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  4. Lukaszewicz v Department of Agriculture and Fisheries (Qld) - [2023] QCAT 48

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Lukaszewicz v Department of Agriculture and Fisheries (Qld)[2023] QCAT 48

Lukaszewicz v Department of Agriculture and Fisheries (Qld)[2023] QCAT 48

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Lukaszewicz v Department of Agriculture and Fisheries (Qld) [2023] QCAT 48

PARTIES:

Lukasz marek lukaszewicz

(applicant)

v

department of agriculture and fisheries (Qld)

(respondent)

APPLICATION NO/S:

GAR558-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

10 February 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

  1. Proceeding GAR558-21 is dismissed.

CATCHWORDS:

PRIMARY INDUSTRY – FISH – REGULATION – PERMIT OR LICENCES – where applicant seeks to review Departments decision regarding fishing quota allocation

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – where respondent claimed application was misconceived – whether the application raised a real question of fact or law capable of determination by the Tribunal – whether proceeding should be dismissed or struck out under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where Tribunal dismissed proceeding because it was misconceived and lacked substance

Fisheries Act 1994 (Qld), s 192

Fisheries (General) Regulation 2019 (Qld), Schedule 2C, s 6, s 8, s 9, 10, s 11

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

Dey v Victorian Railways Commissioners (1947) 78 CLR 62, applied

Jodlowska v Body Corporate for River View Terraces (No 2) [2021] QCATA 26, applied

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

What is this application about?

The Department of Agriculture and Fisheries (‘Department’), applies to the Tribunal to dismiss or strike out an application by Lukasz Marek Lukaszewicz, reviewing his quota allocation of individual transferable units for the Queensland commercial crab fishery (‘C1-ITQ units’)

Background

  1. [1]
    Mr Lukaszewicz is a commercial fisher who holds a commercial fisher licence number 17196(FWGT) (‘licence’).
  2. [2]
    Under his licence, as of 22 April 2021, Mr Lukaszewicz was eligible to receive a quota of C1-ITQ units. Those units determine the quantity of crab Mr Lukaszewicz is permitted to take from the crab fishery for a C1-ITQ year.
  3. [3]
    Mr Lukaszewicz’s allocated C1-ITQ quota is comprised of two types of units, namely:
    1. (a)
      BC1-ITQ units, which pertains to Blue Swimmer Crab; and
    2. (b)
      EC1-ITQ units, which pertains to East Coast Mud Crab.
  4. [4]
    On 30 July 2021, the Department gave Mr Lukaszewicz a notice advising that it had decided to issue Mr Lukaszewicz C1-ITQ units (‘quota unit decision’) in the following quantities:
    1. (a)
      33 BC1-ITQ units;
    2. (b)
      15 EC1-ITQ units.
  5. [5]
    Previously, on 28 April 2021, the Department gave Mr Lukaszewicz an information notice stating that he was entitled to be issued with EC1-ITQ and BC1-ITQ quota units and that it had decided his ‘eligible reported catch’ of east coast mud crab during prescribed years was 2,597kgs and his eligible reported catch’ of blue reported catch of blue swimmer crab was 11,033kgs (‘eligible reported catch decision’).
  6. [6]
    The Department made its eligible reported catch decision based on logbooks sheets Mr Lukaszewicz provided between 1 July 2010 and 1 July 2017 (‘prescribed years’). The logbook sheets disclosed quantities of fish and crabs (expressed in kilograms) Mr Lukaszewicz had taken in the prescribed years (‘reported catch’).
  7. [7]
    Notably, Mr Lukaszewicz’s fisher licence did not have a C1 symbol attached to it during the 20-13-2014, 2015-2016 and 2016-2017 financial years. Accordingly, his licence permitted him to only take east coast mud crab and blue swimmer crab in the 2010-2011 and 2012-2013 financial years.
  8. [8]
    The information notice pertaining to the eligible reported catch decision informed Mr Lukaszewicz that he could, as within 60 days, apply for an amendment or substitution of the decision. The notice also informed Mr Lukaszewicz that he could, within 28 days, seek an internal review of the eligible reported catch decision. Mr Lukaszewicz did not apply for an amendment or substitution of the Department’s eligible reported catch decision. Nor did he internally review the decision.
  9. [9]
    On 10 August 2021, Mr Lukaszewicz internally reviewed the Department’s quota unit decision on the grounds that:

“The allocation process never considered that licence 17196 had a C1 only part of the so-called allocated years and the averages are not reflective of the years that a C1 endorsement was held. FQ failed due diligence in issuing unit average numbers based on (boat mark WFGT) not holding a C1 and not being legally able to crab during the 2013-2017”.

