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Hopkins v Department of Agriculture and Fisheries[2023] QCAT 451

Hopkins v Department of Agriculture and Fisheries[2023] QCAT 451

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hopkins v Department of Agriculture and Fisheries [2023] QCAT 451

PARTIES:

craig danson hopkins

(applicant)

v

DEPARTMENT OF AGRICULTURE AND FISHERIES

(respondent)

APPLICATION NO:

GAR535-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 November 2023

HEARING DATE:

On the papers

DECISION OF:

Member Scott-Mackenzie

ORDERS:

  1. The application by the respondent filed 25 May 2022 for an order that the proceeding be dismissed is refused.
  2. The application is dismissed.

CATCHWORDS:

PRIMARY INDUSTRY – CRAB AND FISH – REGULATION – PERMIT OR LICENCES – where applicant applies to review decisions for crab and fish quotas

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – where respondent claims decisions not subject to internal or external review – where decisions are subject to internal and external review – where relief sought by the applicant is not available – whether there is a high degree of certainty about the ultimate outcome of the proceeding if it is allowed to go to a hearing in the ordinary way – whether there is a factual dispute between the parties – whether the proceeding should be dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Fisheries Act 1994 (Qld), s 118, s 157, s 187, s 188, s 189, s 191, s 192, schedule 1

Fisheries (General) Regulation 2019 (Qld), schedule 2B s 5, s 6, s 7, s 8, s 9, s 10, s 11, schedule 2C s 5, s 6, s 7, s 8, s 9, s 10, s 11

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

Dey v Victorian Railways Commissioners (1949] 78 CLR 62

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Kruse v Sunland Homes Pty Ltd [2023] QCAT 331

Simons & Ors v Dowd Lawyers Pty Ltd [2020] QCAT 348

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

Introduction

  1. [1]
    This proceeding is about quota units issued by the respondent to the applicant for prescribed east coast fin fish and prescribed crab.
  2. [2]
    The applicant held the following commercial fishing licences:

-   20071 (boat mark FYCF)

-   15620 (boat mark FXLN)

-   18886 (boat mark FM9)

-   17740 (boat mark FVEB)

-   19702 (boat mark FWKK)

-   5783 (boat mark FQAB)

-   19684 (boat mark FXHD)

Application

  1. [3]
    On 8 September 2021 the applicant made application to the Tribunal to review a decision of the respondent made 30 July 2021 (application to review).  The original decision is summarised in paragraphs [10] and [11] of these reasons for decision.  The internal review decision is summarised in paragraphs [12] and [13].

Background

  1. [4]
    The background to the application to review is uncontroversial.
  2. [5]
    The applicant held the following eligible licences:
    1. for ENL-ITQ units (east coast fin fish) for the calendar years 2013 - 2017
    2. for C1-ITQ units (crab) for the financial years 2010 - 2011 – 2016 - 2017.
  3. [6]
    On 28 April 2021 the applicant was given a notice informing him his eligible reported catch for each eligible licence is as follows:

 

C1-ITQ

ENL-ITQ

 

East coast mud crab (EC1)

Blue swimmer crab (BC1)

Grey mackerel, region 5

King threadfin, region 5

School mackerel, region 5

Whiting, region 5

20071 (FYCF)

7,294

0

0

0

0

0

15620 (FXLN)

10,633

4,960

2,862

453

15,470

518

18886 (FM9)

24,066

232

0

0

0

0

17740 (FVEB)

18,449

2,972

0

0

0

0

19702 (FWKK)

14,750

0

0

0

0

0

5783 (FQAB)

9,807

209

0

0

0

1,240

19684 (FXHD)

