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Bargara Esplanade Management Pty Ltd v Department of Agriculture, Fisheries and Forestry[2018] QCATA 54

Bargara Esplanade Management Pty Ltd v Department of Agriculture, Fisheries and Forestry[2018] QCATA 54

CITATION:

Bargara Esplanade Management Pty Ltd ATF Qld Aqua Trust ACN 145691381 & Ors v Department of Agriculture, Fisheries and Forestry [2018] QCATA 54

PARTIES:

Bargara Esplanade Management Pty Ltd ATF Qld Aqua Trust ACN 145691381

Pristine Oceans Pty Ltd

Pristine Oceans IP Pty Ltd ATF Pristine Oceans IP Trust

B & B Russell No 2 Pty Ltd ATF the B & B Russell Family Trust No 2

(Appellants)

v

Department of Agriculture, Fisheries and Forestry

(Respondent)

APPLICATION NUMBER:

APL056-16

MATTER TYPE:

Appeals

HEARING DATE:

24 March 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Traves

DELIVERED ON:

9 March 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal is refused.
  2. The application is dismissed.

CATCHWORDS:

PRIMARY INDUSTRY – FISH – REGULATION – PERMIT OR LICENCES – CANCELLATION AND COMPENSATION – where holder of Resource Allocation Authorities issued under the Fisheries Act 1994 (Qld) in liquidation – whether Authorities had automatically vested in the new trustee prior to cancellation – effect of s 15 of the Trusts Act 1973 (Qld) – where s 15 of the Trusts Act 1973 (Qld) “subject to the provisions” of the Fisheries Act 1994 (Qld) so that the Authorities were not vested in the new trustee – whether third party interests required to be taken into account in affirming decision to cancel

Acts Interpretation Act 1954 (Qld), Schedule 1

Corporations Act 2001 (Cth), s 9, s 471A(1), s 474(1)(a), s 477

Fisheries Act 1994 (Qld), s 4, s 54, s 55, s 59,
s 65A, s 65B, s 67, s 68, s 73, s 185, s 297A,
s 345A, Schedule

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142

Trusts Act 1973 (Qld), s 15

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques (No 2) [2016] QSC 242

Latitude Fisheries Pty Ltd v Australian Fisheries Management Authority [2002] FCA 416

Pickering v McArthur [2005] QCA 294

Tasmanian Seafoods Pty Ltd v Peters [1999] QSC 144

APPEARANCES:

APPELLANT:

Mr P Lafferty of Counsel instructed by Kings Park Corporate Lawyers

RESPONDENT:

Mr SA McLeod of Counsel instructed by Department of Agriculture, Fisheries and Forestry.

REASONS FOR DECISION

  1. [1]
    On 26 August 2014 the Department of Agriculture, Fisheries and Forestry made a decision to cancel two Resource Allocation Authorities (RAA 811 and RAA 812) “held by Queensland Sea Scallops Pty Ltd” (QSS Pty Ltd) pursuant to s 67 of the Fisheries Act 1994 (Qld) (the Fisheries Act).[1] This decision notice was addressed to Mr Grant Sparks of PPB Advisory, the liquidator of Queensland Sea Scallops Pty Ltd as trustee for the Queensland Aqua Trust.
  2. [2]
    An application to review that decision was made to QCAT pursuant to s 185 of the Fisheries Act. Under that section a person who is dissatisfied by a decision of the chief executive may apply to QCAT for a review of the decision on 1 or more of the following grounds:
    1. The decision was contrary to the Fisheries Act;
    2. The decision was manifestly unfair; and
    3. The decision will cause severe personal hardship to the person.
  3. [3]
    The Tribunal confirmed the decision on 19 January 2016. This decision is now appealed.

Leave to appeal

  1. [4]
    Because this is an appeal from a decision of the Tribunal where a judicial member did not constitute the Tribunal, an appeal must be to the Appeal Tribunal.[2]  However, if the appeal involves a question of fact, or of mixed law and fact, the Tribunal’s leave to appeal is required.[3]  An application for leave to appeal must be filed within 28 days of obtaining written reasons for the Tribunal’s decision.[4]
  2. [5]
    The Appeal Tribunal may grant leave to appeal on any one or more of the grounds of appeal raised by the appellant.[5]
  3. [6]
    In determining whether to grant leave the Appeal Tribunal applies the following principles, as summarised by Keane JA (as his Honour then was) in Pickering v McArthur:[6]

There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[7]

  1. [7]
    The error can be a legal, factual or discretionary error.[8]
  2. [8]
    The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[9]

Cancellation of an authority under the Fisheries Act

  1. [9]
    Section 54 of the Fisheries Act provides for an application for an Authority to be made to the chief executive. Under s 55, the chief executive must consider the application and may issue the Authority or refuse to issue it.
  2. [10]
    An Authority is defined to include a resource allocation authority issued and in force under the Act.[10]
  3. [11]
    Section 67(1) of the Fisheries Act provides:

The chief executive may suspend or cancel an authority if the chief executive is satisfied the suspension or cancellation is necessary or desirable for the best management, use, development or protection of fisheries resources or fish habitats.

Example–

The examples mentioned in section 59(1) are examples of the bases on which the chief executive may be satisfied.