  1. [10]
    On 31 August 2021, the Department confirmed its quota unit decision. 
  2. [11]
    On 28 September 2021, Mr Lukaszewicz applied to the Tribunal to externally review the Department’s quota unit decision (‘review application’). In the review application, he relevantly contended:
    1. (a)
      He has not received a fair and reasonable allocation of quota;
    2. (b)
      The allocation has not taken his business model into account and on that basis, the decision is manifestly unfair;
    3. (c)
      The absence of a Regulatory Impact Statement by the Department has not allowed his individual circumstances to be recognised and applied to his allocation of quota;
    4. (d)
      The decision to substitute Post Implementation Review has unfairly manipulated any quota allocation to which he is entitled.
  3. [12]
    In further written submissions to the Tribunal, dated 7 January 2022, Mr Lukaszewicz railed against the Department’s sustainable fishing strategy and what he perceived to be “unfair reforms”. Further, Mr Lukaszewicz contended that he is at least entitled to his “average catch” taken in years that his endorsement was active in the fishery.

Relevant sections of the Fisheries (General) Regulation 2019 (Qld)

  1. [13]
    It is appropriate at this point, to consider relevant sections of the Fisheries (General) Regulation 2019 (Qld) (‘Regulation’) concerning the calculation of C1-ITQ Units.
  2. [14]
    The number of C1-ITQ units to be issued to an eligible person is calculated by applying a mathematical formula prescribed in Schedule 2C, s 11 of the Regulation.
  3. [15]
    Pursuant to the formula, C1-ITQ quota is calculated by multiplying an eligible person’s eligible reported catch by 6,750 (for BC1-ITQ units) or 29,600 (for EC1-ITQ Units) and dividing the ensuing figure by the person’s total reported catch.
  4. [16]
    Pursuant to Schedule 2C, s 6(1) of the Regulation, an eligible person’s reported catch for C1-ITQ Units for a prescribed year is the amount of prescribed crab:
    1. (a)
      Taken in the prescribed crab region in the year under the eligible licence held by the person; and
    2. (b)
      Reported to the chief executive under an information requirement before 31 December 2017.
  5. [17]
    The Department was required, under Schedule 2C, s 6(3) of the Regulation, to decide Mr Lukaszewicz’s eligible reported catch for C1-ITQ units by adding up his reported catch for the units for the 6 prescribed years with the highest reported catch for the units.
  6. [18]
    There were two avenues of relief available to Mr Lukaszewicz under the Regulation if he disagreed with the Department’s calculation of his eligible reported catch for C1-ITQ units. Firstly, Schedule 2C, s 8 of the Regulation permits an eligible person to apply to the chief executive to amend the decision if the chief executive has made an error in the details stated in its information notice. Secondly, Schedule 2C, s 9 of the Regulation permits an eligible person apply to the chief executive to substitute its eligible reported catch decision in certain prescribed circumstances. An application to the chief executive under Schedule 2C, ss 8 or 9 of the Regulation must be made in writing and supported by evidence.[1]
  7. [19]
    Lastly, Schedule 2C, s 10 of the Regulation, provides that the total reported catch for C1-ITQ Units is the sum of each eligible person’s eligible reported catch for the units as at 21 July 2021.

The dismissal/strike out application

  1. [20]
    Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) empowers the Tribunal to dismiss or strike out a proceeding if it considers a proceeding or part of a proceeding is:
    1. (a)
      Frivolous, vexatious or misconceived; or
    2. (b)
      Lacking in substance; or
    3. (c)
      Otherwise an abuse of process.
  2. [21]
    The Department moves for the Tribunal to dismiss Mr Lukaszewicz’s application on the ground that it is “misconceived”. Essentially, the Department contends that the outcome Mr Lukaszewicz seeks to achieve is not permissible because it requires the decision maker to ignore what is required by relevant legislation.[2] Further, the Department contends that only the eligible reported catch decision, rather than the quota unit decision, is capable of review by the Tribunal under the Fisheries Act 1994 (Qld) (‘Fisheries Act’).
  3. [22]
    Mr Lukaszewicz contended the following in his response to the Department’s dismissal/strike out application:
    1. (a)
      The way the Department used his fishing history to decide C1-ITQ quota was not an accurate reflection of his average catch for the period that he held a C1 symbol on his fisher licence[3];
    2. (b)
      The legislation has been formulated to disadvantage him[4];
    3. (c)
      The respondent is endeavouring to conceal the methodology behind the legislation;  
    4. (d)
      The erroneous legislation and policies written are based on maladministration by the Chief Executive by a lack of compliance with the Fisheries Act. The limited ability (i.e. very specific reasons to appeal quota allocation) are reflective of this bad policy…[5]

Relevant Case law

  1. [23]
    The power to dismiss/strike out a proceeding under s 47 is analogous to a summary dismissal power. Concerning such a power, in Dey v Victorian Railways Commissioners (1949) 78 CLR 62, Dixon J observed:

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 disentitled 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 the 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 (my emphasis).