6,862

0

0

0

0

0

  1. [7]
    On 30 April 2021 the applicant made application to the respondent for substitution of his ENL-ITQ eligible reported catch of grey mackerel and school mackerel for boat mark FXLN based on not taking prescribed species due to natural disaster.
  2. [8]
    On 16 May 2021 the applicant made application to the respondent for the following:
  1. substitution of his C1-ITQ eligible reported catch of east coast mud crabs and blue swimmer crabs for boat mark FXHD based on not taking prescribed crab due to natural disaster;
  1. substitution of his C1-ITQ eligible reported catch of east coast mud crabs and blue swimmer crabs for boat marks FM9, FQAB, FVEB, FWKK, FXLN and FYCF based on not taking prescribed crab due to illness or injury, and he provided a medical certificate as evidence; and
  1. amendment of his ENL-ITQ eligible reported catch of grey mackerel and school mackerel for boat mark FXLN based on evidence that an error was made in deciding his eligible reported catch, and he provided logbooks and a statutory declaration as evidence.
  1. [9]
    Then, on 21 May 2021 the applicant made application to the respondent for amendment of his C1-ITQ eligible reported catch of east coast mud crabs and blue swimmer crabs for boat mark FXLN based on evidence an error was made in deciding his eligible reported catch, and he provided logbooks as evidence.

Original decision

  1. [10]
    On 30 July 2021 the respondent decided:
  1. not to amend the applicant’s C1-ITQ eligible reported catch for boat mark FXLN because the evidence was not sufficient to indicate an error in reported catch;
  1. not to substitute his C1-ITQ eligible reported catch for boat marks FXHD, FM9, FQAB, FVEB, FWKK, FXLN and FYCF because his catch history did not meet the minimum requirements for number of years with nil catch;
  1. not to amend his ENL-ITQ eligible reported catch for boat mark FXLN because the evidence was not sufficient to indicate an error in reported catch;
  1. not to substitute his ENL-ITQ eligible reported catch for boat mark FXLN because his catch history did not meet the minimum requirements for number of years with nil catch.

(Original decision)

  1. [11]
    On the same date, the respondent decided to issue to the applicant the ENL-ITQ units and C1- ITQ units for all of his eligible licences as follows:

 

C1-ITQ

ENL-ITQ

 

East coast mud crab (EC1)

Blue swimmer crab (BC1)

Grey mackerel, region 5

King threadfin, region 5

School mackerel, region 5

Whiting, region 5

Units

501

25

537

51

3,288

313

Pro-rata kg for the first year (10 months)

11,609.14

888.61

537

51.02

3,285.05

312.90

Internal review decision

  1. [12]
    On 5 August 2021 the applicant made application to the respondent for internal review of the original decision.  The application was made on the grounds of the information provided by the applicant to Queensland Rural Industry Development Authority in April 2021, including illness and natural disasters. The decision-maker reviewed the original decisions and decided to confirm the decision (internal review decision).
  2. [13]
    In the internal review decision, the decision-maker states the process for calculating and allocating individual transferable quota (ITQ) is set out in schedule 2B to the Fisheries (General) Regulation 2019 (Qld) (Fisheries Regulation) for east coast inshore fishery and schedule 2C for crab fisheries.  The decision-maker then continues:

This legislated process was applied equally to all eligible fishers. The process involved oversight by many different officers across Fisheries Queensland so that no one person could influence a particular outcome. The QRIDA process, that you applied for, also enabled these matters to be independently reviewed outside Fisheries Queensland on application.

Your circumstances have been reviewed carefully including illness, natural disasters, biosecurity issues, theft and appropriateness of decision making. I note you have not provided any additional or new information that has not been previously provided during your applications for amendment and substitution of eligible reported catch. In reviewing the information provided, I recognise that some of your licences have been subject to extenuating circumstances as a result of illness and/or natural disasters. However, the legislation does not provide for substitution or amendment in your circumstance. The explanation of the reasons, which vary between the licences held by you, is outlined in each amendment and substitution notice dated 30 July 2021. The Fisheries (General) Regulation 2019 outlines the formula to calculate the number of ITQ units that are issued to an eligible person. As a result, the legislation does not provide scope for making individual decisions based on a person's financial or working life circumstances.[1]

Application to review

  1. [14]
    In the application to review, the applicant briefly describes the facts he thinks are important in the following terms:

I need an honest appraisal of this quota issue as this has not been forthcoming from F.Q. as this whole process has been corrupted from the start.  Favouritism & cronyism has been rife throughout the whole process.  I will be making a complaint to the CCC at the end of this.

