Wood v Chief Executive Department of Employment, Economic Development and Innovation
[2010] QCATA 99
•9 December 2010
| CITATION: | Wood v Chief Executive Department of Employment, Economic Development and Innovation [2010] QCATA 99 |
| PARTIES: | Mr Gregory Wood |
| V | |
| Chief Executive, Department of Employment Economic Development and Innovation |
| APPLICATION NUMBER: | FHR003-08 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 15 November 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Dr Bridget Cullen Mandikos, Member Annie Jarrett, Member |
| DELIVERED ON: | 9 December 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Application is dismissed. |
| CATCHWORDS : | Fisheries; cancellation of N1 symbol; special circumstances; whether injury prevented the applicant from working in the fishery; paucity of evidence in support of special circumstances. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Gregory Wood represented by Mr Wellner of Utz Wellner, solicitors |
| RESPONDENT: | Chief Executive, Department of Employment Economic Development and Innovation represented by Mr Nicolsen of counsel instructed by the respondent. |
REASONS FOR DECISION
This review application arises out of two decisions by the Respondent to cancel the Applicant, Mr Gregory Wood’s (“Mr Wood”), N1 fishery symbol from two fishing boat licenses. The first, is fishing boat license QFV10092G, FHVF; and the second is QFV12183E, FYQT.
Pursuant to the Policy for the elimination of excess fishing capacity in Queensland’s east coast net fisheries (“the policy”), implemented by the then Department of Primary Industries and Fisheries, the Respondent issued a show cause notice to Mr Wood on 24 August 2009, requiring Mr Wood to show cause as to why the N1 symbol for netfishing should not be removed from FHVF.
The intent of the policy was to ensure that under-utilised fishing symbols, meaning those that exhibited “latent effort”, were not converted to actual effort. This is for the reason that a sudden shift from latent to actual effort would create an unsustainable impact on the particular fishery
It is not within QCAT’s jurisdiction or powers to review the policy in question. QCAT is constrained to a review about the application of the policy, as drafted, to the particular decision in question.
To retain the N1 symbol at issue here, the policy required that the holder (Mr Wood) meet minimum catch requirements for particular periods. In respect of the FHVF, the policy imposed the following requirements:-
“500kg or more in 3 of the following 4 periods:
9 April 1998 to 8 April 1999;
9 April 1999 to 8 April 2000;
9 April 2000 to 8 April 2001;
9 April 2001 to 8 April 2002;OR
3 tonne or more between 9 April 1998 and 8 April 2002”
A similar catch requirement was required to continue to hold FYQT.
In respect of the FHVF license, Mr Wood could demonstrate a catch of 7kg only, in the period from 9 April 2000 to 8 April 2001. In respect of FYQT, Mr Wood was unable to demonstrate any catch in the relevant period. Despite the failure of a license holder to meet the catch criteria, the Respondent has a discretion, if special circumstances can be demonstrated, to decide not to cancel the license. The Respondent acknowledges that special circumstances could include serious illness of a nature that would prevent the holder of the symbol from working in the fishery during the relevant period. It is these special circumstances that Mr Wood has premised his arguments before QCAT upon.
The Respondent accepts that on 4 November 1996, Mr Wood was involved in a collision between his boat and another boat that caused him serious injury. It is this boating accident, and the injuries arising from it, that form the basis of Mr Wood’s argument that the Respondent should have exercised its discretion under the policy in his favour.
Mr Wood admits that during the relevant period, the catch history recorded in his log books did not satisfy the catch criteria required by the policy.
At the time of his injury, Mr Wood was not using either licence FHVY or FYQT to work in the net fishery. He was, however, utilising his licenses to work in the crab fishery. Mr Wood told the Tribunal that prior to November 1996, he had not utilised the N1 symbol in the fishery. His evidence was that he was working in the crab industry fishery at the time of the incident, and continued to crab fish throughout the whole of the criteria period.
It is Mr Wood’s contention that the injuries he sustained, consisting of clinical fractures to his lower ribs, in the November 1996 boating accident have prevented him from net fishing. The pain he experiences in his chest region prevent him from both putting out nets from his row boat, and also from then bringing in the net. He draws a distinction with the impact that the injuries had on his ability to crab. Mr Wood claims that he has modified his crabbing technique by, in his words, “training his body,” to handle the nets which require a different range of movement from net fishing.
