Witchell v Chief Executive, Department of Employment Economic Development and Innovation

[2010] QCAT 160

CITATION: Witchell v Chief Executive, Department of Employment Economic Development and Innovation [2010] QCAT 160

PARTIES:   Mr Derek Witchell

v

Chief Executive, Departmetn of Employment Economic Development and innovation

APPLICATION NUMBER:            FHR059-09

MATTER TYPE:   

HEARING DATE:   4 March 2010

HEARD AT:   Brisbane

DECISION OF:   Mr J Allen, presiding
  Ms Ann Fitzpatrick
  Ms Annie Jarrett

DELIVERED ON:   29 March 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   That the decision of the Chief Executive, Department of employment Economic Development and Innovation of 1 July 2009 be set aside.

CATCHWORDS: Amendment of C1 symbol –section 63 Fisheries Act 1994

APPEARANCES and REPRESENTATION (if any):

The parties at the hearing were the applicant, Mr Derek Witchell and Mr Ian Jacobsen, appeared for the respondent. Mr Witchell was represented by Mr Chris Thompson, solicitor

REASONS FOR DECISION

HISTORY OF THE APPLICATION

[1]Mr Derek Witchell has been in the fishing industry since 1990 and holds primary commercial fishing boat licence 18125, with boat mark FYFK. The licence is currently endorsed with C3, L3, N11, N2, RQ and S symbols.

[2]A delegate of the Respondent made a decision on 1 July 2009 to amend Mr Witchell’s licence by removing a C1 symbol from it. That symbol enables the holder to catch all crabs other than spanner crabs, especially mud crabs and blue swimmer crabs.  Mr Witchell filed an appeal dated 29 July 2009 in the former Fisheries Tribunal in respect of that decision which is now the subject of this hearing before the Queensland and Civil Tribunal.

[3]The decision to remove the symbol was made in accordance with section 63 of the Fisheries Act 1994 and the Respondents Policy for the Removal of Excess Fishing Capacity in Queensland line, Crab, Beam Trawl and eel Fisheries which was issued on 18 July 2008 (the Policy) and the Policy on investment in the Queensland east coast mud and blue swimmer crab (C1) fisheries and fisheries taking rocky reef fin fish species in particular snapper, pearl perch and teraglin jew by any method which was issued on 12 September 2003 (the investment warning), the tribunal was not provided with a copy of the investment warning for the purpose of this matter. The Respondent also issued guidelines for applying special circumstances in relation to the Policy (the Guidelines).

[4]Mr Witchell was sent a letter by the Department on 1 August 2008 inviting him to show cause why he should not have the C1 fishery symbol removed. Mr Witchell responded to that request by letter of 15 September 2008 and the departments delegate then made their decision.

THE LAW

[5]This application was originally made to the former Fisheries Tribunal which was abolished upon the commencement of the Tribunal. In accordance with section 271 of the Queensland Civil and Administrative Tribunal Act 2009 the Tribunal has, and only has, the functions that the former entity had in relation to the matter under the former act and the tribunal can, and can only, make a decision the former entity could have made in relation to the matter under the former act. Section 196 of the Fisheries Act 1994 (prior to its amendment) dealt with the grounds of appeal in respect of decisions made under that Act and section 198 sets out the powers of the former Fisheries Tribunal. Section 196(2) of the Fisheries Act 1994 provides that amongst others a decision of the chief executive about policy can’t be appealed against The grounds of appeal under section 196 are:

a.The decision of the chief executive was contrary to this act;

b.The decision of the chief executive was manifestly unfair;

c.The decision of the chief executive will cause sever personal hardship to the appellant

Mr Witchell raised grounds (b) and (c) in his notice of appeal.

[6]The powers exercisable by the Tribunal in accordance with the former section 199 of the Fisheries act 1994 were to

a.confirm the decision appealed against;

b.set the decision aside and substitute another decision; or

c.set the decision aside and return the matter to the chief executive with directions the tribunal considers appropriate.

