FEDERAL COURT OF AUSTRALIA

Mentink v Registrar of the Australian Register of Ships [2014] FCA 1138

THE COURT ORDERS THAT:

1.    Pursuant to r 36.05 of the Federal Court Rules 2011, the time for the applicant to file a notice of appeal from the judgments of the Supreme Court of Queensland (Peter Lyons J) delivered on 30 November 2012 and 20 June 2013 is extended to 8 November 2014.

2.    The respondent’s interlocutory application filed on 21 February 2014 is dismissed.

3.    The costs of the applicant’s application for an extension of time are reserved for determination upon the determination by the Full Court of the appeal in respect of which an extension of time is granted by Order 1 of these orders.

4.    In the event that the applicant fails to file a notice of appeal within the time limited by Order 1 of these orders, the applicant pay the respondent’s costs of the applicant’s application for an extension of time.

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

REASONS FOR JUDGMENT

Statutory Background

1    Subject to the particular matter mentioned at [18], the following statutory arrangements should be noted at the outset. The Shipping Registration Act 1981 (Cth) (the “Act”) provides by s 12, subject to Part II of the Act, that every Australian-owned ship shall be registered under the Act, unless exempt by operation of s 13 of the Act. Australian-owned ships may be registered in the Australian General Shipping Register (the “General Register”) under s 14 of the Act or in the Australian International Shipping Register (the “International Register”) under s 15B of the Act.

2    By s 8(1)(a) of the Act, a reference to an Australian-owned ship shall be read as a reference to a ship that is owned by an Australian national or Australian nationals and by no other person. A ship registered under the Act shall, for all purposes, be taken to be an Australian ship and to have Australian nationality: s 29(1).

3    An Australian national means (among other things) an Australian citizen: s 3(1).

4    The Registrar of Ships is responsible for the maintenance of both Registers and, for that purpose, is responsible for receiving and recording all information and documents required or permitted to be lodged with the Registrar under the Act and granting, issuing, varying or revoking such certificates of registration (among other documents) as are required or permitted to be granted or issued under the Act: s 49(1).

5    A person registered as the owner of a ship has power, absolutely, subject to the Act and to any rights and powers appearing in the Register to be vested in any other person, to dispose of the ship and to give effectual receipts in respect of the disposal: s 45. Notice of a trust, whether express or implied or constructive, shall not be entered in the Register: s 46. Subject to ss 45 and 46, beneficial interests may be enforced against the owner of a ship: s 47.

6    Subject to s 37 of the Act, a ship shall be transferred by a bill of sale made in accordance with the Regulations: s 36(1).

7    By s 36(2), where a ship is so transferred, the bill of sale and a declaration of transfer made by the transferee shall be lodged by the transferee with the Registrar within the prescribed period.

8    Section 37 provides, put simply, that where a ship is transmitted to a person by any lawful means other than by a transfer under s 36, a declaration of transmission made by that person under s 37(2) together with evidence of transmission, as prescribed, shall be lodged by that person with the Registrar within the prescribed period: s 37(1) and (2). As soon as practicable after such lodgement, the Registrar shall enter the name of that person in the relevant Register as the owner: s 37(1A). Section 37 is essentially concerned with transmission by death or a court order.

9    Section 58 of the Act deals with the topic of obsolete or incorrect entries in the General Register or the International Register.

10    That section provides that where in relation to a particular ship registered in either Register, no entry or amendment of an entry has been made in the relevant Register for a prescribed period (being 30 days: reg 29 of the Shipping Registration Regulations 1981 (Cth) made under the Act), and the Registrar has reason to suspect that any particulars entered in the Register concerning a ship are incorrect, or any notice, information or document in relation to which an entry in the Register is required by the Act to be made has not been lodged with the Registrar within the relevant period in relation to a registered ship, the Registrar may, by notice in writing served on the registered agent or any owner of the ship, require him or her to furnish to the Registrar, within a specified period after service of the notice, such information and documents relating to the ship as are specified in the notice.

11    Section 66 of the Act is concerned with the topic of steps to be taken when a ship registered in either Register under the Act is lost or ceases to be entitled to be registered.

12    If a ship is lost, taken by an enemy, burnt or broken up or (relevantly) ceases to be entitled to be registered in the relevant Register (see s 66(1)(a) as to these events), and the registered owner knows of the event in question (see s 66(1)(b) as to knowledge), then the registered owner must give the Registrar notice in writing of the event.

13    Section 66(1A) provides that s 66(1) does not apply if written notice has been given to the Registrar which presumably means written notice of the event in question rather than written notice of the conjunction of the event and the registered owner’s knowledge of it. Where the Registrar receives a written notice under s 66(1) (being the registered owner’s written notice under that subsection), s 66(2) provides that the Registrar shall make an entry in the Register of the event to which the notice relates. Where an entry has been made in the relevant Register under s 66(2) of that event, and the entry is in respect of a ship that has ceased to be entitled to be registered in the relevant Register, the “registration of the ship shall, subject to this section, be deemed to be closed”: s 66(3)(b). If the registration of a ship is closed under the Act, the ship ceases to be registered: s 3A.

14    Section 59 provides for the rectification of each Register.

15    If an entry is omitted from the General Register, made without sufficient cause in the General Register, wrongly exists in that Register or there is an error or defect in an entry in the General Register, a person aggrieved may apply to the Supreme Court of Queensland for rectification of the Register, and the Court may make such order as it thinks fit directing the rectification of the General Register: s 59(1).

16    In such a proceeding, the Court may decide any question that is necessary or expedient to be decided in connection with rectification of the General Register: s 59(3). Notice of an application under s 59 by a person aggrieved shall be served on the Registrar who may appear and be heard, and shall appear if so directed by the Court: s 59(4).

17    Although s 59 of the Act confers a power upon the Court to make any order it thinks fit directing rectification, jurisdiction is conferred upon the Supreme Court of Queensland by s 81 of the Act. Jurisdiction in respect of rectification matters is also conferred upon the Federal Court of Australia by s 39B(1A)(c) of the Judiciary Act 1903 (Cth).

18    By s 82 of the Act, an appeal from an order of the Supreme Court of Queensland made in exercise of the jurisdiction and powers conferred under s 59 of the Act, lies to the Federal Court of Australia. The further matter referred to at [1] of these reasons is this. The provisions of the Act just described include provisions relating to the establishment of the International Register which were introduced into the Act by the Shipping Registration Amendment (Australian International Shipping Register) Act 2012 (Cth) (the “2012 Amending Act”). The 2012 Amending Act commenced on 1 July 2012 and established the General Register and the International Register. Prior to that, the Act simply referred to a “Register” of ships. This application for an extension of time to file a notice of appeal from particular orders of the Supreme Court of Queensland is concerned with an entry made by the Registrar in the Register on 11 August 2004 as it existed prior to the commencement of the 2012 Amending Act. Apart from amendments made to the Act so as to apply the earlier substantive provisions to the General Register and the International Register (in operation after the commencement of the 2012 Amending Act), there were no changes to the substantive provisions, relevant to the present proceedings, such as, ss 3, 8, 13, 29, 49, 59, 66, 77, 81 and 82 (among others) discussed in these reasons. The arrangements in relation to the International Register and the General Register were in operation when orders were made by the Supreme Court on 12 November 2012 and 20 June 2013 described later in these reasons. However, subject to what is said later in these reasons, the 2012 Amending Act does not alter the application and operation of the substantive provisions so far as they relate to the legality of the entry made by the Registrar in the Register on 11 August 2004.

The procedural background

19    In 2004, the Register recorded the applicant, Mr Mentink, as the owner of a vessel described as the Larus II. The Registrar removed the vessel from the Register in reliance upon certain information provided to the Registrar relating to the contended purchase of the vessel by a resident of the United Kingdom. It will be necessary to examine some aspects of those events in further detail.

20    Mr Mentink applied to the Supreme Court of Queensland for an order under s 59 of the Act for rectification of the Register and for declaratory relief. Two judgments were pronounced by the Supreme Court (together with relevant orders) in relation to that relief. The first judgment was delivered on 30 November 2012 and on that day the Court made an order refusing Mr Mentink’s application for rectification under s 59 of the Act. As to a range of declaratory orders sought by Mr Mentink in that proceeding (five in all), the Court elected to invite the parties, in light of the published reasons in support of the refusal of the rectification application, to make further submissions concerning the declarations: Mentink v Registrar of the Australian Register of Ships (2012) 277 FLR 248, Peter Lyons J.

21    The second judgment was delivered by Peter Lyons J on 20 June 2013 and on that day the Court made a declaration that the Registrar was not authorised by the Act to make an entry in the Register under s 66 of the Act that had the effect of closing Mr Mentink’s registration as owner of the ship.

22    The declaration is in these terms:

1.    Declare that the respondent [Registrar of the Australian Register of Ships], not having received a notice under s 66(1) of the Shipping Registration Act 1981 (Cth) from the registered owner, but from some other person, was not authorized by s 66 of that Act to make an entry in the register resulting in closure of the registration of Larus II.

23    The Registrar had purported to act under s 66(2) of the Act having regard to information given to him by a particular person other than the registered owner of the ship. Although the entry by the Registrar had been wrongly made, the Supreme Court refused to make any other declarations: Mentink v Registrar of the Australian Register of Ships (No 2) (2013) 277 FLR 261.

24    Mr Mentink seeks to appeal to this Court from the orders made on 30 November 2012 and 20 June 2013 of the Supreme Court (apart from the declaration made on 20 June 2013). In order to do so, Mr Mentink has made the present application under rr 36.03 and 36.05 of the Federal Court Rules 2011 for an extension of time for the filing of a notice of appeal. These proceedings are concerned with that application.

25    Rule 36.03 required a notice of appeal to be filed from the judgment of 30 November 2012 by 21 December 2012, and by 11 July 2013 from the judgment of 20 June 2013. Mr Mentink’s application for an extension of time was filed on 2 September 2013 approximately nine months in one case, and 53 days in another, after the dates by which notices of appeal ought to have been filed.

