FEDERAL COURT OF AUSTRALIA

CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2012] FCA 1110

THE COURT ORDERS THAT:

1.    The applicant’s application for interlocutory relief be dismissed, with costs.

2.    The respondents file and serve any evidence on which they propose to rely on or before 19 October 2012.

3.    The applicant file and serve any evidence in reply on which it proposes to rely on or before 25 October 2012.

4.    The matter be listed for hearing from 1 November to 2 November 2012.

5.    The applicant file and serve an outline of submissions on 25 October 2012.

6.    The respondents each file and serve an outline of submissions on 29 October 2012.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    By its amended originating application filed in court yesterday, the applicant seeks judicial review of the decision by the first respondent, the Minister for Infrastructure and Transport, “to grant a variation to temporary licence … to the Second Respondent authorising it to perform the voyages the subject of application numbers 120700603, 120700605, 120700606 and 120700607.”

2    The second respondent is identified as “Rio Tinto Shipping” which I take from the temporary licence to be Rio Tinto Shipping Pty Ltd.

3    The decision, in fact by a delegate of the first respondent, was made on 9 October 2012. It also appears that the delegate gave written notice of the decision on 9 October 2012 at 9 pm by email to the applicant as the holder of a general licence who gave a notice in response to the application for variation of a temporary licence held by the second respondent. According to the email the application for variation to a temporary licence was lodged on 6 August 2012.

4    These reasons deal with the applicant’s claim for interlocutory relief, that claim being in the following terms:

An order until further order restraining the Second Respondent, by itself, its servants or agents, from taking any steps to perform the voyages the subject of application numbers 120700603, 120700605, 120700606 and 120700607 under any purported Variation.

5    By the decision the temporary licence was varied to include, amongst others, the four voyage numbers now the subject of the application for judicial review.

6    The decision was made under the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) (the Act).

7    The urgency of the matter arises because the first in time of the voyages the subject of the application, number 120700603, is due to occur, in the sense of the cargo being loaded at Gladstone, within the next few days. The remaining three voyages have loading dates of 4 December 2012 and later. No criticism was, or could be, levelled towards the applicant in respect of this urgency since, as I have indicated, the decision under review was made only this week and the applicant promptly approached the Court for interlocutory relief.

8    It may be seen that the claim for interlocutory relief does not seek to suspend the operation or effect of the temporary licence, but nothing was made of that in submissions yesterday and I say no more about it for present purposes. It was plain that the basis put forward by the applicant for interlocutory relief was the arguable invalidity of the decision, the substantive claim being made under s 39B of the Judiciary Act 1903 (Cth) and under ss 5, 8 and 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

9    There was no dispute that the two questions for the Court on this interlocutory application were, first, whether the applicant had shown sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial; and, second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighed or was outweighed by the injury which the second respondent would suffer if an injunction were granted.

10    The applicant read two affidavits, dated 10 October 2012 and 11 October 2012, sworn by Mr Metcalfe, the Managing Director of the applicant. The second respondent read an affidavit of Ms Dwyer, Chartering Manager of the second respondent, sworn on 11 October 2012.

11    Before turning to address briefly the legislative basis for the decision I should deal with an argument which underpinned the applicant’s submissions. This argument was that any arguable legal defect in relation to any of the four voyages had the consequence that interlocutory relief should be granted in relation to all of the voyages, or at least in relation to the first and imminent voyage. I reject that submission. In my opinion that submission fails both at a factual and a legal level. At the factual level I am not persuaded that there was a basis of reasoning common to all four voyages, particularly to the second, third and fourth voyages on the one hand and the first voyage on the other. At the legal level, in my opinion, the variation in respect of each of the four voyages was separate and severable: see also Kalymnian Shipping Pte Ltd v Rose (2000) 61 ALD 668 and the cases there cited at [34].

12    I now turn briefly to consider the legislative provisions under which the temporary licence was granted on 9 October 2012.