  1. [15]
    In lengthy submissions, dated 6 September 2021 and filed with the application to review, the applicant asserts Fisheries Queensland “… has not been entirely honest in its dealings with commercial fishermen …”
  2. [16]
    Also filed with the application to review is a letter from the applicant dated 16 May 2021.  In the letter, the applicant is highly critical of the quotas introduced by Fisheries Queensland in the light of four identified events and the theft of crab product.  He refers to what are personal circumstances.

Application to dismiss the proceeding

  1. [17]
    The respondent, on 25 May 2022, made application to the Tribunal to dismiss the proceeding.
  2. [18]
    The parties each filed submissions.

Respondent’s submissions

  1. [19]
    An outline of the submissions on behalf the respondent was filed with the application to dismiss the proceeding.  In it, the respondent outlines the background to the proceeding, in detail.  It submits the only decisions in respect of which the applicant is entitled to apply for internal and external review are the decisions under sections 8(3) and 9(3) of schedule 2B of the Fisheries Regulation and sections 8(3) and 9(3) of schedule 2C of the Regulation.  Those decisions, it is submitted, are the only relevant to decisions for which the chief executive is required to give the eligible person an information notice, a condition of the right to apply for internal review and, hence, external review by the Tribunal.
  2. [20]
    The respondent further submits the applicant is asking the Tribunal to “… bypass/ignore the legislative framework for quota allocation prescribed by Schedule 2B (ENL) and Schedule 2C (C l) of the Fisheries (General) Regulation 2019 and credit to him in an unspecified way, or order the Respondent to credit to him in an unspecified way, an unspecified additional amount of quota for prescribed crab and ENL fish species, namely school mackerel, in circumstances where he is not permitted under the legislation to receive such an increase in quota.”  The applicant applied for amendment and substitution of his eligible reported catch but was ineligible for amendment or substitution, the respondent further submits.
  3. [21]
    The applicant did not do so because of error on the part of the chief executive, it is submitted by the respondent, rather he asserts the legislation should be ignored.
  4. [22]
    In summary, it is submitted the proceeding, “… should be dismissed on the basis that that [sic.] the outcomes being sought by the Applicant are not permissible because they would require the decision maker to ignore what is required by the relevant legislation.”

Applicant’s submissions

  1. [23]
    On 8 June 2022 the applicant filed submissions in reply to the application to dismiss the proceeding.  He repeats some of what was said by him in his submissions filed with the application to review and, again, asserts Fisheries Queensland is corrupt.
  2. [24]
    The submissions, without being critical of the applicant, are of little assistance in deciding the application to dismiss the proceeding.

Legislation

  1. [25]
    Section 5 of schedule 2B to the Fisheries Regulation sets out the process for deciding the number of ENL-ITQ units to be issued to an eligible person.  It provides:

The chief executive must decide the number of ENL-ITQ units to be issued to an eligible person as follows:

  1. the chief executive must decide, under section 6, the eligible person’s eligible reported catch for the units;
  1. the chief executive must give the eligible person an opportunity to apply for an amendment or substitution of the chief executive’s decision under section 6, as provided under sections 7 to 9;
  1. the chief executive must decide the total reported catch for the units under section 10;
  1. the chief executive must apply the formula and process in section 11 to decide the number of ENL-ITQ units to be issued to the eligible person.
  1. [26]
    An eligible person’s reported catch for ENT-ITQ units is decided in accordance with section 6 of the schedule.  It provides:
  1. An eligible person’s reported catch for ENL-ITQ units for a prescribed year is the amount of the prescribed ENL-ITQ fish:
  1. taken in the prescribed ENL management region in the year under the eligible licence held by the person; and
  1. reported to the chief executive under an information requirement before 1 July 2018.
  1. The chief executive must decide an eligible person’s eligible reported catch for ENL-ITQ units by adding up the person’s reported catch for the units for the 4 prescribed years with the highest reported catch for the units.
  1. [27]
    Subsection (2), it is to be observed, is couched in mandatory terms.
  2. [28]
    After deciding an eligible person’s eligible reported catch for ENL-ITQ units under section 6 of schedule 2B, the chief executive must give the person a written notice.
  3. [29]
    The eligible person may apply to the chief executive to amend the chief executive’s decision under section 6(3) of schedule 2B if the chief executive has made an error in the details mentioned in section 7(1)(a) of the schedule, the details of the person’s reported catch for the units for each prescribed year.[2]
  4. [30]
    The person may apply to the chief executive to substitute the chief executive’s decision if:
  1. prescribed ENL-ITQ fish was not taken in the prescribed ENL management region under the eligible licence in 2, 3 or 4 prescribed years (each a nil history year); and
  1. either of the following applies for each nil history year (each a substitution reason for the nil history year):
  1. the eligible person did not take prescribed ENL-ITQ fish in the prescribed ENL management region because of a natural disaster or a biosecurity event under the Biosecurity Act 2014;
  1. the eligible person did not take fish in any commercial fishery because of the person’s illness or injury.[3]
  1. [31]
    If application is made by the eligible person under section 8(1) or 9(1) of schedule 2B, the chief executive must:
  1. amend or substitute the chief executive’s decision under section 6(2) of schedule 2B; or
  1. decide not to amend or substitute the chief executive’s decision under section 6(2) of schedule 2B.[4]
  1. [32]
    Importantly, whether the chief executive’s decision is under sections 8(3) or 9(3) of schedule 2B, the chief executive must give the eligible person an information notice for the chief executive’s decision.[5]
  2. [33]
    The number of ENT–ITQ units to be issued to an eligible person is the number worked out using the formula in section 11(1).  The formula is:

ENL-ITQ = EC x NS

TC

where:

ENL-ITQ means the number of ENL-ITQ units to be issued to the eligible person.

EC means the eligible person’s eligible reported catch for the ENL-ITQ units worked out under section 6 and, if applicable, as amended under section 8 or substituted under section 9.

N means the following number—

  1. for BM1-ITQ units - 5,580;
  1. or BM2-ITQ units - 35,038;
  1. for BM3-ITQ units - 127,962;
  1. for BM4-ITQ units - 54,275;
  1. for BM5-ITQ units - 20,744;
  1. for GM1-ITQ units - 1,091;
  1. for GM2-ITQ units - 26,805;
  1. for GM3-ITQ units - 67,133;
  1. for GM4-ITQ units - 13,625;
  1. for GM5-ITQ units - 20,347;

(k) for KT1-ITQ units - 2,167;

(l) for KT2-ITQ units - 13,619;

(m) for KT3-ITQ units - 11,231;

(n) for KT4-ITQ units - 23,600;

(o) for KT5-ITQ units - 21,383;

(p) for SM5-ITQ units - 69,100;

(q) for WT5-ITQ units - 162,000.

TC means the total reported catch for the ENL-ITQ units worked out under section 10.

