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  4. Vanrook Station Pty Ltd v Chief Executive Department of Agriculture, Fisheries and Forestry - [2015] QCAT 115

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Vanrook Station Pty Ltd v Chief Executive Department of Agriculture, Fisheries and Forestry[2015] QCAT 115

Vanrook Station Pty Ltd v Chief Executive Department of Agriculture, Fisheries and Forestry[2015] QCAT 115

CITATION:

Vanrook Station Pty Ltd v Chief Executive Department of Agriculture, Fisheries and Forestry [2015] QCAT 115

PARTIES:

Vanrook Station Pty Ltd

(Applicant)

 

v

 

Chief Executive Department of Agriculture, Fisheries and Forestry

(Respondent)       

APPLICATION NUMBER:

GAR325-14 and GAR002-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

27 March 2015

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

2 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The hearing of applications for review GAR325-14 and GAR002-15 is adjourned to a date to be fixed after the decisions of the Court of Appeal in the matters CA No 12134 of 2014 and CA No 11 of 2015 are known.
  1. The Chief Executive Department of Agriculture, Fisheries and Forestry shall comply with subsection 21(2) of the QCAT Act, in relation to applications GAR325-14 and GAR002-15, respectively, by 4pm on 4 May 2015.
  1. Vanrook Station Pty Ltd shall file and serve its reply to the respondent’s reasons for the subject decisions, together with copies of all documents and other material under its control that may be relevant to the Tribunal’s decisions in applications GAR325-14 and GAR002-15 by 4 pm on 1 June 2015.
  1. The costs of this application are reserved for decision at the substantive hearing, if any, and if none, then upon application made when the decisions of the Court of Appeal are available.

CATCHWORDS:

ADMINISTRATIVE REVIEW – interlocutory applications – where quarantine orders made under the Stock Act 1915 – where requests to release the subject area from quarantine refused – where applications to the Tribunal to review those refusals – where concurrent applications to Supreme Court for judicial review – where primary decisions of Supreme Court appealed to Court of Appeal – whether applications to Tribunal should be adjourned pending the results of those appeals – whether respondent Department should in the meantime provide reasons for said refusals and relevant documents – where adjournment of review applications granted – where orders made for reasons for said refusals and documents to be provided pending Court of Appeal hearings

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 17-24, 61

Stock Act 1915 (Qld) ss 14, 35B, Schedule 2

Fairfax Media Publications Pty Limited & Ors v Cummings; Fairfax Digital Australia and New Zealand Pty Limited & Anor v Cummings & Anor (2013) 280 FLR 238; [2013] ACTCA 37

Groufsky v Crime and Misconduct Commission & Anor [2010] QCAT 690

Mowburn Nominees Pty Ltd & Ors v Palfreyman & Ors [2014] QSC 289

New South Wales v Kable (2013) 252 CLR 118

R v Swan [2013] QCA 217

RCR Resolve FM v Sero Australia [2014] NSWSC 1477

State of Queensland and Green v Leadbeatter [2011] QCATA 60

APPEARANCES and REPRESENTATION:

APPLICANT:      Mr C Hughes QC with Mr M Plunkett instructed by Emanate  Legal, 168 Flinders Street, Townsville.

RESPONDENT:  Mr P J Davis QC with Mr A D Scott, instructed by G R Cooper, Crown Solicitor, State Law Building, 50 Ann Street, Brisbane.

REASONS FOR DECISION

  1. [1]
    The applicant Vanrook raises cattle in the Normanton district of north Queensland for the live export market.
  2. [2]
    The respondent (“the Department”) administers the Stock Act 1915.
  3. [3]
    That Act enables the Department to place any area in quarantine for the purposes of preventing, controlling or eradicating disease in cattle.[1]

Merits review applications to QCAT

  1. [4]
    Vanrook has instituted two proceedings in the Tribunal, namely GAR325-14[2] and GAR002-15, seeking review[3] of two decisions of the Department to quarantine its property. Each application challenges a decision of the Department not to lift a quarantine order[4] imposed by its inspector. Vanrook says that, if those decisions are not set aside, it will sustain heavy financial losses, variously estimated as $2,375,000[5] or $250,000.[6]

Judicial review applications to Supreme Court

  1. [5]
    This litigation is complicated by the existence of concurrent and related applications by Vanrook to the Supreme Court of Queensland for judicial review of the Department’s abovementioned decisions,[7] and consequent appeals.

