Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries
[2010] QCAT 326
•1 July 2010
| CITATION: | Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries [2010] QCAT 326 |
| PARTIES: | Tasmanian Seafoods Pty Ltd |
| v | |
| Chief Executive, Department of Primary Industries & Fisheries |
| APPLICATION NUMBER: | REO003-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 6 April 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | P Wulf – Presiding Member D Rangiah S.C. – Member R Joachim – Member |
| DELIVERED ON: | 1 July 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application is dismissed. |
| CATCHWORDS : | Fisheries – application to renew final decision of Fisheries Tribunal – whether QCAT has power under s.252 or s.257 of QCAT Act to renew decision |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr A.W. Duffy of Counsel instructed by Legal Essentials |
| RESPONDENT: | Mr D. Robinson of Department of Employment Economic Development and Innovation |
REASONS FOR DECISION
This is an application for “renewal of [a] final decision” pursuant to s.133(2) of the Queensland Civil and Administrative Tribunal Act 2007 (“the QCAT Act”).
The Applicant, Tasmanian Seafoods Pty Ltd, is the holder of a primary commercial fishing boat licence (boat mark FWVP) endorsed with L3 and R6 fishery symbols.
On 10 June 2009, a delegate of the Respondent made a decision under s.63(2) of the Fisheries Act 1994 to amend the Applicant’s licence so as to restrict the Applicant’s entitlement to take Barking Crayfish and Tropical Rock Lobster to 36 quota units in each quota year.
The Applicant then appealed against the delegate’s decision to the Fisheries Tribunal under s.196(1) of the Fisheries Act.
On 30 November 2009, the Fisheries Tribunal decided that the delegate’s decision was manifestly unfair because it failed to take into account that the Applicant’s fishing history was affected by the fact that it properly heeded an investment warning that was issued in May 2001. The investment warning warned that future catches and investments in the East Coast Tropical Rock Lobster Fishery may not be recognised in long term management arrangements and that fishers should not increase their level of investment or activity until the management arrangements were in place. As a result of the investment warning, the Applicant had not continued with its efforts to find a new fishing vessel and did not engage in any fishing in the affected fishery. The management arrangements were eventually finalised and documented in a policy entitled “Policy Relating to Individual Catch Entitlements in the Queensland Tropical Rock Lobster Fishery” (“the Policy”). Under the Policy, inconsistently with the investment warning, the allocation of quotas was based upon catch history both before and after the investment warning. The strict application of the Policy to the Applicant meant that it was disadvantaged because it had no catch history after the investment warning, compared to others who had not heeded the warning.
The Fisheries Tribunal considered that the individual catch quota that should be allocated to the Applicant should be based upon the assumption that the Applicant “would have taken the average catch for the fleet in each relevant year after the investment warning”. The Tribunal indicated that it did not have sufficient evidence as to the average catch for each relevant year across the whole fleet and left the calculation to be made by the Respondent.
The Fisheries Tribunal set aside the delegate’s decision and remitted the matter to the Respondent to decide in accordance with the Tribunal’s reasons for decision. The Tribunal gave liberty to apply to the parties.
The Fisheries Tribunal was abolished on and from 1 December 2010 by s.247(1) of the QCAT Act.
On 22 February 2010 the Applicant filed an application with Queensland Civil and Administrative Tribunal (“QCAT”), described as an “application for renewal of [a] decision” under s.133(2) of the QCAT Act. Section 133 provides relevantly:
“133 Application for renewal
(1) This section applies if—
(a) it is not possible for the tribunal’s final decision in a proceeding to be complied with; or
(b) there are problems with interpreting, implementing or enforcing the tribunal’s final decision in a proceeding.
(2)A party to the proceeding may apply to the tribunal for a renewal of the final decision.”
The Applicant claims that there are problems with interpreting the decision of the Fisheries Tribunal. The difficulty is said to be that it is unclear whether the calculation of the average catch of the fleet should include those licences under which no relevant catch was taken in a relevant year. The Respondent’s position is that there is no such difficulty with interpreting the Fisheries Tribunal’s decision or reasons.
The Applicant has not disclosed any process of reasoning upon which it bases its claim that a primary commercial fishing boat licence to which was attached a boat and a relevant fishery symbol should not be considered part of the “fleet”. In any event, it seems clear that, in truth, the Applicant is not merely seeking clarification of the Fisheries Tribunal’s reasons for decision, but is seeking a decision as to the proper construction of what is meant by “the fleet” where that expression is used in the Policy. It remains to be seen whether it is permissible for QCAT to engage in that exercise under the terms of the QCAT Act in the circumstances of the present application.
Intuitively, there are difficulties involved in making an application to QCAT for the interpretation and clarification of a decision made by a different tribunal.