  1. [12]
    The examples given in s 59 (which is a section that deals with the refusal to issue or renew an authority) are as follows:
  1. The authority was issued in error or because of a document or representation-
  1. (a)
    that is false, misleading or omits a material particular; or
  1. (b)
    obtained or made in another improper way.
  1. The applicant has been convicted of a fisheries offence.
  1. The applicant has had any of the following (a fisheries authority) cancelled or suspended –
  • a licence, permit, concession or other authority issued under fisheries legislation
  • a fisheries development approval.
  1. The applicant has not complied with a condition of a fishing authority.
  1. The applicant has not kept or given returns as required by the chief executive under this Act.
  1. The applicant has given a false or misleading return to the chief executive under this Act.
  1. The applicant has been convicted of an indictable offence.
  1. The applicant has not satisfied the training or competency requirements or other criteria for the authority as decided by the chief executive or prescribed under a regulation or management plan.
  1. The applicant has not paid fees under this Act.
  1. Another matter specified in a relevant regulation or management plan.
  1. [13]
    The procedure for cancellation of an Authority is set out in s 68. That section requires the chief executive to give the holder of the Authority a written notice that:
    1. (a)
      states the proposed action; and
    2. (b)
      states the grounds for the proposed action; and
    3. (c)
      outlines the facts and circumstances forming the basis for the grounds; and
    4. (d)
      if the proposed action is suspension of the authority – states the proposed suspension period; and
    5. (e)
      invites the holder to show, within a stated time of at least 28 days, why the proposed action should not be taken.
  2. [14]
    The Schedule to the Act defines “holder” of an Authority to mean the person to whom it is issued or transferred.
  3. [15]
    Section 65 of the Fisheries Act provides:

65 Transfer of authority (other than permit)

  1. (1)
    Subject to registration under this subdivision, an authority other than a permit may be transferred unless, under a regulation or management plan, the authority is not transferable either generally or in the circumstances relating to the particular authority.
  1. (2)
    On registration of the transfer, all rights and liabilities attaching to the authority vest in the transferee.
  1. [16]
    Thus, in order for the Authority to be transferred, the transfer must be registered. Section 73 provides that the chief executive must keep a register of Authorities issued by the chief executive. On registration of the transfer, all rights and liabilities attaching to the authority vest in the transferee.[11]
  2. [17]
    Section 65A provides, inter alia, that an application to register the transfer of an Authority must be made to the chief executive in the approved form; and must (relevantly) be made by each holder of the Authority immediately before the transfer. Section 65A(2) sets out what the approved form must require. Under s 65B(3), the chief executive must register the transfer if the chief executive receives a properly made application. 
  3. [18]
    If, after considering all written representations made within the stated time, the chief executive still considers grounds to take the proposed action exist, the chief executive may either cancel the Authority or suspend it for a period.[12]
  4. [19]
    The holder of an Authority may apply to the chief executive in the approved form to have noted on the register an interest that a specified person has in the authority.[13] In acting to cancel an Authority under s 68(1), the chief executive may disregard any third party interests in the Authority.[14]

The decision to cancel

  1. [20]
    Before turning to the decision of the Tribunal below, the subject of this appeal, it is appropriate to consider briefly the original decision sought to be reviewed by the appellants.
  2. [21]
    The Authorities were cancelled by letter addressed to the liquidators on
    26 August 2014. A letter advising of the intent to cancel had been sent to the liquidators on 17 July 2014 and also to Mr Brian Russell care of Bargara Esplanade Management Pty Ltd on 21 July 2014. Both letters gave the recipients an opportunity to provide written submissions in relation to the proposal to cancel the Authorities.
  3. [22]
    The letter of cancellation from Mr Kerrod Beattie, Manager, Fisheries Queensland was sent to Mr Grant Sparks of PPB Advisory on 26 August 2014. That letter provided:

Reasons for Cancellation

  1. Mr Grant Sparks and Mr Michael Owens were appointed as Voluntary Administrators of QSS Pty Ltd on 7 September 2012.
  1. The company creditors placed the company into liquidation on 10 December 2012.
  1. Neither RAA has been operational since the appointment of the Administrators in 2012.
  1. The Administrators have not transferred the authorities.
  1. The Administrators have previously attempted to surrender the RAA authorities indicating they have no further interest in the authorities.
  1. Section 67(1) of the Fisheries Act 1994 where:

“The chief executive may suspend or cancel an authority if the chief executive is satisfied the suspension or cancellation is necessary or desirable for the best management, use, development or protection of fisheries resources or fish habitats”.

Facts and circumstances

I have considered the following in deciding on my proposed action:

  • The liquidation of the company including its assets
  • The administrators having indicated they have no further interest in either of the authorities.
  • Section 67(1) of the Fisheries Act 1994
  • The invitation to show, within 30 days of the date of the previous correspondence on 17 July 2014, why the cancellation of these two authorities should not proceed. No correspondence was received by the due date.
  1. [23]
    The appellants applied for review of that decision to the Tribunal. The Tribunal was satisfied the appellants had standing pursuant to s 185(1)(c) of the Fisheries Act to apply for review.[15] 
  2. [24]
    In affirming the decision to cancel the Authorities, the Tribunal below made a number of specific findings:
    1. the cancellation of the Authorities effectively destroyed them as an asset;[16]
    2. it was appropriate that the Authorities be cancelled if they could not be exploited as a result of the liquidation of the holder of the Authorities;[17]
    3. a decision to cancel the Authorities promoted ecologically sustainable development on the basis that the resources the subject of the Authorities should be available to those capable of exploiting the benefits of the resources and not he subject of waste by being held by a holder who was not in a position to exploit them;[18]
    4. the liquidator was the entity to whom the respondent was required to look to determine whether or not the conditions of the Authorities could be fulfilled;[19]
    5. the original decision of the respondent was made based upon its only relevant knowledge; that Westpac Bank held a first mortgage over the Authorities; that the respondent was advised of the appointment of liquidators to Queensland Sea Scallops Pty Ltd; that the respondent acted in accordance with the directions of the entity standing in the shoes of the holder of the Authorities;[20] and
    6. In the absence of an Order of a court of competent jurisdiction, the respondent had no choice other than to accept the instructions of those persons and entity representing the legal holder of the Authorities.[21]
  3. [25]
    Although the Tribunal did not make a specific finding that the Authorities could not be exploited as a result of the liquidation of the holder, it is implicit in the Tribunal’s reasons that such a conclusion was reached.[22]

Grounds of Appeal

  1. [26]
    The appellants assert the following grounds of appeal:
  1. The Tribunal erred in law by accepting that the Liquidator of the company was the entity to whom the Respondent must look to determine if the conditions of the Authorities A811 and A812 could be fulfilled.
  1. The Tribunal erred in law by finding that the Authorities A811 and A812 could not be exploited.
  1. The Tribunal erred in law in finding that the cancellation of the Authorities was necessary for the best management of the fishing resources.
  1. The Tribunal erred in law in finding that the Respondent acted appropriately on accepting directions received from the Liquidator as the person representing the legal holder of the Authorities A811 and A812.
  1. The Tribunal erred in law and fact in failing to find that the appellants held a superior interest in the trust assets of the Qld Aqua Trust relevantly being the Authorities A811 and A812.
  1. The Tribunal erred at law by failing to find that one of the appellants could not exploit the Authorities A811 and A812.
  1. The Tribunal erred at law and fact by failing to find that the appellants held valid security interests in the Authorities A811 and A812.
  1. The Tribunal erred at law by finding that the effects of the cancellation of the Authorities A811 and A812 were not a primary consideration of the Tribunal.
  1. The Tribunal erred at law by not giving any weight to the PPSR search of the “Qld Aqua Trust” (ABN 53 612 564 675) (the Trust) presented in evidence at the hearing as evidence of one of the appellants (B & B Russell No 2 Pty Ltd) as the sole perfected security interest over certain of the Trust’s assets being Authorities A811 and A812.
  1. The Tribunal erred at law by not finding that the Respondent is unable to cancel Authorities A811 and A812 while a security interest over Authorities A811 and A812 remains registered.
  1. The Tribunal erred in fact by finding that only Westpac Banking Corporation held a registered ASIC company charge as of 2010. The Tribunal failed to acknowledge that BRGOC Group Finance Pty Ltd also held a registered ASIC company charge since 2010.

Grounds 1 and 4

  1. [27]
    The Authorities were issued to QSS Pty Ltd as trustee for the Qld Aqua Trust. No subsequent transfer of either Authority was ever registered.
  2. [28]
    Accordingly, QSS Pty Ltd at all times remained the holder of the Authorities.
  3. [29]
    The appellants assert that the Tribunal erred in accepting that the liquidator of QSS Pty Ltd was the entity to whom the respondent must look to determine if the conditions of the Authorities 811 and 812 could be met and in accepting directions from the liquidator as representative of the legal holder of the Authorities.
  4. [30]
    The Tribunal stated that as it was unable to determine the competing claims to the Authorities which was a matter for a court of competent jurisdiction, that it was forced to accept “that the Liquidator of the company was the entity to whom the Department must look to determine whether or not the conditions of the Authorities could be fulfilled.”[23] 
  5. [31]
    “Holder of an authority” is defined to mean the person to whom it is issued or transferred.[24]  We have set out earlier the process of transfer and registration described in the Fisheries Act.
  6. [32]
    The appellants argue that the Authorities were the property of the Qld Aqua Trust. The Trust was constituted by a trust deed between Robert Hill as settlor and Queensland Sea Scallops Pty Ltd ACN 135 086 823 as trustee on 27 January 2009. An Authority held pursuant to the Fisheries Act is a proprietary interest capable of being the subject matter of a trust.[25]
  7. [33]
    Under the terms of the trust deed, the Trustee automatically vacated on the appointment of liquidators which occurred on 7 September 2012.[26]
  8. [34]
    Clause 4.4(f) of the trust deed provides:

The office of a Trustee will ipso facto be determined and vacated if the Trustee ..being a corporation has a receiver appointed or enters into official management or has a petition for its winding up presented to the Court or passes a resolution for its winding up or enters into a scheme of arrangement …

  1. [35]
    On 28 Jan 2013, pursuant to the power in clause 4.4(b) of the trust deed the Principal (Bernadette Russell) appointed the new trustee, Bargara Esplanade Management Pty Ltd ACN 145 691 381 as trustee of the Trust. 
  2. [36]
    On 20 March 2013 Brian Russell of the Russell Group of Companies sent an email to the Department advising that PPB Advisory was not the liquidator of Qld Aqua Trust and that a new company, Bargara Esplanade Management Pty Ltd, had accepted the nomination of trustee of Qld Aqua Trust. The email attached a Form 1653 (Change of contact details) which the appellants say was completed on the advice of the Department.[27] This Form was a change of contact details form which did not require a fee to be paid.
  3. [37]
    The Application for transfer of a Resource Allocation Authority is Form FDU1401. On that form it is stated in capitals:

ALL TRANSFERORS AND TRANSFEREES MUST COMPLETE AND SIGN SECTION 1 OF THIS APPLICATION, AND ALL FEES MUST BE PAID FOR THE APPLICATION TO BE VALID.

