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Yeeha Tours and Holidays Pty Ltd v Queensland Parks and Wildlife Services[2017] QCAT 60

Yeeha Tours and Holidays Pty Ltd v Queensland Parks and Wildlife Services[2017] QCAT 60

CITATION:

Yeeha Tours and Holidays Pty Ltd v Queensland Parks and Wildlife Services [2017] QCAT 60

PARTIES:

Yeeha Tours and Holidays Pty Ltd t/as Mile High Aviation

(Applicant)

v

Queensland Parks and Wildlife Services

(Respondent)

APPLICATION NUMBER:

GAR062-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

31 January 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The miscellaneous application is dismissed.
  1. (i) Yeeha Tours and Holidays Pty Ltd t/as Mile High Aviation must advise the Tribunal in writing, and give a copy of its written advice to Queensland Parks and Wildlife Services, about whether it intends to call independent expert evidence to be relied upon at the hearing of the review application; and

(ii) If expert evidence is to be called, Yeeha Tours and Holidays Pty Ltd t/as Mile High Aviation must specify the name/s of the expert/s, their area/s of expertise and the issue/s to be addressed by the experts in accordance with Practice Direction 4/2009;

   by 4pm 12 February 2017.

CATCHWORDS:

INTERLOCUTORY APPLICATION TO STRIKE OUT EVIDENCE - whether rules of evidence should be adopted - where merits review proceeding - where deponent who is sole director of the applicant company purports to provide expert opinion not within his expertise - where deponent includes information that would be hearsay evidence - whether information objected to is relevant to the review - where weight unlikely to be attributed at hearing - where some information complained about is in the nature of submissions - whether breach of procedural fairness

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(c), s 6, s 7, s 28, s 52, s 53

Recreation Areas Management Act 2006 (Qld)

QCAT Practice Direction 4 of 2009

Briginshaw v Briginshaw (1938) 60 CLR

Laidlaw v Queensland Building Services Authority [2010] QCAT 70

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

Queensland Building and Construction Commission v Mudri [2015] QCATA 78

Rejfek v McElroy (1965) 112 CLR 517

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    This proceeding is an administrative review of a decision made by a delegate within the Department of Queensland Parks and Wildlife Services (the Department) to refuse Yeeha Tours and Holidays Pty Ltd trading as Mile High Aviation (Yeeha Tours) a Commercial Activity Permit under the Recreation Areas Management Act 2006 (Qld) (Recreation Areas Act). If granted, Yeeha Tours proposes to operate a scenic flight operation with access to beach landing areas within the Fraser Island Recreation Area (a declared recreation area under the Recreation Areas Act).
  2. [2]
    I am deciding an interlocutory miscellaneous application made by the Department which seeks the striking out of parts of an affidavit filed by Yeeha Tours in support of the review. The affidavit was sworn by a Mr Briest. Mr Briest is the sole director of Yeeha Tours.
  3. [3]
    The Department seeks to have various paragraphs and attachments struck out on the following bases:
    1. The statements are opinion evidence;
    2. The statements are hearsay; or
    3. Not to do so would result in a breach of procedural fairness to the Department.
  4. [4]
    The Department relies, in particular, upon s 28(3)(b) of the QCAT Act and Practice Direction 4/2009.
  5. [5]
    Section 28(3)(b) of the QCAT Act is as follows (emphasis added):

(3) In conducting a proceeding, the tribunal—

…

  1. (b)
    is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures;…[1]
  1. [6]
    Practice Direction 4/2009 (PD4/2009) is entitled ‘Expert Evidence’. That practice direction applies ‘whenever a party proposes to call expert evidence in any proceeding, unless the tribunal orders otherwise’.[2]
  2. [7]
    At this stage, it is useful to observe that pursuant to the QCAT Act, the Tribunal is to proceed in a manner that is ‘accessible, fair, just, economical, informal and quick’.[3] Further, it is of note that under the QCAT Act, the purpose of the Tribunal’s review is to reach the correct and preferable decision on the review.[4] The role of the Department in the review proceeding is to ‘help’ the Tribunal to reach the correct or preferable decision.[5] Further, s 28(3)(c) and (d) of the QCAT Act, provide that the Tribunal:
  1. (c)
    may inform itself in any way it considers appropriate; and
  1. (d)
    must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit;…
  1. [8]
    Enabling Acts, such as the Recreation Areas Act, may modify the provisions of the QCAT Act for proceedings.[6] The Recreation Areas Act provides that the chief executive (and therefore on review, the Tribunal) must decide the application: s 52. Section 53 sets out matters that must be considered in deciding the application. In particular, s 53(1) provides as follows:

53 Additional matters to be considered under s 52

(1) In deciding an application under section 52, the chief executive must have regard to each of the following—

  1. (a)
    the purpose of this Act;
  1. (b)
    the management intent for the recreation area, and the area’s current draft or approved management plan;
  1. (c)
    conservation of the area’s cultural and natural resources;
  1. (d)
    the amenity of the area and adjacent areas;
  1. (e)
    the size, extent and location of the proposed use in relation to other uses of the area or adjacent areas;
  1. (f)
    the likely cumulative effect of the proposed use and other uses on the area;
  1. (g)
    public health and safety;
  1. (h)
    any relevant Australian or international code, instrument, protocol or standard or any relevant intergovernmental agreement;
  1. (i)
    the requirements mentioned in section 50;
  1. (j)
    whether there are any grounds for refusing the application.
  1. [9]
    The issues to be considered in the review are important. Failure to consider applications and the potential impact of proposed activities carefully may have serious implications for the environment in a declared recreation area. That said, the Department does not argue (and I do not see) that provision/s of the Recreation Areas Act requires the application of the rules of evidence. Any provision to that effect would prevail over the QCAT Act.[7]
  2. [10]
    In respect of expert evidence, the Department argues that the Tribunal has adopted, (in enacting PD 4/2009), a practice or procedure applying to courts of record, and therefore the Tribunal has adopted the rules of evidence in relation to experts. On any construction, that is plainly incorrect. The expert practice direction does not import the rules of evidence. It merely adopts a procedure, similar in some respects to procedures adopted in some courts and tribunals for regulating the receipt of evidence from independent experts engaged by the parties to give evidence in proceedings on their behalf in relation to some aspect or aspects of the issues to be determined.
  3. [11]
    Even though the statements complained about in Mr Briest’s affidavit may breach of the rules of evidence, those rules do not generally apply in the Tribunal. Although procedure is ultimately a matter for the Tribunal as constituted at the hearing,[8] at this point in the proceedings, there is no apparent or obvious basis for adopting them in these proceedings under either the Recreation Areas Act or the QCAT Act.
  4. [12]
    In the ordinary course, in review proceedings, the Tribunal must be reasonably satisfied of the facts, based on what is commonly referred to as the Briginshaw[9] standard. The review proceedings are capable of resulting in serious consequences: reasonable satisfaction should not be lightly reached or on flimsy evidence.
  5. [13]
    In respect of opinions proffered by Mr Briest that are within his expertise, Mr Briest is not an independent expert. As sole director of Yeeha Tours, he has a personal interest in the outcome of the proceedings. Therefore, in determining the review, the Tribunal is likely to give his opinion about these matters limited weight.  He also expresses some opinions in respect of issues which, it appears, are not within any area in which he has expertise. It appears most unlikely that the Tribunal could attribute any weight to that information at hearing. Some of the paragraphs complained about by the Department as opinion evidence are in the nature of submissions, rather than evidence relied upon or opinion expressed. The Department can respond to them in the proceeding.
  6. [14]
    In respect of comments which are hearsay, again it seems unlikely that the Tribunal could attribute significant weight to them in deciding the proceeding.
  7. [15]
    I am satisfied that the real issue for determination in this miscellaneous application is whether the information sought to be provided is relevant. If it is relevant to the Tribunal’s determination, it should not be struck out. Ultimately, it is a question of weight attributed to it, for the Tribunal determining the review.
  8. [16]
    However, I do make the observation that the Tribunal can only make a decision based on the information or evidence before it. Although in review proceedings there is generally no onus of proof, an applicant bears an evidentiary onus.[10] If it fails to provide information which properly supports its application and can be given weight, the Tribunal will be unable to be satisfied about the relevant matters in order to make the orders it seeks, here, to grant a commercial activity permit. Although it is ultimately a matter for the Tribunal at the hearing, it seems to me that the information complained about by the Department could be accorded little, if any, weight by the Tribunal in determining the review. That said, for the reasons to follow I do not make orders striking out the evidence of Mr Briest about which the Department complains.
  9. [17]
    Of course, the Department further submits that even if it does not succeed on the arguments that the material complained about offends the rules of evidence, it would be a breach of procedural fairness to it not to strike the material out. I do not accept that argument. The Department has the opportunity to respond to all of the information which it seeks to impugn. It is not denied procedural fairness if the information is not struck out.
  10. [18]
    The miscellaneous application appears to take an unnecessarily technical approach, having regard to the provisions of s 3, 4 and s 28(3)(c) and (d), of the QCAT Act, in this administrative review proceeding. That said, I have addressed each of the issues complained about in the following paragraphs.

