FEDERAL COURT OF AUSTRALIA

Kalymnian Shipping Pte Ltd v Rose [2000] FCA 614

APPLICATION FOR AN EXTENSION OF TIME - application for an order of review made outside time period prescribed by the Administrative Decisions (Judicial Review) Act 1977 (Cth) - whether time for making such application should be extended.

ADMINISTRATIVE LAW - validity of an Australian Certificate for the Carriage of Livestock ("ACCL") - express power to modify provisions of Marine Orders Part 43 - provision for an ACCL to be valid for a period of 5 years subject to annual endorsement - provision purported to be modified, such that ACCL in question was issued for a period of about three months - whether ACCL so issued was valid - whether, if time stipulation was invalid, it could be severed such that the resultant ACCL was for a period of 5 years.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 11(3), s 16(1)(a)

Judiciary Act 1903 (Cth), s 39B

Navigation Act 1912 (Cth)

Marine Orders Part 43, Issue 3, Issue 4

R v Secretary of State for Transport;  Ex parte Greater London Council [1986] 1 QB 556 ref

Airport Farms Pty Ltd v District Council of Lower Eyre Peninsula (1997) 69 SASR 472 ref

KALYMNIAN SHIPPING PTE LTD & ANOR v TREVOR ROSE, MANAGER SHIP INSPECTION GROUP, AUSTRALIAN MARITIME SAFETY AUTHORITY & ANOR

D 2 of 2000

FINN J

12 MAY 2000

SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

            1.         the time in which to lodge an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) be extended;

2.         the application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     I have heard together (i) an application by Kalymnian Shipping Pte Ltd and Skonis Industries Pty Ltd for an extension of time in which to make application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act");  (ii) the substantive application for an order of review;  and (iii) a parallel application for relief under s 39B of the Judiciary Act 1903 (Cth).  The first respondent to all three applications is Trevor Rose, who for present purposes can be described as the Chief Marine Surveyor ("the CMS") of the second respondent, the Australian Maritime Safety Authority ("the AMSA").

2                     Though it appeared at one stage as if some number of decisions were to be called into question, the matters actually in issue fall within a very narrow compass. 

Factual Setting

3                     The applicants operate a ship, the "Kalymnian Express", that is engaged in the carriage of livestock from Australia to South East Asia.  They are unable lawfully to ship livestock for export from Australia unless there is in force in respect of the ship a valid Australian Certificate for the Carriage of Livestock (an "ACCL") issued by Mr Rose in accordance with Marine Orders Part 43 ("MO43").  The relevant version of MO43 in 1999 was what is described as Issue 3.  It was superseded by Issue 4 (with appropriate transitional provisions) on 1 January 2000.

4                     For reasons it is unnecessary to narrate, the "Kalymnian Express" lost its certification as from 29 May 1999.  Nonetheless later in the year a notice of intention to load livestock was lodged with the AMSA on its behalf.  There ensued negotiations the object of which was to get an ACCL for the ship.  The ship at the time was affected by a number of deficiencies that would need to be rectified before a certificate would be issued but it otherwise substantially complied with MO43.  In relation to one particular matter - the height of ventilators as prescribed by MO43 provision 13.5 (set out below) - there had been an outstanding issue of non-compliance for four years.

5                     In August and September 1999 what were described as "temporary permits" were issued to allow the ship to load pending the issue of an ACCL.  A recommendation had been made in September 1999 that an ACCL be issued in respect of the "Kalymnian Express" when several outstanding matters (including rectification of the ventilation deficiencies) were satisfied.

6                     On 22 October 1999 the AMSA wrote to Mr Skonis, a director of both applicants, in the following terms:

"Reference:  KALYMNIAN EXPRESS - Issue of ACCL

Please find one original, and two certified copies of the Australian Certificate for the Carriage of Livestock which has been issued for the above livestock vessel.

A short term certificate has been issued with an expiry date of 1 January 1999.

The short term certificate is issued pending remediation action in respect of the height of the ventilator coamings on the superstructure deck which are less than 2.30 metres."

Insofar as presently relevant the accompanying certificate for the ship stated:

"THIS IS TO CERTIFY THAT

1.         the ship has been surveyed in accordance with the requirements of Marine Orders Part 43 Issue 3.

2.         the survey showed that …

3.         A modification of provisions has been allowed in accordance with Section 3 of Marine Orders Part 43.

THIS CERTIFICATE IS VALID until the … 1^st …… day of …… JANUARY …… 2000 … … subject to annual surveys being satisfactorily completed in accordance with the requirements of Marine Orders Part 43."

