Wood v Department of Primary Industries and Fisheries

[2010] QCAT 60

CITATION: Wood v Department of Primary Industries and Fisheries [2010] QCAT 60

PARTIES:	Gregory  Wood
v
Department of Primary Industries and Fisheries

APPLICATION NUMBER:            FHR 0038-08  

MATTER TYPE:

HEARING DATE:   5 March 2010

HEARD AT:   Brisbane

DECISION OF: S Booth, senior member

DELIVERED ON:   8 March 2010

DELIVERED AT:   Brisbane

ORDERS AND DIRECTIONS:     1. The respondent’s application to strike out the appellant’s appeal is dismissed.

2. The respondent is directed to file and serve on the appellant any material they intend to rely upon by 8 April 2010.

3. The appellant is directed to file and serve on the respondent any material they intend to rely upon in response by 29 April 2010.

4. The matter is set down for a compulsory conference at Brisbane in the week beginning 3 May 2010.

CATCHWORDS :  Application to strike out dismissed

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.This is an application by the Respondent, the Chief Executive, Department of Employment Economic Development and Innovation (the Department) to dismiss a Notice of Appeal to the (former) Fisheries Tribunal. The appellant in the primary proceeding is Gregory Wood, a fisher.

2.Mr Wood opposes the application to dismiss the appeal.

3.Mr Wood filed two Notices of Appeal to the Fisheries Tribunal on 8 August 2008.  The appeal notices are identical, referring to (latent) “effort with East Coast net fishery licence” but do not identify the date of the decisions or date Mr Wood received the decisions.

LEGISLATION

4.From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Fisheries Tribunal under the Fisheries Act 1994 on the commencement of the Queensland Civil and Administrative Tribunal Act 2009.

5.Under section 256 of the Act, a pending proceeding (being a proceeding commenced in one of the Tribunals replaced by the 2009 Act but not heard by the replaced 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 must deal with the matter the subject of the pending proceeding under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act. However, under s271(2) QCAT only has the functions that the Fisheries Tribunal had and can only make a decision the former entity could have made.

6.The Department seeks dismissal of the matter under the Fisheries Act 1994 section 197 or under section 192(5)(e).

7.Section 197 provides-

How to start an appeal

1) An appeal is started by filing a written notice of appeal with the Tribunal in the form approved by the Tribunal.
(2) The notice of appeal must be accompanied by the fees prescribed under the regulations.
(3) The Tribunal must give a copy of the notice to the fisheries agency whose decision is being appealed against.
(4) The notice of appeal must be filed within 28 days after the appellant receives notice of the decision appealed against.
(5) The Tribunal may at any time extend the period for filing the notice of appeal.

(6) The notice of appeal must state the grounds of the appeal.

Section 192(5)(e) provides-

5) In a preliminary hearing, the Tribunal may—

(e) strike out the appeal on the ground that it is frivolous or

vexatious;

THE DEPARTMENT’S CONTENTIONS

8.The Department has submitted that Mr Wood’s Notice of Appeal failed to identify any decision being appealed and submitted that the only decision which could possibly be relevant was a decision by Frances Humphries, Fisheries Management Officer which was made on 1 November 2004. This decision renewed Mr Wood’s commercial fishing boat license QFV10092G but removed the net fishery (N1) symbol.

9.The Department submits that the notice of appeal is non-compliant with section 197 of the Act in that in fails to comply with the time limit for filing the Notice of Appeal under section 197(4).

10.The Department states that the Mr Wood was provided with a copy the Decision letter but that there has been no attempt to rectify issues with the Notice of Appeal.

11.Further there has been no extension of time for filing.

12.If any extension had been sought, the Department objects as it submits it has been nearly 4 years since the appellant was notified of the decision.

13.The Department states that any extension of time would be a gross abuse of process.

14.The Department has argued that the non-payment of fees occurred because the appellant paid double the requisite amount and the Department wrote returning fees and requesting a money order for the correct amount.

15.The Department’s third main contention is that the matter should be dismissed under s192(5)(e) that the appeal can be struck out on the ground that it is frivolous or vexatious.

MR WOOD’S CONTENTIONS

16.Mr Wood lodged two identical Notices of Appeal on 8 August 2008 but did not identify the date of the decision/s or the date he received the decision/s.

17.In his Notices of Appeal, he states that the basis of his appeals was that “I was run over and left for dead unaided at sea (and) the authority know two groups of fishers were going to kill me” The date of “August 1995” was noted in the margin of the application.  Further, the details of why the original decisions of the Department  are said to be wrong state “I was crushed and the authority knew that I was having medical problems”

18.In his response to the Department’s submissions, by way of background to his claims, Mr Wood has made a number of allegations about various fishers, Department employees and other fisheries personnel.

19.He states that he did not net fish until 2003, 5 months after the 2000 to 2002 period finished. He explained that he could not fish from 1996 to 2003 because of injury. 

20.As to the decisions the subject of the appeals,  “Fran Humphries did the review of licences she did not even allow me retain the net fishing symbol on my two licences FYQT, FHVF.

21.Mr Wood claims that as he has two appeals, he had paid the correct amount of money for two appeals, that is $250.

CONCLUSION

22.The first matter for consideration is whether the Tribunal is satisfied that the decision the subject of the original appeal (and then the dismissal application) is the decision of 1 November 2004.  This is not clear on the material before the Tribunal and no copy of the decision letter was provided to the Tribunal.  While both parties refer to a decision of Ms Humphries, Mr Wood speaks of 2 licences FYQT and FHVF and 2 appeals; the Department only refers to one decision about QFV10092G (FHVF).  It may be that there is only one decision however, this is a not a matter that can be decided on the papers.

23.Clarifying the nature of the decision or decisions that are the subject of the appeal and the validity of the Notice of Appeal will be considered by the Tribunal as a preliminary issue at the hearing of this matter.

24.Once it is decided whether there are one or two appeals and the date of the decision/s, then the question of whether the payment of $250 is appropriate can be determined.

25.The final submission from the Department is that the appeal should be dismissed as frivolous or vexatious. The Tribunal is not persuaded that the matter has been brought frivolously or vexatiously. It may be that once the issues are clarified, should it be concluded that the matter the subject of the appeal is a decision made over 4 years prior to the lodgement of the Notice of Appeal then the application may be misconceived. (In Bellarto Pastoral Pty Ltd v Department of Primary Industries [2006] VCAT 478 “misconceived” meant “obviously untenable or groundless”.) However, dismissal of a complaint because it is misconceived is not a ground for striking out an appeal under s195(e)(e) of the Fisheries Act 1994.

26.The application to strike out the appeal is dismissed.