  1. [24]
    Dey is authority for the following further relevant propositions:
    1. (a)
      If the Court is of opinion that the plaintiff cannot succeed there is every reason for protecting a defendant from vexation by the continuance of the proceeding which must be useless and futile;
    2. (b)
      The jurisdiction of the court (to dismiss) should not be exercised except in clear cases.
  2. [25]
    In Jodlowska v Body Corporate for River View Terraces (No 2) [2021] QCATA 26, an appeal from a department adjudicator in a body corporate matter, Member Roney considered the meaning of “misconceived”. He opined at [28] and [29]:

“An application is misconceived where it is conceived wrongly. That is, it proceeds from a misunderstanding or an idea, notion or belief on the part of the applicant that is plainly wrong”

  1. [26]
    Consistently with the above authorities, the following questions fall to be answered in the present dismissal/strike out application:
    1. (a)
      Is there a real question of fact or law to be determined, upon which the parties rights depend?
    2. (b)
      Can the proceedings succeed, or are useless or futile?
    3. (c)
      Is the application conceived wrongly?

Conclusion and Reasoning

  1. [27]
    The Department decided Mr Lukaszewicz’s C1-ITQ quota by applying the mathematical formula set out in Schedule 2C, s 11 of the Regulation. The data the Department applied to the formula originated from records Mr Lukaszewicz provided. Mr Lukaszewicz’s application does not contest the accuracy of the Department’s calculations, or the underlying data those calculations were founded on. Rather, Mr Lukaszewicz primary grievance is what he perceives to be the unfairness of the mathematical formula itself.
  2. [28]
    I conclude that this proceeding must be dismissed for the following reasons.
  3. [29]
    Firstly, I consider the application is misconceived. The Tribunal lacks power to declare lawfully enacted legislation invalid because it is “unfair”.
  4. [30]
    Secondly, I am not persuaded the application raises a real question of fact or law capable of determination by the Tribunal.  Schedule 2C, section 11 of the Regulation compelled the Department to apply a specific formula to calculate Mr Lukaszewicz C1-ITQ quota. The Regulation does not permit deviation from that that formula.   Mr Lukaszewicz did not pursue avenues available under the Regulation to amend or substitute the data that the Department applied to the formula. Accordingly, it was not open to the Department to make a different decision to that which it ultimately made.
  5. [31]
    Corollary to my above proposition, in any subsequent review, the Tribunal could not decide differently to the Department, because the Tribunal, in producing the correct and preferable decision[6], must apply the same formula. The continuation of the proceeding in those circumstances is useless and futile. 
  6. [32]
    Thirdly, Mr Lukaszewicz fails to plead the specific relief he seeks, particularly the number of C1-ITQ units the Department should have issued him, and precisely how the Department ought to have calculated figure. In that respect, the application lacks substance.
  7. [33]
    Lastly, I am not persuaded the Tribunal has jurisdiction to review the Department’s quota unit decision. The Tribunal is permitted only to deal with matters it is empowered to deal with under the QCAT Act or an enabling Act.[7] An enabling Act confers jurisdiction on the Tribunal to deal with a matter if the enabling Act provides for an application, referral or appeal to be made to the Tribunal in relation to the matter.[8]
  8. [34]
    Relevantly, s 192 of the Fisheries Act 1994 (Qld) permits a person who must be given a QCAT information notice for an internal review decision, to apply to the Tribunal externally review the decision. The Department was required to give Mr Lukaszewicz an information notice for its eligible reported catch decision[9], but not for its quota unit decision.[10] Accordingly, I consider the Tribunal is precluded from reviewing the quota unit decision, because the Department was not required to provide an information notice for that decision.

Orders

  1. [35]
    For the reasons above, I accede to the respondent’s dismissal application and make an order dismissing Proceeding GAR558-21.

Footnotes

[1]Fisheries (General) Regulation 2019 (Qld), Schedule 2C, ss 8 & 9.

[2]  Outline of Submissions on behalf of the respondent, dated 25.05.22, p 2.

[3]  Application for internal review, p 3.

[4]  Respondent’s response to dismissal/strike out application, p 1.

[5]  Ibid p 2.

[6]  QCAT Act, s 20.

[7]  QCAT Act, s 9(1).

[8]  Ibid, s 9(3).

[9]Fisheries (General) Regulation 2019 (Qld), Schedule 2C, s 8(4). 

[10]  Ibid, Schedule 2C, s 11.

Close

Editorial Notes

  • Published Case Name:

    Lukaszewicz v Department of Agriculture and Fisheries (Qld)

  • Shortened Case Name:

    Lukaszewicz v Department of Agriculture and Fisheries (Qld)

  • MNC:

    [2023] QCAT 48

  • Court:

    QCAT

  • Judge(s):

    Member Munasinghe

  • Date:

    10 Feb 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
1 citation
Jump To
Cite 1 - (1949) 78 CLR 62
Dey v Victorian Railways Commissioners (1947) 78 CLR 62
1 citation
Jump To
Cite 1 - (1947) 78 CLR 62
Jodlowska v The Body Corporate for River View Terraces (No 2) [2021] QCATA 26
2 citations
Jump To
Cite 1 - [2021] QCATA 26
Cite 2 - [2021] QCATA 26

Cases Citing

Case NameFull CitationFrequency
Brighton v Department of Agriculture and Fisheries [2025] QCAT 222 citations
Hopkins v Department of Agriculture and Fisheries [2025] QCAT 1762 citations
1

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