Paragraphs said to contain opinion evidence not properly given or outside of Mr Briest’s expertise

Paragraphs 26 to 28

  1. [19]
    Mr Briest refers to the Fraser Island Aircraft Management Strategy Working Group (AWG) Report (the AWG Report). He notes that it includes outcomes and recommendations made by the working group, and referring to Table 2 of the report in paragraphs 26, 27 and 28, identifies (based on his reading of the report), the capacity for further tour operators routes and beach landings. The information is relevant, although the paragraphs set out a submission, rather than evidence as to the matters referred to. Mr Briest does not set those matters out from his own opinion in the sense that is commonly understood. It is his extrapolation from the AWG Report.
  2. [20]
    If it disagrees with his interpretation of the AWG report (and submissions about what it means), the Department has the opportunity to address the issue. There is no breach of procedural fairness to the Department.
  3. [21]
    The information is relevant to the matter for determination. Further, it does not, in any event, set out expert opinion as that term is understood having regard to s 28(2)(b), (c) and (d), I would not strike it out.

Paragraph 39

  1. [22]
    In paragraph 39, Mr Briest explains that the landing returns of another existing operator (as disclosed by the Department in the proceedings) indicate the existing operator is only using one landing area and not operating to capacity in relation to the numbers of passengers carried. Again, this is more in the nature of a submission made on the basis of the disclosed returns than evidence within Mr Briest’s opinion or knowledge. Nevertheless, it refers to information which is relevant. The Department has the opportunity to address it in the proceedings. There is no breach of procedural fairness. I would not strike it out.

Paragraphs 44 to 51

  1. [23]
    In paragraphs 44 and 45, Mr Briest simply recites information from the AWG Report. It is relevant. Again, it is more in the nature of a submission, drawing the Tribunal’s attention to some particular contents of the report. For similar reasons as above, I would not strike it out.
  2. [24]
    In paragraphs 46 to 51, Mr Briest expresses his assessment of the noise impact of the proposed activities of Yeeha Tours on the use and enjoyment of the island. In doing so, he refers to attachments “F” and “G” publications about the specifications of noise decibel rating for a Toyota Landcruiser and the estimated noise range of a Cessna 172N Skyhawk. He further suggests that background noise including waves, people and ‘natural occurring noise’ must be taken into account, and then says that he would assess the noise impact as negligible.
  3. [25]
    His affidavit does not suggest that he has any expertise in assessing noise impact. The attachments are of some, albeit limited relevance, (in that Toyota Landcruisers are likely one type of vehicle commonly used on Fraser Island and the Cessna 172 is an aircraft which Yeeha Tours proposes to operate on the Island if its application succeeds). However, the attachments are not an assessment of the noise impact of the proposed uses on the island. They are general information that would be, although minimally relevant to the issues for the Tribunal, of very little assistance in deciding the matter. Accordingly, (if they are not struck out), Mr Briest’s comments and the attachments could be accorded little to no weight in determining the review.  However, because they are relevant to some extent, I would not strike them out having regard to s 28(b), (c) and (d).

Paragraphs 52 to 53

  1. [26]
    In paragraph 52, Mr Briest states that the transit scenic routes and flight heights in the application are those identified by the AWG Report. This is merely an explanation of his application. It is relevant, and although it may be his interpretation of compliance with the AWG report and more properly a submission, the Department has the opportunity to respond to his interpretation. Again, I would not strike it out.
  2. [27]
    In relation to paragraph 53, Mr Briest purports to assess the additional impact of the proposed activities, noting the existing practices and the AWG Report. He does not disclose the information upon which he bases this ‘assessment.’ Once again, his comments appears to be more in the nature of a submission, rather than evidence but refer to matters that may be relevant to the determination of the review application. It is unlikely that the Tribunal could attribute any significant weight to the statements in deciding the review. Nevertheless, having regard to the legislative scheme I would not strike them out.