  1. [34]
    A number not a whole number is taken to the nearest whole number, rounded up.[6]
  2. [35]
    Section 5 of schedule 2C to the Fisheries Regulation sets out the process for deciding the number of C1-ITQ units to be issued to an eligible person.  It provides:

The chief executive must decide the number of C1-ITQ units to be issued to an eligible person as follows:

  1. the chief executive must decide, under section 6, the eligible person’s eligible reported catch for the units;
  1. the chief executive must give the eligible person an opportunity to apply for an amendment or substitution of the chief executive’s decision under section 6, as provided under sections 7 to 9;
  1. the chief executive must work out the total reported catch for the units under section 10;
  1. the chief executive must apply the formula and process in section 11 to decide the number of C1-ITQ units to be issued to the eligible person.
  1. [36]
    Section 6 of schedule 2C to the Regulation provides for deciding an eligible person’s reported catch for C1-ITQ units for a prescribed year.  It is the amount of prescribed crab:
  1. taken in the prescribed crab region in the year under the eligible licence held by the person; and
  1. reported to the chief executive under an information requirement before 31 December 2017.
  1. [37]
    The maximum amount of mud crabs that may constitute the person’s reported catch for C1-ITQ units for a prescribed year is:
  1. if the person held an eligible licence on which 2 or more ‘C1’ fishery symbols were written for any part of the year, and holds an eligible licence on which 2 or more ‘C1’ fishery symbols are written on 22 April 2021 - 12t; or
  1. otherwise - 6t.[7]
  1. [38]
    Subsection (3) of section 6, again, is couched in mandatory terms.  It provides the chief executive must decide an eligible person’s eligible reported catch for C1-ITQ units by adding up the person’s reported catch for the units for the 6 prescribed years with the highest reported catch for the units.
  2. [39]
    After deciding an eligible person’s eligible reported catch for C1-ITQ units under section 6 of schedule 2C, the chief executive must give the person a written notice.
  3. [40]
    The eligible person may apply to the chief executive to amend the chief executive’s decision under section 6(3) of schedule 2C if the chief executive has made an error in the details mentioned in section 7(1)(a) of the schedule, the details of the person’s reported catch for the units for each prescribed year.[8]
  4. [41]
    The person may apply to the chief executive to substitute the chief executive’s decision if:
  1. prescribed crab was not taken in the prescribed crab management region under the eligible licence in 3, 4, 5 or 6 prescribed years (each a nil history year); and
  1. either of the following applies for each nil history year (each a substitution reason for the nil history year):
  1. the eligible person did not take prescribed crab in the prescribed crab management region because of a natural disaster or a biosecurity event under the Biosecurity Act;
  1. the eligible person did not take fish in any commercial fishery because of the person’s illness or injury.[9]
  1. [42]
    If application is made by the eligible person under section 8(1) or 9(1) of schedule 2C, the chief executive must:
  1. amend or substitute the chief executive’s decision under section 6(2) of schedule 2C; or
  1. decide not to amend or substitute the chief executive’s decision under section 6(2) of schedule 2C.[10]
  1. [43]
    The chief executive must give the eligible person an information notice for the chief executive’s decision under sections 8(3) or 9(3) of schedule 2C, as the case may be.[11]
  2. [44]
    The formula for deciding the number of the C1-ITQ units to be issued to an eligible person is the number worked out using the formula in section 11(1).  The formula is:

C1-ITQ = EC x N

TC

where:

C1-ITQ means the number of C1-ITQ units to be issued to the eligible person.

EC means the eligible person’s eligible reported catch for the C1-ITQ units worked out under section 6 and, if applicable, as amended under section 8 or substituted under section 9.

N means:

  1. for BC1-ITQ units - 6,750; or
  1. for EC1-ITQ units - 29,600; or
  1. or GC1-ITQ units - 2,440.

TC means the total reported catch for the C1-ITQ units worked out under section 10.

