not shown sufficient evidence of historical commercial reliance on the eel licence and that the activities of the applicant were precisely the type of conduct addressed in the policy applied in the respondent’s decision. 
11. The respondent submitted that granting a stay in these circumstances could have a serious detrimental effect on the sustainability of Queensland’s future fisheries and would undermine the purposes of the Fisheries Act 1994 and the policies created subordinate to the Act. 
12. In a second set of submissions the respondent contended that the applicant is not authorised to fish for eels in waters owned by Sunwater but can trap eels in privately owned waters.  The respondent submitted that the applicant does not as a consequence have a commercial reliance on the licence. 
13. The respondent contended that its records revealed that the lake utilised by the applicant to catch eels has at no time been stated on the applicant’s licence and that as a result the applicant had never been authorised to commercially fish for eels in that water body.
14. The respondent submitted that even if a stay were to be granted, the applicant would be unable to fish for eels in the same area that it had previously fished due to a lack of authorisation from Sunwater to fish for eels in its waters. 

CONCLUSION

15. The Tribunal has had regard to the submissions made by the applicant as to how the applicant’s interests will be affected in the event that a stay of the decision is not made.  The applicant did not particularise the impact that a refusal to grant a stay would have apart from stating the obvious fact that it could not fish for eels.  The submissions did not identify whether any other person’s interests apart from the applicant would be affected by a refusal to grant a stay. 
16. The respondent contended that either granting or refusing a stay would not enable the applicant to fish for eels in the waters that it had fished prior to the removal of the eel licence in October 2009 in the absence of authorisation from Sunwater. That contention was disputed by the applicant. The Tribunal had insufficient information to resolve this disputed issue which is central to determining whether refusing a stay would result in the interests of the applicant being adversely affected.    
17. The Tribunal is not satisfied that the submissions made by the applicant establish that a stay is necessary to secure the effectiveness of its appeal.  The arguments challenging the decision under appeal are more likely to focus on data about the criteria period than on current data about commercial reliance on the eel licence.  The Tribunal is not satisfied that an absence of data about catches in the period post the decision would tend to undermine the effectiveness of the appeal.  
18. The Tribunal has taken into consideration the respondent’s arguments that granting a stay in a case without requiring the existence of sufficient evidence of historical commercial reliance would not be in the public interest.  It is generally accepted that an applicant would need to have established some reasonable prospects of success in the appeal in order to be considered favourably in a stay application.  At this point in the appeal, the Tribunal is not satisfied that the evidence has established the existence of such prospects. 
19. The applicant has not discharged the onus of establishing that it is desirable in this case to make an order to stay the operation of the decision under appeal.  The application for a stay of the decision of the respondent made on 12 October 2009 is dismissed. 

APPLICATION TO BE LEGALLY REPRSENTED

13. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009  provides as follows:

(1)The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.

(2)In a proceeding, a party—

(a)  may appear without representation; or

(b)  may be represented by someone else if—

(i) the party is a child or a person with impaired capacity; or

(ii)the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or

(iii)an enabling Act that is an Act, or the rules, states the person may be represented; or

(iv)the party has been given leave by the tribunal to be represented.

(3) In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave—

(c)  the party is a State agency;

(d)  the proceeding is likely to involve complex questions of fact or law;

(e)  another party to the proceeding is represented in the proceeding;

(f)   all of the parties have agreed to the party being represented in the proceeding.

(4) A party can not be represented in a proceeding by a person—

(a) who, under rules made under section 224(3), is

disqualified from being a representative of a party to a

proceeding; or

(b) who is not an Australian legal practitioner or

government legal officer, unless the tribunal is satisfied the person is an appropriate person to represent the

party.

(5) A person who is not an Australian legal practitioner or government legal officer and who is seeking to represent a party in a proceeding must give the tribunal a certificate of authority from the party for the representation if—

(a) the party is a corporation; or

(b) the tribunal has asked for the certificate.

(6) The tribunal may appoint a person to represent an unrepresented party.

(7) In this section—

Australian legal practitioner see the Legal Profession Act 2007.

government legal officer see the Legal Profession Act 2007.

14. It can be seen from the Act that parties are expected to represent themselves in proceedings before the Tribunal except in those cases where representation is permitted as of right.  In cases where leave is needed for parties to be represented, the Tribunal must be satisfied that the interests of justice require the parties to be represented.
15. The applicant submitted that the case is likely to involve complex questions of fact and law.  The applicant did not identify any specific issue in the appeal as a complex issue of fact or law.  From a reading of the documentation lodged with the Tribunal, the Tribunal has been unable to ascertain any complex issue that would necessitate input from a legal representative. 

16.The applicant can choose to obtain legal advice as part of its preparation for the appeal and can seek legal assistance with the formulation of points for argument in the appeal without requiring leave under section 43 of the Act. However the Act does not permit the applicant to be represented by a lawyer unless the interests of justice require otherwise.

17. The Tribunal is not satisfied that the interests of justice require the applicant to be legally represented in this appeal.  The respondent is not legally represented.  The application by the applicant for leave to be legally represented in the appeal is dismissed.   
18. As a corporation, the applicant would by necessity need to appear in the appeal by a natural person.  Rule 54(1) of the Queensland Civil and Administrative Tribunal Rules 2009 provides that a corporation may appear in a proceeding through an officer of the corporation who is authorised by the corporation to act for it in the proceeding.  Rule 54(2) provides that leave from the Tribunal is required if a corporation seeks to appear through an Australian legal practitioner. 
19. In a letter to the Tribunal dated 8 February 2010 enclosing its submissions in response to the applications made by the applicant, the respondent stated that one of the persons associated with Jobfish Pty Ltd, Mr Gleeson, is a practising solicitor.  If Mr Gleeson is an officer of the applicant and is authorised by the applicant to act for it in this proceeding, the Tribunal would be prepared to grant leave to Mr Gleeson to appear for Jobfish Pty Ltd.