Paragraphs 54 to 61

  1. [28]
    These paragraphs appear under the heading of ‘Beach impact’. Mr Briest purports to assess the beach impact on the basis of vehicle specifications for a Toyota Landcruiser as published by Toyota, and in respect of one of the types of aircraft sought to be operated by Yeeha Tours. He gives information about the distances the aircraft would be required to travel along the beach, based on his own knowledge. He then, in a crude manner, compares the impact of four wheel drive vehicles with the impact of the particular aircraft based on three passengers. This information, although relevant, could once again be of little to no assistance to the Tribunal in deciding the proceeding. Once again it is difficult to see that the Tribunal could accord it any weight at hearing. However, it is relevant and I would not strike it out.

Paragraphs 62 to 67

  1. [29]
    Under the heading of ‘Shared use of airspace and landing strip’, Mr Briest sets out matters from his knowledge as a pilot of CASA Aviation Safety Regulations, and common practices for scenic and charter flights in high volume tourist areas and national parks, having disclosed a history of working within those industries. He refers to special procedures developed by Air Service Australia in relation to such areas, although not Fraser Island. In paragraph 67, he then suggests that specific safety needs and issues can be addressed through use of such procedures.
  2. [30]
    Up until paragraph 67, the evidence given by Mr Briest appears to be from his own knowledge and/or submissions about the CASA Regulations. I would not strike it out, although the special procedures documentation pertaining to other tourist areas and national parks is illustrative/explanatory only of arrangements that are sometimes made, as it does not concern the Fraser Island recreation area in which Yeeha Tours seeks to operate.
  3. [31]
    Paragraph 67 is more in the nature of a submission than evidence. Given that there are no special procedures disclosed for Fraser Island, it is unlikely to assist the Tribunal in relation to the issues to be decided. However, it does provide background information which may have some relevance. In any event, the Department has the opportunity to respond to it. I would not strike it out.

Paragraphs 68 to 74

  1. [32]
    In these paragraphs Mr Briest addresses what are termed ‘broader community impacts’.
  2. [33]
    In paragraph 68, he indicates that the comments to follow are his assessment of benefits of the proposed activities for the community. He does not disclose any knowledge or experience that would suggest his assessment of those matters could be given any weight, although the matters referred to may be relevant. Also, they are likely to be given limited weight even if he does establish such knowledge or experience, because of his personal interest in the outcome of the proceeding.
  3. [34]
    In paragraphs 69 and 70, Mr Briest refers to competition and the benefits of competition. He has not disclosed any expertise in economics. It appears that his comments therefore could not be accorded any weight by the Tribunal. However, the issues raised may be relevant (the Department does not suggest they are not) to the Tribunal’s determination of the review.
  4. [35]
    In paragraphs 71 to 73, Mr Briest addresses matters under the heading of ‘Capacity’ in which he refers to limited capacity within the existing operator’s service, leading to unmet tourist need. He attaches a statement from one tourist operator to this effect. I would expect his own comments at hearing would be given little or no weight as they sets out only hearsay from unidentified (except one) tour operators. However, the comments appears to be relevant to the application. The statement attached to his affidavit from a particular tour company operator is relevant. The author could be made available for cross-examination. Paragraphs 72 and 73 set out matters which are in the nature of submissions. Again, the Department has the opportunity to address them.
  5. [36]
    In paragraph 74, Mr Briest suggests that a second operator might improve the capacity for response to emergency situations. Although the Department suggests that he has no experience with emergency situations, it is in the nature of a general comment which has some relevance. It may be reasonable to infer, for example, that in the circumstances of a bushfire, such an operator could assist to evacuate residents. In any event, the Department has the opportunity to respond to that comment, (which is once again more in the nature of a submission), if there is a basis for refuting it.

Paragraphs/contents said to offend the rule against hearsay evidence

Paragraph 21

  1. [37]
    Paragraph 21 sets out matters relating to the history of scenic flights and beach landings. Mr Briest does not say that this information is from his own knowledge and experience, although it appears implicit. He can be cross-examined about the assertions made. The matters referred to appear to provide relevant background to the review. If it is not from his own knowledge that would affect the weight it is given. In any event, the Department has the opportunity to respond to what Mr Briest says and to refute it, as well as to cross-examine him. I would not strike it out.