  1. [45]
    Rounding is provided for in section 11(2).
  2. [46]
    Review of the original decision is provided for in part 10 of the Fisheries Act.  Division 1 of part 10 contains definitions for the part.  Relevantly, affected person means:
  1. for an original decision mentioned in the definition original decision, paragraph (a) - a person who must be given an information notice under the Act for the decision; or
  1. for an original decision mentioned in the definition original decision, paragraph (b) - the person of whom the requirement is made; or
  1. for an internal review decision - the person who applied for the internal review.
  1. [47]
    Original decision means:
  1. a decision for which an information notice must be given under the Act; or
  1. a requirement made by the chief executive under section 118(1) (information requirement).
  1. [48]
    Information notice is defined in the dictionary in schedule 1 to the Fisheries Act.  For a decision, it means a written notice stating the following information:
  1. the decision;
  1. the reasons for the decision;
  1. that the person to whom the notice is given may ask for a review of the decision under the Act;
  1. how, and the period within which, the review may be started.
  1. [49]
    Internal review is provided for in division 2 of part 10.  An affected person for an original decision may apply to the Tribunal for review of the decision only if a decision on an application for internal review of the decision has been made, or taken to what have been made, under division 2.[12]
  2. [50]
    An affected person for an original decision may apply to the chief executive for a review of the decision under division 2.[13]  The requirements for an internal review are set out in section 191 of the Fisheries Act.
  3. [51]
    An external review is provided for in division 3 of part 10 of the Fisheries Act.  A person who has been given a QCAT information notice[14] for an internal review decision may apply to the Tribunal, as provided under the QCAT Act, for a review of the decision.[15]
  4. [52]
    The power in the Tribunal to dismiss or strike out a proceeding, or part of a proceeding, is found in section 47 of the QCAT Act.  The section applies if the Tribunal considers a proceeding, or part of our year proceeding, is:
  1. frivolous, vexatious, or misconceived; or
  1. lacking in substance; or
  1. otherwise, an abuse of process.
  1. [53]
    The options available to the Tribunal are spelt out in section 47(2).  It may:
  1. if the party who brought the proceeding or part before the Tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or
  1. for a part of a proceeding brought before the Tribunal by a party other than the applicant for the proceeding:
  1. make its final decision in the proceeding in the applicant’s favour; or
  1. order that the party who brought the part before the Tribunal be removed from the proceeding; or
  1. make a costs order against the party who brought the proceeding or part before the Tribunal to compensate another party for any reasonable costs, expenses, loss, inconvenience, and embarrassment resulting from the proceeding or part.
  1. [54]
    The Tribunal’s power to act under subsection (2) is exercisable only by:
  1. the tribunal as constituted for the proceeding; or
  1. if the tribunal has not been constituted for the proceeding - a legally qualified member or an adjudicator.[16]

Discussion

The decision under review

  1. [55]
    Section 11 of schedule 2B to Fisheries Regulation and section 11 of schedule 2C are machinery provisions.  They contain the formula to be used to work out the number of ENL-ITQ units and C1-ITQ units.
  2. [56]
    An eligible person’s eligible reported catch for ENL-ITQ units is that decided by the chief executive under section 6(2) of schedule 2B.  In the case of C1-ITQ units, an eligible person’s eligible reported catch is decided by the chief executive under section 6(3) of schedule 2C.
  3. [57]
    The chief executive did not make a decision under section 11 of schedule 2B or section 11 of schedule 2C, the chief executive made decisions under section 6(2) of schedule 2B and under section 6(3) of schedule 2C.  Those decisions are not decisions for which the chief executive is required to give to the eligible person an information notice.
  4. [58]
    The decisions original decisions within the meaning of section 187 of the Fisheries Act and, hence, decisions for which an affected person may apply for internal and external review, are the decisions under sections 8(3) and 9(3) of schedules 2B and 2C.  The applicant applied for internal review of the decisions under those sections, they have been internally reviewed, and now the applicant applies to the Tribunal for external review of the decisions.  He is entitled to do so.