13    According to the simplified outline in s 5 of the Act, the Act regulates coastal trading by providing for licences to be granted that authorise vessels to carry, relevantly, cargo between ports in Australia. Using a vessel to engage in coastal trading without a licence may lead to a pecuniary penalty being imposed for the contravention of a civil penalty provision. Part 4 of the Act sets out the three kinds of licences that may be granted (general licences, temporary licences and emergency licences) and the application process for each.

14    The temporary licence provisions are to be found in s 28 to s 63 of the Act. An application for a temporary licence to enable a vessel to be used to engage in coastal trading over a 12 month period must specify, amongst other things, the number of voyages, which must be five or more, to be authorised by the licence; the expected loading dates; the kinds and volume of cargo expected to be carried; the type and size, or type and capacity, of the vessel to be used to carry the cargo (if known); the name of the vessel (if known); the ports at which the cargo is expected to be taken on board; the ports at which the cargo is expected to be unloaded; and such other information as is prescribed by the regulations.

15    By Subdivision D of Division 2 of Part 4, commencing at s 50, a holder of a temporary licence may propose to vary the licence to include a matter not already authorised by the licence. Section 51(2) requires the application to specify the matters there set out. By s 53 the process for deciding such an application involves the steps set out in ss 30 to 34 in relation to the application for a temporary licence. Those matters include the publication and notification of the application; the notice in response procedure by the holder of a general licence and the process if a notice in response is received. Section 53 also picks up s 34 giving express power to the Minister to decide an application by granting it or refusing it and setting out matters to which the Minister may or must have regard in deciding an application. The relevant provisions of s 32 and s 34 are as follows:

32 Process if notice in response received

Minister to give copy of notice in response to applicant

(1)    If the Minister receives one or more notices in response in relation to an application, the Minister must, as soon as practicable after the end of the 2 business day period mentioned in section 31, give a copy of each notice in response to the applicant.

Negotiation between applicant and holder of general licence

(2)    Within 2 business days after the day the applicant receives a copy of each notice in response, the applicant must:

(a)    undertake negotiations in accordance with subsection (3); and

(b)    notify the Minister, in writing, of the outcome of the negotiations.

(3)    For the purposes of paragraph (2)(a), the applicant must negotiate, with each holder of a general licence who gave a notice in response, in respect of the following matters:

(a)    whether, and to what extent, the vessel authorised by the holder’s general licence is equipped to carry the passengers or cargo specified in the application;

(b)    whether those passengers or cargo can be carried in a timely manner.

(4)    If an application relates to the carriage of cargo, negotiations under subsection (3) in relation to the application must have regard to the requirements of the shipper of the cargo.

. . .

34 Minister to decide applications

(1)    The Minister decides an application by:

(a)    granting the application; or

(b)    refusing the application.

(2)    In deciding an application, the Minister may have regard to the following (whether or not the Minister receives a notice in response in relation to the application):

(a)    whether the applicant has previously held, or applied for, a temporary licence;

(b)    whether the applicant has previously held a licence that was cancelled;

(ba)    if the application relates to cargo and a vessel registered in the Australian International Shipping Register—both:

(i)     whether the applicant owns the cargo and the vessel; and

(ii)    whether the cargo is to be carried on the vessel;

(c)    whether the applicant has been issued with an infringement notice under this Act;

(d)    any written comments received by the Minister in relation to the application;

(e)     any report given to the Department by the applicant under section 62;

(f)     the object of this Act;

(g)     any other matters the Minister thinks relevant.

(3)    If the Minister receives one or more notices in response in relation to an application, the Minister must have regard to the following in deciding the application:

(a)    the outcome of negotiations, as notified by the applicant under paragraph 32(2)(b);

(b)    whether, and to what extent, the vessel authorised by the holder’s general licence is equipped to carry the passengers or cargo specified in the application;

(c)    whether those passengers or cargo can be carried on the expected loading dates or within 5 days before or after the relevant date;

(d)    if the application relates to the carriage of cargo—the reasonable requirements of a shipper of the kind of cargo specified in the application.

. . .

