Carruthers v Department of Agriculture and Fisheries [2017] QCATA 115

CITATION: Carruthers v Department of Agriculture and Fisheries [2017] QCATA 115 PARTIES: TERRY CARRUTHERS (Applicant/Appellant) v DEPARTMENT OF AGRICULTURE AND FISHERIES (Respondent) APPLICATION NUMBER: APL462-15 MATTER TYPE: Application and Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 18 October 2017 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: 1. The application for leave to appeal against the tribunal’s decision refusing an extension of time to file an application for review is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – where the applicant’s fishing authorities were cancelled for non-payment – where the applicant filed an application for review out of time – where the tribunal dismissed the application for review and the application for extension of time – where the applicant appealed the tribunal decision – where the grounds for review were not made out – where application for leave to appeal or appeal is refused Fisheries Act 1994 (Qld) ss 67(3), 68AB, 185(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 17, 18, 20(1)-(2), 61(1), 142(1) APPEARANCES and REPRESENTATION (if any): -- 1 of 9 -- 2 This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). REASONS FOR DECISION [1] The applicant claims to have a statutory right to review a decision of a fisheries departmental official. The “reviewable decision” is identified in the material as being under s 67 of the Fisheries Act 1994 (Qld) which permits a delegate for the chief executive to suspend or cancel a fishing authority if satisfied it is necessary or desirable to do so for the best management, use, development or protection of fisheries resources or fish habitats.1 [2] Except for the decisions excluded by s 185(2) of the Fisheries Act2 a person dissatisfied with an order or direction of or on behalf of the chief executive may apply for a review on one or more of the following grounds: (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 severe personal hardship to the person. [3] It is not contended that the “reviewable decision” was wrong or improperly made, but the applicant argues instead that his commercial fishing licence would probably not have been cancelled for not making renewal payments if mitigating circumstances had been known or taken into account. He explains that he desperately needs to start earning a living from fishing because all his money is invested in fishing licences and a boat which has now finally reached operational status after being unseaworthy since 2013 and consequently seeks reinstatement of the cancelled authorities on payment of unpaid fees ($2,095.87). [4] However, any right the applicant has to review the decision can only be availed of with a two month extension of time to file the Form 23. [5] His current application is to appeal an earlier tribunal decision refusing to grant the indulgence and dismissing the review proceeding. From a legal perspective, applications to extend the prescribed deadline for taking a procedural step filed after the expiry of a statutory period of limitation do not have the practical effect of starting a tribunal proceeding unless and until 1 The section does not affect the suspension or cancellation of an authority under a regulation or management plan: Fisheries Act 1994 (Qld) s 67(3). 2 The following decisions cannot be reviewed under s 185 — (a) a decision of the chief executive about policy, including, for example, a decision of the chief executive about the shark control program; (b) a decision of the chief executive about starting or continuing a prosecution against a person for an offence against this Act; (c) a decision of the chief executive about an officer or employee of the department in the person’s capacity as an officer or employee; (d) a decision of the chief executive about delegating a power by the chief executive; (e) a decision of the chief executive about making a management plan or declaration; (f) a decision of the chief executive about appointing a person as an inspector. -- 2 of 9 -- 3 leave is given to file late or strict compliance with the rules is waived. A proceeding that has never been legally started cannot be dismissed. To that extent the order dismissing the review was superfluous. [6] The applicant seeks an order from the appeal tribunal setting aside the refusal and either remitting the matter back to the tribunal for reconsideration or for the appeal tribunal to re-exercise the discretion itself. The leave requirement [7] The applicant wrongly submits that leave to appeal is not needed because the proposed appeal is on errors of law only. The right of a party to appeal to the appeal tribunal solely on questions of law conferred by s 142(1) of the QCAT Act is qualified by s 3(a)(ii), which provides that an appeal under s 142(1) against a decision that is not the tribunal’s final decision in a proceeding may be made only if the party has obtained the appeal tribunal’s leave to appeal. [8] The definition of decision in Schedule 3 differentiates between the tribunal’s final decision in a proceeding and an order made or direction given by the tribunal in the course of a proceeding. The final decision of the tribunal in a proceeding refers to the tribunal’s decision that finally decides the matters the subject