FEDERAL COURT OF AUSTRALIA

CSL Australia Pty Ltd v Minister for Infrastructure and Transport

[2013] FCA 152

THE COURT ORDERS THAT:

1.    The question whether relief should not be granted to the applicant on discretionary grounds be determined as a preliminary issue.

2.    The applicant’s originating application be dismissed pursuant to r 30.02(b) of the Federal Court Rules 2011 (Cth).

3.    The applicant’s interlocutory application be dismissed.

4.    The applicant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

1    This case is a spinoff of litigation brought last year by an Australian shipping company to overturn a decision of a delegate of the Minister for Infrastructure and Transport to grant a variation of a temporary licence to one of its competitors. That proceeding was substantially unsuccessful, though it forced the Minister’s delegate to reconsider her decision. Now she has done so, the applicant company, CSL Australia Pty Ltd (“CSL”), has filed an application for judicial review of the second decision. It has also filed an appeal from the judgment in the earlier proceeding. CSL contends that the most convenient course for disposing of the fresh application is for it to be referred to a Full Court by way of a stated case so that it may be considered and determined at the same time as the appeal. The Minister responded by saying that the fresh application should be dismissed, either in the exercise of the Court’s discretion or as an abuse of process. Each has filed an interlocutory application for orders giving effect to those contentions. Rio Tinto Shipping Pty Limited (“Rio Tinto”) opposes CSL’s application for a referral of the proceeding to a Full Court but is neutral about the Minister’s application.

2    CSL’s interlocutory application is supported by an affidavit sworn by its solicitor, Robert Reginald Wilson, to which various documents including a draft stated case are exhibited. The Minister’s interlocutory application is supported by an affidavit sworn by Alice Linacre, the lawyer with the carriage of the matter on the Minister’s behalf, which essentially annexes a series of documents. As the Minister’s interlocutory application, if successful, would dispose of the proceeding, it must be considered first. But before I do so it is necessary to give some background to the dispute and to set out some facts. The facts are taken from the affidavits. None of them is contentious.

Background

3    CSL and Rio Tinto are competitors in coastal trading, an enterprise that may not lawfully be carried out without a licence. Coastal trading in this country is now regulated by the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) (“the Act” or “the Coastal Trading Act”). In general terms and with certain exceptions, a vessel is used to engage in coastal trading if, for or in connection with a commercial activity, it carries passengers or cargo from a port in a State or Territory to a port in another State or Territory or the same State or Territory and some passengers disembark or some cargo is unloaded at that other port: Coastal Trading Act, s 7. The Act, which was part of a package of legislative reforms intended to revitalise the Australian shipping industry, introduced a three-tier licensing system for coastal trading. There are three kinds of licences – general, temporary and emergency licences. General licence holders, which are Australian-flagged, have unrestricted access to the coastal trade. Temporary licence holders, on the other hand, which may be foreign flagged or registered in the Australian International Shipping Register, have restricted access.

4    Rio Tinto was granted a temporary licence on 30 July 2012. On 6 August 2012 it applied to vary the licence so as to include matters that were not already authorised under it.

5    The Coastal Trading Act provides that an application for a temporary licence must specify various details including the number of voyages, the kinds and volume of cargo expected to be carried, the type of vessel to be used, and the ports at which the cargo is to be loaded and unloaded. The variation Rio Tinto sought related to five voyages in which it wished to transport alumina by bulk carrier from Gladstone to Bell Bay in Queensland.

6    On 8 August 2012, before Rio Tinto’s variation application had been determined, CSL was granted a five-year transitional general licence for the vessel CSL Brisbane. The Minister’s Department notified CSL of Rio Tinto’s application, pursuant to s 30 of the Act. CSL served a Notice in Response advising that it had vessels capable of undertaking the voyages the subject of the application and was available for them.

7    On 6 October 2012, after an exchange of correspondence, the Minister’s delegate informed CSL that her preliminary view was to grant Rio Tinto’s application. She also advised CSL of the key factors she had taken into account. CSL then furnished her with written submissions in an unsuccessful attempt to dissuade her from that view. But on 9 October 2012 she advised the parties that she had granted Rio Tinto’s application.

8    On 10 October 2012 CSL filed an originating application seeking both interlocutory and final relief. The interlocutory application was designed to halt the four voyages the subject of the challenge, the first of which was due to load the next day. It failed: CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2012] FCA 1110 (Robertson J).

