Brighton v Department of Agriculture and Fisheries
[2025] QCAT 22
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- Unreported Judgment
- Brighton v Department of Agriculture and Fisheries[2025] QCAT 22
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Brighton v Department of Agriculture and Fisheries[2025] QCAT 22
Brighton v Department of Agriculture and Fisheries[2025] QCAT 22
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Brighton ATF Brighton Family Trust v Department of Agriculture and Fisheries [2025] QCAT 22 |
PARTIES: | darren brighton AS TruStee for BRIGHTON FAMILY TRUST (applicant) v DEPARTMENT OF AGRICULTURE AND FISHERIES (respondent) |
APPLICATION NO/S: | GAR573-23 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 13 January 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Member Goodman |
ORDERS: | The proceeding is dismissed. |
CATCHWORDS: | PRIMARY INDUSTRY – FISH – REGULATIONS – PERMIT OR LICENCES – where applicant is a fisherman who seeks review of coral quota allocation – where no reviewable decision – where no jurisdiction to review Fisheries Act 1994 (Qld), s 49, s 192 Fisheries (General) Regulation 2019 (Qld), Schedule 2E Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 Lukaszewicz v Department of Agriculture and Fisheries (Qld) [2023] QCAT 48 Storry & Anor v Chief Executive, Department of Justice and Attorney General [2024] QCA 22 Legal Services Commission v Leneham [2017] QCAT 96 General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69 |
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
- [1]Mr Brighton is a commercial fisherman who harvests coral. The Chief Executive of the respondent is empowered to issue the following authorities under the Fisheries Act 1994 (Qld) (‘Fisheries Act’) – a licence, a permit, a quota authority, a resource allocation authority, and another authority prescribed by regulation.[1]
- [2]Until July 2023, Mr Brighton held a hand-harvest ITQ certificate authorising him to harvest a specified amount of specialty coral (DS-ITQ). That certificate was issued pursuant to the Regulations then in force.
- [3]On 2 June 2023, the respondent wrote to Mr Brighton advising that a legislative change would affect him. The previous method of prescribed commercial catch limits would be replaced with a select coral individual transferable quota (SC-ITQ) which was to be allocated to him using the formula prescribed in Schedule 2E of the Fisheries (General) Regulation 2019 (Qld).
- [4]Later in June 2023, the respondent wrote to Mr Brighton (the letter is undated) advising him that a decision had been made regarding the number of ITQ units he had been issued for seven coral species, calculated in accordance with Schedule 2E of the Regulations. He was advised that he had the right to have the decision internally reviewed.
- [5]On 30 June 2023 and 12 July 2023, Mr Brighton requested an internal review of the decision. The internal decision reviewer wrote to Mr Brighton with his decision (the letter is undated):
- Setting out the basis upon which the calculations had been made,
- Noting that the internal review process does not allow for review of the legislation,
- Finding
I note the statutory requirements for the original decision, findings of fact made by the decision maker for the original decision and the reasons for the decision were appropriate and there is no additional evidence to conclude that the original Decision Notice should be amended or substituted
and
- Advising Mr Brighton that he had the right to seek external review in this tribunal.
- [6]On 25 August 2023, Mr Brighton lodged an application seeking review in this tribunal.
- [7]On 16 October 2023, the respondent filed an application to have Mr Brighton’s application struck out or dismissed. That is the application before me today.
- [8]The Tribunal has, under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), power to dismiss or strike out a proceeding if the tribunal considers the proceeding is—
- frivolous, vexatious or misconceived; or
- lacking in substance; or
- otherwise an abuse of process.
- [9]Section 47 was considered in some detail in the tribunal decision Chief Executive, Department of Justice and Attorney General v Venetia Louise Storry and Storry Real Estate Pty Ltd, delivered on 22 April 2021. The Appeal Tribunal and the Queensland Court of Appeal[2] both approved of the approach taken by the tribunal in relation to the issue, and it is an approach that I adopt.
- [10]A strike out or dismissal would bring an end to these proceedings and deny the applicant the opportunity to pursue his case. In considering an application to strike out proceedings, the tribunal takes into account established principles, including that the applicant should not be denied access to a hearing unless the lack of a cause of action is clearly demonstrated. The exercise of powers to summarily terminate proceedings must always be attended with caution.[3]
- [11]Mr Brighton has provided to the tribunal copies of letters he has written to members of parliament and parliamentary committees. In his correspondence, Mr Brighton raises a number of issues with the introduction of the new system, and concerns regarding misconduct and corrupt conduct and bias by employees of the respondent. Those are not matters that are relevant to this determination.