of the proceeding. [9] An interlocutory procedural order under s 61(1) QCAT Act is not technically a final decision even though it may have the consequence of ending a proceeding started by a document filed out of time. [10] The tribunal’s limited statutory discretion to relieve a party from the adverse consequences of unmet procedural requirements under the QCAT Act or Rules, including altering prescribed time limits, is conferred by s 61(1) QCAT Act and interlocutory in nature. The intention of the section is to provide flexibility and allow the tribunal to avoid substantial injustice by responding appropriately to variable circumstances, except where it would cause undue prejudice or such detriment to another party that could not be adequately compensated by an order for costs or some other relief. For example, where there is a detrimental change of position or insurmountable forensic disadvantage. [11] As the current application relates to the exercise of a discretion on a point of procedure the applicant requires leave and has the heavy onus of demonstrating vitiating error at least to the standard of reasonable agruability. [12] The appeal tribunal will not generally overturn reasonable procedural decisions made consistently with the achievement of the objects of the QCAT Act. There needs to be some demonstrated departure from principle such as taking into account an irrelevant consideration, or ignoring a relevant one, or manifest injustice. The rival contentions -- 3 of 9 -- 4 [13] The applicant claims that the tribunal made errors of law by: (a) failing to properly consider the strength of the applicant’s case for an extension of time. The circumstances the tribunal is said to have not adequately considered are summarised in the review application as the sinking of a boat and loss of log books in November 2013, a domestic relationship breakup in March 2015, mental and financial hardship, not receiving notices, neglecting to keep his business affairs in order due to past reliance on his spouse in fulfilling this role, and the two and a half years delay in repairing and refitting a fishing vessel; (b) making a finding or inference without evidence or reason; and (c) breaching the rules of natural justice. [14] The respondent denies that any errors of law have been made out and submits that the appeal should be dismissed because:  there is a requirement to pay the required fees even during periods of non-fishing;  the applicant was an experienced commercial fisherman and was well aware of his obligation to pay his fees;  the applicant defaulted before he separated from his spouse and before his boat sank;  the applicant was well aware he was in default of his fees because in August 2013 he agreed to a payment schedule and was told then that his licence would be suspended if he defaulted and that he would not be given any more reminders or extensions;  the applicant defaulted in the payment scheme;  the applicant failed to meet his legislative obligation to keep the department informed of his current postal address;  the department was entitled to conclude when notices were returned and no contact was made by the fisherman that he may have left the industry or had no further interest in continuing to hold the authorities;  even when the applicant became aware of his review rights he delayed filing his application for at least two months;  the decision to cancel the applicant’s licences was taken as a last resort after a lengthy period of non-payment dating from August 2013 and is compatible with the best management of fisheries resources; -- 4 of 9 -- 5  cancellation followed at least two consecutive six monthly invoicing periods i.e. 12 months of fees not being paid;  the delay in filing is excessive and unexplained;  over 15 months has passed from when the applicant filed his application to the date he filed his outline of submissions in support of the appeal. The licensing scheme [15] Fishing has been the applicant’s livelihood since he was 13. By 2013 he held:  Commercial fisher licence number 145670  Quota account/2600 (T1 Effort Units)  Commercial fishing boat licence number 12440 [16] Effort units are a type of authority that form part of a quota system for fishing along the east coast of Queensland.3 The number of fishing days each operator is entitled to are converted to effort units based on the size of the licenced vessel’s hull.4 [17] Fishing authorities are ongoing unless cancelled by the department or surrendered by the holder. [18] Annual fees are payable for the management of fisheries resources on invoices sent every six months in arrears. The continuity of fishing authorities is maintained by the payment of prescribed fees including throughout any periods of non-fishing. Unpaid fees become a debt to the government until discharged. The departmental guidelines provide reasonable opportunities for negotiating delayed or deferred payment arrangements to cater for financial difficulties. The authorities are liable to be suspended where fees are overdue for more than 30 days following the issue of a non-payment notice. Cancellation occurs where fees are not received within 90 days of the notice and no repayment agreement has been arranged. [19] It is self-evidently unfair to potential willing and able new entrants to the fishing industry by denying them access to an otherwise available public resource when existing authorities are inactive or not being paid for by defaulting holders. [20] On the other hand, re-entry into the industry after cancellation requires acquisition of current authorities, not merely reinstatement of previously held authorities, and is unlikely under restrictive entry policies. 