Section 199(2) states that in substituting another decision, the tribunal has the same power as the chief executive. This implies that the tribunal when exercising its powers under the Fisheries Act 1994 is to do so by way of a fresh hearing of the matters as it would if exercising power under section 20 of the Queensland Civil and Administrative Act 2009.

[7]Section 63 of the Fisheries Act 1994 sets out the steps the chief executive must take before amending an authority such as the C1 fishery symbol here. It requires that a show cause notice be sent to the holder of the authority, as occurred here, stating the proposed amendment and the reasons for it and outlining the facts and circumstances forming the basis of the reasons and inviting the holder to show why the authority should not be amended. Mr Witchell did so by his letter of 15 September 2008. In accordance with section 63(2) of the Fisheries act 1994 the chief executive may amend the authority if, after considering all representations made within the stated time, the chief executive still considers the authority should be amended in the way mentioned in the show cause notice or in another way, having regard to the representations.

[8]It can be seen that the chief executives power to amend authorities is broad and not on its face subject to limitation. The exercise of the powers of the chief executive is then in accordance with R v Queensland Management Authority, ex parte Hewitt Holdings Pty ltd 2 QR 201  to be determined in accordance with the policy of the department in respect of the particular subject matter then under consideration, which in this case is the C1 authority. 

[9]The objectives of the Fisheries Act 1994 are set out in section 3 of that Act and are –

to provide for the use, conservation and enhancement of the community’s fisheries resources and fish habitats in a way that seeks to apply and balance the principles of ecologically sustainable development; and promote ecologically sustainable development.

1. The Policy in its background stated that

“excess fishing capacity (latent effort) has been identified in Queensland’s Line, Crab, Beam Trawl and Eel Fisheries where significant numbers of the respective fisheries symbols are not being utilised, or if they are to a very low level. Conversion of this latent effort into real fishing effort would likely result in detrimental impacts to the fisheries and their users.
Removal of latent effort is the most effective mechanism to ensure that fisheries management continues to meet the objectives of the Fisheries Act 1994 by ensuring the identified excess fishing capacity is not converted into real fishing effort which could effect:
     Future economic viability of current fisheries symbol users;

Fair access to the resources for other resources users; and

Biological sustainability for certain species.”

1. The policy referred to the investment warning stating that

   The investment warning advised potential investors, current commercial fishers and boat owners authorised to fish in Queensland’s crab fishery … , that from the date of the warning (12 September 2003) and expansion of fishing effort or increased investment in these fisheries may not be recognised in long-term management arrangements being developed fro these fisheries.

2. . The policy was to be implemented by

   assessing all commercial fishing boat licences with the respective symbols against the eligibility criteria outlined in the policy and use a ‘show cause’ process to propose the removal the removal of symbols from those licences that don’t meet the criteria. Decision makers will propose the removal of the symbol if they are satisfied the fishing history for the licence fails to meet the catch history criteria set by this policy as constituting a minimum level of activity in the fishery in the identified periods. The minimum level of fishing activity will ordinarily be determined by decision makers based only on statistical returns (logbooks), which are legally binding.

3. The assessment criteria for the Crab Fishery C1 was stated to be as follows

   250 kg or more of crab taken under the C1 symbol in three of the following four periods:
              13 September 1999 to 12 September 2000
              13 September 2000 to 12 September 2001
              13 September 2001 to 12 September 2002
              13 September 2001 to 1`2 September 2003
   Or
   1500 or more of crab taken under a C1 symbol in the period:
              13 September 1999 to 12 September 2003
   AND
   500 kg or more of crab taken under a C1 symbol in any one of the following periods:
              13 September 2003 to 12 September 2004

   13 September 2004 to 12 September 2005

   13 September 2005 to 12 September 2006

   13 September 2006 to 12 September 2007

   Or
     1000kg or more of crab taken under the C1 symbol in the period
     13 September 2003 to 12 September 2007

1. The policy states that

   In response to the show cause notice, any further information the holder wishes to provide, including any reason why the policy should not apply to the holder, such as a special circumstance affecting the holder’s usual fishing pattern during the above periods will be considered by the decision maker.