26    Mr Mentink says that it was not until the judgment of 20 June 2013 was pronounced that all relief sought in the proceeding was finally addressed. He says that although the first judgment addressed the claim for rectification under s 59 of the Act, five declarations were sought and the primary Judge invited further submissions from the parties as to any further orders that ought to be made (if any) in light of the reasons published on 30 November 2012 in dismissing the rectification application. Mr Mentink as a litigant appearing in person before the Supreme Court of Queensland says that he proceeded upon the basis that it was either sensible, proper or appropriate to obtain final orders concerning the entire bundle of relief sought in the principal proceeding before filing a notice of appeal from any judgment or orders in any part of the proceeding. In any event, of course, Mr Mentink failed to file a notice of appeal within 21 days of 20 June 2013 in respect of all of the orders made in the proceeding. Even on such an aggregated basis, the time for filing a notice of appeal expired on 11 July 2013, with the application for an extension of time filed on 2 September 2013, 53 days later.

27    The first judgment (and Orders 1 and 2) of the primary Judge published on 30 November 2012 dispositively deals in a final sense with the application for rectification.

28    Although I will return later in these reasons to the question of whether there is a proper explanation for the delay in filing a notice of appeal, let it be assumed for present purposes that the failure to file a notice of appeal within time is sufficiently explained. It is sufficient to note for present purposes on the question of an explanation for the delay that some of the general guiding factors to be considered (although these factors ought not be understood in any sense as atrophying the scope of the exercise of the discretion conditioned, as it must be, by all of the relevant circumstances of the case) are these: prima facie the appeal ought to have been commenced within time; steps taken by Mr Mentink in waiting for the second judgment and then steps taken during the period up to the date of filing an application for an extension of time are to be considered; prejudice to the respondent is to be considered; and so too is the position in relation to third parties. These considerations reflect factors identified by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. See also Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 97 per French J.

29    The second question that arises is whether the applicant has demonstrated an arguable question of sufficient prospects of success on appeal so as to warrant the grant of an extension of time to enable the proposed notice of appeal to be filed.

30    It is important to note that in this application the respondent contends that Mr Mentink, in effect, has no serious prospects of appeal at all and that any appeal would be doomed to fail. The present application is, of course, an interlocutory application. In reviewing the merits of the proposed appeals for the purposes of this application, it is not appropriate to conduct an exhaustive examination of the merits. Plainly, examining the merits must be approached with some caution in the context of an application for an extension of time. However, the observations of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480 to this effect should be noted: “When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal” (citing Burns v Grigg [1967] VR 871 at 872; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 263-4; Mitchelson v Mitchelson (1979) 37 FLR 289 at 291). In the ordinary course, in determining whether the applicant has arguable, or reasonably arguable, prospects of success in any proposed appeal, it is probably enough to form a view as to whether Mr Mentink has what French J has described as a “finite non-trivial probability” of success: Seiler at 98.

31    French J also observed in Seiler at 98 that it would be difficult to imagine any case which “appeared weak but not hopeless in which it would be proper to refuse an extension on that account” [emphasis added]. The respondent in this case says that by reason of the authorities on questions relevant to the merits, Mr Mentink’s proposed appeal, should an extension be given, is bound to fail. In those circumstances, it is necessary to examine the state of the law on questions going to the merits to determine whether the proposed appeal would be hopeless or bound to fail or whether Mr Mentink has demonstrated at least a finite non-trivial probability of success in any appeal. It is also important to recall French J’s further observation in Seiler at 98 concerning the weighing exercise on applications such as this: “So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it” [emphasis added].

32    See also Hamden v Secretary, Department of Human Services (2013) 59 AAR 108 per Besanko J at [40].

The judgments pronounced in the Supreme Court of Queensland

33    The background facts examined by the primary Judge in the course of the first judgment resulting in dismissal of Mr Mentink’s application for rectification are these.

34    Prior to 11 August 2004, Mr Mentink was the registered owner of the Larus II under the Act.

35    The primary Judge observes at [5] of the first judgment (and all references are to the primary Judge’s first judgment unless otherwise mentioned) that on 6 August 2004 Mr Lee Thackray sent a facsimile to the Registrar asserting these things: he had purchased the Larus II on 30 August 2003 from Mr Mentink; the vessel was to be delivered to Mr Thackray in Bali, Indonesia, but Mr Mentink had been deported to Australia having been accused of particular crimes and of making false declarations; Mr Thackray had travelled to Dili, East Timor, where he had found the Larus II in the harbour; Mr Mentink had failed to inform the “department” responsible for the administration of the Registrar’s activities under the Act, of the change in ownership of the vessel; Mr Thackray held the original Certificate of Registration under the Act on the terms of a particular arrangement with Mr Mentink; and, East Timor authorities would not allow Mr Thackray to depart until the matter of ownership was resolved.

36    The primary Judge also notes at [5] that in the facsimile Mr Thackray said that he had completed a British registration certificate for the vessel and that the vessel was currently being “transfused” [transferred] on to the English Register of Ships. Mr Thackray also said that he had met with Mr Giddings at the Australian Embassy in East Timor about the matter and had sought assistance from the Australian Federal Police. The primary Judge notes that Mr Thackray attached a number of documents to the facsimile which the primary Judge described as a sale receipt and another document called a handing over epistle. The primary Judge at [6] describes the sale receipt in this way:

The sale receipt is not fully decipherable. It appears to be dated 30 August 2003; and records that the applicant stated that the Larus II was sold to Mr Thackray of East Lodge, Great Saling, Essex, England, for the sum of $5,800 on the date on the receipt; and that it was to be handed over to the [sic] Mr Thackray on 30 June 2004 in Sanur, Bali, “at the request of Mr Thackray”. Mr Thackray signed the document as the “new owner”; and a signature which purports to be that of the applicant appears as the “previous owner”.

37    At [8], the primary Judge observes that on 9 August 2004 (mistakenly described in the reasons as 9 August 2009) the then Registrar sent an email to Mr Thackray (in response to the facsimile of 6 August 2004 (mistakenly described in the reasons as 6 August 2009)) saying that since Mr Thackray was not an Australian national, the Larus II ceased to be entitled to be registered on the Australian Register under the Act. The primary Judge notes at [10] that on 11 August 2004, Mr Thackray sent a fax to the Registrar agreeing to surrender the Australian Certificate of Registration for the Larus II to Australian Embassy authorities in East Timor when confirmation of the termination of the Australian registration had been received by Mr Thackray. Mr Thackray’s fax to the Registrar attached a copy of the Certificate of Registration for the Larus II and the primary Judge notes at [11] that on the second page where Mr Mentink was recorded as the registered agent, owner and master of the vessel, Mr Thackray’s name and address had been added by hand. The date 30 August 2003 had also been entered by hand with a signature that appeared to be that of Mr Thackray.

38    At [12], the primary Judge observes that closure of the registration of the Larus II was recorded on the Australian Register under the Act on 11 August 2004. The document at p 50 of Mr Mentink’s affidavit of 7 March 2004 shows an entry in the Register at 4.14pm on 11 August 2004 of closure of the registration. The non-Australian buyer is described as: Mr Lee Thackray, The East Lodge, GT Skiling (although the word is unclear in the document), Essex, CM7 5DP, England.

39    Mr Mentink was given notice of the closure on 5 October 2004.

40    Mr Mentink protested the closure of the registration to the Australian Registrar and a range of other Australian authorities, and asserted that the vessel had been stolen and that the sale receipt was entirely fraudulent.

41    In May 2007, Mr Mentink located the vessel in a small concealed cove near Kupang, Indonesia. He inspected the vessel on 18 July 2007 at Semau Island, Indonesia. Between May 2007 and the end of July 2007, Mr Mentink sought to persuade the Registrar that he remained the owner of the vessel having regard to (among other things) Mr Thackray’s failure to surrender the Australian Certificate of Registration and the circumstance that Mr Mentink was unable to find any entry on the British Register of Ships in the name of “Lee Thackray”: see [22] to [24] of the primary Judge’s reasons.

42    At [25], the primary Judge observes that in July or August 2007, Mr Mentink became aware that Mr Robert Arrand had purchased the vessel. In August 2007, Mr Mentink spoke with Mr Arrand. In exchanges between Mr Arrand and Mr Mentink, Mr Arrand said that he had been told by the Registrar’s officers that Mr Mentink had sold the vessel to Mr Thackray. Mr Arrand refused to identify from whom he had purchased the vessel.

43    At “WM48”, Mr Mentink annexes a number of documents he has obtained from United States authorities concerning Mr Arrand’s registration of the vessel. In Mr Arrand’s declaration to United States authorities of 30 July 2008 (at p 167 of Mr Mentink’s 7 March 2014 affidavit) in support of an application for United States registration of the ship, he said that he had purchased the Larus II from Mr Adrianus Adu, an Indonesian national, in August 2007.

44    In 2009, Mr Mentink commenced proceedings in the Federal Court in which he sought (among other claims for relief) an order for rectification of the Register by restoring him to the Register as owner of the Larus II. At [26], the primary Judge observes that the respondents to Mr Mentink’s rectification application were, in addition to the Registrar, the Commissioner of the Australian Federal Police and the Director of Consular Operations, Department of Foreign Affairs. An order for security for costs was made by Rares J on the application of those respondents. At [26], the primary Judge observes that Rares J expressed the view that since Mr Mentink’s statement of claim alleged that Mr Arrand had possession of the Larus II and claimed ownership of it, there was almost no prospect that Mr Mentink would be able to succeed in obtaining an order for rectification of the Register as the effect of such an order would be to deny the rights of Mr Arrand as a third party who had not been joined in the proceedings.

45    At [27], the primary Judge notes that Mr Mentink was unable to comply with the order for security for costs and was unable to secure any further responses from Mr Arrand.