  1. [38]
    The Form also states that the original Resource Allocation Authority issued to the transferor must be submitted with the application. It also provides in capitals:

SUBMISSION OF THIS APPLICATION FORM DOES NOT GUARANTEE APPROVAL.

  1. [39]
    Mr Russell submitted in the Hearing below that he had completed applications to transfer in respect of both Authorities and sent them to the Department.[28] He said that had occurred around July 2014. The forms Mr Russell refers to are, however, incomplete. They are not signed or dated nor does it appear that the original Authorities or appropriate fee accompanied the applications.  Further, the transferor is listed as Queensland Sea Scallop Pty Ltd ACN 099 495 020 and the transferee Qld Aqua Pty Ltd ACN 035 086 823 as trustee for the Qld Aqua Trust. The Department advised the Tribunal it had no record of ever receiving the applications or the relevant fee.[29]
  2. [40]
    At the time these forms were completed, Bargara Esplanade Management Pty Ltd had accepted the nomination of trustee of Qld Aqua Trust. It is not clear why the transfer was purportedly made to a different entity.
  3. [41]
    There are also two other Application for transfer forms in the documentation provided to the Tribunal. They purport to record a transfer from QSS Pty Ltd ATF Qld Aqua Trust (Bargara Esplanade Management Pty Ltd as replacement trustee) to Pristine Oceans IP Pty Ltd ATF Pristine Ocean IP Trust.  These applications are also not signed or dated nor does it appear that the Authorities accompanied the applications or that the prescribed fee was paid.
  4. [42]
    In any event, no transfers were approved or registered by the Department.
  5. [43]
    Following the email of 20 March 2013 from Mr Russell, the Department sought clarification of the legal position from the lawyers acting for the liquidators. This advice confirmed that the liquidators had authority to deal with the Authorities.[30]
  6. [44]
    The Department wrote to the liquidators on 17 July 2014 providing notice of its proposal to cancel the Authorities, outlining the grounds for this proposed action and allowed the liquidators opportunity to show cause why cancellation should not occur.
  7. [45]
    On 26 August 2014 the Department, having received no response from the liquidators, made a decision to cancel the Authorities.
  8. [46]
    The issue arises as to whether, in these circumstances, the Tribunal was in error in basing its decision, in large part, on the fact that QSS was in liquidation.
  9. [47]
    This involves determining whether the new trustee was the “holder of the authority” or whether, as the Tribunal found, the former trustee was still the holder. It also raises the issue of the extent of the liquidator’s powers over the Authorities.

At the time of the cancellation which entity was the holder?

  1. [48]
    On 7 September 2012 by operation of the provisions of the trust deed, QSS Pty Ltd vacated as Trustee of the Qld Aqua Trust.[31] On 28 January 2013 the principal of the Qld Aqua Trust appointed Bargara Esplanade Management Pty Ltd as new trustee. The cancellation of the Authorities occurred after this.
  2. [49]
    The issue arises as to whether, at the time the Authorities were cancelled, property in them had vested in the new trustee and, if so, whether the new trustee had become the holder of the Authorities.
  3. [50]
    Section 15 of the Trusts Act 1973 (Qld) (Trusts Act) provides as follows:

15 Vesting of trust property in new and continuing trustees

  1. (1)
    Where a new trustee is appointed the instrument of appointment vests, subject to the provisions of any other Act, the trust property in the persons who become and are the trustees as joint tenants without any conveyance, transfer or assignment.
  1. (2)
    Where a trustee is discharged in accordance with the provisions of section 14 the instrument of discharge divests the trust property from the discharged trustee and, subject to the provisions of any other Act, vests it in the continuing trustees as joint tenants without any conveyance, transfer or assignment.
  1. (3)
    Where, by reason of the provisions of any other Act or for the protection of any trust property, it is requisite that the vesting in a new trustee or divesting from a discharged trustee should be notified to or registered or recorded by the registrar or other person having the duty or function of registering or recording any discharge or appointment of trustees or divesting or vesting or other dealings under that Act, the trustees shall—
  1. (a)
    execute and produce to the registrar or such other person such instrument or instruments as may be necessary; and
  1. (b)
    do such other act or acts as may properly be required by the registrar or such other person;

for the purpose of effecting such notification, registration or recording; and an instrument of appointment or discharge shall be deemed a conveyance from the persons in whom the trust property was previously vested to the persons in whom it vests by virtue of such instrument.