Appeals to Court of Appeal

  1. [6]
    In QSC No 1 Carmody CJ, on 28 November 2014, found in favour of Vanrook. The Department is appealing that decision to the Court of Appeal[8]; the hearing is yet to occur.
  2. [7]
    In QSC No 2 Carmody CJ, on 12 December 2014, found in favour of the Department. Vanrook is appealing that decision to the Court of Appeal[9]; the hearing is yet to take place.

Should the Tribunal Adjourn?

  1. [8]
    In these circumstances the Department asks the Tribunal to adjourn the matters GAR 325-14 and GAR002-15 to a date to be fixed after the Supreme Court appeals are decided.
  2. [9]
    In support of its adjournment application the Department submits that it would be premature, pointless and potentially wasteful for the Tribunal to embark on reviews before the Court of Appeal decisions are available. It points out that, in view of the Chief Justice’s decision in QSC No 1, the decision challenged in GAR325-14 is non-operative[10], so that, in that case, there is nothing for the Tribunal to examine. The Department also submits that, if Vanrook’s appeal in QSC No 2 succeeds, the position in application GAR002-15 will be the same.  Other valid considerations are courtesy to the superior court, the risk of inconsistent decisions, and potential waste of costs and resources.[11] 
  3. [10]
    Absent Vanrook’s appeal in QSC No 2, these difficulties would not affect application GAR002-15, but we must deal with the case, overall, as it stands.
  4. [11]
    Vanrook’s anxiety to reach curial finality as soon as possible is quite understandable. I am informed that the Supreme Court may not hear the appeals until late May, at the earliest, and perhaps not until June or July. Thereafter, there will probably be further delay while judgments are reserved. By the same token, I am informed by the QCAT registry that, even if no inter-jurisdictional complications existed, applications GAR325-14 and GAR002-15 would be unlikely to receive a hearing before next August. The Tribunal’s judgment, too, would probably be reserved.
  5. [12]
    It is true that the decisions challenged in each application to QCAT are not those of the Inspectors who imposed quarantine, but those of the Chief Executive in refusing to release Vanrook from quarantine.[12] It is also true that the former decisions, not the latter, were subject to the primary decisions of the Supreme Court. Nevertheless, they are closely related. If the Inspectors’ decisions are invalid, it follows that the Chief Executive’s decisions, or purported decisions, create no material for merits review.
  6. [13]
    On balance, I consider that the hearing of the QCAT matters, if ultimately useful, should await the decisions of the Court of Appeal. I propose, then, to postpone the hearing of applications GAR325-14 and GAR002-15 until those decisions are available.

Vanrook’s Cross-Applications for reasons etc

  1. [14]
    Postponement of the QCAT hearing does not mean that interlocutory proceedings in the Tribunal applications must be consigned to limbo. The Department’s interest in avoiding a QCAT hearing that may become otiose is balanced by Vanrook’s interest in as much expedition as can be attained in these unusual circumstances, should that hearing, after all, be required.
  2. [15]
    On 28 October 2014, in application GAR325-14, Senior Member O'Callaghan ordered, inter alia, that the Department file and serve the documents and other material in its possession or under its control ... relevant to the Tribunal’s review of the decision in question.[13]

A statutory duty

  1. [16]
    That direction was strictly unnecessary[14] in view of subsection 21(2) of the QCAT Act, which provides:

[T]he decision-maker must provide the following to the tribunal within a reasonable period of not more than 28 days after the decision-maker is given a copy of the application for review ... (a) a written statement of the reasons for the decision; (b) any document or thing in the decision-maker’s possession or control that may be relevant to the tribunal’s review of the decision.