9    On 16 November 2012 Robertson J published his judgment on the 10 October application: CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 3) [2012] FCA 1261 (“CSL (No 3)”). Of the 10 grounds advanced by CSL, it succeeded on only one: that the Minister had denied it procedural fairness in respect of the four voyages, the first and past voyage, 1207006003, and the three prospective voyages (1207006005, 1207006006 and 1207006012 – also referred to as 1207006007), which for convenience I shall call 03, 05, 06 and 12.

10    On 21 November 2012 his Honour declared that in deciding to vary the temporary licence in respect of voyages 03, 05, 06 and 12 the delegate had failed to observe the requirements of procedural fairness. He ordered that the decisions made on 6 August 2012 (sic) to vary the temporary licence in respect of voyages 06 and 12 be set aside “ab initio” and otherwise dismissed the proceeding: CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 4) [2012] FCA 1306. CSL appealed against the dismissal order. The notice of appeal was filed on 12 December 2012. The Minister and Rio Tinto both filed cross-appeals contesting the findings as to procedural fairness. Rio Tinto has since withdrawn its cross-appeal.

11    In the meantime, the delegate invited CSL and Rio Tinto to make further submissions. Both accepted the invitation. There then followed an exchange of correspondence between the delegate and the parties. On 13 December 2012, the day after the appeal was filed, CSL withdrew its Notice of Response about voyage 06. The next day, 14 December 2012. the delegate granted Rio Tinto’s variation in respect of voyage 12. According to the licence, loading for that voyage was due to begin on 1 February 2012.

12    On 3 January 2013, after a request from CSL, the delegate furnished CSL with a statement of reasons under s 13(1) of the ADJR Act.

13    27 days later – on 30 January 2013, and two days before it anticipated that loading for the voyage was to begin – CSL launched this proceeding. In fact, loading had begun on 23 January 2013.

14    At this point in time all voyages the subjects of the temporary licence, including voyage 12, have concluded. Voyage 12 completed discharge on 12 February 2013, approximately two weeks after the originating application in the present case was filed. It is this circumstance that underlies the Minister’s application.

The present proceeding

15    Like the first originating application heard by Robertson J, this one seeks orders under s 39B of the Judiciary Act 1903 (Cth) and/or the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”).

16    Section 39B of the Judiciary Act relevantly confers original jurisdiction on this Court with respect to any matter in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth (s 39B(1)) and any matter arising under a law of the Commonwealth (s 39B(1A)(c)). Section 8(1) of the ADJR Act gives the Court jurisdiction to hear and determine applications made to it under the Act.

17    The ADJR Act established a mechanism for judicial review of administrative decisions made under certain enactments, defined in such a way as to include the legislation in question in this case. The Court is given the power to quash or set aside all or part of a decision, to refer the matter to which the decision relates to the person who made the decision for further consideration, to declare the rights of the parties in respect of the matter and to direct any of them to do or refrain from doing something: ADJR Act, s 16(1).

18    It is therefore difficult to understand why the application under s 39B of the Judiciary Act was brought. It adds nothing to the ADJR Act claim. CSL accepts that the grant of relief in both cases is discretionary. To obtain mandamus or prohibition CSL would have to show that the delegate’s error was jurisdictional in nature, a hurdle it need not overcome in the ADJR Act action.

19    The substantive orders CSL seeks are that:

(1)    the delegate’s decision of 14 December 2012 be quashed as being in excess of jurisdiction for various reasons;

(2)    the Minister personally or by a different delegate determine according to law whether to grant Rio Tinto any variation to the temporary licence authorising it to perform voyage 12.

20    Alternatively, CSL applies for declarations that:

(1)    the decision was invalid because it was in excess of jurisdiction;

(2)    the decision was in breach of the Coastal Trading Act;

(3)    the decision involved errors of law for the same reasons it is said to have been made in excess of jurisdiction.

21    The reasons CSL alleges the decision was affected by error, said to be errors of law (either jurisdictional or non-jurisdictional), are that the delegate:

(a)    had regard to the following irrelevant considerations in exercising the power under s 34(1) of the Coastal Trading Act:

(i)    the economic interests, profitability and costs of the shipper/receiver;

(ii)    the freight rates that the applicant for a temporary licence proposes, as compared with the freight rates offered by a general licence holder for equivalent voyages; and

(iii)    whether or not the contractual arrangements offered by a general licence holder for equivalent voyages include a provision for liquidated damages of the kind before the Minister’s delegate.