  1. (4)
    Where trust property has vested in the public trustee pursuant to section 16(2) it shall not be necessary to notify, register or record such vesting if the public trustee has not acted in regard to the trusts or if the only action taken by the public trustee has been the appointment of a new trustee.
  1. (5)
    Where the consent of any person is requisite to the conveyance, transfer or assignment of any trust property the vesting of that property in accordance with the provisions of this section is subject to that consent; but the consent may be obtained after the execution of the instrument of appointment or discharge by the persons who are then trustees.
  1. (6)
    An instrument of appointment or discharge shall not operate as a breach of covenant or condition or occasion any forfeiture of any lease, underlease, agreement for lease, or other property.
  1. [51]
    The term “property” is not defined in the Trusts Act.[32] However ‘property’ is defined by the Acts Interpretation Act 1954 (Qld) as follows:

Property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.[33]

  1. [52]
    The definition is wide enough to include the Authorities. In construing s 15 of the Trusts Act it is appropriate to interpolate the text of the definition into the text of the provision.[34]  The effect of the interpolation was held in Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques (No 2)[35] to be as follows:

Where a new trustee is appointed the instrument of appointment vests, subject to the provisions of any other Act, the trust interest (whether ... future ... or intangible) in ... personal property of any description ... and include[ing] things in action in the persons who become and are the trustees as joint tenants without any conveyance, transfer or assignment.[36]

  1. [53]
    It will be noted that the vesting referred to in the section is expressed to be “subject to the provisions of any other Act.” Under s 15(5) of the Trusts Act, where the consent of any person is requisite to the transfer of any trust property the vesting of that property in accordance with the provision of
    s 15 is subject to that consent. Here, the transfer of the Authorities was subject to obtaining the written approval of each person, other than the holder, who has a registered interest in the authority.[37] That would have included Westpac.
  2. [54]
    The meaning of the proviso, “subject to the provisions of any other Act” was considered in Lanai Unit Holdings[38] where Jackson J held:

[33]  The text of s 15(1) was proposed by the Queensland Law Reform Commission in A Report of the Law Reform Commission on the Law Relating to Trusts, Trustees, Settled Land and Charities, with the following comment about the proviso:

“Clause 15 makes provision, consequential upon the preceding three clauses, for automatic vesting of trust property in the event of appointment of new trustees or retirement. The operation of special formalities regulating transfer of various forms of property is preserved in cl. 15(3), which has been redrawn in the light of criticism that the original provision contained in the Working Paper did not take sufficient account of the very wide variety of forms of property registration under various enactments in this State, e.g., the Real Property Acts, Land Act, The Miners’ Homestead Leases Acts, etc. One of the difficulties in formulating an appropriate provision is that in the case of some of these Acts the process of registration is as much the product of practice as of statutory enactment. But we believe that the provision which we now propose will cater for this contingency, as well as for that which has also been mentioned to us, namely the requirement of Ministerial or other consent to dealings with certain kinds of property.”

[34]  Notwithstanding its remedial purpose and the apparent width of the language of s 15(1) to achieve the purpose of automatic vesting, there are some limits to the operation of s 15(1) in addition to the exceptions created by the proviso.

[35]  For example, the proviso would except from automatic vesting a legal interest in land held under the Land Title Act 1994 (Qld) because a legal interest land under that Act may only be transferred by registration under that Act.

  1. [55]
    Further, His Honour observed:

In my view, it is not intended that s 15(1) would operate irrespective of the restrictions upon the transfer or vesting of property that may exist under the laws of another State or Territory applying to that property.[39]

  1. [56]
    The Fisheries Act is an Act for the purposes of s 15 of the Trusts Act, which applies to the property in question, namely the Authorities. It imposes certain requirements relating to the transfer of that property.
  2. [57]
    Accordingly, in our view, the Authorities did not vest in the new trustee. That is because, under the Fisheries Act, the “holder” was the person to whom the Authority was issued or transferred; the chief executive had first to approve of the transfer; and the transfer had to be registered to be effective.
  3. [58]
    It follows that QSS Pty Ltd at all times remained the “holder” of the Authorities under the Fisheries Act. Section 68 of the Fisheries Act requires that if the chief executive considers grounds exist under s 67(1) to suspend or cancel an Authority the chief executive must give the holder of the Authority written notice of the matters therein set out. The chief executive must invite the holder to show why the proposed action should not be taken[40] and if the chief executive still considers grounds exist to take the proposed action it may cancel the Authority and inform the holder of the decision.
  4. [59]
    The chief executive communicated with and gave the relevant notices to the liquidators of the “holder”. Was the chief executive correct in doing so?
  5. [60]
    The liquidators, upon their appointment, were required to take into their custody or under their control all the property which is, or appears to be, property of the company.[41] “Property” is defined in s 9 of the Corporations Act 2001 (Cth) to include “any legal or equitable estate or interest in real or personal property including a thing in action.”
  6. [61]
    The company was, in our view, the holder of the legal estate in the Authorities. Accordingly, the liquidators were required (and did) take the Authorities into their custody or under their control. Under s 477(2)(d), the liquidators had power to do all acts in the name and on behalf of the company which would extend to include, in our opinion, receive notices under the Fisheries Act, make submissions on the proposed cancellation, and so on. Moreover, upon the appointment of the liquidators, the directors of QSS Pty Ltd ceased to have any right to deal with the property of the company.[42]
  7. [62]
    In these circumstances, the chief executive was not in error in sending the relevant notices regarding proposed cancellation to the liquidators. In any event, the chief executive also gave Mr Russell an opportunity to make any submissions he considered relevant.
  8. [63]
    The Tribunal did not err in finding that the Authorities were within the custody or under the control of the liquidators who were empowered to do all acts in the name and on behalf of QSS Pty Ltd. This included decisions regarding the Authorities.
  9. [64]
    There is, in our view, no merit in grounds 1 and 4.