There is certainly evidence to support an injury of the type Mr Wood describes. Doctor Zerk has reported[1] as follows:-
“This man was seen in the emergency department of this hospital by myself on 4 November 1996. He was complaining of pain in his left hand, and back. He stated he had been pinned under the bow of a boat which ran over the stern over his own boat, some hours earlier that morning. He did not lose consciousness in the accident.
On examination tenderness and swelling was noted over the heads of the second and third medicarp. Function of his left hand was held to be normal. Tenderness was noted over the left deltoid, however there was a good range of movement in the shoulder joints. There was some tenderness to palpation over the left posterior ribs. Examination of his abdomen was normal clinical examination of his chest was clear. Ward test of his urine revealed no abnormalities.
An x-ray of his left hand revealed no recent fractures, an x-ray of his chest revealed no evidence of fractures. Diagnosis of soft tissue injury to his left hand and possible left ribs was made. Analgesia was prescribed and he was advised in management of these injuries.”
[1] Statement 6 October 1997 – page 12 of the review documents.
No further radiological investigations were undertaken to determine whether Mr Wood had sustained rib fractures during the days following the accident, at the times of Mr Wood’s attendance at the Redlands Hospital Of interest, it is noted that on 4 January 1997, Mr Wood is reported as having fallen over and re-injured his left rib. The examination notes indicate that he was tender over his anterior chest wall at the seventh rib.
That January 1997 visit was the last time that Mr Wood sought medical treatment for his injuries until, the evidence demonstrates, that he sought treatment by physiotherapist Mr Peter Mitchell (“Mr Mitchell”) in May of 1998. At that time, he presented for treatment over a period of 10 days, between 13 May 1998 and 9 June 1998. Mr Mitchell has provided a report[2] where he sets out the symptoms Mr Wood presented with, and treatment provided. His symptoms included neck, back and chest trauma.
[2] Exhibit 1
In a subsequent report[3], Mr Mitchell specifically addresses Mr Wood’s functional capacity, stating:-
“It is important to note that my involvement with Mr Wood was as a treating Physiotherapist. At no time were formal recognised functional capacity evaluations requested or performed. Thus my opinion is based on symptoms and _ reported to me, combined with the clinical testing required to treat acute symptoms as they presented on the day.”
[3] Exhibit 2
Mr Mitchell said that he recalled Mr Wood’s having complained that net fishing was painful to his “neck and back injuries,” and that this restricted his capacity to work. It is important to note, however, that Mr Mitchell did not make any contemporaneous notes of these conversations, and was simply recalling his collective synopsis of conversations that he had with Mr Wood over a period of several years. One could reasonably expect that if Mr Wood’s symptoms had a severe impact on his occupation, the complaints would have been formally recorded, and treated with a view toward tailoring treatment in an occupation context.
Subsequent to Mr Wood’s 1998 treatment, Mr Mitchell gave evidence that he did not again see Mr Wood until 2004, some 6-years later. At this point, Mr Wood’s primary complaint was with respect to his shoulder. He also presented with some lower back pain, which was significant enough that his general practitioner ordered a CT scan, which ultimately did not reveal any abnormality. Mr Mitchell had the report of the CT scan but did not give evidence of any abnormality being noted on the report.
Mr Wood received further treatment for back and neck pain in 2008, and then also more recently in October of 2010.
No specific treatment plan was provided to try and assist Mr Wood with his occupation as a net fisherman. Rather, the treatment Mr Wood received, and this is not a criticism of Mr Mitchell, was tailored to providing general episodic relief, when required by Mr Wood on a reactionary basis to pain.
Mr Wood was emphatic in saying that there was no other way to net fish, other than the way that he did it. As this way caused him pain, his evidence was that he simply could not do it. Mr Wood’s evidence is that he has had this pain since November of 1996, following the boating accident.
Despite this pain, Mr Wood has been able to crab fish, and the history relevant to his crab license supports a finding that he has continuously worked in the crab fishery to date.