3 Fisheries (East Coast Trawl) Management Plan 2010 (Qld). 4 Ibid s 73-75. -- 5 of 9 -- 6 The context [21] The department sent a letter to the applicant on 29 January 2015 to his former spouse’s Pomona address by registered post informing him of its intention to cancel his commercial fishing boat licence number 12440 in the absence of payment or satisfactory explanation. [22] The show cause notice referred to the suspension of the applicant’s boat licence for unpaid fees of $903.57 (out of a total outstanding amount of $2,404.22)5 and notified him that in the absence of payment or a response to the show cause notice within 30 days it would be assumed that the applicant had no further interest in the licence which would then be “cancelled without further prior notice or contact from this office”. [23] On 3 March 2015 he was notified by a departmental letter that his commercial fishing boat licence 12440 was cancelled by the manager of the licensing unit (pursuant to delegation under the Fisheries Act) for failure to pay three consecutive invoice periods from 1 July 2013 to 31 December 2014. [24] The applicant denies receiving the show cause notice or the cancellation letter until early June 2015. [25] The department concedes that a number of notices were returned unclaimed but points out that according to the uncontested material the applicant failed to meet his mandatory obligation to provide new address details within 21 days of any change as required by the Fisheries Act and the Regulation.6 In any case, the department says his ship broker was given a copy of the show cause notice and advised of the proposal to cancel the authority for licence 12440 for unpaid fees unless remedied, and it can be inferred that the information was probably passed on to him. [26] He contacted the department on 30 June 2015 and was advised that he had a right to appeal the decision if he was dissatisfied with it for any of the stated grounds in s 185 of the Fisheries Act. He was also told that the tribunal may extend the time for filing the notice of appeal and a stay at any time. The review jurisdiction [27] The tribunal’s review jurisdiction is enabled by s 185 of the Fisheries Act and s 17 of the QCAT Act. 5 The department had already agreed to a repayment plan for $546.95 owing for 145670 and the T1 Effort units (2600T1) in 2013 but both authorities were later suspended for payment default on 25 September 2013. 145670 was cancelled for non-payment on 11 November 2013. 2600T1 was cancelled for non-payment on 14 July 2014. 6 Fisheries Act 1994 (Qld) s 73(3); Fisheries Regulation 2008 (Qld) s 211(b). -- 6 of 9 -- 7 [28] Section 33 of the QCAT Act allows 28 days from the relevant day (unless an enabling Act provides otherwise), or the period as extended under s 61, for an application for review of a reviewable decision. [29] The term “relevant day” for a review application relevantly means the day the applicant is notified of the decision.7 [30] The tribunal may exercise its review jurisdiction if a person has applied under the QCAT Act to the tribunal to exercise its review jurisdiction for a reviewable decision.8 [31] The purpose of the review is to produce the correct and preferable decision. The applicant is entitled to a fresh hearing on the merits.9 [32] The application to review is dated 15 September 2015 and was filed on 18 September 2015, that is, more than 6 months after the applicant was sent the letter notifying him his boat licence was cancelled, and at least two months after the applicant claims he became aware of the cancellation. [33] The Form 42 to extend or shorten a time limit seeking “an extension in time on my application to appeal [review] the cancellation of my fishing licences” was not filed until 12 October 2015. [34] The department opposed the extension of time on the basis that it had taken all reasonable steps to provide the applicant with the notices to pay the fees including advice of proposed cancellations, because, even assuming that the applicant did not receive notice until June 2015 he did not give any satisfactory explanation for the approximately two months delay in filing the review application. [35] The tribunal found that as the applicant had failed to take advantage of a number of opportunities he was given to rectify his default, it would now be prejudicial to the department if the applicant was given a further opportunity to review the decision. Due to the department’s detrimental reliance on the reasonable assumption that the authority was no longer required and could be reissued to someone else, overall granting the extension was not in the interests of justice where it was unlikely that the tribunal would come to a different decision “on review”. [36] The Form 42 was dismissed accordingly on 22 October 2015. [37] On the basis that the applicant’s fishing boat licence was cancelled by “an order, direction, requirement or other decision (or/for) the chief executive” within s 185 the Fisheries Act rather than by s 68AB(5)(a)(b), review rights are via s 185 of the Fisheries Act. His proposed grounds of appeal are considered on their merits to ascertain whether any of them are tenable enough to justify leave to appeal the refusal to give him more time to file. 7 QCAT Act s 33(4)(a). 