FEDERAL COURT OF AUSTRALIA

 

Livestock Transport & Trading v Australian Maritime Safety Authority [2008] FCA 1569



 



 


 


 


 


LIVESTOCK TRANSPORT & TRADING v AUSTRALIAN MARITIME SAFETY AUTHORITY

WAD 212 OF 2008

 

SIOPIS J

3 OCTOBER 2008

PERTH




IN THE FEDERAL COURT OF AUSTRALIA

 

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 212 OF 2008

 

BETWEEN:

LIVESTOCK TRANSPORT & TRADING

Applicant

 

AND:

AUSTRALIAN MARITIME SAFETY AUTHORITY

Respondent

 

 

JUDGE:

SIOPIS J

DATE OF ORDER:

3 OCTOBER 2008

WHERE MADE:

PERTH

 

THE COURT ORDERS THAT:

 

1.                   The application for an injunction is dismissed.

2.                   The proceeding is listed for hearing at 10.15am on 13 October 2008.

3.                   Costs are in the cause.


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



IN THE FEDERAL COURT OF AUSTRALIA

 

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 212 OF 2008

BETWEEN:

LIVESTOCK TRANSPORT & TRADING

Applicant

 

AND:

AUSTRALIAN MARITIME SAFETY AUTHORITY

Respondent

 

 

JUDGE:

SIOPIS J

DATE:

3 OCTOBER 2008

PLACE:

PERTH


REASONS FOR JUDGMENT

1                     This is an application for an interlocutory injunction brought by the owner/operator of a Kuwaiti flagged vessel, “Al Messilah”.  This is a vessel which is engaged in the carriage of live sheep between Australia and the Middle East.  It is obliged to have an Australian Certificate for the Carriage of Livestock (ACCL) issued by the respondent.  The ACCL issued in respect of the vessel required it to comply with s 6.6 of Appendix 4 to the Marine Orders Pt 43 Issue 6 (the Marine Orders) by 26 September 2008.  The Marine Orders are a form of delegated legislation made by the respondent under the Navigation Act 1912 (Cth) (the Act).

2                     Mr Gordon, who is the general manager of Rural Export and Trading (WA) Pty Ltd, a wholly owned subsidiary of the applicant, has deposed the vessel is currently in Fremantle, but it is intended that it travel to Portland, Victoria to load a cargo of approximately 72,000 live sheep.  It was originally intended that the sheep would be taken to a feedlot in Portland on or about 29 September 2008 in anticipation that they would be loaded on the vessel on or about 7 October or 8 October.  However, on 1 October a surveyor, who is an officer of the respondent, issued a notice under O 7.3.1 of the Marine Orders, which prevents the vessel from loading livestock on the basis that the vessel did not comply with s 6.6 of Appendix 4, which required an effluent treatment plant or holding tank to be part of the vessel.  An urgent injunction is sought precluding the respondent from preventing the loading of the sheep.

3                     Because of this dispute the sheep have not been taken to the feedlot.  Instead the sheep are presently being held by a large number of vendor farmers, and those farmers are incurring the costs of maintaining the sheep.

4                     The proceeding relates to the requirement which has been imposed by the respondent on the “Al Messilah”, a Kuwaiti flagged vessel, to comply with s 6.6 of Appendix 4 of the Marine Orders.  That provision reads:

For all new ships, and existing ships after 27 September 2008, a holding tank or treatment plant is to be provided, complying with Annex IV of MARPOL 73/78, to treat, store and discharge effluent in accordance with that Annex.  The holding tank is to be of sufficient storage capacity:

(a)                to ensure that effluent is not discharged in contravention with Annex IV of MARPOL 73/78; and

(b)               to retain on board all effluent generated while the ship is in areas for which discharge is prohibited, such as in port and within 12 nautical miles of nearest land.

(Footnote omitted.)