Section 8 of the QCAT Act states that the dictionary in Schedule 3 defines particular words used in that Act. The expression “the Tribunal” is defined in the dictionary to mean “the Queensland Civil & Administrative Tribunal established under section 161”. Therefore, where s.133 refers to “the Tribunal’s final decision” it must refer to a final decision made by QCAT, unless there is something in Chapter 7 (which deals with transitional provisions) or the context that indicates otherwise.
The approach of the parties was that s.257 of the QCAT Act (which is within Chapter 7) applies and that this provision gives QCAT the jurisdiction to make a decision under s.133(2). Section 257 provides relevantly:
“(1) This section applies to an existing tribunal proceeding that is not a pending proceeding.
(2) At the commencement, the proceeding is taken to be a proceeding before QCAT.
(3) QCAT has jurisdiction to deal with the matter the subject of the proceeding under this Act.
…”
The Fisheries Tribunal is a “former tribunal” for the purposes of Chapter 7 of the QCAT Act. The proceeding between the parties before the Fisheries Tribunal is plainly not a “pending proceeding” within s.245 of the QCAT Act. The issue, for the purpose of s.257(1) is whether the proceeding before the Fisheries Tribunal may be taken to be “an existing tribunal proceeding” within s.257(1). That expression is defined in s.244 to refer to a proceeding that:
“(a) was started before a former tribunal under a former Act before the commencement; and
(b)at the commencement, has not been withdrawn, dismissed, struck out or otherwise disposed of under the former Act.”
The proceeding between the parties was started before the Fisheries Tribunal under the Fisheries Act and was disposed of under the Fisheries Act. The Fisheries Tribunal did make final orders under s.199 of the Fisheries Act. The words “otherwise disposed of” in s.244 of the QCAT Act are apt to refer to final orders reflecting the success of the application, despite the preceding words referring only to situations where the application has failed.
The Fisheries Tribunal did give “liberty to apply” to the parties to seek clarification of the orders. The effect of such liberty was described by Wilcox J in Comcare v Grimes (1994) 50 FCR 60 at 62 as follows:
“The reservation of liberty to apply does not enable a party to ask a court or a tribunal to hear and redetermine a matter of which it has already disposed. The purpose of such a reservation is to enable a party to ask the court or tribunal to deal with a matter arising out of the orders already made; generally, to resolve an argument about the detail of action already ordered to be undertaken. The situation is described in the fifth edition of Daniell's Chancery Practice at p 875:
"The only effect of such a reservation is to permit persons having an interest under the [order] to apply to the court touching such interest in a summary way without again setting the case down. It does not enable the court to deal with matters which do not arise in the course of working out the [order]."
In Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593, McPherson SPJ at 598 referred to the principle that a judgment given after a contested hearing cannot be set aside or varied after it has been drawn up, passed and entered except on certain limited grounds:
“‘‘Liberty to apply’’ is sometimes said to be a further exception. It is, however, not a true exception at all, because a judgment or order that expressly reserves to parties a leave or liberty to apply can be varied on an application pursuant to such leave only so far as may be necessary for the purpose of working out the actual terms of the order so as to make it more efficacious in matters of detail. What is meant in this context by ‘‘working out’’ the terms of an order is considered in some of the cases on the point. In Cristel v. Cristel [1951] 2 K.B. 727, 728, Somervell L.J. said it ‘‘involves matters on which it may be necessary to obtain the decision of the court. Prima facie, certainly, it does not entitle people to come and ask that the order itself shall be varied’’.
The effect of the authorities is that the giving of liberty to apply does not mean that a decision or judgment has not been disposed of. The orders of the Fisheries Tribunal setting aside the delegate’s decision and remitting the matter to the Respondent to decide means that the proceeding before that Tribunal was “otherwise disposed of under the former Act”. Therefore, s.257 does not operate to give QCAT jurisdiction to entertain an application “for a renewal of the final decision” in the circumstances of this case.
There is a better argument that s.252 of the QCAT Act operates to engage s.133 in the circumstances of the case. Section 252 provides relevantly:
“Existing final decisions of a former tribunal
(1) A final decision of a former tribunal in a proceeding made before the commencement—
(a) is taken to be a final decision of QCAT; and
(b) this Act, and any relevant enabling Act, applies to the decision as if it were a final decision of QCAT.
…
(2) However, subsection (1)(b) does not authorise QCAT to deal with a final decision of the former tribunal in a way that is inconsistent with the former Act under which the decision was made.
…
(4)Without limiting subsection (1), (2) or (3), a reference in an Act to a final decision of QCAT is taken to include a reference to a final decision of a former tribunal taken to be a final decision of QCAT under subsection (1).
(5) In this section—
deal with, a final decision, includes—
(a) amend or correct the decision; and(b) revoke the decision.”
Under s.252(1) and (4) of the QCAT Act, the final decision of the Fisheries Tribunal is taken to be a final decision of QCAT. Section 133(1) and (2) of the QCAT Act then apply to the final decision of the Fisheries Tribunal as if it were a final decision of QCAT. Therefore, QCAT does have the jurisdiction to consider an application to the Tribunal for renewal of the decision of the Fisheries Tribunal.