(b)    failed to treat the object in s 3(1)(e) of the Coastal Trading Act as meaning competition between general licence holders;

(c)    misconstrued the object in s 3(1)(d) of the Coastal Trading Act as having no relevance when considering vessels the subject of transitional general licences under Part 3, Schedule 2 of the Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012 (Cth);

(d)    misconstrued s 34(3)(d) of the Coastal Trading Act by concluding that contractual arrangements that did not include a provision for liquidated damages of the kind before the Minister’s delegate were contractual arrangements that did not meet the reasonable requirements of a shipper of the relevant kind of cargo;

(e)    misconstrued s 34(3)(d) of the Coastal Trading Act by treating the content and outcome of negotiations contemplated by s 32(2) of the Act as being relevant to assessing the reasonable requirements of a shipper of the relevant kind of cargo.

22    Grounds (a)(i) and (ii), (b) and (c) raise similar, if not identical issues to those that will arise in the appeal from Robertson J. The Full Court will be called upon to examine the objects of the Coastal Trading Act at some length. Grounds 1–4 of the notice of appeal plead errors of law in relation to his Honour’s findings on the subject and his construction of the same provisions of the Act. Only grounds (a)(iii), (d) and (e) are unique to this application. The matters raised in the Minister’s cross-appeal are irrelevant to the present proceeding.

23    In the originating application CSL states that it is appropriate for the Court to grant the relief sought because:

(a)    the decision was made in excess of jurisdiction and, as a matter of law, Rio Tinto was not entitled to the variation granted by the delegate; and

(b)    “the relief as to errors of law will impact on the rights of the parties under the Coastal Trading Act in relation to future dealings between the parties”, including:

(i)    CSL’s dealings with the Minister under the Act;

(ii)    The Minister’s determination of applications by Rio Tinto under the Act;

(iii)    Any negotiations under s 32(2) of the Act between CSL and Rio Tinto.

The Minister’s interlocutory application

24    The Minister’s primary application is for the determination, as a preliminary issue, of the question whether relief should not be granted to CSL on discretionary grounds and for the proceeding to be dismissed for that reason. Alternatively, the Minister submits that the proceeding be summarily dismissed as an abuse of the process of the Court.

25    The application gives rise to the following issues:

(1)    whether the question of whether relief should not be granted on discretionary grounds be determined in advance of the hearing;

(2)    if so, whether the discretion be exercised to refuse relief;

(3)    if the discretion is exercised to refuse relief, whether the proceeding be dismissed; and

(4)    if the answer to any of these questions is “no”, whether the proceeding be dismissed as an abuse of process.

Should the question of whether relief should not be granted on discretionary grounds be determined in advance of any hearing?

26    The application for the separate trial of the question is brought under r 30.01(1) of the Federal Court Rules 2011 (Cth) (“the Rules”). Rule 30.02 provides that if a decision on a question substantially disposes of the proceeding or renders any further trial unnecessary, a party may apply to the Court for judgment or an order dismissing the whole or any part of the proceeding.

27    There is no doubt that the discretion under the ADJR Act can be exercised before or after an application is determined on its merits. CSL does not submit otherwise. There have been numerous cases in which courts have exercised the discretion to refuse relief in advance of conducting a review. The Minister referred to some of them. Young J included a list of them in AWB Ltd v Cole (No 2) (2006) 233 ALR 453; [2006] FCA 913 (“AWB v Cole”) at [71].

28    In Duncan v Secretary, Department of Family and Community Services (2007) 99 ALD 241 (“Duncan”), where a federal magistrate had summarily dismissed an application for judicial review on the basis that there was adequate provision for review in the AAT, French J (as his Honour then was) suggested (at 249) that the question whether s 10 should be invoked to deny relief is better dealt with as a preliminary question. Nicholas J recently took this course in Dalian Steelforce Hi-Tech Co Ltd v Minister for Home Affairs of The Commonwealth of Australia [2012] FCA 1192. The Minister submitted (correctly in my view) that there is no reason why the same should not be said of the exercise of the discretion to refuse relief under s 39B of the Judiciary Act.