46    The primary Judge concluded that the entry made by the Registrar on 11 August 2004 of closure of the registration of the Larus II in the Australian Register was not authorised by s 66(2) of the Act as that subsection is only enlivened when the Registrar receives a written notice from the registered owner of the vessel under s 66(1). Since the Registrar had not received written notice from Mr Mentink and had acted upon information submitted by Mr Thackray, a third party, the written notice of relevant events had not been received by the Registrar under s 66(1) of the Act from the registered owner.

47    Moreover, the primary Judge was unwilling to construe s 66(2) of the Act in such a way (in a contended purposive way) that the words “or under subsection (1A)” ought to be added to s 66(2) after the words “subsection (1)” with the result that s 66(2) would then read:

Where the Registrar receives a notice under subsection (1) or under subsection (1A) relating to a ship, he or she shall make an entry in the relevant register of the event to which the notice relates.

48    If s 66(1) did not apply at all because Mr Thackray had given notice of the relevant event contemplated by s 66(1)(iv), that is, the Larus II ceased to be entitled to be registered in the Australian Register, rather than written notice from the registered owner, then the pre-condition to the exercise of the s 66(2) power had not arisen in any event.

49    Although the primary Judge found that the Registrar acted without statutory authority on 11 August 2004 in making the relevant entry effecting closure of registration under s 66(3)(b) of the Act, the primary Judge also concluded at [53] that if the rectification orders sought by Mr Mentink under s 59 were made, those orders:

… could have a significant effect on any other person claiming the ownership of the Larus II on the basis of title said to be derived ultimately from Mr Thackray.

50    At [54], the primary Judge said this:

Courts have regularly refused to grant a declaration inconsistent with a status or right which might be asserted by someone who is not a party to the proceedings, even in cases where that person might not technically be bound by the declaration. While s 59 of [the Act] identifies only the respondent as a person to be served with notice of an application made under its provisions, it seems to me that there is no reason to think that this was intended to identify exhaustively the necessary parties. Nor does there seem to me to be good reason not to apply the principles that have been adopted in relation to the granting of declaratory relief; and, at least on one occasion, in relation to an application under s 59 [footnote references omitted].

51    Having regard to the primary Judge’s observations at [53] and [54], the primary Judge refused to grant relief under s 59 of the Act and made an order refusing Mr Mentink’s application for rectification.

52    At [57], the primary Judge said this:

I propose to invite submissions from the parties whether, in light [of] these reasons, any declaratory relief sought by the applicant should be granted.

53    In the proceeding before the Supreme Court of Queensland, Mr Mentink sought five declarations.

54    Put simply, they were these: First, a declaration that the Registrar was not authorised by the Act (or the Regulations) to invite and receive from anyone other than the registered owner of the ship an application to close the registration; second, a declaration that the Registrar was not authorised by s 66 of the Act to make an entry on notice from a foreign buyer in the Register closing registration of the ship; third, a declaration that on 11 August 2004 the Registrar could not reasonably decide that the requirements of the Act had been satisfied so as to conclude that title to the ship had passed to Mr Thackray; fourth, a declaration that the Registrar was bound by s 58 of the Act to give Mr Mentink notice of the contended sale to Mr Thackray (although it should be noted that the fourth declaration is framed oddly and seems to be incomplete); and fifth, a declaration that the entry by the Registrar in the Register on 11 August 2004 was made without sufficient cause.

55    The only declaration the primary Judge made on 20 June 2013 after hearing argument on the question was the declaration set out at [22] of these reasons. That declaration was made on the footing that it served the purpose of explaining the basis upon which the Registrar’s entry in the Register on 11 August 2004 lacked the authority of the Act. Of course, the declaration was not made as explanatory of an operative order in the sense that a declaration as to a contravention of an Act, for example, is often made so as to explain the basis upon which a pecuniary penalty might be imposed in respect of that contravention. In Mr Mentink’s proceedings, the operative order was the refusal of the rectification application.

56    A large part of the primary Judge’s second judgment published on 20 June 2013 is concerned with the question of whether Mr Mentink’s application for declaratory relief ought to be characterised as an application for review of the Registrar’s administrative decision to make the entry in the Register on 11 August 2004 as declaratory claims sought “separately and apart” from the s 59 rectification application on the one hand, or whether Mr Mentink’s application was properly understood as an application for s 59 rectification in the exercise of the Supreme Court’s s 81 jurisdiction by making (or not) any one or more of the declarations sought in the proceeding, on the other hand.

57    If the declaratory claims were to be regarded as claims truly separate from the rectification claim, the question then to be addressed was whether the Supreme Court of Queensland’s jurisdiction was excluded by operation of s 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”) having regard to s 39(2) of the Judiciary Act 1903 (Cth).

58    It is not necessary in these reasons to comment upon the primary Judge’s conclusions on these questions or the reasoning related to them. Nor is it necessary to affirm or respectfully depart from any aspect of that reasoning. It is simply enough to observe that the primary Judge found that the decision of the Registrar to make the entry in the Register on 11 August 2004 was not (taking the phrase as a composite expression as the authorities require) a decision of an administrative character made under an enactment for the purposes of the ADJR Act. That conclusion was reached having regard particularly to Griffith University v Tang (2005) 221 CLR 99 at [59] and [60] and Federal Court authorities on that topic.

59    Thus, the ADJR Act was found not to apply to the Registrar’s making of the entry in the Register on 11 August 2004 and, in consequence, s 9 of that Act did not operate to exclude the jurisdiction of the Supreme Court of Queensland to make a declaration relating to the making of the entry by the Registrar under s 66 of the Act (or embark upon an exercise of jurisdiction to examine whether or not to make a declaration recognising Lord Diplock’s observation in Rediffusion (Hong Kong) Ltd v A-G (Hong Kong) [1970] AC 1136 at 1155 that the “application of a discretion to refuse relief even though this may be pursuant to a settled practice is an exercise of jurisdiction, not a denial of it”).

60    At [28] of the second judgment, the primary Judge made these observations in relation to the scope of s 59 of the Act:

In my view, s 59 of the [Act] both grants a power (to direct rectification of the register) and confers jurisdiction (to decide any question that it is necessary or expedient to decide in connection with the rectification of the register). The conferral of jurisdiction, it seems to me, is broader than is necessary simply to determine whether the register should be rectified. It extends to deciding any question, necessary or expedient to decide, in connection with rectification. It seems to me that it is arguable that this court is thereby authorised to exercise such powers as it might have, necessary to decide such questions. A declaration would be the exercise of an appropriate power pursuant to that jurisdiction.

                                [emphasis added]

61    As to the five declarations described at [54] of these reasons, the primary Judge refused to make Declarations 1, 3, 4 and 5. As to Declaration 4, the primary Judge found that the applicant had failed to identify any reason for the proposition that s 58 of the Act imposed an obligation upon the Registrar reflected in that declaration. As to Declarations 1, 3 and 5, the primary Judge observed that Mr Mentink had not suggested or asserted that if the matters the subject of the proposed declarations reflected the fact, the closure of the registration of the Larus II would have been beyond power. The primary Judge also observed that the exception to that proposition was Declaration 2, namely, that the entry by the Registrar had been made without sufficient authority because the Registrar had not received a written notice under s 66(1) of the Act.

62    The primary Judge also noted at [41] that Mr Mentink’s submissions acknowledged, as to Declarations 1, 3 and 5, that “some further fact finding would be required before these declarations could be made”.

63    In the result, the primary Judge was unwilling to make Declarations 1, 3, 4 and 5 but was willing to make Declaration 2 in the terms quoted at [22] of these reasons.

The questions sought to be agitated on an appeal

64    Obviously enough, Mr Mentink does not seek to appeal from the declaration made on 20 June 2013. He does, however, seek to appeal from the refusal of the rectification application on 30 November 2012 and the refusal on 20 June 2013 to grant other declaratory relief.

65    The grounds he would seek to agitate on appeal are these.

66    First, Mr Mentink says that as the entry on 11 August 2004 was found to be not authorised by s 66 of the Act and was thus “wrongly made”, that circumstance alone constitutes a sufficient ground for making an order for rectification of the Register by removing the wrongly made entry. By not making a rectification order to expunge the unauthorised entry and reinstate him to the Register as registered owner of the vessel, the Supreme Court of Queensland permitted, he says, “the error” to remain on the Register thus undermining the “integrity of the Register”.

67    Second, Mr Mentink says that in refusing to rectify the Register, the primary Judge failed to recognise that were the Register to be rectified so as to reinstate Mr Mentink, he would then be subject to the Act and obligations placed upon him by the Act. He says that the Registrar would have been entitled to act under s 58 of the Act by calling upon Mr Mentink to produce documents. Moreover, he says that the Registrar would have been entitled to seek a rectification order in reliance upon the declaration that the entry on 11 August 2004 was made without authority.

68    Third, Mr Mentink says that he sought rectification to correct an error made by the Registrar leading to an entry being wrongly made in the Register and therefore the only relevant conduct in issue is the conduct of the Registrar. Thus, it is neither necessary nor just, he says, to refuse the rectification application on the footing that neither Mr Thackray nor Mr Arrand were joined as respondents nor heard on the rectification application.

69    Finally, Mr Mentink contends that the primary Judge failed to have proper regard to s 58 of the Act and contends that the appeal raises important questions of construction of s 58 in the context of the Act generally.

70    Mr Mentink’s principal contention, however, is, put simply, that as owner of the Larus II he became registered under the Act as the registered owner of the ship and once registered, he enjoyed by operation of s 45 of the Act the statutory power, absolutely, to dispose of the ship and give an effectual receipt of any such disposal, subject to any “rights and powers” appearing in the Register to be “vested” in any other person. There were no other rights and powers appearing in the Register vested in any person other than Mr Mentink. The primary Judge found at [5] of the first judgment that Mr Thackray, by his facsimile to the Registrar, contended that Mr Mentink had made a disposal of the ship. Oddly enough, rather than engage with the registered owner of the ship in the face of that contention, the Registrar elected to act on Mr Thackray’s information and made an entry in the Register, so the primary Judge found, foreclosing registration of the ship on the footing that it had ceased to be entitled to be registered.