The expression “renewal” is not defined in the dictionary. That expression appears to have been deliberately used to distinguish it from the “reopening” of a proceeding under s.138. The effect of s.140 is that if QCAT decides that a proceeding should be reopened, it must decide the issues that must be heard and decided again by way of a fresh hearing on the merits.
The expression “renewal” is commonly used in the context of renewals of leases or other agreements and licences or registrations, but is not usually used in the context of the reconsideration of a final decision of a Tribunal. The Macquarie Dictionary (3rd Ed) defines “renew” as including “to begin or take up again … to make, say or do again … to revive; re-establish … to make new, or as if new again …”.
It is not clear exactly what the difference is between “renewal” and “reopening”. The relevance of that question, for present purposes, is as to whether QCAT has the power to interpret the reasons given for a decision on an application for a “renewal” and to give new reasons, or whether that power is confined to interpreting the orders and directions made by the former tribunal. The Applicant here seeks interpretation of the Fisheries Tribunal’s reasons, not the orders made.
The expression “decision” is defined in Chapter 3 to mean, relevantly:
“(i) an order made or direction given by the tribunal; or
(ii) the tribunal’s final decision in a proceeding.”
A “final decision” of QCAT is defined in the dictionary as one which, relevantly, finally decides the matters the subject of the proceeding. In relation to a former tribunal or court, s.244 states that a “final decision” is one that finally decides the matters the subject of the proceeding.
These definitions do not suggest that the reasons for decision, rather than the operative orders or directions of the Tribunal, will ordinarily be part of the “final decision.” In an administrative law context, there is usually a distinction made between a decision and the reasons given for that decision.
The powers of QCAT upon an application for renewal of a final decision are set out in s.134(2):
“(2) The tribunal may make—
(a)the same final decision it made when the proceeding was originally decided; or
(b) any other appropriate final decision that it could have made, under this Act or an enabling Act, when the proceeding was originally decided.”
Section 134(2) also seems directed towards the orders or directions made by QCAT or a former tribunal, rather than the reasons for making those orders or directions. It does not expressly provide for variation of the reasons.
However, in this case the Fisheries Tribunal ordered that the matter be remitted to the Respondent and decided in accordance with the Tribunal’s reasons for decision. In this way, the reasons were incorporated as part of the orders and directions made. Therefore, variation of the reasons would effectively amount to variation of the orders and directions. In that sense, it may be open to interpret or clarify the reasons of the Fisheries Tribunal.
However, it is provided by s.252(2) that s.252(1)(b) does not authorise QCAT to deal with a final decision of the former tribunal in a way that is inconsistent with the former Act under which the decision was made. There was no provision in the Fisheries Act equivalent to s.133 that would allow “renewal” of a decision in the sense of varying its final orders and directions or the reasons for its decisions. As has been discussed already, the giving of liberty to apply does not suggest such an effect.
Section 252(2) of the QCAT Act provides that s.252(1)(b) does not authorise QCAT to deal with a final decision of the former Tribunal in a way that it is inconsistent with the former Act under which the decision was made. As the Fisheries Tribunal had no power under the Fisheries Act to vary final orders and directions that had been made or the reasons given for making those orders and directions, it follows that QCAT does not have that power under s.252 or s.134 of the QCAT Act.
The Applicant here does not expressly seek variation of the orders but purports to seek interpretation of the reasons for decision. However, elaboration of the reasons would effectively amount to variation of the orders and directions made by the Fisheries Tribunal. As that is a power the Fisheries Tribunal did not have, it follows that QCAT may not exercise that power.
There is an additional reason to reject the application. In truth, the Applicant does not seek the interpretation or clarification of the Fisheries Tribunal’s decision, but seeks construction of the expression “the fleet” where it is used in the Policy. That is a matter that was not raised before the Fisheries Tribunal. The Applicant seeks to litigate before QCAT another argument altogether under the guise of seeking interpretation of the Fisheries Tribunal’s decision. That goes beyond anything contemplated by the expression “renewal” in s.133 (2). The proper course was for the Applicant to make an application to QCAT for review of the new decision of the Respondent pursuant to s. 33 of the QCAT Act.
Section 191(1) of the Fisheries Act allowed the Fisheries Tribunal to be constituted by the chairperson and either one or two other members. The appeal by the present parties to the Fisheries Tribunal consisted of the chairperson and one other member. Section 191 of the Fisheries Act has now been repealed and s.186(1) requires that the Tribunal be constituted by three QCAT members. The composition of the present Tribunal consists of the two members of the Fisheries Tribunal who heard the matter and a third member who has been appointed by the president of QCAT. That a member of QCAT has been asked to interpret the reasons for decision of another tribunal that he was not a member of emphasises the problems inherent in the task.
The application will be dismissed.
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