29    Of course it is true, as CSL pointed out, that the observations of French J in Duncan do not dictate that the issue be dealt with in this way. It is also true that the power should be exercised with caution. In many cases it will be problematic and undesirable to do so (see, for example, AWB v Cole where Young J refused to make an order for the separate determination of a question). In Tepko v Water Board (2001) 206 CLR 1 (“Tepko”) at 50 [168]–[170] Kirby and Callinan JJ warned that the attractions of trying issues rather than cases as a whole “are often more chimerical than real” and courts should only succumb to them “when their utility, economy, and fairness is beyond dispute”. In my view, this is such a case.

30    As Northrop J observed in Edelsten v Minister for Health (1994) 58 FCR 419 (“Edelsten”) at 422 where the Minister had applied for dismissal for the same reason before the hearing of the application:

The purpose of the motion overcomes a problem, which otherwise would arise, of the Court having to consider the whole of the applicant's case to determine whether, on the facts proved, the applicant would succeed. The summary power is designed to avoid that very thing. It allows a summary judgment to be given in the circumstances where, even if otherwise an applicant would succeed, no order would be made in favour of that applicant.

31    I discussed the relevant principles in a different context in Samootin v Official Trustee in Bankruptcy (2012) 125 ALD 218 at [9]–[13]. The parties accepted that these are the applicable principles and I have approached the issue with these principles in mind.

32    As Kirby P said in CBS Productions Pty Ltd v O’Neill [1985] 1 NSWLR 601 at 606, a matter is “ripe” for separate and preliminary determination where it is a central issue in contention between the parties and its resolution will either obviate the need for litigation altogether or substantially narrow the scope of the dispute. This is such a matter. Tepko was a very different case in which the issues overlapped. So, too, AWB v Cole. There, AWB was seeking declarations that certain documents were subject to legal professional privilege. The Commonwealth wanted a separate question to be formulated about whether the Court should refuse to make the declarations because the Royal Commissioner could make those determinations. There, all the relevant facts and circumstances were not before the Court. Here they are. CSL did not suggest that it would call any additional evidence at the hearing.

33    Contrary to the submission made by CSL, determining the discretionary issue as a preliminary question would promote the overarching purpose of the civil procedure provisions of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) and the Rules (see FCA Act, s 37M). If the Minister’s submission that it would be futile to grant relief is correct, the determination of the preliminary question would obviate the need to conduct a trial on the merits, saving costs for the parties and freeing up Court time for other matters. This is an efficient use of the judicial and administrative resources of the Court, promotes the efficient disposal of the Court’s overall caseload and would see the dispute resolved at a cost that is proportionate to the importance and complexity of the issues. It is beyond argument that the determination of the preliminary question in the Minister’s favour would finally dispose of the proceeding. In that event, it may be dismissed under r 30.02(b).

34    I will therefore determine as a preliminary issue the question whether relief should not be granted to CSL on discretionary grounds.

Should the discretion be exercised to refuse relief?

35    The Minister accepted that this question must be considered on the premise that all of CSL’s contentions in its originating application are made out: Edelsten at 422. That includes the various alleged errors of statutory construction and the proposition that they are jurisdictional in kind.

36    The Minister contends that:

(1)    adequate provision is made by s 107(5)(a) of the Coastal Trading Act under which CSL is entitled to seek a review by the Administrative Appeals Tribunal (“AAT”) of the delegate’s decision on its merits;

(2)    because the voyage the subject of the delegate’s decision has been completed, this proceeding is moot; if the Court were to grant relief to CSL in those circumstances, it would be giving an advisory opinion; and

(3)    in any case, for the same reason, the issues CSL raises in the present application are of no practical significance so that setting aside the delegate’s decision and remitting the matter to the Minister for determination according to law would be futile.

37    Before considering these submissions it is useful to say something more about the relevant provisions of the Coastal Trading Act that establish the process for granting a variation of a temporary licence.

38    Where, as here, the application concerns a proposal to vary the licence to include a matter not already authorised by it, the process for deciding the application is substantially the same as that which applies to an application for a temporary licence (s 53). Within two days of receiving the application, the Minister is required to cause to be published on the Department’s website a copy of the application (omitting information that is commercial in confidence or personal to an individual) (s 30). The Minister must also cause to be notified every holder of a general licence and any body or organisation who, or whose members, would be directly affected if the application were granted (s 30). The holder of a general licence may, within 2 business days after the day the application is published under s 30, give the Minister a written notice (“a notice in response”) (s 31). The notice in response must state:

(i)    all of the passengers specified in the application could be carried under the holder’s general licence; or

(ii)    all of a particular kind of cargo specified in the application could be carried under the holder’s general licence; or

(iii)    all of the passengers and all of a particular kind of cargo specified in the application could be carried under the holder’s general licence; or

(iv)     all of the passengers and all of the cargo specified in the application could be carried under the holder’s general licence; or

(v)    one or more voyages specified in the application could be undertaken under the holder’s general licence.