Grounds 5, 7, 10 and 11 – the issue of priority over the Authorities

  1. [65]
    The appellants raised complicated arguments in effect challenging the validity of a charge Westpac had over the Authorities.  It was argued that when Westpac attempted to surrender the Authorities to the Department, this extinguished its security interest. The effect of this, it was argued, was to leave the remaining security holder, B & B Russell No 2 Pty Ltd, with priority.
  2. [66]
    Further, it was argued that Westpac’s security interests in respect of the Authorities had not been properly registered against the trading trust ABN as required by the Personal Property Securities Regulations 2010 (Cth).[43]
  3. [67]
    The significance of this, it was argued, was that the Tribunal failed to take into account that B & B Russell was an entity that could have exploited the resources covered by the Authorities and, further, that the Authorities should not have been cancelled without its consent.
  4. [68]
    Westpac held security over all the assets of QSS Pty Ltd (including the Authorities) by virtue of migrated General Security Agreements registered on the PPSR as security interests 201112211386557 and 201112280072545, which specifically included all assets of the Qld Aqua Trust. These security interests were formerly known as fixed and floating charge dated 20 January 2010 and lodged on 21 January 2010 on the ASIC Register.
  5. [69]
    By the terms of the charge it is provided in clause 2.1:

For value, including the lender giving or continuing credit …the Mortgagor charges to the Lender all the Mortgagor’s present and future assets and undertakings as trustee of the Qld Aqua Trust (whether as trustee or in its own right) as set out in this Deed…

  1. [70]
    Clause 2.2 headed “Priority” provides:

The charge created by this Deed is a first charge except where the Lender agrees otherwise. It takes priority over all Security Interests except those described in the Schedule.

  1. [71]
    The Schedule lists “nil”.
  2. [72]
    The nature of the charge is described in clause 2.3(i). There it is provided that the charge operates as a fixed charge as regards all present and future:

Resource Allocation Authorities AA0811 and AA0812 and any right or interest arising in relation to these Authorities and any additional right or interest granted in connection to those Authorities.

  1. [73]
    This charge was purportedly migrated to the Personal Property Securities Register (PPSR) on 29 May 2012.
  2. [74]
    There is nothing to suggest that Westpac did not have a valid charge and the issue relating to whether Westpac properly perfected its security interest in migrating to the PPSR is not necessary for us to decide. That is because the Fisheries Act expressly provides in s 67(2) that in acting to cancel an Authority, the chief executive may disregard any third party interests in the Authority.[44]  This means that the argument to the effect that another entity had priority over the Authorities to the exclusion of Westpac is irrelevant to a decision to cancel.

Ground 2

  1. [75]
    The appellant contends that the Tribunal "erred in law" by finding that the Authorities A811 and 812 could not be exploited. The Tribunal effectively found that the Authorities could not be exploited because of the liquidation of the holder.[45] As we have found, the Tribunal was entitled to find that the Authorities were within the custody and control of the liquidators. The liquidators were empowered to make decisions regarding the Authorities. It was not contentious below that the liquidators purported to surrender the Authorities nor was it contentious that the Department did not accept the purported surrender on the basis of non-compliance by the liquidators with the requirements of the Fisheries Act. The evidence before the Tribunal below, which was not contentious, was that the liquidators took no steps to address the issues raised by the Department regarding the surrender of the Authorities. The liquidators had clearly evinced an intention not to exploit the Authorities through the attempt to surrender them and their inaction following the subsequent correspondence from the Department.
  2. [76]
    The “error” identified by the appellant as a matter of law is, in our view, a matter of fact. In its submissions,[46] the appellant correctly identified the principles concerning appeals in respect of findings of fact: Dearman v Dearman;[47] Fox v Percy;[48] Chambers v Jobling;[49] Brunskill v Sovereign Marine & General Insurance Co Ltd[50] and Devries v Australian National Railways Commission.[51] It was open to the Tribunal below to find, as a fact, that the Authorities could not be exploited.  Accordingly, we find that this potential ground of appeal has no merit.

Ground 3

  1. [77]
    The appellant contends that the Tribunal “erred in law” in finding that the cancellation of the Authorities was necessary for the best management of the fishing resources. Again, in our view, the relevant finding is a finding of fact. The basis for the finding by the Tribunal below was that, because of the liquidation of the holder, a decision to cancel the Authority promotes “ecologically sustainable development”. The State’s valuable resources should be available to those capable of exploiting them. That is, in our view, an adequate basis for the finding of fact. Accordingly, we find that this potential ground of appeal has no merit.

Ground 7

  1. [78]
    The appellant contends that the Tribunal “erred in law by failing to find that one of the appellants could exploit the Authorities 811 and 812”. For the reasons above however, the holder of the Authorities at all times remained the company in liquidation. There had not been a transfer of the Authorities. In circumstances where the holder of the Authorities had gone into liquidation a determination by the Tribunal that the Authorities should be cancelled was one the Tribunal was entitled to make.
  2. [79]
    There is nothing in the relevant provisions of the Fisheries Act which required a decision as to whether one of the appellants was in a position to exploit the Authorities and, accordingly, it was not an error to fail to make a finding of that nature.
  3. [80]
    Accordingly, we find that this ground of appeal has no merit.