Application to strike out the proceeding

  1. [59]
    There are many decisions of courts and tribunals on the matters to be considered on an interlocutory application to end a proceeding early.  The starting point is the power to do so should only be exercised in the clearest of cases.
  2. [60]
    In Dey v Victorian Railways Commissioners[17], Dixon J (as he then was) said:

The principles upon which that jurisdiction is exercisable are well settled.  A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.  The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious.  But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.  (Emphasis added)

  1. [61]
    Barwick CJ, in General Steel Industries Inc v Commissioner for Railways (NSW)[18], emphasised caution in exercising the power to summarily dismiss a proceeding:

… in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.  On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim.  Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.  (Emphasis added)

  1. [62]
    More recently, Judicial Member Lyons QC, in Simons & Ors v Dowd Lawyers Pty Ltd[19], said the following about section 47 of QCAT Act and the approach to be adopted in deciding an application to end a proceeding early:

[33] The focus of s 47 of the QCAT Act is (at least for the most part) the case put forward by a party to a proceeding, whereas the focus of s 48 is the conduct of a party to a proceeding.  The respondent particularly relied upon the provisions of s 47, which require the Tribunal to consider whether the applicants’ application is frivolous, vexatious, or misconceived; or lacking in substance.  The respondent, in essence, contended that the applicants’ case had too low a prospect of success to warrant its continuance.

[34] Section 47 is found in Division 1 of Chapter 2, Part 5 of the QCAT Act.  That division is headed “Early End to Proceeding”.  Its purpose seems to me to be broadly similar to rr 292 and 293 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), found in Chapter 9, which is entitled “Ending Proceedings Early”.  With respect to those rules, in Deputy Commissioner of Taxation v Salcedo McMurdo P said:

Nothing in the UCPR … detracts from the well established principle that issues raised in proceedings will be determined summarily only in the clearest of cases.  (Emphasis added)

[35] In that context, her Honour quoted the following passage from the judgment of Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde:

Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.  The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

[36] The language used in s 47 is not identical to the language used in the UCPR.  However, the expressions “frivolous, vexatious or misconceived” suggest a high threshold must be crossed before the Tribunal can exercise its powers under this section.  No doubt the expression “lacking in substance” is not to be confined in its operation to cases which are frivolous, vexatious or misconceived.  However, it is to be read with the expression “otherwise an abuse of process” found in s 47(1)(c).  In my view, the language of s 47 of the QCAT Act indicates that a party who invokes it on the basis that the opponent’s case is weak, faces at least as high a hurdle as a party applying for summary judgment under rr 292 and 293 of the UCPR; and that the principles in the passages quoted above are accordingly relevant.  (Emphasis added)

  1. [63]
    The approach was adopted by Senior Member Brown in Kruse v Sunland Homes Pty Ltd[20].  He added:

It is not appropriate to summarily dismiss a proceeding in circumstances where there is dispute as to the true facts of the case particularly in circumstances where the relevant factual findings will be central to the determination of the dispute between the parties.[21]

  1. [64]
    The question to be addressed, distilled from the decided cases, is whether there is a high degree of certainty about the ultimate outcome of the proceeding if allowed to go to a hearing in the ordinary way.  In my opinion, here there is not the requisite high degree of certainty about the ultimate outcome of the proceeding.  There is a dispute about facts relevant to a determination of the dispute between the parties.
  2. [65]
    It is not disputed the respondent decided the number of ENL-ITQ units in accordance with section 5 of schedule 2B to the Fisheries Regulation and the number of C1-ITQ units in accordance with section 5 of schedule 2C.  The processes involve the application of mathematical formulae, in the case of ENL–ITQ units the formula in section 11 of schedule 2B to the Fisheries Regulation, and, in that the case of C1–ITQ units, the formula in section 11 of schedule 2C.
  3. [66]
    As has been said, an eligible person may apply to the chief executive to amend the chief executive's decision under section 6(2) of schedule 2B if that the chief executive has made an error in the details mentioned in section 7(1)(a).  The details mentioned in the paragraph are the details of the person’s reported catch for ENL-ITQ units for each prescribed year.  Under section 8(1), the eligible person may apply to the chief executive to amend the chief executive’s decision under section 6(2) if that the chief executive has made an error in the same details.
  4. [67]
    Sections 8(1) and 9(1) of schedule 2C contain like provisions in respect of the C1-ITQ units.
  5. [68]
    A finding on whether the chief executive has made an error in the details mentioned in section 7(1)(a) of schedule 2B or schedule 2C is a finding on a question of fact.  It is likely to be the main issue to be decided by the Tribunal and determinative of the outcome of the application for review.  Whether the chief executive has made an error is in dispute between the parties and should be determined in the ordinary way.
  6. [69]
    True it is the applicant’s articulation of the relief sought by him in the application for review lacks sophistication.  He is not a lawyer.  The relief sought, however, is tolerably clear.  The detailed submissions on behalf of the respondent in support of the application to dismiss the proceeding show the respondent has a clear understanding of the original decision on review and the relief sought by the applicant.