39    If subpara (i), (ii) or (iii) applies, the notice must also identify which passengers or cargo could be carried. If subpara (v) applies, it must also identify the voyage or voyages that could be so undertaken.

40    Once the Minister receives a notice or notices in response he must give a copy to the applicant (s 32). Within two business days of receiving a notice in response the applicant must undertake negotiations with each holder of a general licence and notify the Minister of the outcome of those negotiations (s 32). The negotiations must relate to 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 and whether those passengers or cargo can be carried “in a timely manner” (s 32(3)). In the case of an application relating to the carriage of cargo the negotiations must have regard to the requirements of the shipper (s 32(4)).

41    The Minister decides an application by granting or refusing it (s 34(1)). The Act provides in s 34(2) a list of the matters the Minister may consider. They include the object of the Act and any matter the Minister considers relevant. Section 34(3) details the matters the Minister must consider. They are the outcome of the negotiations, 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 and whether those passengers or cargo can be carried on the expected loading dates or within five days of it. In the case of an application relating to the carriage of the cargo, the mandatory considerations include the reasonable requirements of a shipper of the kind of cargo specified in the application (s 34(3)(d)).

42    The decision must be made within seven days after the application is made (s 54).

43    I infer that the purpose of these provisions is to give the holder of a general licence the opportunity to persuade the Minister that the application should be refused so that it might undertake the voyage instead.

44    Section 10(2)(b)(ii) of the ADJR Act confers a discretion on the Court to refuse to grant an application for review of a decision because “adequate provision” is made by another law under which the applicant is entitled to seek a review of the decision, whether by this or any court, tribunal, authority or person. “Review” is defined in subsection (3) to include “a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order”.

45    Section 107(5)(a) of the Coastal Trading Act provides that the holder of a general licence who gave the Minister a notice in response to an application for a variation of a temporary licence may apply to the AAT for review of a decision by the Minister to grant the application.

46    There is no dispute that s 107(5)(a) gave CSL a right to have the delegate’s decision reviewed on its merits in the AAT. Although the section refers to the holder of a general licence, it is common ground that the section applies to CSL as the holder a transitional general licence. In Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 (“Bragg”) at 33 Davies J explained:

The “review” that s 10(2)(b)(ii) contemplates should, as Burchett J described it in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 62, be a review involving “an independent exercise of powers directly affecting the decision reviewed”.

47    Plainly, the review for which the AAT Act allows answers this description.

48    The starting point, however, is that an applicant may rely upon all or any of the available remedies: Kelly v Coats (1981) 51 FLR 69 at 70 per Toohey J; [1981] FCA 58. Section 10(1) of the ADJR Act provides that the rights conferred by s 5 are “in addition to, and not in derogation of”, any other rights the person has to seek review, whether by the court, another court, or another tribunal, authority or person. Still, the Act expressly allows for the refusal of relief where adequate provision is made for review of the decision in another way. The question here is whether the entitlement to seek a review in the AAT is adequate. CSL submits that it is not.

49    In substance CSL’s argument is threefold. First, it points to the inability of the AAT to grant declaratory relief and the fact that appeals from the AAT are limited to questions of law. Secondly, it submits that, as the journey is over, there is every prospect that a review in the AAT would be dismissed as vexatious under s 42B of the AAT Act. Thirdly, it contends that the AAT would simply follow the decision of Robertson J. None of these points is persuasive.