Ground 8

  1. [81]
    The appellant contends that the Tribunal “erred in law by finding that the effects of the cancellation of the Authorities 811 and 812 were not “a primary consideration of the Tribunal”. The ground, in fact, does not accurately reflect the finding, which stated only that the effects identified were not “the primary consideration” (emphasis added). The Tribunal made it clear that it gave consideration to those effects. In our view, in so far as it was necessary to consider the effects of the actions identified, they were considered by the Tribunal and there was no error of the nature contended.
  2. [82]
    We find that this potential ground of appeal has no merit.

Further observations

  1. [83]
    The appellants argue that the Tribunal should have given further consideration to the principles of ecologically sustainable development, in particular to principles (a) and (d).[52] 
  2. [84]
    The appellants argue that the Tribunal ought to have given further consideration to s 3(2) of the Fisheries Act which provides that, in balancing the principles in s 3(1)(a), each principle is to be given the relative emphasis appropriate to the circumstances.
  3. [85]
    Section 3 sets out the purposes of the Fisheries Act:

3 Particular purposes of Act

  1. (1)
    The main purpose of this Act is to provide for the use, conservation and enhancement of the community's fisheries resources and fish habitats in a way that seeks to—
  1. (a)
    apply and balance the principles of ecologically sustainable development; and
  1. (b)
    promote ecologically sustainable development.
  1. [86]
    “Ecologically sustainable development” is defined to mean:

using, conserving and enhancing the community's fisheries resources and fish habitats so that—

  1. (a)
    the ecological processes on which life depends are maintained; and
  1. (b)
    the total quality of life, both now and in the future, can be improved.[53]
  1. [87]
    The principles of ecologically sustainable development are:
  1. (a)
    enhancing individual and community wellbeing through economic development that safeguards the wellbeing of future generations;
  1. (b)
    providing fairness within and between generations;
  1. (c)
    protecting biological diversity, ecological processes and life support systems;
  1. (d)
    in making decisions, effectively integrating fairness and short and long-term economic, environmental and social considerations;
  1. (e)
    considering the global dimension of environmental impacts of actions and policies;
  1. (f)
    considering the need to maintain and enhance competition, in an environmentally sound way;
  1. (g)
    considering the need to develop a strong, growing and diversified economy that can enhance the capacity for environmental protection;
  1. (h)
    that decisions and actions should provide for broad community involvement on issues affecting them;
  1. (i)
    the precautionary principle.
  1. [88]
    It is of relevance to note that the exercise by the chief executive (and, subsequently, the Tribunal) of its discretion under s 67(1) depends upon the “satisfaction” of the chief executive that the suspension or cancellation is necessary or desirable for the best management, use, development or protection of fisheries resources or fish habitats. The section uses similar language to the purpose of the Act set out in s 3(1) which, in turn, picks up the concept of “ecologically sustainable development”.
  2. [89]
    The nature of the considerations to which the chief executive is to have regard are broad and often qualitative in nature, necessarily incorporating matters of judgment and degree. Ultimately it is the existence of the chief executive’s satisfaction which enlivens the power to cancel. It is not open for the appellant, in our view, to contend that more weight ought to have been given to this matter or less weight to another, and that it is an appellable error, effectively in the exercise of a discretion, to fail to do so.[54]
  3. [90]
    In so far as the appellant’s submissions rely on the contention that there was an error in the exercise of the Tribunal’s discretion we are satisfied that the Tribunal did not have regard to irrelevant matters in the manners contended by the appellant, or fail to have regard to relevant matters in the manners contended by the appellant. In particular, we are satisfied that the Tribunal had adequate regard to principles (a) and (d) of the principles of ecologically sustainable development in its discussion of the liquidation of the holder and its effect on the potential for the exploitation of the valuable fishing resource.
  4. [91]
    Finally we are satisfied that the decision was not so unreasonable that no reasonable Tribunal could have made it. Indeed, to the contrary, the decision to cancel the licence was the correct and preferable decision.

Orders

  1. [92]
    Leave to appeal is refused.
  2. [93]
    The application is dismissed.

Footnotes

[1]Letter from Mr Kerrod Beattie, Manager, Fisheries Queensland, Department of Agriculture, Fisheries and Forestry to Mr Grant Sparks, PPB Advisory dated 26 August 2014.

[2]Queensland Civil and Administrative Tribunal 2009 (Qld) (QCAT Act), s 142(1),
s 149(2).

[3]Ibid, s 142(3)(b).

[4]Ibid, s 143(3), s 143(5)(c).

[5]Anglo Coal Dawson Management Pty Ltd v Walmoss Pty Ltd t/as Ray White Biloela [2016] QCATA 8.

[6][2005] QCA 294.

[7][2005] QCA 294.

[8]QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257.

[9]Dearman v Dearman [1908] HCA 84, (1908) 7 CLR 549, 561; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118, 125-126.

[10]Fisheries Act, s 4; Schedule.

[11]Ibid, s 65(2).

[12]Ibid, s 68(2).

[13]Ibid, s 73(6).

[14]Ibid, s 67(2).

[15]Tribunal’s Decision of 19 January 2016, [7].

[16]Ibid, [11].

[17]Ibid, [15].

[18]Ibid, [15].

[19]Ibid, [19].

[20]Ibid, [15].