Appended to the certificate was a document embodying the modification of provisions referred to in clause 3 of the certificate.  It stated:

"The following Modification of Provisions has been allowed in accordance with Section 3 of Marine Orders Part 43 Issue 3.

1.         MO43 Section 31.1 Table 8.

Reduction in clear height in upper deck pens in way of transverse roof beams to 2.15 metres.

2.         MO43 Section 13.5(b).

The height of coamings of 11 ventilators situated upon an exposed superstructure deck situated abaft a point located a quarter of the length of the ship from the forward perpendicular is less than 2.30 metres above that deck.

A short term certificate is issued pending correction of this deficiency."

7                     The issue of extension of time apart, the short issue raised in the application is whether the respondents could lawfully issue an ACCL subject to "the condition" (as the applicants describe it) that it only be valid until 1 January 2000.

8                     To appreciate how this issue is raised it is necessary to refer to some number of provisions in MO43.

MO43

9                     These Orders are a species of subordinate legislation made under some number of provisions of the Navigation Act 1912 (Cth).

10                  Clause 3.1, the modification provision referred to in the ACCL above, provides:

"3.1

If the Chief Marine Surveyor considers that the application of any of the provisions of this part may be modified in respect of a ship or class of ships without danger to persons or detriment to the proper carriage of livestock, the Chief Marine Surveyor may allow the modification of the application of those provisions to such extent and subject to such conditions as, in that officer's opinion, the circumstances of the case warrant."

11                  Part 11 of MO43 deals with ACCLs.  The following clauses are of present relevance:

"11.1   Requirement for certificate

A ship that is permanently equipped for the carriage of livestock must not take on livestock in, or carry livestock to sea from, a port in Australia unless there is in force in respect of the ship a valid Australian Certificate for the Carriage of Livestock.

11.3     Issue of certificate

…

11.3.2  If satisfied that:

            (a)        the livestock fittings, livestock equipment and carrying arrangements of a ship built before 1 July 1983 are of a standard substantially in compliance with the provisions of this Part;  and

            (b)        issue of a certificate is not prohibited by 11.3.3 or 11.3.4,

the Chief Marine Surveyor may issue in respect of the ship an Australian Certificate for the Carriage of Livestock.

11.5     Validity and duration of certificate

An Australian Certificate for the Carriage of Livestock remains valid for five years from the date of issue, subject to annual endorsement":  emphasis added.

I note in passing that the applicant's case turns critically on the terms of this clause.

"13      Ventilation

13.5     The height of coamings for air intakes and exhausts must:

(a)       in relation to an air intake or exhaust situated upon an exposed freeboard deck, raised quarter deck or exposed superstructure deck situated forward of a point located a quarter of the length of the ship abaft the forward perpendicular, be not less than 4.50 metres above that deck;  and

(b)       in relation to an air intake or exhaust situated upon an exposed superstructure deck situated abaft a point located a quarter of the length of the ship from the forward perpendicular, be not less than 2.30 metres above that deck."

12                  The applicants' substantive case, put shortly, is that under MO43 the CMS did not have power under clause 3.1 to modify the application of clause 11.5 so that an ACCL could issue to a vessel for a period less than the five years specified in clause 11.5.  In the case of the ACCL issued to the "Kalymnian Express" it is claimed the "condition" limiting it to 1 January 2000 is invalid and severable with the consequence that the ACCL was valid for five years.

The Preliminary Application - Extension of Time

13                  I can deal with this matter shortly as it is one in which an extension of time ought be granted.  Before giving my reasons I should first note a number of additional factual matters.

14                  (i)         Though the ACCL was dated 20 September 1999 the decision to issue it was made on 20 October 1999.  It was furnished to the second applicant some time after 22 October 1999.  The present application was filed on 8 March 2000, over 3 months outside the 28 day period prescribed in the ADJR Act, s 11(3).

15                  (ii)        Mr Skonis seems not to have addressed the question of challenging the decision until some time close to when the application was filed.

16                  (iii)       Because of changes that were to be introduced by MO43 Issue 4 on 1 January 2000, the "Kalymnian Express" would have had to be "reclassed" to obtain an ACCL after - but not before - that date.  In December 1999 Mr Skonis put proposals to the AMSA that he hoped would lead to the issue of an ACCL and the possibility was held out to him by letter of 9 December 1999 from the AMSA that an ACCL would be issued valid until 3 July 2000.  Mr Skonis has deposed that he believed an ACCL was issued for the "Kalymnian Express" in consequence of this exchange.