5                     In the primary relief which is sought the applicant seeks:

A declaration that, to the extent that Order 12 of and section 6.6 of Appendix 4 to the Marine Orders Part 43 (Issue 6) made under the Navigation Act 1912 (Cth) purport to:

(a)        make compliance with Annex IV of MARPOL 73/78 a condition precedent to the grant of an Australian Certificate for the Carriage of Livestock (“ACCL”) to foreign‑flagged vessels; and/or

(b)       make compliance with Annex IV of MARPOL 73/78 a condition precedent to the grant of permission to load livestock [on] board a foreign‑flagged vessel for the purpose of the livestock export trade; and/or

(c)        make it compulsory for foreign‑flagged vessels engaged in the livestock export trade that are not equipped [with a sewage] treatment plant sufficient to deal with animal effluent to be equipped with a holding tank for sewage as specified in Order 12 of and section 6.6 of Appendix 4 to the Marine Orders Part 43 (Issue 6);

they are inconsistent with and repugnant to the Navigation Act 1912 and invalid.

6                     The applicant contends that Annex IV of the International Convention on the Prevention of Pollution from Ships 1973 as modified by the Protocol of 1978 relating thereto (MARPOL), has been enacted into Australian law in Div 12C of Pt IV of the Act.  The applicant contends further that Div 12C of the Act draws a distinction between Australian ships and foreign‑flagged ships.  The relevant distinction is that the respondent has the power to impose the requirements necessary to give effect to Annex IV of MARPOL on Australian ships but not in respect of foreign‑flagged vessels.  The respondent’s power in respect of foreign‑flagged ships that are, in its opinion, not constructed in accordance with requirements of Annex IV, is limited to the giving of the directions that are set out in s 267ZQ of the Act.  These directions do not include the power to require structural changes to the vessel to ensure that the vessel complies with Annex IV of MARPOL.

7                     The applicant says that by seeking to impose compliance with s 6.6 of Appendix 4 of the Marine Orders as a condition of the ACCL, and by issuing the notice on the basis of non‑compliance, the respondent has acted unlawfully.  This is because the respondent’s actions are based on the vessel’s non‑compliance with parts of the Marine Orders which seek to enforce the provisions of Annex IV of MARPOL on foreign‑flagged vessels, and are, therefore, inconsistent with Div 12C of the Act and are of no force and effect.

8                     In my view, there is much to be said for the argument raised by the applicant.  I am of the view that there is more than a serious question to be tried in relation to those arguments.

9                     However, in my view, there will be no utility in granting the injunction sought.  This is because the grant of an injunction will not make lawful any loading activities which the applicant may undertake consequent on it being granted.  At trial it may well transpire that the issue of the notice by the surveyor was valid, in which case the applicant will have acted in breach of the Act by loading the livestock.

10                  Mr Macliver for the respondent, has said that there is no power in the respondent to restrain the applicant from loading the sheep, if it so desired, notwithstanding the issue of the notice prohibiting such activity, short of the respondent obtaining an injunction itself.  The position, therefore, is that it is up to the applicant to decide what it does.  Either it can await the outcome of the final hearing in this matter, or it can load the livestock in breach of the prohibition and then face the consequences.  If it is prosecuted, it would be open to it to raise the same arguments that it has raised before me today by way of a collateral challenge to the lawfulness of the notice.

11                  However, I hope that situation will not arise because I intend to hear and determine this matter on an expedited basis.

12                  The application for the injunction is dismissed on the grounds that it would serve no utility if it was granted.

 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.



Associate:


Dated:         20 October 2008


Counsel for the Applicant:

Mr PA Hopwood

 

 

Solicitor for the Applicant:

Cocks Macnish

 

 

Counsel for the Respondent:

Mr P Macliver

 

 

Solicitor for the Respondent:

Office of Legal Counsel Australian Maritime Safety Authority


Date of Hearing:

3 October 2008

 

 

Date of Judgment:

3 October 2008