Bluefin Seafoods Pty Ltd v Chief Executive Department of Employment, Economic Development and Innovation [2012] QCATA 104

CITATION: Bluefin Seafoods Pty Ltd v Chief Executive Department of Employment, Economic Development and Innovation [2012] QCATA 104 PARTIES: Bluefin Seafoods Pty Ltd (Applicant/Appellant) v Chief Executive, Department of Employment, Economic Development and Innovation (Respondent) APPLICATION NUMBER: APL237-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Hon K Dodds, Member DELIVERED ON: 15 June 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – ERROR OF FACT – ERROR OF LAW – where the appellant had made an application for a Resource Allocation Authority for sea ranching of sea cucumbers – where the respondent refused the application – where the appellant sought review of the decision– where the review tribunal upheld the refused to grant the application – whether the review tribunal erred in fact – whether the review tribunal erred in law Fisheries Act 1994, s 196 Queensland Civil and Administrative Tribunal Act 2009, ss 142, 147 QUYD Pty Ltd v Marvass (2009) 1 Qd R 41 APPEARANCES and REPRESENTATION (if any): -- 1 of 5 -- 2 This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] This matter concerns an application for leave to appeal from a decision of a three member review tribunal delivered on 14 July, 2011. [2] The review was instituted by the appellant (Bluefin). It sought review of a decision by the respondent (the CE) refusing Bluefin‟s application for a Resource Allocation Authority (RAA) for sea ranching of sea cucumbers over a particular deep water area in Hervey Bay. [3] The application to review by Bluefin was made to the now defunct Fisheries Tribunal under the then provisions of the Fisheries Act 1994. That Act required the tribunal consist of three members appropriately qualified. When Act of Parliament 24/09 (Qld) came into force on 1 December, 2009 the application passed to the Queensland Civil and Administrative Tribunal (QCAT) and the QCAT review tribunal was similarly constituted. [4] I have read the QCAT file which includes the decision of the CE, the evidence before the review tribunal, the tribunal‟s reasons for its decision confirming the CE‟s decision and the subsequent appeal material. Mr Meaclem, a principal of Bluefin, made submissions at the hearing of the appeal. Leave to Appeal [5] Leave to appeal from the review as here is required by s 142(3)(b) of the Queensland Civil and Administrative Act 2009 („QCAT Act‟), because the appeal that Bluefin wishes to make appears to involve matters of fact. Unless leave is obtained an appeal cannot proceed. [6] Leave to appeal is not available just for the asking. It is only available when there is shown to be a reasonably arguable case of error on the part of the review tribunal and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.1 The Grounds of Appeal if leave were granted [7] Under the Fisheries Act 1994, an appeal against the decision of the CE was limited to the following grounds viz: it was contrary to law; it was manifestly unfair; it would cause severe financial hardship to the appellant. [8] Before the review tribunal, Bluefin contended the CE‟s decision was manifestly unfair and would cause severe financial hardship. [9] Bluefin‟s grounds of appeal from the decision of the review tribunal were: 1 QUYD Pty Ltd v Marvass (2009) 1 Qd R 41. -- 2 of 5 -- 3 a. The CE‟s delay in making a decision on Bluefin‟s application for approximately three years thus denying Bluefin the opportunity to bring the matter before QCAT at an earlier time; b. The CE‟s decision was manifestly unfair and unethical, the CE was meant to be supporting aquaculture sea ranching but has allowed sea ranching projects to collapse; c. Bluefin was given money by the federal government to set up its sea cucumber hatchery. The CE “prohibited” Bluefin obtaining harvesting income even though Bluefin produced evidence of an effective monitoring program through DNA testing. [10] In a subsequent letter to QCAT dated 24 April, 2012 Bluefin advised it wished to concentrate on the CE‟s indication that its primary concern was Bluefin‟s ability to differentiate between wild caught and farmed sea cucumbers. [11] The above grounds I think may be summarised as follows: the CE‟s decision to refuse Bluefin‟s application was unfair and unethical; DNA testing was available which would differentiate between wild and farm stock; its decision to refuse Bluefin‟s application caused severe financial hardship to Bluefin. The Tribunal’s decision [12] The tribunal published detailed reasons for its decision. The reasons deal with the history of sea cucumber fishing in Hervey Bay; Bluefin‟s involvement with sea cucumber development and harvesting in Hervey Bay; and, the history and progress of Bluefin‟s application for the RAA. Bluefin did not contend there were any errors of fact about these matters. [13] It will be sufficient for the purposes of these reasons to record the following brief summary. [14] Until