2. The Guidelines set out and explain a number of  special circumstances as follows:

   Logbook clarification
   Event
   Recent entrant
   Multi-endorsed and diversified fishing operations
   Other

3. A number of guidelines are then set out to provide guidance to decision makers in cases where the decision maker has found that the licence holder is able to demonstrate a special circumstance that warrants the provisions of the policy being set aside. It is clearly stated in the guidelines that:

   It should be noted that the decision maker is not bound by the following guidelines and can always apply other reasoning to determine the final outcome.

4. In regard to the “Event” special circumstances it is stated that:

   An applicant would meet an event special circumstance if they are able to demonstrate that for a specified period during the policy criteria period no fishing was undertaken under any fishing symbol on the licence because of a specific reason that was out of the control of the operator
   Minimum continual period that constitutes an event:

   Crab fishery – a 6 month period prior to the investment warning and/or the entire criteria period after the investment warning.

5. Under the “Multi-endorsed and diversified fishing operations” special circumstances it was stated that :

   Consideration may be given to operators who have a consistent level of catch history for the fishery symbol under show cause but failed to meet the criteria for that fishery symbol because they relied on operating in a number of fisheries during the criteria period to a consistent level. This may include the following:

   New South Wales/Queensland dual endorsed line fishing operations;
   Line fishery licences operating in both the L1 and L3 fisheries;
   Licences operating in a combination of the line, net, crab and beam trawl fisheries.

6. The “Other” special circumstances comprises

   Any other special circumstance that prevented a licence holder from meeting the required minimum commercial level during the criteria period, the applicant may provide supporting documentation to demonstrate any other event.

EVIDENCE

1. The Respondent in its show cause letter of 1 August advised Mr Witchell that his C1 catch history for the criteria periods mentioned  above was as follows:

13 Sept 1999 to 12 Sept 2000	13 Sept 2000 to 12 Sept 2001	13 Sept 2001 to 12 Sept 2002	13 Sept 2002 to 12 Sept 2003	Total
35kg	0	0	0	35kg

13 Sept 2003 To 12 Sept 2004	13 Sept 2004 To 13 Sept 2005	12 Sept 2005 To 13 Sept 2006	12 Sept 2006 To 13 Sept 2007	Total
0	0	595kg	1009kg	1604kg

[21] In his submission in reply to the show cause letter Mr Witchell raised the grounds that during the C1 qualifying period 99 to 03 he was fishing in the L3 fishery (predominantly). He stated that his logbooks show continual history in all fisheries since the logbooks were introduced. He further stated with a multi-endorsed licence you can only successfully fish one entitlement at a time so there has to be periods where some endorsements are not utilized BUT does not make them latent effort and every endorsement forms a valued part of the licence to me. Mr Witchell requested a copy of his complete log history

[22] Mr Witchell’s log book history provided by the Respondent clearly shows substantial L3 catch in the period 1999 to 2003 as follows, though this is based on calendar year periods and not the adjusted year specified in the policy;

1999	2000	2001	2002	2003
2,519 kg	4,614	11,814.48kg	14,705.47kg	9,416.37kg

[23] The Respondent decision-maker in his decision of 1 July 2009 considered the Multi-endorsed fishing operations criteria and provided adjusted criteria which would be applied in respect of Mr Witchell’s licence as follows:

The holder has reported a consistent level of crab catch between 1999-2007 i.e. minimum of 100kg per year in at least 2 years before and after the investment warning.

[24] As the C1 catch was insufficient to meet the adjusted criteria as there was only a single catch of 55kg prior to 13 September 2003 that special circumstance did not apply and the other matters raised by Mr Witchell, that he could not meet the criteria because he was working predominantly in the L3 fishery and that a multi-endorsed licence can only fish (1) entitlement at a time were considered to be business decisions rather than a special circumstance.

[25] In his submissions accompanying his application for review Mr Witchell raised a new ground of special circumstance:

I am a single parent rising two boys aged 13 and 11 and in conjunction with all parental responsibilities I operate my fishing business.

