Sturdy v Chief Executive, Department of Primary Industries & Fisheries
[2010] QCAT 536
•7 July 2010
| CITATION: | Sturdy v Chief Executive, Department of Primary Industries & Fisheries [2010] QCAT 536 |
| PARTIES: | Mr Vincent Sturdy |
| v | |
| Chief Executive, Department of Primary Industries & Fisheries |
| APPLICATION NUMBER: | FHR027-09 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 7 July 2010 |
| HEARD AT: | Level 10 BOQ Centre 259 Queen Street BRISBANE QLD 4000 |
| DECISION OF: | Mr Jim Allen |
| DELIVERED ON: | 7 July 2010 |
| DELIVERED AT: | Level 10 BOQ Centre 259 Queen Street BRISBANE QLD 4000 |
ORDERS MADE: | The Tribunal affirms the decision of the Respondent made on 18 May 2009 to remove the L1 symbol from the Applicant's commercial fishing boat licence 16066 with boat mark FAUX. |
CATCH WORDS: Fisheries Act1994; Review of decision; where applicant’s personal hardship in respect of the removal of the L1 symbol would be no different to any other fisher who faces the loss of value of that symbol; where no compensation payable; respondent’s decision affirmed.
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Vincent Sturdy with assistance from Linda Cupid. |
| RESPONDENT: | Chief Executive, Department of Primary Industries & Fisheries represented by Ben Westlake. |
REASONS FOR DECISION
This is a hearing of the Queensland Civil and Administrative Tribunal held in Brisbane on the 7th of July 2010. The Applicant is Vincent Sturdy and the Respondent is the Chief Executive of the Department of Employment, Economic Development and Innovation. The Tribunal was constituted by Jim Allen (Presiding) with Mr Peter Richards and Ms Peta Stilgoe. Present at the hearing were Mr Vincent Sturdy, representing himself, with some assistance from Linda Cupid and Mr Ben Westlake as representative of the Department of Employment, Economic Development and Innovation. The application before the Tribunal is an application to review a decision of the Chief Executive made on the 18th of May 2009 to remove the L1 symbol from commercial fishing boat license 16066 with boat mark FAUX. The decision of the Chief Executive was made under the Department’s policy for the removal of excess fishing capacity in Queensland’s line, crab, beam trawl and eel fisheries which was approved on the 18th of July 2008. The purpose of that policy was to assist in achieving the main purposes of the Fishery Act by removing excess fishing capacity in Queensland’s line, crab, beam trawl and eel fisheries. The policy set catch criteria in respect of the fisheries symbols in regard to the L1 line fisheries symbol the catch criteria was that any catch under the L1 fisheries symbol in any three of the following periods:
§ 1 July 1999 to 30 June 2000;
§ 1 July 2000 to 30 June 2001;
§ 1 July 2001 to 30 June 2002;
§ 1 July 2002 to 30 June 2003;
§ 1 July 2003 to 30 June 2004;
§ 1 July 2004 to 30 June 2005;
§ 1 July 2005 to 30 June 2006;
§ 1 July 2006 to 30 June 2007, and;
§ the total catch for the period 1 July 1999 to 30 June 2007 is 3,000kg or more.
The policy states that the minimum level of fishing activity will ordinarily be determined by decision makers based only of statistical returns, that is, logbooks, that is because those documents are legally binding records of commercial fishing in Queensland waters filled in at the time of the catch and penalties apply for recording false or misleading information. If the information was regarded as being ambiguous incomplete or inaccurate, decision makers may invite license holders to supply supporting documentation such as sales receipts or other relevant information to validate the statistical returns. Mr Sturdy received a show cause letter from the Department on the 1st August 2008 which set out the catch history for his L1 fisheries symbol as known to the Department from the log book submitted by Mr. Sturdy. That catch history is as follows:
§ 1999; Zero
§ 2000 to 2001; Zero
§ 2001 to 2002; Zero
§ 2002 to 2003; Zero
§ 2003 to 2004; Zero
§ 2004 to 2005; Zero
§ 2005 to 2006; Zero
§ 2006 to 2007; Zero
The total catch was therefore zero.
There are special circumstances that can be used to ameliorate the operation of the policy. These include logbook clarification, event, recent entrant, multi indorsed and diversified fishing operations and other relevant circumstances in the L1 fisheries or LRQ or SM operators or L1 licenses with significantly high catch in less than three years and another all fisheries symbols special circumstance. In Mr Sturdy's case he advised that he had an event special circumstance in regard to medical conditions in respect of his knees which had been an issue for him since approximately 1986 and which had required surgery in both 2004 and 2008. Mr Sturdy advised the Tribunal that he was on the public health list and had waited many years for his surgery. The event special circumstances enable the substitution of catch from either a previous or later period into the period where the event occurs. The event special circumstances set out in the policy require though that there be no fishing under any symbol during those periods. Mr Sturdy's catch history in other fisheries symbols which were provided to the Tribunal by the Department show that under his C1 fisheries symbol there was a catch of:
§ 19 343kg in 1999;
§ 19 109kg in 2000;
§ 20 280kg in 2001;
§ 22 836kg in 2002;
§ 20 105kg in 2003.
In the N1 fisheries symbol which is the next symbol, there was a catch of:
§ 1 362.7 kg in 1999;
§ 2 313kg in 2000;
§ 4 966kg in 2001;
§ 19 720kg in 2002;
§ 24 086.11kg in 2003.
Therefore it would not be possible to substitute catch history in those years in accordance with the policy and special circumstance guidelines.
Mr Sturdy raised the issue that he had relevant catch that had not been recorded in the line fishery and provided the Tribunal with copies of his log books and statements from various witnesses. The witness statements and witness statement examined by the Tribunal include Mr Daryl Town, Mr Gary Swanson, Mr James McGuckin, Mr Trevor Scarborough and Mr Anthony Risenwebber. In the case of all of those people, they had known Mr Sturdy for many years; they confirmed that they had fished with Mr Sturdy except for Mr Risenwebber which said that he had fished alongside Mr Sturdy. None of those persons though had been employees of Mr Sturdy and none of them were able to say that Mr Sturdy had taken his catch to a place of commercial sale. The Tribunal therefore while accepting the evidence of the witnesses on their face, did not accept that the catches that they said were taken by Mr Sturdy were commercial catches for the purposes of determining the relevant catch history for Mr Sturdy's L1 symbol.
Mr Sturdy also raised the ground of severe personal hardship in respect of the decision of the Department. Mr Sturdy stated that he had spent funds in the 1990's re-fitting his boat and had recently spent money on updating his fishing equipment and also that due to changes to fishing boundaries he would need to utilise the L1 symbol to be able to fish at a commercial level. The Tribunal is of the view that the license held by Mr Sturdy in respect of the L1 symbol is a latent license. There is no accepted L1 history that can be attributed to that license and that was the submission of Mr Ben Westlake for the Department.
The Tribunal will therefore affirm the decision.
Mr Sturdy's personal hardship in respect of the removal of the L1 symbol would be no different to any other fisher who faces the loss of value of that symbol. Mr Sturdy made a request for compensation in respect of the removal of the symbol. It is clear under the Act that in the circumstances of the policy for the removal of latent fishing effort in regard to the L1 fishery that there is no compensation payable. The decision of the Tribunal will therefore be to affirm the decision of the Department of 18 May 2009.
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