71    The primary Judge found (and declared) that in doing so the Registrar acted without authority and beyond power.

72    Mr Mentink contends that Mr Thackray’s intervention was entirely fraudulent and, had the Registrar not acted unilaterally and beyond power, Mr Thackray would have had to establish before a Court his right of ownership under the contended sale contract. That claim would have been contested by Mr Mentink. Mr Mentink says that had he lost that matter and had appropriate orders then been made as to ownership of the ship, the Registrar would have been entitled to exercise under and in accordance with the Act such statutory powers as might properly arise. Until then, however, the Registrar was not entitled to act in derogation of the ship’s registration which had reflected Mr Mentink’s position as both owner and registered owner of the ship. Mr Mentink’s proposition which he would wish to agitate on appeal is that as registered owner, the Act confers “paramountcy of title” upon him and such title is either an indefeasible title, subject to the proper exercise of the Registrar’s statutory powers under the Act, or sufficiently akin to an indefeasible title that the ship never ceased to be entitled to registration; he never ceased to be the owner of the ship; and, he never ceased to be entitled to be the registered owner of the ship.

73    Mr Mentink contends that irrespective of what may have happened as between Mr Thackray and Mr Adu and then Mr Arrand concerning dealings in the ship in various parts of the world, at least as between Mr Mentink and the Registrar in respect of the illegality of the Registrar’s conduct concerning an Australian-owned and registered ship, the Register ought to be restored to its correct and accurate position prior to the Registrar’s unlawful entry.

74    Mr Mentink says that if the Register is not to be rectified to correct the error (either by order or an order coupled with an explanatory declaration) because doing so would affect or potentially affect the rights of persons who are not before the Court and thus not heard, he is then placed in a seemingly impossible position. That position is one where he would be required to bring a rectification application to correct the Registrar’s unilateral administrative act beyond power so that he might protect registration of the ship as owner (rather than being able to rely on the protective position of registration itself under the Act), and would also be required to serve the relevant participants out of the jurisdiction (probably Mr Thackray and particularly Mr Arrand and any buyer from Arrand) so as to bring them before the Court so that they might be heard before any rectification order or declaration is made.

75    Mr Mentink says that if the primary Judge’s refusal to make a rectification order (and/or declaration) because affected persons were not before the Court and thus not heard, reflects no arguable error, such an approach in proceedings between the person immediately affected by the error, Mr Mentink on the one hand, and the Registrar on the other hand, entirely defeats the “protective” role of registration of ownership under the Act and defeats notions of “paramountcy” and the “integrity of the Register”.

76    There is at least some arguable force in Mr Mentink’s contention that he is placed in an extremely difficult position in seeking to defend and protect registration of the ship under the Act once closure of the Register occurs due to the Registrar’s unlawful act of making the closure entry without statutory authority to do so. Plainly, at that point, Mr Mentink is immediately deprived of the protective position afforded by registration under the Act. It seems to follow that unless Mr Mentink can bring relevantly affected persons, who may have acquired an interest in the ship at any time after the Registrar’s critical closure act, before the Court (through service out of the jurisdiction under the Hague Convention), the Registrar’s unlawful act is in some measure and real effect one without a remedy.

77    Although such a result seems to be unfair in the broad general sense, it may be entirely consistent with the authorities as a question of construction of the Act and, more particularly, the law relating to the exercise of the rectification power and the making of declaratory orders where third parties may have acquired interests. If so, Mr Mentink would not have a sufficiently arguable prospect of success on appeal to warrant granting an extension of time to file a notice of appeal on the contended grounds. It is thus necessary to look a little more closely at the contended merits than usual to see if any appeal is truly doomed to failure or whether the contentions on appeal might be at least reasonably arguable while at all times remaining conscious of the limitations of descending into an assessment of the contended merits too deeply.

The authorities

78    In an early case not long after the commencement of the Act, in General Credits (Finance) Pty Ltd v Registrar of Ships (1982) 44 ALR 571 (“General Credits”), a receiver appointed by the security holder sold a ship to B which was financed by an old system mortgage consisting of an assignment of ownership of the ship to GCF with an equity of redemption in B. GCF, as owner by assignment, then applied to register the ship under the Act. Due to procedural irregularities there was some delay in doing so. In the meantime, F applied, as owner, to register the ship with L as mortgagee. F became registered as owner under the Act by reason of an oversight on the part of the Registrar notwithstanding that an interim injunction had been granted restraining F’s registration as owner. GCF applied for rectification of the Register by removing F and registering GCF.

79    In the ordinary course, there would have been a contest of priorities between an owner, a person otherwise asserting ownership, contended rights of a bona fide purchaser for value asserting no notice of any contended irregularity and other persons asserting equitable interests.

80    In the context of these facts, McPherson J made a number of observations of importance.

81    Having regard to McPherson J’s international standing as a legal scholar, some of his Honour’s observations should be noted.

82    McPherson J accepted at p 574 that the following notion drawn from McLachlan on Merchant Shipping (Pilcher GSC and Bateson OL, McLachlan, A Treatise on the Law of Merchant Shipping (7th ed, Sweet & Maxwell, 1932) at p 62) concerning the “integrity of the register” applied to the Australian Register of Ships established under s 56 of the Act. The applicable notion is this:

This integrity of the register being of the utmost importance to society, it is of equal moment that the keeper of it should use caution, and refuse to make an entry, save upon such evidence only, as, being within the requirements of the Act, would satisfy a court of justice. Nor should he, after acting on the evidence of documents which prim facie satisfy the Act, endeavour to undo it on the face of the register, although convinced that the title is not in the person registered, but in some other; that kind of rectification of a public document of title is the function of a court of justice.

                                [citations omitted]

83    In comparing the Australian Act with the system of registration established by the Merchant Shipping Act 1894 (Imp) 57 & 58 Vict, c 60 (the “Imperial Act”), McPherson J said this at p 574:

The register and the process of registration under the Imperial Act is commonly believed to have been one of the examples which prompted the adoption of the Torrens system of registration of title in Australia. Although, unlike the latter, it contains no provisions for “paramountcy” or for indefeasibility of title, the Imperial Act does contain certain provisions regulating the priority of instruments both inter se and in relation to unregistered and unregistrable equitable interests in ships.

84    Noteworthy, in McPherson J’s view, was the provision (now s 45) conferring on a registered owner a power absolutely to dispose of a ship in respect of which he is the registered owner and a similar power as it then existed under the Act in a mortgagee. Having examined a number of the provisions of the Imperial Act and the corresponding provisions of the Australian Act, McPherson J made these two further observations.

85    First, at pp 574 and 575, his Honour said this:

A series of decisions, both in England and elsewhere, has established that the foregoing provisions [the comparison his Honour undertook] give to a registered owner or mortgagee of a ship a priority or power which in a number of respects displaces the rules of common law and equity which would otherwise regulate their rights.

His Honour then set out particular authorities.

86    Second, having examined a number of provisions including the power of disposal, the prohibition against entering notice of trusts and the enforceability of personal equities, his Honour said this:

The conclusion that follows is that, in establishing an Australian Register of Ships and a process of registration therein, the legislative intention was to impute to them a purpose, function and effect similar to those of the Imperial legislation. The register and registration are likewise intended in particular respects to displace rules of the general law by which questions of legal and equitable ownership of ships and interest therein are to be determined. It is in this context that the statutory power of rectification under s 59 of the Act is to be viewed. It is inherently improbable that the power to rectify the register was or is intended to be exercised in derogation of what McLachlan describes as the “integrity of the register”. The occasions for invoking that power which are specified in s 59(1) themselves suggest that this is so. Priorities and other rights attained under the Act are not to be overridden lightly, if at all, in the exercise of the power which the section confers; otherwise, much of the utility of a public register of the kind in question would be removed.

                                [emphasis added]

87    These things seem to flow from this decision. First, as to the Australian Register, the integrity of the Register is of utmost importance and the keeper of the Register should use caution and should only act on evidence falling within the requirements of the Act. Second, although the Act does not provide for paramountcy of title or indefeasibility of title (in the Torrens system sense) the Act does give the registered owner a priority or power which displaces the rules of common law and equity otherwise regulating rights. Third, it is inherently improbable that the power of rectification was (or is) intended to be exercised in derogation of the integrity of the Register. Fourth, rights attained under the Act are not to be overridden lightly or at all in the exercise of the s 59 power otherwise much of the utility of an important public Register for Australian-owned ships would be removed.

88    Although McPherson J’s observations are made in the context of examining the scope of the rectification power (and whether F which had become registered should be removed in favour of GCF), his Honour’s observations about the nature of the Register, the integrity of the Register, and the Registrar not lightly overriding if at all rights attained by registration strongly emphasise the importance of the rights obtained on and by registration.

89    In Mr Mentink’s case, his rights obtained on registration were simply expunged. The Register was closed to the Larus II and Mr Mentink’s registered ownership of it. No person, such as F, was admitted to registration which then attained rights by registration which were not to be lightly overridden if at all. The Register was simply closed with no other interest recorded in it as to the Larus II.

90    Mr Mentink says that he does not seek to overcome another person’s registration who is not before the Court. He says that he simply seeks to secure reinstatement of his position to the Register as it was prior to unlawful closure of the Register.

91    It is in this respect that Mr Mentink seeks to differentiate the ultimate position adopted by McPherson J in General Credits as to parties not being heard. In General Credits, McPherson J concluded that the interests of F as owner and possibly the interests of L as mortgagee, once registered, would be affected perhaps fatally by expunging the entry in the Register with respect to ownership of the ship and his Honour concluded at p 575 that he “certainly would not do so without affording to those companies an opportunity, whether or not as parties to the proceedings, to be heard in opposition to the [expungement] order sought”. Mr Mentink says that had the Registrar made an entry in the Register by which a third party attained rights under the Act concerning the ship, no order for rectification of that entry could be made, properly, without such a person being heard. Mr Mentink says, however, that his case is not such a case.