Paragraph 22

  1. [38]
    With respect to paragraph 22 similar comments apply. I would not strike it out.

Attachments “F”, “G”, “H”, and “I”

  1. [39]
    Attachments “F”, “G”, “H” and “I” are sought to be struck out. They are respectively, as follows:
    • “F” – Specifications published by the Australian Government in relation to Toyota Landcruisers;
    • “G” – US Department of Transport Federal Aviation Administration Advisory Circular in relation to estimated air plane noise levels;
    • “H” – Toyota Landcruiser specifications published by Toyota; and
    • “I” – Documentation of special procedures developed and published by Air Service Australia in relation to scenic and charter flights in other high volume tourist areas and national parks.
  2. [40]
    Although documents F, G and H could only be of limited/minimal assistance to the Tribunal in determining the review, they have some apparent relevance.  Document “I”, relates to other areas not Fraser Island. They support the evidence Mr Briest gives in relation to the development of guidelines by Air Service Australia and to that extent may have some (minimal) background relevance. They are not relied upon by him as to the matters set out, but as to the fact that such guidelines have been developed and published for other areas. I would not strike them out.

Procedural fairness

  1. [41]
    The Department says that if the information is not struck out on the basis that it is in breach of the rules of evidence, that it should be struck out on the basis of procedural fairness. I do not accept this. The Department has the opportunity to respond to the evidence and submissions contained in the material about which it complains, as explained above.

Expert Reports

  1. [42]
    It is open to both parties to obtain independent expert evidence in relation to matters relevant to the Tribunal’s determination of the review. Unless the Tribunal otherwise orders, PD 4/2009 will apply to it.

Orders

  1. [43]
    I make orders dismissing the Department’s miscellaneous application filed on 14 November 2015. I further direct that Yeeha Tours must give notice to the Department of any expert evidence upon which it intends to rely at hearing in compliance with PD 4/2009 by 10 February 2017. The matter is listed for a further Directions Hearing on 14 February 2017. At that stage, the Department should also be in a position to advise the Tribunal of any intention to call expert witnesses so that an appropriate timeframe for filing of material may be set.

Footnotes

[1] Emphasis added.

[2] Practice Direction 4/2009, para [1].

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 3(b) and s 4(c).

[4] QCAT Act s 20(1).

[5] QCAT Act s 21(1).

[6] QCAT Act s 6, s 7.

[7] QCAT Act s 6, s 7.

[8] QCAT Act, s 28(1).

[9] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 as clarified by cases including Rejfek v McElroy (1965) 112 CLR 517, 521 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 171.

[10] Queensland Building and Construction Commission v Mudri [2015] QCATA 78, [12]-[13] citing Laidlaw v Queensland Building Services Authority [2010] QCAT 70.

Close

Editorial Notes

  • Published Case Name:

    Yeeha Tours and Holidays Pty Ltd t/as Mile High Aviation v Queensland Parks and Wildlife Services

  • Shortened Case Name:

    Yeeha Tours and Holidays Pty Ltd v Queensland Parks and Wildlife Services

  • MNC:

    [2017] QCAT 60

  • Court:

    QCAT

  • Judge(s):

    Member Howard

  • Date:

    31 Jan 2017

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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Laidlaw v Queensland Building Services Authority [2010] QCAT 70
2 citations
Jump To
Cite 1 - [2010] QCAT 70
Cite 2 - [2010] QCAT 70
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
2 citations
Jump To
Cite 1 - (1992) 67 ALJR 170
Cite 2 - (1992) 67 ALJR 170
Queensland Building and Construction Commission v Mudri [2015] QCATA 78
2 citations
Jump To
Cite 1 - [2015] QCATA 78
Cite 2 - [2015] QCATA 78
Rejfek v McElroy (1965) 112 CLR 517
2 citations
Jump To
Cite 1 - (1965) 112 CLR 517
Cite 2 - (1965) 112 CLR 517

Cases Citing

Case NameFull CitationFrequency
Yeeha Tours and Holidays Pty Ltd v Department of Environment & Science [2020] QCAT 1313 citations
1

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