17                  (iv)       In mid-December 1999 an incident occurred on the "Kalymnian Express" resulting in significant livestock mortality.  An investigation was conducted into this incident as required by clause 45 of MO43.

18                  (v)        There were continued dealings between Mr Skonis and the AMSA through January and February relating variously to (a) the investigation, (b) remedying deficiencies on the "Kalymnian Express" and (c) the reissue of an ACCL.  As a result of the outcome of the investigation, the condition of the ship had been called into question.  It became quite plain that to obtain an ACCL the "Kalymnian Express" would have to comply with the requirements of MO43 Issue 4.

19                  The respondents have opposed the extension application.  They contend that no reasonable explanation has been given for the delay;  Mr Skonis could have had no reasonable belief that an ACCL valid until 3 July 2000 had been issued in consequence of the 9 December letter from the AMSA;  and he had, if he wished to use it, the ability to command good advice in the matter.

20                  While I agree with the respondents that the alleged belief of Mr Skonis as to the issue of an ACCL cannot be said to be reasonable, I am nonetheless prepared to grant the extension sought.

21                  The circumstances surrounding Mr Skonis' dealings with the AMSA were such, in my view, that the need to challenge the 20 October decision would not necessarily be apparent to a person in Mr Skonis' position either at the time or for some reasonable period thereafter.  What is clear is that he did not immediately address that possibility.  Rather, his dealings with the AMSA were directed at ensuring an ACCL would ultimately be put in place in a way that protected his interests as he saw them.  It was only as it became unmistakably clear that such would not eventuate that the issue of the challenge arose.

22                  The case is not one in which Mr Skonis simply slept on his rights.  The delay has to be seen in the setting of the ongoing relationship of the parties.  Mr Skonis' hopes of obtaining the ACCL he sought may have been forlorn ones, particularly after the mid-December incident on the Kalymnian Express.  But in that he sought a resolution with the AMSA of the matter of real interest to him (ie the issue of an ACCL into the future), his delay in finally challenging the decision providing a stop-gap resolution is in my view sufficiently explained.  There would be no prejudice or unfairness in granting an extension of time.  There is, given the ongoing relationship of the parties, no issue of finality or of public interest that tells against an extension.  In the circumstances an extension of time should be granted.

23                  I will order accordingly.

The Issues

24                  The applicants' case raises, potentially, two questions.  The first is whether clause 3.1 (modification of provisions) allows for an ACCL to be issued for a period of about three months when clause 11.5 provides that an ACCL will remain valid for five years subject to annual endorsement.  The second and consequential question is, if clause 3.1 cannot be so used, can the expiry date of 1 January 2000 in the certificate issued in respect of the “Kalymnian Express” be severed with the result that clause 11.5 takes effect and the certificate is rendered valid for 5 years.

25                  As the first issue turns on the construction of clause 3.1, it is appropriate to restate its terms:

"If the Chief Marine Surveyor considers that the application of any of the provisions of this part may be modified in respect of a ship or class of ships without danger to persons or detriment to the proper carriage of livestock, the Chief Marine Surveyor may allow the modification of the application of those provisions to such extent and subject to such conditions as, in that officer's opinion, the circumstances of the case warrant."

26                  The applicants' case is that the clause 3.1 power relates to those provisions concerned with the safety of persons and the proper carriage of livestock.  These can be modified in respect of a ship or class of ships if the CSM considers that such can occur without danger to persons etc.  It is submitted that clause 11.5, which is concerned with the validity and duration of an ACCL, is not one concerned with the safety of persons and the proper carriage of livestock.  And in terms of clause 3.1 it is not a provision having application "in respect of a ship or class of ships".

27                  To support this construction it is said, first, that it furthers the purposes of MO43 (set out in clause 2.1), those purposes being (a) to make provision for and in relation to the survey and inspection of ships carrying or intending to carry livestock;  and (b) to make provision for the stowing and carriage of livestock on board ships.  Secondly, a wider construction would undermine the regulatory scheme put in place in MO43 after consultation with the Livestock Advisory Committee, in favour of discretionary control by the CMS.  Thirdly, the new Issue 4 clause 11.5.1 is cast in terms that are unnecessary if clause 3.1 gave the CMS a discretion to modify the period specified in Issue 3 clause 11.5.  The new clause provides:

"11.5.1                        An Australian Certificate for the Carriage of Livestock remains valid for a maximum of five years from the date of issue, subject to annual endorsement and may be extended for a maximum of three months on extension of the Safety Construction Certificate or equivalent survey certificate."  emphasis added.