Decision

  1. [70]
    I am not satisfied to the requisite high degree of certainty about the ultimate outcome of the proceeding to refuse to allow it to go to a hearing in the ordinary way.  The appropriate order is the application by the respondent filed 25 May 2022 for an order that the proceeding be dismissed is refused.  The application is dismissed.

Footnotes

[1] Page 4 of the internal review decision.

[2] Section 8(1) of schedule 2B to the Fisheries Act.

[3] Section 9(1) of schedule 2B to the Fisheries Act.

[4] Sections 8(3) and 9(3) of schedule 2B to the Fisheries Act.

[5] Sections 8(4) and 9(6) of schedule 2B to the Fisheries Act.

[6] Section 11(2) of schedule 2B of the Fisheries Regulation.

[7] Section 6(2) of schedule 2C to the Fisheries Regulation.

[8] Section 8(1) of schedule 2C to the Fisheries Act.

[9] Section 9(1) of schedule 2C to the Fisheries Act.

[10] Sections 8(3) and 9(3) of schedule 2C to the Fisheries Act.

[11] Sections 8(4) and 9(6) of schedule 2C to the Fisheries Act.

[12] Section 188 of the Fisheries Act.

[13] Section 189 of the Fisheries Act.

[14] For an internal review decision, defined in section 187 of the Fisheries Act as a notice complying with section 157(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

[15] Sections 192(1) and (2) of the Fisheries Act.

[16] Section 47(4) of the QCAT Act.

[17] (1949] 78 CLR 62, at 91.

[18] (1964) 112 CLR 125, at 130.

[19] [2020] QCAT 348.

[20] [2023] QCAT 331.

[21] Ibid, at [5].

Close

Editorial Notes

  • Published Case Name:

    Hopkins v Department of Agriculture and Fisheries

  • Shortened Case Name:

    Hopkins v Department of Agriculture and Fisheries

  • MNC:

    [2023] QCAT 451

  • Court:

    QCAT

  • Judge(s):

    Member Scott-Mackenzie

  • Date:

    06 Nov 2023

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
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
4 citations
Jump To
Cite 1 - (1949) 78 CLR 62
Cite 2 - (1949) 78 CLR 62
Cite 3 - (1949) 78 CLR 62
Cite 4 - (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
2 citations
Jump To
Cite 1 - (1964) 112 CLR 125
Cite 2 - (1964) 112 CLR 125
Kruse v Sunland Homes Pty Ltd [2023] QCAT 331
2 citations
Jump To
Cite 1 - [2023] QCAT 331
Cite 2 - [2023] QCAT 331
Simons & Ors v Dowd Lawyers Pty Ltd [2020] QCAT 348
2 citations
Jump To
Cite 1 - [2020] QCAT 348
Cite 2 - [2020] QCAT 348

Cases Citing

Case NameFull CitationFrequency
Hopkins v Department of Agriculture and Fisheries [2025] QCAT 1762 citations
1

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