  1. [17]
    The same provision applies, of course, to the maker of the decision challenged in application GAR002-15. In that case the Tribunal issued directions on 27 March 2015, similar to those issued in GAR325-14 on 28 October 2014.
  2. [18]
    It is common ground that the Department has not yet complied with subsection 21(2), or with the cognate directions, in relation to either application GAR325-14 or GAR002-15. The Department’s attitude is that, as the litigation stands, compliance is unnecessary. Vanrook disputes that proposition.[15]
  3. [19]
    On 2 December 2014 the Department made an informal and ex parte submission to the Registrar[16], suggesting that the directions of 28 October 2014 be vacated, without reference to subsection 21(2). However, no formal application to that end was made, nor any application for extension of the 28-day time limit in that subsection, prior to the hearing on 27 March 2015.[17] This is not a matter for a party to decide for itself. The Department’s non-compliance with the above directions does not enhance its case for postponing them or setting them aside. However, it seems hardly necessary to lecture the Department on the role of a model litigant, or the moderation of adversarial zeal in administrative review proceedings. I trust that each party will make every reasonable effort to expedite proceedings in the Court of Appeal.

Minimising delay

  1. [20]
    At this stage, it is possible that the Department may fail in its appeal in QSC No 1, and Vanrook may win its appeal in QSC No 2. If so, the two quarantine orders in question will be alive, and Vanrook will be at liberty to seek review, by the Tribunal, of one or both of them. In my view, it is in the interests of justice to minimise, so far as possible, delay that would result from postponing the Department’s compliance with subsection 21(2) of the QCAT Act. Already, in each case, the prescribed time limit has clearly been exceeded. These considerations, in my view, outweigh the approximate cost (as estimated by the Department during the hearing) of preparing material that, in the end, may or may not be required. In the context of what are obviously expensive proceedings, the estimated additional cost is not disproportionate. Moreover, the burden is not unilateral; Vanrook will be ordered to reply.
  2. [21]
    I propose to order that the Department comply with subsection 21(2) with respect to each application for review. The Department gives no undertaking that further quarantine notices will not be issued.

ORDERS

  1. The hearing of applications for review GAR325-14 and GAR002-15 is adjourned to a date to be fixed after the decisions of the Court of Appeal in the matters CA No 12134 of 2014 and CA No 11 of 2015 are known.
  1. The Chief Executive Department of Agriculture, Fisheries and Forestry shall comply with subsection 21(2) of the QCAT Act, in relation to applications GAR325-14 and GAR002-15, respectively, by 4pm on 4 May 2015.
  1. Vanrook Station Pty Ltd shall file and serve its reply to the respondent’s reasons for the subject decisions, together with copies of all documents and other material under its control that may be relevant to the Tribunal’s decisions in applications GAR325-14 and GAR002-15 by 4 pm on 1 June 2015.
  1. The costs of this application are reserved for decision at the substantive hearing, if any, and if none, then upon application made when the decisions of the Court of Appeal are available.

Footnotes

[1] Stock Act 1915 s 14; for present purposes the term “cattle” is defined in Schedule 2 to the Act.

[2] Filed 10 October 2014.

[3] QCAT Act ss 17-24; Stock Act 1915 s 35B.

[4] See Stock Act 1915 s 14(1C).

[5] Affidavit of Michael Day sworn 9 March 2015 (erroneously dated 2014) paragraph 8.

[6] Reasons for judgment of Carmody CJ, 28 November 2014 paragraph [4].

[7] Mowburn Nominees Pty Ltd & Ors v Palfreyman & Ors [2014] QSC 289 (28 November 2014) (“QSC No 1”) and Mowburn Nominees Pty Ltd & Ors v Palfreyman & Ors (primary judgment delivered on 12 December 2014 (“QSC No 2”).