Special circumstance
On this Application, the Tribunal must, in considering Mr Wood’s review application afresh, make a decision as to whether Mr Wood’s injury amounted to a special circumstance that would warrant the setting aside of the Respondent’s decision. This enquiry involves a determination by the Tribunal as to whether the manifestation of Mr Wood’s injuries were of such severity that he was prevented him working as a net fisherman.
The history of medical treatment to support such Mr Wood’s contentions is problematic for many reasons:
There is no radiological evidence of a fractured rib before us. Mr Wood’s injuries were, soft tissue only; Mr Wood did not receive any physiotherapy treatment whilst attending the Redlands Hospital in the months immediately after the accident; There is no evidence of any medical treatment at all in the period between January 1997 and May 1998; The treatment in May 1998 was over a very short period and there was no further treatment until 2004;. During this period in question, Mr Wood continued to work as a crab fisherman.
One could reasonably expect that the symptoms from Mr Wood’s injury would be at their worst in the period immediately after the accident, and then slowly stabilising. Yet, there was no follow-up treatment to that provided in hospital, during the post-accident sequelae.
Mr Wood described, verbally and by physical demonstration, the manner in which he fished using nets, and the way he would pull in the net and coil it behind him. However, there is no evidence establishing a nexus between the motions Mr Wood’s says were required to do, and the injuries he sustained. Although Mr Wood states that he tried to fish on three occasions during the relevant period, his evidence establishes two occasions only. The first was in or about April 1999 when Mr Wood said he fell in the water whilst trying to recover a net, became entangled and nearly drowned as a result. The second occasion was in August 1999 when he experienced severe sciatic pain whilst trying to bring in the net. On the third occasion, in April/May 2000, Mr Wood was unable to get the net back in the boat and gave up.
Mr Wood states he resumed net fishing in 2003, outside the relevant period, with his son, after his son came to live with him. Mr Wood’s and his son split the catch on a 50/50 basis.
Mr Wood also relies on the fact that he leased his license to a Mr Robert Bartlett between March 1997 and June 1999. The log books in evidence do not, however, support any catch of fish that was on license FHVF. Mr Wood also leased licence FYQT to a Mr Radley between September 2003 and October 2003 (outside the criteria period). Again, there is no fish history recorded in the log books.
The only evidence to support any fish caught in nets by Mr Bartlett or Mr Radley consists of Mr Wood’s oral evidence that each told him that they utilised the N1 symbol for fishing. This evidence carries little weight when viewed alongside the log books, which do not record any fish being caught with the use of the N1 symbol. Mr Wood takes issue with the fact that the two pages of the log book relevant to Mr Radley are “missing”. Neither of these potential witnesses have provided statements to support Mr Wood’s contention, nor were they called to give evidence.
In the end, we do not need to take into consideration the matters relating to Mr Radley and Mr Wood further, as this Application is not about trying to establish catch history during the relevant period – Mr Wood admits that he did not comply with the policy in these respects. Rather, this Application is concerned with the identification of “special circumstances”. In so far as special circumstances are concerned, there is no probative evidence capable of supporting Mr Wood’s assertions that he could not use his N1 license, and therefore leased it.
We accept that Mr Wood may have ongoing symptoms as a consequence of his November 1996 accident. We have difficulty however, in accepting that these symptoms were sufficiently debilitating so as to prevent Mr Wood from engaging in net fishing. In coming to this conclusion, we place some importance on the fact that Mr Wood received what we would consider to be minimal medical treatment at the time of his initial injury. Our views are further galvanised by the fact that Mr Wood did not then seek further treatment until he saw his physiotherapist in May 1998, and has sought little treatment thereafter.
There is no evidence of any bony injury, save for an inconclusive clinical diagnosis made by Dr Zerk in an emergency room context. We also note, and take into account, that at the time of the injury, Mr Wood was not working in the net fishery, but continued in the crab fishery without interruption. We have, therefore come to the view that, on balance, Mr Wood has been unable to make out special circumstances warranting the setting aside of the Respondent’s decision.
The Application in this matter is therefore dismissed.
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