[21]Ibid, [22].

[22]Ibid, [15].

[23]Ibid, [19].

[24]Fisheries Act, Schedule.

[25]Tasmanian Seafoods Pty Ltd v Peters [1999] QSC 144, [25] citing Pennington v McGovern (1987) 45 SASR 27.

[26]Trust Deed, clause 4.4(f).

[27]See email from Max Wingfield of the Department of 24 January 2012.

[28]Transcript, 2-29.

[29]Transcript, 2-4, [15].

[30]Letter from Gadens to Mr John Dexter, Principal Policy Officer, Department of Agriculture, Fisheries & Forestry dated 25 March 2013.

[31]Clause 4.4(f) of the Trust Deed.

[32]The definition of “trust property” in s 5 of the Trusts Act refers to the word “property” but does not define it.

[33]Acts Interpretation Act 1954 (Qld), Schedule 1.

[34]Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques (No 2) [2016] QSC 242, [14] citing Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568, 574-575.

[35][2016] QSC 242.

[36]Ibid, [14].

[37]Fisheries Act, s 65A(3).

[38]Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques (No 2) [2016] QSC 242.

[39]Ibid, [41].

[40]Fisheries Act, s 68(1)(c).

[41]Corporations Act 2001 (Cth), s 474(1)(a).

[42]Ibid, s 471A(1).

[43]Personal Property Securities Regulations 2010 (Qld), Schedule 1, 1.3, 1.5, 3 and 5; Personal Properties Securities Act 2009 (Qld), s 276.

[44]Fisheries Act, s 67(2).

[45]Tribunal’s Decision of 19 January 2016, [15].

[46]Appellants’ Submissions in the Appeal, [8], [10].

[47][1908] HCA 84; (1908) 7 CLR 549, 561.

[48][2003] HCA 22; (2003) 214 CLR 118, 125-126.

[49](1986) 7 NSWLR 1, [10].

[50][1985] HCA 61; (1985) 62 ALR 53, [57].

[51](1993) 177 CLR 429.

[52]Fisheries Act, s 3(5) definition of “principles of ecologically sustainable development”.

[53]Ibid, s 3(5).

[54]Latitude Fisheries Pty Ltd v Australian Fisheries Management Authority [2002] FCA 416, [16].

Close

Editorial Notes

  • Published Case Name:

    Bargara Esplanade Management Pty Ltd ATF Qld Aqua Trust ACN 145691381 & Ors v Department of Agriculture, Fisheries and Forestry

  • Shortened Case Name:

    Bargara Esplanade Management Pty Ltd v Department of Agriculture, Fisheries and Forestry

  • MNC:

    [2018] QCATA 54

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Member Traves

  • Date:

    09 Mar 2018

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
Allianz Australia Insurance Limited v GSF Australia Pty Ltd (2005) 221 CLR 568
1 citation
Jump To
Cite 1 - (2005) 221 CLR 568
Anglo Coal Dawson Management Pty Ltd v Walmoss Pty Ltd [2016] QCATA 8
1 citation
Jump To
Cite 1 - [2016] QCATA 8
Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61
1 citation
Jump To
Cite 1 - [1985] HCA 61
Brunskill v Sovereign Marine & General Insurance Co Pty Ltd (1985) 62 ALR 53
1 citation
Jump To
Cite 1 - (1985) 62 ALR 53
Chambers v Jobling (1986) 7 NSWLR 1
1 citation
Jump To
Cite 1 - (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
2 citations
Jump To
Cite 1 - (1908) 7 CLR 549
Cite 2 - (1908) 7 CLR 549
Dearman v Dearman (1908) [1908] HCA 84
2 citations
Jump To
Cite 1 - [1908] HCA 84
Cite 2 - [1908] HCA 84
Fox v Percy (2003) 214 CLR 118
3 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Cite 3 - (2003) 214 CLR 118
Fox v Percy (2003) HCA 22
3 citations
Jump To
Cite 1 - (2003) HCA 22
Cite 2 - (2003) HCA 22
Cite 3 - (2003) HCA 22
Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques (No 2)[2017] 2 Qd R 456; [2016] QSC 242
6 citations
Jump To
Cite 1 - [2016] QSC 242
Cite 2 - [2016] QSC 242
Cite 3 - [2016] QSC 242
Cite 4 - [2016] QSC 242
Cite 5 - [2016] QSC 242
Cite 6 - [2016] QSC 242
Latitude Fisheries Pty Ltd v Australian Fisheries Management Authority [2002] FCA 416
2 citations
Jump To
Cite 1 - [2002] FCA 416
Cite 2 - [2002] FCA 416
Pennington v McGovern (1987) 45 SASR 27
1 citation
Jump To
Cite 1 - (1987) 45 SASR 27
Pickering v McArthur [2005] QCA 294
3 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294
Cite 3 - [2005] QCA 294
QUYD Pty Ltd v Marvass Pty Ltd[2009] 1 Qd R 41; [2008] QCA 257
1 citation
Jump To
Cite 1 - [2008] QCA 257
Tasmanian Seafoods Pty Ltd v Peters [1999] QSC 144
2 citations
Jump To
Cite 1 - [1999] QSC 144
Cite 2 - [1999] QSC 144
Walton v Gardiner (1993) 177 CLR 429
1 citation
Jump To
Cite 1 - (1993) 177 CLR 429

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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