[8] Palfreyman & Ors v Mowburn Nominees Pty Ltd & Ors CA No 12134 of 2014.

[9] Mowburn Nominees Pty Ltd & Anor v Palfreyman & Ors, CA No 11 of 2015.

[10] New South Wales v Kable (2013) 252 CLR 118 at [38] and [57].

[11] Fairfax Media Publications Pty Limited & Ors v Cummings; Fairfax Digital Australia and New Zealand Pty Limited & Anor v Cummings & Anor (2013) 280 FLR 238; [2013] ACTCA 37 at [81]; RCR Resolve FM v Sero Australia [2014] NSWSC 1477 at [20]; R v Swan [2013] QCA 217 at [39].

[12] Stock Act 1915 s 14(1C), and see indorsements on Vanrook’s applications dated 10 October 2014 and 6 January 2015, respectively.

[13] Namely, the decision of the Department on 8 August 2014 not to lift the quarantine then existing, pursuant to Stock Act 1915 s 14(1C).

[14] State of Queensland and Green v Leadbeatter [2011] QCATA 60 at [16]; Groufsky v Crime and Misconduct Commission & Anor [2010] QCAT 690 at [10].

[15] Applications filed 2 December 2014 (GAR325-14) and 9 March 2015 (GAR002-15) respectively.

[16]  Letter from Senior Lawyer-Legal to QCAT Registrar 2 December 2014.

[17]  As to extension of time limits fixed by the QCAT Act, see QCAT Act s 61(1)(b). An application to vacate the October 2014 direction (but not to extend the s 21(2) time limit) at the hearing on 27 March 2015 was foreshadowed in a letter from the Department to the Tribunal on 20 January 2015.

Close

Editorial Notes

  • Published Case Name:

    Vanrook Station Pty Ltd v Chief Executive Department of Agriculture, Fisheries and Forestry

  • Shortened Case Name:

    Vanrook Station Pty Ltd v Chief Executive Department of Agriculture, Fisheries and Forestry

  • MNC:

    [2015] QCAT 115

  • Court:

    QCAT

  • Judge(s):

    Member Forbes

  • Date:

    02 Apr 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690
2 citations
Jump To
Cite 1 - [2010] QCAT 690
Cite 2 - [2010] QCAT 690
Fairfax Digital Australia and New Zealand Pty Limited & Anor v Cummings & Anor [2013] ACTCA 37
2 citations
Jump To
Cite 1 - [2013] ACTCA 37
Cite 2 - [2013] ACTCA 37
FM v Sero Australia [2014] NSWSC 1477
2 citations
Jump To
Cite 1 - [2014] NSWSC 1477
Cite 2 - [2014] NSWSC 1477
Mowburn Nominees Pty Ltd v Palfreyman [2014] QSC 289
2 citations
Jump To
Cite 1 - [2014] QSC 289
Cite 2 - [2014] QSC 289
New South Wales v Kable (2013) 252 CLR 118
2 citations
Jump To
Cite 1 - (2013) 252 CLR 118
Cite 2 - (2013) 252 CLR 118
New Zealand Pty Limited & Anor v Cummings & Anor (2013) 280 FLR 238
2 citations
Jump To
Cite 1 - (2013) 280 FLR 238
Cite 2 - (2013) 280 FLR 238
R v Swan [2013] QCA 217
2 citations
Jump To
Cite 1 - [2013] QCA 217
Cite 2 - [2013] QCA 217
State of Queensland and Green v Leadbeatter [2011] QCATA 60
2 citations
Jump To
Cite 1 - [2011] QCATA 60
Cite 2 - [2011] QCATA 60

Cases Citing

Case NameFull CitationFrequency
Richmond v Queensland Police Service – Weapons Licencing Branch [2016] QCAT 2432 citations
1

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