92    Counsel for the Registrar contends that General Credits is not able to be differentiated in this way and that it stands as authority for the proposition that the rectification power ought not to be exercised in circumstances where third party interests might well be affected and thus Mr Mentink has very poor prospects of success in challenging the primary Judge’s refusal to rectify the Register and the refusal to make declarations to that end.

93    Moreover, the Registrar relies upon the following observations of Rares J in Mentink v Registrar of Ships [2009] FCA 871 at [23] in support of that proposition (as did the primary Judge):

Looking at the matter as it presently stands I must conclude that there are almost no prospects that Mr Mentink would be able to succeed in having the register amended with the consequence that Mr Arrand might be denied or deprived of whatever rights he has without having had the opportunity to have his own entitlements tested or to have notice that they were in fact being challenged with the object of removing them from him.

94    Those observations were made in proceedings in this Court commenced against the Registrar, the Minister for Foreign Affairs and the Commissioner for the Australian Federal Police in circumstances where the respondent parties sought and obtained an order for security for costs against Mr Mentink.

95    In the Supreme Court proceedings, of course, Mr Mentink has obtained a declaration favourable to him that the Registrar made an entry in the Register expunging registration of the ship beyond power and without authority.

96    In 695113 Ontario Ltd v Commissioner of Stamps (1990) 53 SASR 274, Bollen J at p 281 described s 45 of the Act as a “protection section” and observed that the provisions of the Act contemplate a passing of the legal estate in the ship by the execution or signing of a bill of sale prior to registration of ownership and further observed that “s 45 takes up its work after registration and it does that because the Act contemplates that registration will give notice and protection to those who wish to deal with interests in or to be created in a vessel” [emphasis added]. Bollen J described the Register as “a record”.

97    In The Advertising Department Pty Ltd v Ship MV Port Phillip (2004) 141 FCR 251, Finkelstein J considered extensively the origin and history of the registration of ships from 1660 and particularly the role of the Imperial Merchant Shipping Acts. Having examined a number of the authorities, and the provisions of the Act, his Honour made these observations at [25] and [27]:

[25]    The effect of these decisions is clear. The register of ships is evidence of title. If a person in good faith acquires an interest in a ship from the registered owner he will obtain an indefeasible title that will defeat any prior unregistered right or interest, regardless of whether the prior right or interest is legal or equitable. It makes no difference that the owner obtained his registration by fraud, provided the person who acquired the interest was not party to, or did not know of, the fraud.

[27]    … The authorities to which I have referred, being authorities which conform to the policy of the Merchant Shipping Acts, show that the Australian register is the record of title to a ship. The register serves only one other purpose, which is to indicate that the ship is entitled to fly the Australian flag.

                                [emphasis added]

98    These observations of Bollen J and Finkelstein J at [96] and [97] respectively highlight the “utmost importance to society” of maintaining the “integrity of the register” as McPherson J accepted, so that members of the public can search the Register and deal, with protection, with the registered owner and acquire a title that will defeat any prior unregistered right.

99    In Tisand Pty Ltd v The Owners of the Ship MV Cape Moreton (Ex Freya) (2005) 143 FCR 43, the Full Court at [127] observed that under the Act the title of the registered owner is protected by giving the registered owner power (subject to interests on the Register) absolutely to dispose of the ship and give an effectual receipt for such disposal. The preservation of priorities is achieved by giving priority to the date of registration.

100    The Full Court also said this at [127]:

Other national registration systems may deal with such issues differently. For instance, in any given national law the register may play a role as an element in the title to, or ownership of, the ship, as opposed to its being only a record or evidence of the title to, or ownership of, the ship. Before the amendments contained in the [Merchant Shipping Act] 1862, entry on the British Register was determinative of title. No legal or equitable interest of an unregistered party was recognised or enforced. … This role of title by, or by reference to, registration is to be contrasted with other systems, such as those of the United Kingdom and Australia in which the register substantially operates as a record of title, subject to the effect of provisions such as ss 39, 41 and 45 dealing with the order of registration, priorities and power of disposition.

                                [emphasis added]

101    The Full Court also observed at [151] that the Act creates a local regulatory environment concerned with Australian-owned ships. The Full Court also said this at [152]:

… it is clear that the [Act], in its own terms, and framed as it clearly was (see McPherson J in [General Credits] at 334) by reference to the MSA [Merchant Shipping Act] 1894, does not provide title by registration. The register is evidence of title only: s 77. Ownership precedes, and, indeed, is a requirement for, registration. See also The Spirit of the Ocean (1865) 34 LJP 74 at 76 as to the Imperial legislation preceding and consolidating MSA 1894.

                                [emphasis added]

102    And at [153]:

Nevertheless, various provisions dealing with statutory methods of transfer (ss 36 and 42), transmission (ss 37 and 43), priorities (s 39), power of disposition (ss 41 and 45), the recognition, but not entry, of trusts and equities (ss 46 and 47) and rectification and correction of the register (ss 59 and 60) in a number of respects displace or modify the legal rules that would otherwise regulate parties’ rights: [General Credits] at 334 and the cases there cited.

103    At [159], the Full Court also said this:

We accept that the significant purpose of s 45 (and of s 41, in respect of mortgages) is to protect the registered owner who takes from a prior registered owner (or mortgagee). In that sense, it is “protective”: see Bollen J in [Ontario] at 281. Nevertheless, the statute, in plain terms, confers the power of absolute disposition on the party who is named on the register as “owner”. It is unnecessary, we think, to characterise that as “legal title”. It is a statutorily conferred power. Section 36 deals with transfer; though the reading together of ss 36, 45 and 47 and the use of language in s 47 of “beneficial interests” (having its origin in s 3 of the MSA 1862, and later in s 57 in the MSA 1894) may give support to the characterisation, for a relevant purpose, of the seller as holding a “legal title”...

                                [emphasis added]

104    In Adsteam Harbour Pty Ltd v The Registrar of the Australian Register of Ships [2005] FCA 1324, Allsop J (as the Chief Justice then was) at [13] observed: “The Register is, of course, a record of ownership; entry on the Register does not give title or ownership: see s 77 of the Act and generally, [Tisand] at [152]”.

105    In the observations quoted at [101] of these reasons, the Full Court makes reference to the role played by s 77 of the Act (see also the reference at [104]). That section provides that a document declared by the Act to be admissible in evidence is, on mere production, admissible in any proceedings as prima facie evidence of any matter stated in the document, in pursuance of the Act, or in pursuance of any duty under the Act, and of the fact that it was signed by the person by whom it purports to be signed: s 77(1). The Registrar may supply copies of, or extracts from, any entry in either Register or any document forming part of or associated with either Register: s 77(2). The relevant copy is to be supplied to any person applying for such a copy or extract: s 77(3). A document purporting to be a copy or extract supplied under s 77(2) or (3) is declared, by s 77(4), to be admissible in evidence.

106    Thus, any “matter” stated in the copy or extract from either Register supplied by the Registrar is prima facie evidence of that matter. The Full Court, however, does not seem to suggest that this section operates in derogation of the power of the registered owner, conferred by s 45 of the Act, absolutely to dispose of the ship subject to any rights and powers appearing in the Register to be vested in some other person.

The legal character of the administrative act

107    Having regard to the declaration made by the primary Judge as set out at [22] of these reasons, what is the proper characterisation of the legal operation of the Registrar’s unlawful entry made in the Register on 11 August 2004?

108    Having regard to the declaration so made, the administrative officer fell into error of law in making the entry because the Registrar misconceived the operation of s 66 of the Act and had no power to make the entry in the circumstances before him. The Registrar’s purported exercise of power was thus affected by the error and as the declaration makes clear, the Registrar exceeded his authority or power. Such an error is jurisdictional error which will “invalidate” any decision of the Registrar which reflects that error: Craig v South Australia (1995) 184 CLR 163 at 179. Sometimes, the invalidity so arising is said to reduce the administrative act to a “nullity” or render it “void”. Speaking in the context of an order, Dixon J observed in Posner v Collector for Inter-State Destitute Persons (Victoria) (1946) 74 CLR 461 at 483 that when a party is entitled, as of right, upon a proper proceeding, to have an order set aside or quashed, the order may safely be ignored, at all events, for most purposes and it is “accordingly, natural to speak of it as a nullity whether it is void or voidable”. Dixon J further observed at 483 that it is only as a result of the construction placed upon a statute that the order can be considered so entirely and absolutely devoid of legal effect for every purpose as to be described accurately as a nullity.

109    In The King v War Pensions Entitlement Appeal Tribunal; Ex Parte Bott (1933) 50 CLR 225 at 242 and 243, Rich, Dixon and McTiernan JJ described a failure on the part of an administrative decision-maker, which would constitute jurisdictional error in the Craig sense, as an “ostensible determination” only and not a “real performance of the duty imposed by law” upon the administrative tribunal in which event the determination “is nugatory and void”.

110    In the context of an administrative decision taken in circumstances where the decision-maker had failed to exercise the power in compliance with the principles of natural justice (procedural fairness), thus giving rise to jurisdictional error, Aickin J in Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 at 277 characterised such a decision in this way:

That which is done without compliance with applicable principles of natural justice, in circumstances where the relevant authority is obliged to comply with such principles, is not to be regarded as void ab initio so that what purports to be an act done is totally ineffective for all purposes. Such an act is valid and operative unless and until duly challenged but upon such challenge being upheld it is void, not merely from the time of a decision to that effect by a court, but from its inception. Thus, though it is merely voidable, when it is declared to be contrary to natural justice the consequence is that it is deemed to have been void ab initio.