16    By s 57, if the Minister decides to grant an application the licence must specify the matters set out in s 37(2).

17    The first voyage, the subject of application number 120700603, is a voyage from Gladstone to Bell Bay. The category of trade is described as dry bulk, the cargo description alumina, the volume amount 25,000 metric tonnes and the loading date 11 October 2012, subject to acceptable tolerance limits as defined by s 4 of the Act. The vessel proposed by the applicant in respect of this voyage is CSL Melbourne.

18    In relation to this first voyage, the subject of application number 120700603, the alleged legal errors, taken from paragraphs 1 and 3 as well as 2 and 4 of the amended originating application, are:

a.    failure to take into account the mandatory consideration in s 34(3)(b) “whether, and to what extent, the vessel authorised by the holder's general licence is equipped to carry the cargo specified in the application”;

b.    failure to take into account the object of the Act being to provide a regulatory framework for coastal trading in Australia that promotes a viable shipping industry that contributes to the broader Australian economy;

c.    taking into account an irrelevant consideration, being the effect of the variation on the aluminium industry separate from the effect in promoting a viable Australian shipping industry; and

d.    taking into account an irrelevant consideration, being the fact that the applicant's vessel was longer than the proposed berth in Bell Bay Terminal 1, in circumstances where the same vessel had attended the same berth in August 2010;

e.    denial of procedural fairness to the applicant by failing to give the applicant an opportunity to consider and make submissions about the information received by the first respondent from the second respondent as to the viability of aluminium operations at Bell Bay.

19    The second, third and fourth voyages, the subject of application numbers 120700605, 120700606 and 120700607, are also from Gladstone to Bell Bay. The category of trade in each case is again dry bulk, the cargo description alumina, the volume amount 25,000 metric tonnes and the loading dates 4 December 2012, 4 January 2013 and 1 February 2013 respectively. The vessel proposed by the applicant for each of these three voyages is CSL Brisbane.

20    For completeness, in relation to these three voyages the alleged legal errors are:

a.    failure to take into account the mandatory consideration in s 34(3)(b) “whether, and to what extent, the vessel authorised by the holder's general licence is equipped to carry the cargo specified in the application”;

b.    failure to take into account the object of the Act being to provide a regulatory framework for coastal trading in Australia that promotes a viable shipping industry that contributes to the broader Australian economy;

c.    taking into account an irrelevant consideration, being the effect of the variation on the aluminium industry separate from the effect in promoting a viable Australian shipping industry;

d.    took into account an irrelevant consideration, being the freight rates of the Second Respondent proposed for the voyages, as compared to the freight rates offered by the applicant for equivalent voyages; and

e.    denial of procedural fairness to the applicant by failing to give the applicant an opportunity to consider and make submissions about the information received by the First Respondent from the Second Respondent as to the viability of aluminium operations at Bell Bay.

21    It therefore appears that the grounds of legal error specified in the amended originating application are the same for each of the four voyages apart from the fourth ground, paragraph d set out in [18] above, which is peculiar to the first and imminent voyage, the subject of application number 120700603.

22    The vessel CSL Melbourne is the subject of a transitional general licence issued on 8 August 2012. That licence commenced on 8 August 2012 and remains in force until 7 August 2017. I note that the vessel CSL Brisbane is also the subject of a transitional general licence issued on the same date and in force for the same period.

23    In relation to the first and imminent voyage, the decision maker stated in an email sent on Saturday 6 October 2012 at 6.57 pm that the key factor taken into account in forming her then present view was as follows:

Information provided to me by the applicant indicates that the MV CSL Melbourne is considered by the terminal operators (Pacific Aluminium) to be too big for the berth (Bell Bay Terminal Facility No 1) for safety, berthing and operational reasons. This information indicates that the MV CSL Melbourne is too large to berth safely at Bell Bay Terminal Facility No 1 and may be refused permission to unload at the berth. The information provided by the applicant in regard to this issue was forwarded to CSL for response on 24 July 2010. The Australian Maritime Safety Authority (AMSA) have confirmed that berthing a vessel of the size of the CSL Melbourne at Bell Bay Terminal Facility No 1 would pose safety concerns of the kind described by the applicant. I consider that these safety considerations are significant, and that they suggest that the MV CSL Melbourne does not meet the reasonable requirements of the shipper.