8 QCAT Act s 18. 9 QCAT Act s 20(1)-(2). -- 7 of 9 -- 8 Ground 1 – Failure to adequately consider the strength of the case [38] It is submitted that in assessing the strength of the applicant’s case the tribunal failed to consider the severe hardship he faced as a result of the cancellation decision, including the circumstances set out at [14](a)-(g) in his written submission. [39] This ground is not reasonably arguable. The tribunal gave adequate consideration to the strength of the applicant’s case in determining whether or not to grant the application to extend time including the evidence of departmental efforts to notify him of the proposed action prior to it being taken. It was open to the tribunal to find that in all the circumstances any adverse consequences he may suffer if no extension of time is given10 were caused by the applicant’s own failure to provide a new address as required by regulation. He is an experienced fisherman. As demoralising as his multiple misfortunes must have been for him he inferentially knew from experience that fees were payable annually, approximately how much they cost, when they fell due, what delayed payment options were available, and the risks of non-payment (and regrettably took those risks to his detriment). His fees were outstanding for a long time and he either was or should have been aware of his default. He was given a number of opportunities to remedy it but failed to take full advantage of them. Ground 2 – Findings unsupported by evidence [40] The applicant claims that he actually only received verbal notice of the decision in June 2015 and was not aware of his rights of review until an unspecified date. [41] The respondent points out that the applicant’s material fails to include critical dates and information such as the actual date of when and how the applicant became aware of his review rights. [42] The tribunal noted that the applicant provided inconsistent evidence in his applications as to when he became aware of the respondent’s decision but found that the applicant received a letter from the respondent on 30 June 2015 pointing out his rights to review.11 [43] In making this finding the tribunal referred to the application to extend a time limit in which he stated that the Mooloolaba Marine Transport office “alerted him to the current errors” in March 2015.12 [44] The respondent submits that even if the tribunal did misconstrue the applicant’s evidence about when he became aware of his right of review it was still correct to conclude that his evidence was inconsistent. For example, according to the applicant’s material he separated from his spouse in March 2015 and because of that relationship breakdown “forgot all my fishing licence renewals were still being sent to my spouse’s address 10 See reasons [25]. 11 See reasons [16]-[17]. 12 Ibid [16]. -- 8 of 9 -- 9 in Pomona”.13 The applicant failed to pay his fees in August 2013 which is 18 months before he separated from his spouse. [45] There is ample evidence supporting the inference that the applicant was well aware that he had not paid his fees and entered into and then defaulted in a repayment agreement with the department before his boat sank in November 2013 and his relationship breakdown in March 2015. [46] This ground is unlikely to succeed on appeal because the applicant cannot show that any factual mistake resulted in substantial injustice calling for correction. Ground 3 – Breach of natural justice [47] At [20] of his submissions the applicant says the tribunal failed to consider whether the departmental steps required by the standard operation procedure for collecting fees were taken before he was notified of the cancellation decision. He points especially to the delegates responsibility, where notices are returned, to investigate the accuracy of the address by reference to such sources as the phone book and electoral roll, or consider the consequences of cancellation given the nature of the authority, including that the quota cannot be reissued if cancelled and new licences in lieu of cancelled boat licences are unlikely to be granted under limited entry policies. [48] However, the departmental steps taken to notify the applicant of the pending cancellation decision were referred to in the tribunal’s reasons at [5]-[8]. While a number of notices were returned unclaimed, the applicant had failed to update his address as required, the department was in contact with the applicant’s ship broker throughout (who confirmed the applicant’s address in February 2015 and was given a copy of the show cause notice dated 29 January 2015) and had attempted phone contact on numerous occasions. There is no sign of any procedural irregularity nullifying the cancellation. [49] As there is no demonstrated basis for disturbing the tribunal’s refusal to extend time to review the cancellation decision, the application for leave to appeal against the tribunal’s refusal to extend time to file an application for review is refused. 13 Form 23, filed 18 September 2015. -- 9 of 9 --