50    While the AAT cannot make a declaration, it has very wide powers. It may stay administrative decisions to secure the effectiveness of the hearing and determination of the application for review: Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), s 41(2). It may exercise all the powers and discretions conferred by the relevant enactment on the decision-maker (s 43(1)). It may affirm, vary or set aside the decision under review or make a decision in substitution for it (s 43(1)). In the course of its decision it will give its interpretation of the law. The decision will bind the parties. It also has the power to receive evidence that was not before the Minister or his delegate. As the Minister points out, these powers are substantially broader than those conferred on the Court by the ADJR Act and s 39B(1) of the Judiciary Act. In neither case can the Court review the merits of the decision. The Court does not stand in the shoes of the Minister. In contrast, the AAT offers a forum in which all the matters the subject of the present application (and more) could be agitated. Like the Court, the AAT is obliged to give reasons for its decisions (s 43(2)). If requested to do so within a certain period of time, it must provide them in writing (s 43(2A). As with the Court, save in special circumstances hearings before the AAT are held in public (s 35). As in the Court, the parties may be legally represented (s 32). The tribunal is required to conduct its proceedings with as much expedition as the relevant legislation and a proper consideration of the matters before it permit (s 33). It is obliged to give the parties a reasonable opportunity to present their cases, inspect documents and make submissions on them (s 39). If CSL had applied to the AAT for a review of the decision and failed to persuade it of the merits of its argument, it could appeal to this Court. While it is true that the appeal would be limited to questions of law (AAT Act, s 44), that does not mean that the review is not adequate.

51    A provision for review may be adequate although it does not allow for every conceivable remedy. A review is adequate within the meaning of s 10(2)(b)(ii) of the ADJR Act if it is suitable or sufficient: Edelsten at 424. In Edelsten Northrop J held that review by the Medical Services Review Tribunal provided for by the Health Insurance Act 1973 (Cth) was such a review. A review in the AAT can certainly answer this description: McGowan v Migration Agents Registration Authority (2003) 129 FCR 118 (Branson J). The fact that the appeal rights from the two tribunals were limited to questions of law did not preclude either Northrop J or Branson J from deciding that a review was adequate. In my opinion, the fact that the AAT cannot grant declaratory relief is no impediment either.

52    A decision by the AAT would include a decision on questions raised by CSL’s originating application. It would also include a decision on the facts. The process of review would enable a full consideration of the relevance of Rio’s insistence on a liquidated damages clause, unconstrained by the limits of judicial review. A decision by the AAT would not only bind the parties but would doubtless affect the Minister’s approach in the future.

53    I am satisfied that the provision made in the Coastal Trading Act for review by the AAT is adequate within the meaning of s 10(2)(b)(ii) of the ADJR Act. It was both suitable and sufficient.

54    Of course, the fact that adequate provision is made for review does not mean that relief must be refused for this reason. Still, the general practice of the Court is not to consider a dispute for the resolution of which a satisfactory administrative remedy is available and it is generally desirable that the Court’s time not be taken up with resolving disputes for which the Parliament had established adequate administrative remedies: Bragg at 34 (Davies J). As Davies J remarked in that case (at 34), this Court is too busy and its processes too costly for its resources to be used where there is an informal and expeditious administrative tribunal established to resolve the dispute. That remark is as apt now as it was when it was made. I would add that review in the AAT is far less expensive than it is in this Court.

55    The legislature clearly intended that reviews of decisions made under the Coastal Trading Act be conducted in the AAT where costs are much lower and where there would be a full examination of the merits. This right of review was not available in analogous circumstances under the previous licensing regime established by the Navigation Act 1912 (Cth).

56    That CSL is now out of time to bring an application is beside the point. As I observed in ActewAGL v Australian Energy Regulator (2011) 195 FCR 142 at 183 [191] (see, too, Kimberley-Clark Ltd v Commissioner of Patents (1988) 15 ALD 740 per Jenkinson J), the discretion to refuse relief conferred by s 10(2)(b)(ii) does not rest on the fact that another proceeding is pending. Nor does it matter that the time in which to appeal has elapsed. CSL did not contend otherwise. It is enough that the person aggrieved by the decision could have applied to the AAT for review.

57    I accept CSL’s submission that it is probable, if not inevitable, that the AAT would follow Robertson J where there are common issues. But if CSL did not like the result, it could appeal.

58    The Full Court said in Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530 that in many, (if not most) circumstances, where the legislation regulating the subject-matter discloses a clear intention as to who should review an administrative decision, the Court’s proper response should not be to embark upon a full hearing but to exercise the discretion under s 10(2)(b)(ii) adversely to the applicant. In my view, this is a proper case in which to do so (cf. Darling Downs Bacon Co-Operative Association Ltd v Comptroller-General of Customs (1994) 50 FCR 435 at 442 per Moore J). Even if I am wrong in the conclusion I have reached, the Court has a residual discretion under s 16 of the ADJR Act to refuse relief (Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516 at 536 [87]) which, for the following reasons I would exercise.

