Dallas v Department of Agriculture and Fisheries [2024] QCAT 16

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dallas v Department of Agriculture and Fisheries [2024] QCAT 16 PARTIES: TAYNYA DALLAS JAMES DALLAS (applicant) v DEPARTMENT OF AGRICULTURE AND FISHERIES (respondent) APPLICATION NO/S: GAR416-21 MATTER TYPE: General administrative review matters DELIVERED ON: 16 January 2024 HEARING DATE: 16 November 2022 HEARD AT: Brisbane DECISION OF: Member Holzberger ORDERS: The application for review is struck out. CATCHWORDS: ADMINISTRATIVE REVIEW – calculation of extra fishing days – where applicant seeks review of method of calculation – whether proceedings misconstrued Fisheries Act 1994 (Qld) Fisheries (general) Regulation 2019 (Qld), Schedule 2(A) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 47 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Mr J P D’Aleo, solicitor REASONS FOR DECISION [1] James Dallas and Taynya Dallas are commercial fishermen who hold, and for current purposes held, on 22 April 2021, two commercial fishing licences under the Fisheries Act 1994 (Qld) (‘Fisheries Act’). The first is licence number 13010 attached to boat mark FWZL and fisheries symbols L3(0), M1, T1 (‘M1 license’). The second is license number 4645 attached to boat mark FSTZ and fishery symbol M2 (‘M2 license’). [2] On 22 April 2021 the Department of Agriculture and Fisheries (‘Department’) notified Mr. and Mrs. Dallas of its decision about Mr. and Mrs. Dallas's Average -- 1 of 4 -- 2 yearly fishing days for the period between 1 July 2008 and 1 July 2018 under their M1 license (‘average yearly fishing days decision’). [3] The average yearly fishing days decision is relevant to the calculation of extra fishing days (‘extra fishing days calculation’) and the allocation of Moreton Bay effort units. [4] The average yearly fishing days decision included their extra fishing days calculation and an indicative allocation of Morton Bay day effort units. [5] On 24 May 2021 Mr. and Mrs. Dallas applied for an internal review of the extra fishing days calculation. In June 2021 the Department notified them that the original decision was confirmed (‘internal review decision’). [6] On 5 July 2021 Mr. and Mrs. Dallas applied to the Tribunal for a review of the internal review decision. On the face of it, it appears that their complaints relate to the extra fishing days calculation and the proposed Moreton Bay effort units allocation. Mrs. Dallas confirmed in cross-examination that they do not dispute the average yearly fishing days decision itself. [7] On 5 April 2022 the Department filed in the Tribunal an application for miscellaneous matters asking for the review application to be dismissed on the ground that it was misconceived and thus without merit. That application was accompanied by a written submission on behalf of the Department. Despite the Tribunal’s direction of 23 May 2022 inviting Mr. and Mrs. Dallas to file submissions in response, no submissions have been filed on behalf of Mr. and Mrs. Dallas. [8] On 25 August 2022 the Tribunal directed that the miscellaneous matters application be heard and determined with the review application. [9] Both applications were heard on 16 November 2022. The Tribunal’s decisions were reserved. Legislative Scheme [10] After release of its Sustainable Fishery Strategy in 2017 the Department began a lengthy period of consultation with stakeholders. Mr. and Mrs. Dallas were participants in that process but were excluded from part of it because of a perceived conflict of interest as a result of their unique position as holders of both an M1 and an M2 licence. They complained that the extra fishing days calculation is significantly less than they were given to understand it would be and that the Moreton Bay effect units were not shared out evenly between M1 and M2 licences as they understood the proposal. [11] The method of calculating average yearly fishing days, extra fishing days and the allocation of Morton Bay effort units are contained in Part 2 of schedule 2(A) of the Fisheries (general) Regulation 2019 (Qld) (‘Regulation’). [12] Details of actual usage were self-reported to the Department each year commencing 1 July 2008 until 2018. Pursuant to section 13 of the Regulation, the seven years with the highest number of fishing days are selected, totalled then divided by seven to produce the average yearly fishing days. Section 14 of the Regulation prescribes the method of allocation of extra fishing days. The average yearly fishing days for all eligible persons are totalled and deducted from 8535 (the number of days determined as optimal). Half of that total are issued to M1 licence holders in the other half to M2 licence holders. -- 2 of 4 -- 3 [13] Under section 15, effort units allocation is determined for each year for each eligible person by totalling average yearly fishing days and extra days and multiplying it by an “effort unit conversion factor.” Review Application [14] The Department, in the original decision, internal review decision, and in these proceedings, has been transparent in its calculations. It has identified each variable and explained how it was obtained or derived. Mr. and Mrs. Dallas do not, in any material before the Tribunal or in evidence, identify an error in the various calculations or their component parts. [15] An external review in the Tribunal is conducted by way of a rehearing on the merits with a view to reaching the correct and preferable decision.1 While it is not necessary for an applicant to identify an error in the decision under review, where that decision is based on the application of a formula as it is here, it would be difficult for the Tribunal to conclude that the correct and preferable decision was other than the decision under review when no error in that decision can be identified. The Strikeout Application [16] The Department submitted that the application is misconceived on three bases: (a) “The outcome being sought by the applicants is not permissible because it would require the decision maker to bypass/ignore what is required by the relevant legislation. (b) The maximum number of Moreton Bay effort units prescribed by the legislation has already been allocated to the applicants. (c) There is no jurisdiction to externally review an extra fishing days allocation decision to which the application relates.” [17] The Tribunal is generally reluctant to deny an applicant a hearing unless it is clear that the application cannot succeed. That is particularly so where a lack of knowledge and experience of conducting proceedings may disadvantage an applicant in articulating the relief sought and the evidence supporting the application. [18] In this instance however, Mr. and Mrs. Dallas have not been denied a hearing. A hearing was conducted before the determination of the miscellaneous matters application. They have been given an opportunity to address any misunderstanding of their application or call other evidence to support it. [19] I am satisfied that Mr and Mrs. Dallas have no legitimate complaint about the internal review decision maker’s decision (or original decision maker for that matter), application of the Fisheries Act or Regulation in determining the average yearly fishing days decision, the extra fishing days calculation and the allocation of effort units. Rather their complaint is with the scheme itself which I accept has produced for them an outcome well below their expectations. [20] It may well be that the scheme is unfair or that they have been disadvantaged during the consultation process but the Department, and the Tribunal in its place, must follow 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. -- 3 of 4 -- 4 the terms of the legislation before it and cannot substitute a decision beyond the scope of that legislation. [21] Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) allows the Tribunal to dismiss or strike out a proceeding in whole or part if satisfied that it is: (a) frivolous, vexatious or misconceived; (b) lacking in substance; or (c) otherwise an abusive process. [22] The Tribunal cannot identify an error in the various calculations of the Department. Neither can Mr. and Mrs. Dallas. The Tribunal’s aim to produce the correct and preferable decision does not permit it to go beyond the terms of the enabling legislation. Mr. and Mrs. Dallas are asking the Tribunal to do just that, that is to use another basis for calculating the average yearly fishing days. [23] I am satisfied that the application is misconceived. It has no prospect of success and in those circumstances, I order it to be struck out. -- 4 of 4 --