sea cucumber fishing in Hervey Bay was closed by the statutory authority in 2001 due to over fishing, Bluefin harvested sea cucumbers. Bluefin then, with the assistance of federal and state money, established a sea cucumber hatchery at Urangan. Bluefin also acquired from the state, Resource Allocation (RA) areas at Moon Point on Fraser Island and at Urangan. Hatchlings from the hatchery once they reached juvenile stage were seeded to the RA areas to grow. Eggs for the hatchery were obtained by milking mature sea cucumbers obtained for that purpose by Bluefin from deep water in the area over which Bluefin sought the RAA. Bluefin was the holder of a permit to do this. [15] Bluefin claimed that flooding in 2005 destroyed seagrass in its RAs. This was not in dispute. It also claimed that the then existing sea cucumbers in these relatively shallow water areas moved out into deeper waters which it says are those waters over which it has sought the RAA. This was not accepted by the CE. -- 3 of 5 -- 4 [16] Whether or not Bluefin‟s contention about what happened to the sea cucumbers at the time of flooding was accurate was a matter of conflicting evidence before the tribunal. A principal of Bluefin, Mr Meaclem, said there were a large number of sea cucumbers in gutters in the RAA area. He said there were no sea cucumbers between Bluefin‟s RA areas and the RAA area. He said the sea cucumbers from the RA areas had migrated to the deep water at the RAA areas at the time of the flooding. [17] The opposing contention said to be supported by fairly extensive research in New Caledonia was that the flooding caused the death of the great majority of the sea cucumbers in the RA areas. Another experienced fisherman from the Hervey Bay area, a Mr Laurence, gave evidence that flooding kills sea grass and sea cucumbers in the water affected by the flooding. [18] Bluefin led further evidence before the tribunal to support its application for the RAA to the following effect: there was now available DNA testing which could establish with a high degree of accuracy whether sea cucumbers in the RAA area sought were from hatchery stock or not. If it were granted the RAA, DNA testing could establish which of sea cucumbers harvested were from hatchery stock. [19] The tribunal‟s reasons involved a thorough consideration of the evidence including that about the proposed DNA testing. It accepted the evidence about the DNA testing being available. It indicated that had DNA evidence about the origin of sea cucumbers in the RAA area sought been available it could have been persuasive. It accepted that flooding had caused loss of sea cucumbers in Bluefin‟s RA areas but noted there was no conclusive evidence about what had happened to them. There was conflicting evidence. It accepted Bluefin had made major investment in sea cucumbers and had unfortunately lost that investment due to a natural event, flooding. It was not the CE‟s decision to refuse Bluefin‟s application which caused that loss. It noted there was evidence Bluefin had arrangements with other countries for seeding its juveniles and for harvesting of wild stock. It considered that granting the RAA sought would not necessarily ameliorate any hardship being experienced by Bluefin because Bluefin could not harvest sea cucumbers from the RAA area without the relevant authority to harvest, which it did not have. Despite the DNA testing available to Bluefin any harvesting would still inevitably include the harvesting of wild stock in the closed fishery. If it were found on testing that the sea cucumber in the RAA area were wild stock that stock would not be available to Bluefin and would not, if the RAA were granted, be available to other fishers who had the appropriate authority to harvest wild stock when the fishery was reopened. Decision [20] It may be accepted the flooding and its effect on the two RA areas Bluefin has, contributed to a set-back of Bluefin‟s sea cucumber breeding and ranching business. Bluefin‟s disappointment and sense of loss appear apparent and understandable. That said, it is important to understand that -- 4 of 5 -- 5 any appeal from the decision of the review tribunal is not a complete fresh hearing and consideration on the merits (a rehearing de novo) as was the proceeding the review tribunal conducted. Rather it is a rehearing of the tribunal‟s decision involving the evidence before the tribunal and the reasons for the tribunal‟s decision. If no error is apparent in the tribunal‟s reasons for its decision and the decision was one which the tribunal was entitled to reach on the evidence any appeal cannot succeed. [21] The tribunal‟s reasons for its decision reveal no error of fact or law. The decision of the tribunal was one open to it on all the evidence. The upshot is, there is apparent no reasonably arguable case of error by the tribunal. Even if, hypothetically, leave to appeal were to be granted such an appeal would not lead to any different result. [22] The application for leave to appeal is dismissed. -- 5 of 5 --