59    The object of the judicial process is the final determination of the rights of the parties to an action: Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 at 356 [47]. What rights are affected by this proceeding now the voyage is over? Rio Tinto’s application was to vary its temporary licence to permit five particular voyages. All those voyages have now taken place. Consequently, as the Minister submitted, the subject matter of the proceeding has become moot.

60    In argument and notwithstanding the nature of the relief sought, CSL accepts that it would be futile to send the matter to the Minister or his delegate to re-determine the application for a second time. The delegate’s decision does not affect any future voyages or any future applications. CSL contends, however, that the case raises important questions of statutory interpretation, not all of which will be decided in the appeal from Robertson J. Yet in Bonan v Hadgkiss (2007) 160 FCR 29 (“Bonan”) and Hope Downs (Management Services Pty Ltd v Hammersley Iron Pty Ltd (2000) ATPR ¶41–733; [1999] FCA 1652 (“Hope Downs”), where the same point was raised in comparable circumstances, albeit on appeal, the courts permanently stayed the proceedings. In Hope Downs the Full Court was not persuaded by a submission that it should hear the appeal, which was otherwise moot, because it would resolve a “very important issue of statutory interpretation”. In Bonan the Full Court cited with approval the following remarks of Cooper J in Civil Aviation Safety Authority v Administrative Appeals Tribunal (2001) 33 AAR 439; [2001] FCA 1319 (an application for judicial review of a decision of the AAT to stay a suspension of the applicant’s pilot’s licence) at [17]. They have a particular resonance here.

What CASA seeks in par 2 of the relief sought is in the nature of an advisory opinion or a direction to the AAT as to how it shall, by its members in all future matters, exercise the discretion under s 41(2) of the AAT Act in a particular way in respect of any reviewable decision under the Act. As between CASA and the AAT, the declaration sought involves no declaration of a legal right in actual controversy which the declaration would confirm or modify and which remains capable in a real and genuine sense to be enjoyed: Beitseen v Johnson (1989) 29 IR 336 (FC) at 337 - 338. It is insufficient that CASA has a genuine interest in having the legal issues resolved for the benefit of its administration of the Act in future cases which may arise. Those issues will, in an appropriate case, be resolved in litigation where they are real and will have a practical effect in respect of a controversy.

61    For present purposes I will assume that CSL will continue to have dealings with Rio Tinto under the Coastal Trading Act and will make submissions to the Minister in the future about applications by temporary licence holders. The delegate’s decision in this case will not bind anyone in future cases, even those involving the same parties. Should the issues raised in this case arise again, CSL may put its arguments to the delegate. It may have more success on that occasion. It may not. If it does not, it can seek a review of the delegate’s decision in the AAT or, if it chooses, and subject to the discretion to grant relief, it may bring proceedings in this Court. In the present proceedings the issues raised in the application are essentially of academic interest.

62    CSL contended that there is “a real, practical utility” in granting the declaratory relief it has sought but I am unable to see it. CSL submitted that the approach taken by the Minister’s delegate frustrates the central objects of the Coastal Trading Act and there is a public interest in determining the issues thrown up by this case. In essence, CSL wishes its application to be heard to avoid a similar argument in the future. CSL asserted that it would risk disrupting trade and prejudicing the prompt administration of Australia’s coastal shipping regime to leave the questions to be ventilated in later proceedings. But save for the questions that will be agitated before the Full Court, the other questions may never arise again. If they do, there is every prospect that the Full Court’s decision on the matters of statutory construction raised in the appeal will have a bearing on how they should be answered. In any event, future conflicts between CSL and Rio Tinto or other general licence holders and temporary licence holders are likely to raise other issues. In my opinion, whatever public interest there may be in resolving the questions raised by the originating application is outweighed by the public interests to which s 37M of the FCA are directed. Moreover, as I observed earlier, the purpose of giving general licence holders an opportunity to be heard on an application to vary a temporary licence is to give them a chance to conduct the voyages to be covered by the licence. For the Court to go on to consider CSL’s application would not serve that purpose.

63    In this case, to deny relief would have no significant practical consequence for CSL. Sure, in respect of the issues that are unique to this proceeding it will not have a chance to see its view of the law endorsed. But that time may come in an appropriate case where there are rights to be vindicated. There is no suggestion here that the delegate’s decision and, in particular, her interpretation of the law which is under challenge, has harmed, will or could harm CSL’s business or commercial reputation (contra Ainsworth v Criminal Commission (1992) 175 CLR 564).