28                  The respondents contend that clause 11.5 is clearly a provision having application in respect of a ship:  without a valid ACCL, a ship cannot load or carry livestock.  In the circumstances of this case where there remained certain issues outstanding over time in relation to the "Kalymnian Express" (notably concerning ventilation) but where the vessel had otherwise substantially complied with MO43, it was open to the CMS to form the view that, as part of a composite of modifications (ie to clause 31.1 and clause 13.5(b)) a modified ACCL could issue without danger to persons etc.  In the Modification of Provisions attachment to the ACCL, it was not necessary that express reference be made to modification of clause 11.5 (reference was made to clause 31.1 and clause 13.5(b)).  MO43 did not require express identification of the provisions modified.

29                  It is unnecessary to express a concluded view on whether clause 3.1 permits the modification in isolation of any provision of MO43 (subject to the CMS considering that the modification can be made "without danger etc") whatever the function and purpose of the provision in question.  I would say, though, that the terms of the clause seem to suggest such a construction.

30                  In the present case the modification of clause 11.5 had been tied expressly to, and "conditions" the duration of, the modification of clause 13.5(b).  The latter clause is, in terms of the applicants' submission, one that relates to the stowing and carriage of livestock.  The clause 11.5 modification, in other words, has not been modified in isolation.  Rather it is part of a scheme of modification designed to permit the vessel to be used to carry livestock while securing the correction (in the case of clause 13.5(b)) of a longstanding deficiency.  In terms of the applicants' submissions such a scheme seems (a) to be consistent with the purpose of MO43 and (b) not to undermine, but rather to further, the regulatory scheme of the Orders.

31                  There is nothing in clause 11.5 which necessarily excludes it from being so modified as part of a clause 3.1 modification scheme.  Neither is there anything in clause 3.1 which precludes such an interrelated use of the power.  Indeed such a usage seems consistent with the terms of the power which allow modification "to such extent and subject to such conditions as, in [the CMS's] opinion, the circumstances of the case warrant".  I am satisfied that clause 3.1 authorises the modification to clause 11.5 made in this instance. I agree with the respondents’ submissions.

32                  This conclusion is sufficient to dispose of this application.  I should indicate, though, that even if I were to conclude that the power of modification did not extend to varying the duration of an ACCL so that the second issue - that of severance - arose, I would decide that issue adversely to the applicants.

33                  It is, in my view, clear on the evidence before me that the ACCL actually issued was intended to expire on 1 January 2000 and no later.  The purpose of the limitation as made plain in the attachment to the ACCL was to allow for the correction of the longstanding deficiency with the ventilators.  The necessary corollary of this was that at the expiry of that period and on rectification of the deficiency the issue of a new "full term" ACCL would arise for consideration.  The limitation went to the root of the decision to issue an ACCL.  To sever it, leaving clause 11.5 to provide for the duration of the resultant certificate, would be to alter fundamentally the certificate granted.  A vessel that was being given a short term authorisation to function with a deficiency in anticipation of it being corrected, would be given a dispensation from the very outcome the limited ACCL sought to secure.

34                  Though the applicants have purported to describe the duration provision in the ACCL as a "condition", that provision more properly is to be described as a limitation of the certificate itself.  As such it produced a "one and indivisible" ACCL that ran from 20 September 1999 to 1 January 2000.  It is not a case where "the good and the bad" properly could be separated.  It is a case in which "the whole must go":  see generally the discussion of severance in R v Secretary of State for Transport;  Ex parte Greater London Council [1986] 1 QB 556;  see also Airport Farms Pty Ltd v District Council of Lower Eyre Peninsula (1997) 69 SASR 472.

35                  It is of course the case that if severance was not possible the applicants' trading in reliance on the ACCL would have been unlawful.  I indicated at the hearing, and the applicants acquiesced in this, that if I were to reach such a conclusion I ought not make an order declaring the ACCL invalid from its date of issue:  cf ADJR Act, s 16(1)(a).  Rather the order should be made to take effect from a date that would protect them from what would otherwise have been the consequences of invalidity.  This issue, though, does not arise given my earlier conclusion.

36                  I will then order that (i) the time in which to lodge an application under the ADJR Act be extended; (ii) this application be dismissed with costs.

Associate:

Dated:              12 May 2000