                                [emphasis added]

111    An examination of jurisdictional error on the part of inferior courts in relation to orders made by those courts imports very particular considerations, of course, which are not applicable to decisions of administrative tribunals or officers of the Commonwealth invested with statutory powers. In Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at [46], Gaudron and Gummow JJ said this in the context of a decision of an administrative tribunal:

In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as “void”, “voidable”, “invalid”, “vitiated” or, even, as “nullities”. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made.

                                [emphasis added]

112    At [51], their Honours also said this:

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.

[emphasis added, citations omitted]

113    See also Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at [10] and [11] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.

114    Although the act of the Registrar was beyond power, and is declared to have been beyond power, it is important to recognise that “certain events have happened” in particular “circumstances” to adopt the words of Hayne J in Bhardwaj at [142] and the question is “what, if any, legal significance should be attached to those circumstances”. At [144], Hayne J adopts the force of the observations of H W R Wade (“Unlawful Administrative Action: Void or Voidable? Part I” (1967) 83 LQR 499 at 512) that there is “no such thing as voidness in an absolute sense, for the whole question is, void against whom?” and it “makes no sense to speak of an act being void unless there is some person to whom the law gives a remedy”. At [144], Hayne J accepted Wade’s observation (at pp 515-516) that “void” and “voidable” (in the context of administrative acts beyond power) are “indistinguishable in meaning” and the reason is that “no disputed act of a public authority can safely be treated as void in law unless the court can be persuaded to condemn it” [emphasis added].

115    The position in relation to judicial orders of superior courts of record is different. They are valid until set aside on appeal even if made in excess of jurisdiction: Cameron v Cole (1944) 68 CLR 571 at 590-591, per Rich J; at 606 per Williams J.

116    In Bhardwaj at [151], Hayne J makes this observation:

If there is no challenge to the validity of an administrative act or decision [in relevant proceedings], the act or decision may be presumed to be valid. But again, that is a presumption which operates, chiefly, in circumstances where there is no challenge to the legal effect of what has been done. Where there is a challenge, the presumption may serve only to identify and emphasise the need for proof of some invalidating feature before a conclusion of invalidity may be reached. It is not a presumption which may be understood as affording all administrative acts and decisions validity and binding effect until they are set aside.

                    [emphasis in bold added, citations omitted]

117    At [152], Hayne J then said this:

This is not to adopt what has sometimes been called a “theory of absolute nullity” or to argue from an a priori classification of what has been done as being “void”, “voidable” or a “nullity”. It is to recognise that, if a court would have set the decision aside, what was done by the Tribunal is not to be given the same legal significance as would be attached to a decision that was not liable to be set aside. In particular, it is to recognise that if the decision would be set aside for jurisdictional error, the statutory power given to the Tribunal has not been exercised.

                    [emphasis in bold added, citations omitted]

118    In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76], Gaudron, McHugh, Gummow, Kirby and Hayne JJ observe that the High Court has “clearly held that an administrative decision which involves jurisdictional error is ‘regarded, in law, as no decision at all’” (citing the observations in Bhardwaj of Gaudron and Gummow JJ at [51]; McHugh J at [63] and Hayne J at [152]. In New South Wales v Kable (2013) 298 ALR 144 at [52], Gageler J, however, said this:

Yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a “nullity” in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid.

                        [emphasis added, citations omitted]

119    In the 5th Edition of Judicial Review of Administrative Action (Aronson M and Groves M, Judicial Review of Administrative Action (5th ed, Lawbook Co, 2013)), the authors observe at para 10.210 that “Wade’s view that nothing was wholly void (let alone from the outset) until a court said so was radical in its time, but has now become the orthodox judicial position in Australia and elsewhere” [citations omitted]. Some of the authorities cited for that proposition by the authors are discussed in these reasons. At para 10.210, the authors also observe that Wade’s view was that voidness was a condition brought about by a court’s authoritative announcement and Wade’s argument was that such an announcement depended upon not only making out the grounds of challenge (in this case, jurisdictional error) but also on satisfying other preconditions or restrictions (relating to standing, time and procedural limitations), and “on avoiding any discretionary grounds available to the court for refusing a judicial remedy”.

120    The authors also observe at para 10.210: “If voidness was a legal conclusion dependent upon all of these factors, then it made little sense to look for it before determining the issues relating to its constituent elements, especially when some of those elements were conditional or discretionary” [emphasis added].

121    In the case of the administrative act on the part of the Registrar on 11 August 2004, that act was done in error of jurisdiction.

122    Once the Supreme Court of Queensland declared the act of the Registrar to have occurred without authority and thus beyond power, the administrative act is treated as having no legal effect from the moment it was made especially since it had the effect of significantly altering the existing rights under the Act of the registered owner of the ship. The Supreme Court of Queensland did not refuse to make a declaration that the administrative act was beyond power, for any discretionary reason. It granted that relief. The Court refused, however, to rectify the Register for discretionary reasons.

123    The difficulty is that although the act of the Registrar was beyond power it nevertheless “happened”, and prior to the declaration of invalidity by the Supreme Court “things” happened which arguably or potentially gave rise to rights or contended rights in others.

124    It is unfortunate that the Registrar acted upon information provided by a third party contended buyer, Mr Thackray, (or potentially, an actual buyer). No findings of fact were made in relation to the contest as to the sale. Neither Mr Thackray nor Mr Arrand were before the Court. The Registrar in acting under s 66 of the Act ought only to have acted upon written information from the registered owner of the ship or, having formed the view that he had “reason to suspect” a matter contemplated by s 58(1)(b) of the Act (presumably in reliance upon information given to him by Mr Thackray by the facsimile exchanges), he might by notice in writing, served on the registered agent or any owner of the ship, have required such a person to furnish to him within the specified period such information and documents relating to the ship as he might have specified in the notice.

125    The Registrar did not take that course but simply made an entry in the Register which had the effect of closing the registration.

Mr Mentink’s affidavit of 7 March 2014

126    In Mr Mentink’s proposed appeal he would seek to challenge the orders made on 30 November 2012 and 20 June 2013 (and each of the judgments) on the basis of the contended errors earlier described. The facts, of course, relied upon by the primary Judge in support of the orders made (or not made) are described in the reasons for judgment in each case. Mr Mentink in support of the present interlocutory application deposes to a wide range of factual matters and an extensive description, with many annexures, demonstrating exchanges he has had with the Registrar and representatives of the Registrar and also with other agencies and authorities. Some of these factual matters may have been addressed in the trial and had particular parties been respondents to the application, further findings may have been made about matters which would have then been in controversy.

127    Fundamentally, Mr Mentink says in his affidavit that he continued to press the proposition with the Registrar that the Registrar had acted beyond power and that the Larus II had been stolen by Mr Thackray.

128    Annexure WM16 is a letter dated 12 October 2004 in which Mr Mentink contended that the question of whether the vessel ceased to be entitled to be registered under the Act was a matter for the person in whose name the vessel was registered under the Act, namely, Mr Mentink. At Annexure WM18 dated 13 October 2004, the Registrar asserted that he was obliged to make the relevant entry in the Register, under s 66 of the Act, having received notice from either the owner or any other person (in this case, Mr Thackray). That was the act which the primary Judge found was in excess of the authority conferred upon the Registrar by s 66 of the Act.

129    A large part of Mr Mentink’s affidavit, however, describes the steps he took throughout 2004 and 2005 to locate the vessel and agitate for particular enquiries to be made by the Registrar, the Australian Police, Indonesian authorities and other persons and agencies. Mr Mentink explains the steps he took in 2006 and a range of Freedom of Information (FOI) requests that he prosecuted throughout 2007 to obtain documents from the Registrar and other authorities.

130    At para 41 of his affidavit, he says this:

I know from documents shown to me by the Indonesian National Police in November 2007 that Robert Daniel Arrand claimed to have purchased Larus II as an abandoned vessel in early August 2007. I know from documents disclosed to me by the Respondent under Freedom of Information that the Respondent issued documents to Mr Arrand on or about 30 August 2007 stating that I had sold Larus II to Thackray. Annexure WM33 is a true copy of a document of the Respondent provided to me by the Administrator of Tenau Harbour near Kupang, Indonesia, and a true copy of a document shown to me by Indonesian National Police (INP) in Kupang in November 2007. On the basis of these documents the INP advised me in November 2007 that I had no claim to the vessel and that they would cease investigation.

131    Mr Mentink describes his continuing agitation throughout 2008 with the Registrar of the issue of closure of the registration and enquiries he made of other authorities both in 2008 and 2009.

132    At para 43, Mr Mentink says this about the earlier Federal Court proceedings and their relationship with Mr Arrand:

In 2009 I commenced an action in the Federal Court against the Respondent, naming the AFP and the Department for Foreign Affairs as second and third respondents. The respondents were jointly represented by the Australian Government Solicitor. … The respondents applied for and obtained an order for security for costs which I could not pay. Rares J decided that my failure to join Robert Daniel Arrand as respondent was a significant factor in assessing the prospects of success, but it was not the only factor. In my assessment, had Mr Arrand been joined, he may have engaged legal representatives who would have been remiss in not applying for security for costs, and the security ordered may have been of the order of $80,000. A separation of representation of the respondents would have entailed costs of three sets of lawyers, not one. I was overborne by what was clearly a strategy to deter my application. The possibility of pro bono assistance was raised. Rares J declined to make a referral.

133    In 2010, Mr Mentink further agitated his position with the Registrar and issued a number of FOI requests.

134    In 2011, Mr Mentink was provided with documents in relation to various FOI notices he had issued. Ultimately, he commenced proceedings in the Supreme Court of Queensland on 12 September 2012. In the affidavit, Mr Mentink says that as a result of documents he obtained from the respondent, he sought to pursue what appeared to be email addresses for Mr Thackray and he attempted to approach Mr Thackray through a third party, without success.