He confirmed that for the period 1999 to 2004 he had concentrated on line fishing until the great barriers reef marine closures and RQ quotas caused an upset. He stated with family commitment it is impossible to just swap from line fishing to other endorsements. He also stated his gross income would significantly decline with the removal of the C1 and associated symbols. Mr Witchell provided a chart of his catch history for all of his symbols for the years 1992 to 2008. The C1 catch for the period is as follows:

1992	1993	1994	1995	1996	1997	1998	1999	2000
172	305	1180	35	0	500	325	69	35

2001	2002	2003	2004	2005	2006	2007	2008
0	0	0	0	330	265	1673	1006

[26] Mr Witchell’s solicitor, Mr Thompson provided written submissions to the tribunal dated 5 February 2010. In these submissions the issue of Mr Witchell’s children is expanded.  It is stated that Mr Witchell’s wife left Australia with his youngest son, Dwight  then aged 4 months in February 1999 and did not return. Mr Witchell was left with his other son, Dean then aged 2 ½. Mrs Witchell advised Mr Witchell in April 1999 that she would be staying permanently in the Philippines and it was not until February 2000 that Mr Witchell was contacted by her again. At this time he went to the Philippines and returned with Dwight in April 2000. Also during this period in July 1999 Mr Witchell engines required re-building.

[27] A table of catch is set out in the submissions on a month by month basis for the period Jan 1999 to Jan 2000 as follows

Jan-99	Feb-99	Mar-99	Apr-99	May-99	Jun-99	Jul-99
380	0	0	608	302	774	432

[28] There being no catch from 20 July 99 for at least 6 months it was submitted that an Event special circumstance should be applied.  It was stated that for the period April 1999 to July 1999 the C1 catch averaged 529 kg per month and that the only reason this consistency ceased was the engine rebuild. It was stated that the family issues and the engine rebuild, appear to clearly show at least 6 months of total inactivity outside of the applicant’s control. It was finally submitted that on this basis the tribunal ought to set aside the current decision and reinstate the C1 symbol under the Event special circumstance provisions of the policy. Supporting documents including letter to Mrs Witchell from Mr Witchell and passbook extracts were provided to the Tribunal.

[28] The Respondent made written submissions in reply to the Applicants submissions which were received by the Tribunal on 11 February 2010. The respondent that Mr Witchell’s application was assessed against all of the special circumstances and not just the ones applied. The respondent stated that the logbooks records held by it for the licence held by Mr Witchell indicate that the following C1 catch was recorded for the period January 1998 to September 2001

Feb-98	March-98	June-98	Jan-99	Apr-99	March-00
280	10	35	39	30	35

[29] The Respondent then extracted the L3 catch history for the relevant licence for the period between January 1998 and September 2001. From that table it was clear that the catch history which the applicant’s solicitor had represented as C1 catch corresponded to the L3 catch for the relevant period. It is noted that there was no L3 catch recorded fro the period July 1999 to June 2000.

[30] The Respondent confirmed in its written submissions that no fishing was undertaken in respect of the relevant licence for the period July 1999 to February 2000 inclusive and that in light of the Applicants submissions further consideration was given to the event special circumstance criteria. By applying the event special circumstance criteria the catch for January 1999 of 39kg was available to be substituted into the period 13 September 1999 to 12 September 2000 which increased the catch for that period to 74 kgs. This it was submitted would not have assisted the applicant as it was still below the catch requirements. The Respondent further submitted that even if the entire 1998 catch of (325 Kg) and 1999 (969 Kg) was substituted into the 12 September 1999 to 12 September 2000 period the appellant still would not have met the catch criteria.

[31] Mr Thompson in his oral submissions initially confirmed his written submissions but later conceded that the catch history he had referred to in his table was the L3 catch history. He submitted that Mr Witchell had proven consistency in his C1 catch from 1992 up to the time of where he had the family crisis. Mr Thompson also submitted that the increase in the L3 catch was when Mr Witchell had a skipper on board saying that

He still had special circumstances with his family increase in line fishing was him saying I can’t run business with family even lease.

This submission was made in response to a submission from Mr Jacobsen for the Respondent that the shift from C1 to L3 was a business decision.