24    I infer, on the material presently before me, that this was the basis of the decision to grant the variation to the temporary licence in respect of the first and imminent voyage.

25    By email sent on 8 October 2012 the applicant addressed this “key factor” taken into account by the delegate in reaching her preliminary view. That response referred to precedents and also said that the CSL Melbourne discharged in August 2010 at Bell Bay without incident, with hold no. 1 not being used. The email stated that it was the intention that for the contemplated voyage, the CSL Melbourne would not load in hold no. 1.

26    I turn to consider briefly the alleged errors of law in relation to the first and imminent voyage, considering in each case whether the alleged error is arguable or sufficiently likely to succeed. I do so in light of my conclusion at [11] above that this first voyage is separate from the remaining three voyages.

27    As to paragraph a, I am not satisfied that the delegate failed to take into account that mandatory relevant consideration. It does not appear that it was the consideration on which the decision turned but that does not establish that the delegate did not take into account whether the CSL Melbourne was equipped to carry the cargo specified in the temporary licence application. I refer to page 2 point two of the exhibit to Mr Metcalfe’s first affidavit where the applicant stated that the vessel was so equipped. It does not appear that this proposition was in contention.

28    As to paragraph b, I am not satisfied that the delegate failed to take into account that one of the objects of the Act was to promote a viable shipping industry that contributes to the broader Australian economy. Neither am I satisfied that it is a mandatory relevant consideration given the contrast between the language of s 34(2) and s 34(3).

29    As to paragraph c, I am not satisfied that the delegate took into account the effect of the Variation on the aluminium industry separate from its effect in promoting a viable Australian shipping industry.

30    As to paragraph d, as framed, this is a merits point. There may well be a disputed factual matter but this would not ground a remedy in judicial review in the present circumstances. The mere fact that the same vessel had attended the same berth in August 2010 does not establish that the length of the vessel was an irrelevant consideration. In any event the apparent ground of the decision was whether CSL Melbourne met the reasonable requirements of the shipper. I am not presently persuaded that that is an irrelevant consideration in light of the terms of ss 32(4), 34(2)(g) and 34(3)(d).

31    As to the procedural fairness point, paragraph e, in my view whatever force this point may have, on the basis of the material presently before me the matters on which it is based were not material to, and the point does not therefore affect the validity of, the temporary licence in respect of the first and imminent voyage. As I have said, the conclusion that MV CSL Melbourne does not meet the reasonable requirements of the shipper was the basis of the decision to grant the variation to the temporary licence in respect of the first and imminent voyage.

32    For these reasons I find that the applicant has not shown sufficient likelihood of success in relation to the first and imminent voyage. It is not therefore necessary to consider questions of the balance of convenience. I should indicate however that I would be slow to conclude that the balance of convenience lay in favour of the applicant in circumstances where the evidence shows that operational safety issues arise in relation to the first and imminent voyage, the applicant’s ship available for that voyage being considered by the terminal operators to be too big for the Bell Bay wharf giving rise to a safety risk to both the ship and the terminal: see generally Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148.

33    For these reasons I refuse the applicant’s application for interlocutory relief, with costs. Senior Counsel for the applicant accepted that the costs of the interlocutory application should follow the event. The order I make is that the applicant’s interlocutory application be dismissed, with costs.

34    I note finally that given the urgency of the matter I indicated to Senior Counsel for the applicant that I did not need to hear him on the question of whether relief should be refused in the exercise of the Court’s discretion in light of the provision made by s 107 of the Act for review of the decision on the merits in the Administrative Appeals Tribunal. This indication should not be taken as preventing or affecting the respondents, if so advised, from advancing such an argument at the final hearing.

35    I set the matter down for final hearing on 1 November 2012, a date well before the second of the four voyages the subject of the variation of the temporary licence.

Associate:

Dated:    15 October 2012