135    As to Mr Arrand, he says this.

136    Mr Arrand claimed to have purchased the vessel on 2 August 2007. Mr Mentink says that Mr Arrand claimed to have found the Larus II abandoned at a remote island in Asia although, according to Mr Mentink, the vessel was at all relevant times located within approximately five kilometres of the major provincial port of Tenau near Kupang, Indonesia. Mr Mentink says that based on the FOI documents obtained from the respondent, Mr Arrand apparently declined to provide a postal address to the respondent and he claimed to be a Missionary. Mr Mentink says that he has visited a boat-building factory in Bali and has spoken to staff who have told him that Mr Arrand operated that business. Mr Mentink says that he was given Mr Arrand’s business card.

137    He also says that during a telephone conversation in late August 2007 with Mr Arrand, Mr Arrand disclosed an email address identified at para 55 of the affidavit. The email address is said to be in the name of “Jim Jones” which, Mr Mentink says, is clearly not Mr Arrand’s name. Mr Mentink suggests that the use of that name which would be known within religious communities as a notorious name is an attempt by Mr Arrand to obfuscate his whereabouts.

138    Mr Mentink also says, at para 56, that in 2008 and 2009, he found that the Larus II had been moved to a hard stand at Tenau Harbour for repairs. He says he spoke to an officer at the Office of the Administrator for the Harbour and was told that Mr Arrand had sought to register the vessel as an Indonesian ship under the name “Merpati Damai” but that officers of the Administrator were not satisfied that Mr Arrand owned the vessel. Mr Mentink says that he was told by Harbour Office officials that Mr Arrand had been permitted to return the vessel to the water and the ship had been moved to Bali. Mr Mentink was then also told that the Larus II had been registered in the United States.

139    Mr Mentink says that he then made enquiries and written requests for documents from the United States of America Coast Guard (USCG) concerning the Larus II. Mr Mentink obtained documents from the USCG on 3 January 2013 under United States FOI law. The documents show that the vessel was registered on 10 November 2008. Mr Mentink believes that the vessel was then at Tenau Harbour near Kupang. The registration was renewed in November 2009. It lapsed in November 2010 when Mr Arrand advised the USCG that the vessel had been sold to an Indonesian citizen and was registered in Indonesia.

140    Mr Mentink says that the documents show an address for Mr Arrand for the 2008 and 2009 registrations, in the State of Hawaii. Mr Mentink says that although the documents produced by the USCG claimed FOI exemption in respect of Mr Arrand’s email address, close inspection of various exchanges reveal an email address for him.

141    Mr Mentink says that on 5 August 2012 he discovered the Larus II at anchorage on Serangan Island near Benoa Harbour on the Island of Bali. He saw the vessel in the same place in December 2012. He says that subsequent enquiries have revealed that the vessel was listed for sale and that Mr Arrand had left Indonesia permanently. He says that the vessel was registered as an Indonesian ship in the name of a “proxy owner” which, he says, suggests that Mr Arrand remains the true owner.

142    Mr Mentink says that on 19 September 2012 he sent an email to Mr Arrand at an email address provided to him by the Office of the Administrator at Tenau Harbour, Kupang, advising Mr Arrand of the Supreme Court application should he wish to become a respondent.

143    He says that delivery of the email did not fail and he received no reply. He also says that on 23 January 2014 he travelled to Serangan Island, Bali but was unable to locate the vessel. He says he does not know where the vessel is or whether it is registered and, if so, where and in whose name.

144    Mr Mentink does not know who else might presently claim ownership of the vessel.

The explanation for the delay

145    In Mr Mentink’s affidavit sworn 12 February 2014, he says this about the circumstances relevant to the question of the delay. In November 2012, he says he received an email from the Associate to the primary Judge which attached a “Word file” which appeared to Mr Mentink to be a provisional decision to refuse rectification but which sought further submissions concerning the declarations. Annexure WM3 is the front page of the attachment to the email which is the front page of the judgment except that in the “ORDER” part of the front page there is simply the number “1.” which suggests that the actual orders made that day (including the order dismissing the rectification application) were yet to be inserted into the judgment.

146    By reason of that matter, Mr Mentink says that he believed that the primary Judge had not made a final decision and that his application would be finalised after hearing further submissions concerning the declarations. Mr Mentink says that he was not aware that the 30 November 2012 order had been made until he received the decision of 20 June 2013 when he began to consider the possibility of an appeal.

147    Mr Mentink also says that in subsequent submissions to the primary Judge he continued to argue that the Register ought to be rectified with particular declarations being made. Mr Mentink makes the point that in the second judgment the primary Judge notes that Mr Mentink continued to argue the merits of rectification which suggests that Mr Mentink was proceeding on the assumption that that question remained alive.

148    Mr Mentink says that once he had the benefit of the second judgment he became “newly aware” that an order had been made on 30 November 2012. He then considered whether an appeal ought to be filed in respect of both decisions. He says this: “I could have filed a notice of appeal in respect of the second decision, but would have had to seek extension of time to appeal the first decision” and he believed that “one appeal should address both decisions”. See Mr Mentink’s submissions already noted at [26] of these reasons.

149    Mr Mentink says that on 15 July 2013 he submitted a comprehensive statement to the respondent of his “concerns” in support of an application to the Registrar for compensation for detriment caused to him by the Registrar’s “defective administration” based on the 20 June 2013 declaration. Mr Mentink says that the respondent’s Office of Legal Counsel replied on 14 August 2013 by email asserting that the respondent conceded only the error the subject of the declaration made by the primary Judge. Mr Mentink says that the proposition put to him was that the s 66 error on the part of the Registrar appeared to be a mere technicality. Mr Mentink says that the respondent’s counsel addressed Mr Mentink’s compensation claim in this way:

If your claim is that the vessel was stolen, causing you quantifiable financial loss, and that the vessel would not have been stolen, but for the closure of the registration of the vessel, you must clearly establish how your name being on the register would have prevented the vessel being physically taken from Dili Harbour, East Timor, during August 2004.

… if your claim is that the closure of the registration of the vessel Larus II caused you to lose title to the vessel, you must clearly establish that you have lost title to the vessel. AMSA notes in this regard that the Australian Register of Ships does not confer title and, if your allegation that the vessel was stolen is correct, you may still have good title to it.

… Any detriment suffered by you must have been reasonably foreseeable by AMSA at the time the entry in the register was made.

150    Mr Mentink filed, electronically, his application for an extension of time on 2 September 2013 although the document is dated 28 August 2013. As earlier mentioned, Mr Mentink ought to have filed an appeal by 11 July 2013. Mr Mentink says that he “cannot afford legal representation and required this time to give proper consideration to the question of an appeal”.

151    I accept that a self-represented litigant in the position of Mr Mentink who received bifurcated decisions in final judgment of all of the claims in the controversy might well think that aspects of the final rectification relief (not just the possibility of consequential declarations) remained alive until the second judgment on 20 June 2013 especially since the judgment sent to him in November 2012, on his evidence, annexed a document with no orders recited on the front page in the orders section (see [145] of these reasons). I also accept that Mr Mentink might well have thought that the time for lodging an appeal as of right was within 21 days of 20 June 2013 in relation to all matters.

152    I am satisfied that the operative delay was 53 days because on Mr Mentink’s mistaken aggregated view of it, time would expire on 11 July 2013 and he delayed filing until 2 September 2013.

153    Mr Mentink has explained the delay on two grounds essentially.

154    First, he sought to reach a settlement of a compensation claim based on loss he says he suffered attributable to the Registrar’s unlawful administrative conduct.

155    Second, he says he needed some time as a self-represented litigant to give proper consideration to an appeal.

156    I accept that the operative delay is properly explained.

157    The respondent relies upon two authorities which are said to tell against the exercise of discretion to extend time in this case. The first is R v Mentink [1996] 1 Qd R 532 and particularly the observations of Thomas and White JJ at 536. In that case, Mr Mentink was arraigned on a particular count and was convicted on his own plea on 21 September 1993. He then successfully brought an appeal against the severity of the sentence. Seventeen months after the conviction on his own plea, he sought an extension of time to appeal the conviction. Thomas and White JJ observed at 536 that no good reason satisfactorily accounting for such a substantial delay had been given and said that it “would seem that [Mr Mentink] made a conscious choice at the time of his first appeal not to pursue any appeal against conviction”. Thomas and White JJ also considered that Mr Mentink’s contended difficulties in obtaining access to documents was an unpersuasive explanation for the lengthy delay.

158    The second authority is Gallo v Dawson (1990) 93 ALR 479. In that case, the applicants sought to enlarge by 17 months the time for filing an appeal from an order of Wilson J made in the exercise of the High Court’s original jurisdiction dismissing an action. The applicants sought to explain the delay on the footing that the claim required “careful assessment” and “much time” spent in research. McHugh J found that the research undertaken was not explained and a conscious decision had been made not to appeal until the applicant had satisfied herself that she could succeed. The two important observations of principle made by McHugh J are these:

A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved … It would make a mockery of [the enlargement rule] if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege.

                                [emphasis added]

159    Neither case is decisive of this application.

160    The operative delay in this case is 53 days. It is a significant delay (approximately 7 and a half weeks) but not fatal having regard to the matters at [145] to [159] of these reasons. I am satisfied that the delay is sufficiently explained.

161    The real question then is whether Mr Mentink has sufficiently arguable prospects of success in the sense described at [29] to [32] of these reasons in the appeal he would wish to prosecute.

162    Once the Supreme Court made the declaration set out at [22] of these reasons, the administrative step of making the entry is a step that “lacks legal foundation” and is “properly regarded in law as no decision [step] at all” (see [112] of these reasons). Thus, the rights of Mr Mentink as registered owner of the ship under the Act cannot be “as specified in” the entry, and since the entry was made without the authority of the Act, it lacks any “force and effect” as the legality of the entry can never rise above the only source of its authority, namely, the Act (see [111] of these reasons). The entry is regarded, upon the making of the declaration, as void ab initio.