64    CSL submitted that that the Minister’s complaint about utility might have had much greater force in the AAT, noting that proceedings become vexatious when circumstances change so that no legitimate purpose can be achieved by continuing with them: see e.g. Fearnley v Australian Fishing Management Authority [2006] FCAFC 3 at [17]-[19] (Finn and Sunberg JJ), [97] (Emmett J).

65    In Re Williams and Australian Electoral Commission and The Greens (1995) 38 ALD 366, the tribunal accepted that the applicant had an interest which was affected by the disputed decision but took the view that the interest related to a possible future event. As the possibility of that event occurring had ceased to exist by the time of the hearing, the tribunal dismissed the proceeding under s 42B of the AAT Act. In Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 569 [69] the Full Court (Black CJ, Hill, Sundberg, Marshall and Kenny JJ) held that if after an application is filed there is a change of circumstances that removes from an applicant the interest he initially had in the proceedings, his application should be dismissed.

66    CSL submitted that had it applied for review in the AAT its application would have been liable to be dismissed as vexatious after the relevant voyage had been performed. The submission assumes, however, that the application would not have proceeded to conclusion before the voyage was complete. The impugned decision was made on 14 December 2012. Reasons were provided on request on 3 January 2013. CSL could have asked the AAT for an urgent hearing. Alternatively, CSL could have asked the AAT to stay the operation or implementation of the decision pending the hearing. Had the AAT granted a stay or heard and determined the matter promptly, the voyage would not have taken place and the question of the utility of the proceeding would not have arisen. If a stay had not been granted, then the AAT might have dismissed the proceeding as vexatious. It might not. But the issue then would be no different from the utility argument levelled against CSL now.

67    Robertson J declined to exercise his discretion to refuse relief: CSL (No 3) at [154]. Understandably, CSL relied on his decision in this respect. For the most part, however, the reasons his Honour gave are inapplicable here.

68    First, his Honour noted that the originating process sought urgent interlocutory relief in relation to an imminent voyage. In the present case the originating process did not seek urgent interlocutory relief and by the time it was filed loading of the cargo was already well under way.

69    Secondly, his Honour said that the proceedings involved questions of law as to the construction of the Act where there has been no earlier judicial consideration. Now, as a result of his Honour’s judgment, there has been judicial consideration and soon those questions will be considered by the Full Court. Their resolution will largely dispose of most of the legal issues raised in the present proceeding.

70    Thirdly, his Honour said that the early final hearing made it impossible to identify separate questions of law appropriate for resolution in this Court while leaving other questions for determination by the AAT. That is not the position here and, to the extent that the present application raises additional issues, they are largely dependent on the facts.

71    Fourthly, his Honour said that in relation to the first voyage, which was over by the time of the hearing, it was difficult to see what relief the AAT could grant. While this might also be said of the present case, as the Minister pointed out his Honour’s observation was made in the context of a finding that the delegate had denied CSL procedural fairness, a complaint not made in the present proceeding.

72    I do not overlook the fact that the appeal is pending and that similar issues will be raised in that case but that, it seems to me, does not advance CSL’s position.

73    For the same reasons, even if the delegate’s decision was infected by jurisdictional error, I would refuse relief under s 39B(1) of the Judiciary Act. Constitutional writs may be denied if there is “a more convenient and satisfactory remedy” or “if no useful result could ensue”: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400. More recently, the availability of another remedy was described as “a compelling discretionary bar” to the grant of relief of the kind for which s 39B(1) provides: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1093; [2003] HCA 26 at [33] (Gummow and Callinan JJ).

Should the originating application be dismissed?

74    The final question is whether the application should be dismissed. In the light of my conclusions on the first preliminary question, this is the only proper course.

The alternative application

75    In the circumstances, it is unnecessary to deal with the Minister’s alternative application for summary dismissal for abuse of process. I would observe, however, it is not without merit. As French J remarked in Orison Pty Ltd v Strategic Minerals Corporation NL (1988) 81 ALR 183 at 189:

There is … much force in the argument that the court ought not dispose summarily of a proceeding on considerations which are in essence discretionary. Where, however, a court, acting on the assumption that all facts alleged by the applicant are found, can see no proper basis upon which it would exercise its discretion in favour of the applicant to grant the relief sought, it would, in my opinion, be an abuse of process to allow the hearing to proceed.

CSL’s interlocutory application

76    It follows from my decision to dismiss the proceeding that CSL’s interlocutory application should also be dismissed.

Associate:

Dated:    1 March 2013