[32] Mr Witchell in his sworn oral evidence to the tribunal stated that he had been in the fishing industry since 1990. When asked why there was a change in C1 activity after 1998 he confirmed that when he brought his son back home he had to re-adjust and he was at home 90% of the time He confirmed that he had put a skipper, Mr Joe Healy on the boat for 5 to 6 years on the basis of a 50/50 catch split. Mr Witchell stated that if it had not been fro the family crisis he would have continued fishing as he previously had.  He said that there are no crabs in winter and he crabs November December and that his loss of income is significant an approximately $10,000 loss of income. Mr Witchell also stated that he only had approximately 7or 8 years left in the fishing industry.

[33] Mr Jacobsen, for the Respondent acknowledged Mr Witchell’s family circumstances stating that the decision was based on the policy and the information provided in particular what history was on the licence. He confirmed the written submissions of the respondent in regard to the C1 history during the period raised by Mr Thompson in his submissions. Mr Jacobsen submitted that Mr Witchell was required to demonstrate a commercial reliance on the symbol and that the shift from C1 to L3 was a business decision and not special circumstances. He stated that in the period 13 September 1999 to 12 September 2003 fishing occurred in all months except for three. He stated that in terms of the requirement for a multi-endorsed operator it was a catch of 100kg, which was not a lot, in any of two years in the relevant criteria period and Mr Witchell was not able to satisfy this criteria as he only had one catch of 100kg or more. Mr Jacobsen accepted that it may be possible to utilise to special circumstances such as the Event and Multi-endorsed special circumstances, but there would have to be catch to substitute Mr Jacobsen also stated that if an adjusted criteria put forward by the applicant was accepted they will meet it. In regard to the criteria for the "Other" special circumstance Mr Jacobsen stated that it had to be in the context of the C1 fishery and it would be based on the personal circumstances of the operator.

DISCUSSION

[34] It is clear from the accepted logbook history for Mr Witchell’s C1 symbol that while he meets the criteria to demonstrate a minimum level of catch in the second period from 13 September 2003 to 12 September 2007 he does not meet the criteria for the first specified period 13 September 1999 to 12 September 2003 as is required by the policy. Therefore on its face his C1 symbol represents latent effort and is subject to removal by the Respondent. As a result Mr Witchell received the show cause letter of 1 August 2008 inviting him to provide any further information such as a special circumstance as to why the policy should not apply. Mr Witchell provided his submissions dated 15 September 2008 to the Respondent and the decision-maker made his decision based on the application of the policy and guidelines to those submissions. From the further written material and the oral evidence provided at the hearing there were other matters raised in regard to Mr Witchell’s family circumstance and him having had a skipper on his boat for a substantial period which should have been taken into account in the making of the decision in regard to the C1 symbol.  The tribunal is satisfied that the decision to remove the C1 was manifestly unfair as it did not take into account those matters.

[35] The tribunal notes that the Event special circumstance was not of assistance to Mr Witchell as he had significant catch on his L3 symbol after the initial event period ended in February 2000 which limited the length of that period. In the same way he was not able to meet the Multi-endorsed and diversified fishing operations special circumstances. The Tribunal accepts Mr Witchell oral evidence that as a result of his change in family circumstances in 1999 he became the sole parent of his sons, Dean aged  3 ½ and Dwight 18 months old and he was forced to stay at home 90% of the time and to put a skipper on his boat. The tribunal also accepts Mr Witchell oral evidence that had it not been for the family crisis he would have continued fishing as he had previously. That is that the decision to move from the C1 fishery to the L3 fishery was not a business decision as submitted by Mr Jacobsen for the respondent but was one based on an “Other” special circumstance.

[35] Mr Witchell prior to the change in his family situation operated a mutli-endorsed diversified fishing operation and he had C1 catches greater than 100kg in 5 of the 7 years between 1992 and 1999. The tribunal is satisfied that if not for the family situation Mr Witchell would have met at least the minimum Multi-endorsed and diversified operations special circumstances criteria as he would have continued to operate his own boat in the way he had prior to him becoming a sole parent.

[36] The tribunal is satisfied that Mr Witchell should retain the C1 symbol and the decision of the respondent of 1 July 2009 will be set aside.