DOES THE TRIBUNAL HAVE JURISDICTION TO HEAR THE APPLICATION
- [12]The tribunal’s review jurisdiction is limited to the jurisdiction conferred by an enabling Act and the tribunal is only able to review “reviewable decisions.”[4]
- [13]If the Fisheries Act or the Regulations do not confer jurisdiction, or if there is no “reviewable decision”, the Tribunal has no jurisdiction.
- [14]Part 10 of the Fisheries Act deals with the Review of Decisions. It provides that an “affected person” may apply to QCAT for review of a decision following an internal review.
- [15]The process is:
- An affected person for an original decision applies to the chief executive for an internal review,[5]
- Within 20 days, the chief executive must review the original decision and confirm, amend or substitute another decision, and give the affected person for the original decision a QCAT information notice.[6]
- If a person must be given a QCAT information notice for an internal review decision, they may apply to QCAT for review of the internal review decision.[7]
- [16]“Affected person” is defined and means, for these purposes, a person who must be given an information notice under the Act for the decision. “Original decision” means (relevantly) a decision for which an information notice must be given under this Act.
- [17]Various sections of the Act prescribe that a person must be given an information notice. The issue of select coral ITQ certificates is pursuant to Schedule 2E of the Fisheries (General) Regulation 2019 (Qld). There is no requirement that a person be given an information notice when a decision is made in relation to the issue of certificates pursuant to Schedule 2E of the Regulations. The respondent submits, therefore, that the applicants are not affected persons, and that they have no right of review.
- [18]Mr Brighton submits that the notices were not limited to the decision made under Schedule 2E but were “more expansive”, “including matters further than just a quota unit decision”, and so the Department was required to provide an information notice for the decision made. In submissions, Mr Brighton states that the notices “define and advise of new and amended licence conditions and or contain errors in the calculation of select coral ITQ units.”
- [19]Mr Brighton submits that there has been an amendment of authority pursuant to s 63 of the Fisheries Act. That section provides that “If the chief executive decides to amend the authority, the chief executive must give the holder of the authority an information notice for the decision.” I am not satisfied that this circumstance is an amendment of an authority, but rather the introduction of a new scheme via change in the Regulations. Accordingly, s 63 does not apply.
- [20]The letter from the respondent dated 2 June 2023 did contain background information regarding the new method of calculating quotas. It seems that Mr Brighton does not agree with some of that information.
- [21]The respondent sent a further undated letter sometime after 19 June, advising the applicant of the number of select coral ITQ units he had been issued with. As noted above, the letter also advised Mr Brighton that he had internal and external review rights. I can see nothing “more expansive” in the correspondence from the respondent.
- [22]The decision about the number of select coral ITQ units issued to Mr Brighton is not a reviewable decision. Mr Brighton has not identified any other reviewable decisions.
- [23]In the absence of a requirement for the giving of an information notice, Mr Brighton is not an “affected person” as that term is defined. Accordingly, he has no right to internal review, and therefore, no right to seek external review in this tribunal.
- [24]I note that this issue was considered by the tribunal in Lukaszewicz v Department of Agriculture and Fisheries (Qld) [2023] QCAT 48, where the tribunal stated:
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. 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.
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, but not for its quota unit decision. 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.
- [25]It is unfortunate that the respondent advised Mr Brighton that he had a right to internal and external review when he did not. It is unfortunate that some of the correspondence sent by the respondent to Mr Brighton was undated. Both of those factors have made this matter more difficult than it should have been.
- [26]Mr Brighton has been put to some level of frustration and inconvenience and has spent much time drafting his material to support his review application. The tribunal has been put to the trouble and expense of determining the matter. It was not unreasonable for Mr Brighton to rely on the respondent’s advice as to his rights of review. He has done so, and is now met with submissions from the respondent which do not acknowledge in a simple and frank way that the letters sent to Mr Brighton contained errors as to his review rights.
- [27]The tribunal is only able to review “reviewable decisions” when applications are lodged by “affected persons”. There is no reviewable decision to review in this case as Mr Brighton was not a person entitled to receive an information notice and so is not an affected person.
- [28]The application must be dismissed.
Footnotes
[1] Fisheries Act s 49.
[2] Storry & Anor v Chief Executive, Department of Justice and Attorney General [2024] QCA 22.
[3] Legal Services Commission v Leneham [2017] QCAT 96, [14]-[15].
[4] See Chapter 2, Part 1 Division 3 QCAT Act.
[5] Fisheries Act s 189.
[6] Fisheries Act s 191.
[7] Fisheries Act s 192.