163    Once the declaration was made, Mr Mentink was, prima facie, entitled to be reinstated to the Register as the registered owner of the ship in the exercise of the rectification power conferred on the Supreme Court by s 59 of the Act, recognising, of course, that making any such order involves the exercise of a statutory discretion. Section 59(1) provides that upon an application by a person aggrieved, or the Registrar, for rectification of either Register, “the Court may make such order as it thinks fit directing the rectification of that Register”, assuming one of the relevant threshold factors contemplated by s 59(1) are made out: see [15] of these reasons.

164    There is at least an arguable starting point on appeal that Mr Mentink was entitled to be reinstated to the “protective” pre-entry position that prevailed before the Registrar elected to act on Mr Thackray’s information. The contentions of Mr Thackray ought not to have prevented Mr Mentink being restored to the Register to correct the unlawful entry with the result that Mr Thackray would then have been required to establish his contended ownership of the vessel in relevant proceedings.

165    Mr Thackray, of course, was never entered on the Register as the registered owner of the ship unlike the position in General Credits. A rectification order did not require an order to be made removing Mr Thackray from the Register. Two things should be remembered. On the evidence at trial the party asserting ambiguity about the legal ownership of the ship was the Registrar (and Mr Mentink’s entitlement to be the registered owner of it), no doubt, because the Registrar was concerned to ensure that his election to make the entry in the Register was supported as a matter of fact and law. Second, the evidence demonstrates that Mr Thackray was agitating very strongly for the removal of the ship from the Register and pressed the Registrar until that result was achieved. Plainly enough, Mr Thackray thought it important to secure a change to the registration, presumably, on the footing that he needed to do so in order to enable downstream parties to secure a registrable title. He may have been the bona fide purchaser of the ship or, as Mr Mentink contended, he may have simply stolen the ship.

166    Although this may be a starting point, the discretionary complication, however, is that the ship was in fact removed from the Register and thus “things” actually “happened” and the question is what legal significance attaches to those things. Most particularly, Mr Arrand may (or may not) have acquired an interest in the ship as contended owner, bona fide for value, and without notice of any irregularity of ownership. On one view, however, Mr Arrand’s rights rise no higher than the source of his contended ownership from Mr Thackray and that ownership is said to be fraudulent.

167    The question then is whether the discretionary power to make an order rectifying the Register under s 59 of the Act is unable to be exercised in favour of rectification (and must be exercised by refusing rectification) in the circumstances of the case before the Supreme Court on the ground that Mr Arrand was not joined as a party by Mr Mentink and heard before the Court.

168    It should be remembered that Mr Mentink sought to invoke the exercise of the statutory power under s 59 of the Act to rectify the Register in respect of the Registrar’s entry made without lawful authority, an entry properly regarded as lacking any legal foundation. A question that arises is whether the principles that govern the making of a declaration (or electing not to make a declaration) when exercising the Supreme Court’s declaration-making power under its enabling Act or within the scope of its inherent jurisdiction, are principles which properly apply to the exercise of the statutory power under s 59 of the Act invested in the Supreme Court as a matter of federal jurisdiction, to correct, by a rectification order, an entry made in the public Register of Ships, which entry is properly regarded in law as no entry at all and one that lacks any legal foundation.

169    The particular principle identified and relied upon by the primary Judge is set out at [50] of these reasons. Put simply, the principle is that courts refuse to make a declaration inconsistent with a status or right which might be asserted by someone who is not a party to the proceeding.

170    As to the making of a declaration, Viscount Maugham observed in London Passenger Transport Board v Moscrop [1942] AC 332 at 345 that although absent parties are not strictly bound by the declaration:

…. courts have always recognized that persons interested are or may be indirectly prejudiced by a declaration made by the court in their absence, and that, except in very special circumstances, all persons interested should be made parties, whether by representation orders or otherwise, before a declaration by its terms affecting their rights is made. In the Chancery Division, in which this case started, the rule would seem to be almost invariable, and the well-established practice in actions by shareholders and debenture holders may be mentioned as instances of the rule.

171    In that case, which was an action between an employee claimant and defendants as employer, the claimant sought a declaration that a term of the contract which provided that he was only entitled to be represented before the defendants’ disciplinary board by an official of a nominated trade union, was unlawful. The House of Lords held that such a declaration ought not be made in the absence of the particular union. See generally: Woolf and Woolf J, Zamir & Woolf, The Declaratory Judgment (4th ed, Sweet & Maxwell, 2011), Ch 6 at paras 6-01 and 6-06 to 6-10.

172    The authors of Zamir & Woolf put the principle in these terms at para 6-16 having reviewed the authorities:

Usually the Court will adopt an extremely pragmatic approach to the circumstances of a particular case. It will be reluctant to grant a declaration if a person who could be prejudiced by the grant of that declaration has not been made a party. Equally, however, it will be anxious to protect persons from unnecessarily being joined in proceedings in view of the expense and inconvenience involved. The decision of the court in any particular case will be very much a matter for its discretion and except in those rare cases where some error of principle can be ascertained, an appellate court will not interfere with the decision of the judge at first instance.

173    In Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 189 ALR 109 at [127] to [138] and particularly at [133], Finn J considered that there were a range of significant objections concerning the power to make the declarations sought by the applicant but held that even if the Court had the power to make the declarations, the terms of the declarations made it plain that they were concerned with contractual rights and obligations of consumers and electricity suppliers in electricity supply contracts. Finn J considered that since no particular consumer or supplier was before the court and no supply contract was in issue, it would have been inappropriate to grant the declarations.

174    See also The Dairy Farmers’ Co-operative Milk Co Ltd v The Commonwealth (1946) 73 CLR 381 at 392 where the plurality held that had the Court been satisfied that there was any substance in the claims of the plaintiffs, it would have “hesitated” before making the declarations in the absence of a “really interested” party, in that case, the State of New South Wales.

175    Each case calling for a consideration of whether to grant or refuse the making of a declaration is conditioned by its own facts and the particular emphasis to be attributed to the relevant factors. The absence of an interested party is not necessarily a complete answer to the exercise of the power, especially if matters of public importance are raised by the proceeding: Rolls Royce Plc v Unite [2010] 1 WLR 318.

176    It seems to me that the following considerations are relevant.

177    First, in the proceeding before the Supreme Court, the Registrar was represented by counsel and acted as contradictor to the claims and, in particular, the declaration as to lack of authority in making the entry.

178    Second, the application for rectification raised important issues of public importance as to the status of the Register and the nature and extent of the rights obtained upon registration.

179    Third, the application for rectification raised the question of the rights enjoyed by the registered owner in circumstances where the Registrar engages in an act expunging those rights where the act lacks any lawful authority under the Act, from the very outset, once the Court’s “authoritative announcement” is made: see [119] and [108] to [118] of these reasons.

180    Fourth, questions arise as to the application of the principles derived from the jurisprudence relating to the granting or refusing of declarations, to the exercise of the statutory power under s 59 of the Act.

181    Fifth, questions arise as to whether in all the circumstances of the case, the application for rectification ought to have been refused in the exercise of the primary Judge’s discretion.

182    All of these questions are raised by the proposed appeal.

183    I also recognise that the Registrar contends that the appeal is hopeless by reason of the constraints imposed upon the Registrar arising out of particular international arrangements for the registration of ships and Mr Arrand’s registration of the ship under United States law in relation to the registration of ships. Plainly enough, this circumstance is a very important consideration. However, it is one which ought to be considered by the Full Court in the context of all of the issues as discussed. It is not a circumstance agitated by the primary Judge.

184    It is not appropriate in the determination of this application to express final views about the merits of all of those matters. It is simply sufficient to identify that these issues give rise to arguable questions which are properly dealt with by an appeal court. I am satisfied that Mr Mentink’s proposed appeal, although confronting significant obstacles, is not necessarily doomed to failure and is not properly described as “hopeless” having regard to all of the matters I have described.

185    It seems to me that these matters ought properly be before a Full Court for final determination.

186    I grant an extension of time of 14 days from the making of this order for the filing of a notice of appeal by Mr Mentink from the orders of the primary Judge made on 13 November 2012 and 20 June 2013.

187    Apart from Mr Mentink’s application for an extension of time, the respondent seeks an order for security for costs either as a condition of the granting of an extension of time or under s 56 of the Federal Court of Australia Act 1976 (Cth) (the “FCA Act”). I broadly accept the submissions of the respondent as to the principles to be considered and applied in determining whether an order for security for costs ought to be made either as a condition of granting an extension of time or as an independent application in reliance upon s 56 of the FCA Act.

188    In Mr Mentink’s submissions he accepts that he is essentially impecunious and is essentially entirely reliant for income upon an age pension under the social security law of the Commonwealth. Mr Mentink’s entitlement to an age pension is the subject of an appeal on a question of law from a decision of the Administrative Appeals Tribunal. The respondent seeks security of $30,000. Mr Mentink says that the amount of security sought cannot be met and, “as an aged pensioner he is unlikely to be able to do so during the remainder of his lifetime”. Mr Mentink also says that he has no assets in Australia or overseas of any total value that might approach the level of security sought by the respondent.

189    The respondent says that Mr Mentink resides overseas at least for a large period of time each year. I am willing to proceed on the basis that Mr Mentink is not a full-time resident of Australia.

190    However, notwithstanding that I have taken into account all of the propositions reflected in the written submissions of the respondent in relation to security, it seems to me that the following matters are decisive of the application against granting security.

191    First, Mr Mentink is an applicant individually and is the prospective appellant individually.

192    Second, Mr Mentink has no assets and is impecunious and the result of making an order for security for costs will be that the appeal will be stymied and foreclosed.

193    Third, although it is true that Mr Mentink has had the benefit of a hearing and a trial, and he now seeks to also have an appeal in circumstances where the respondent will be put at risk for further costs in Mr Mentink “having another go” by seeking to challenge the orders of the primary Judge on appeal, it is important to remember that Mr Mentink was successful in demonstrating excess of statutory authority in the conduct of the Registrar. He failed to achieve a rectification order for discretionary reasons. Thus, Mr Mentink’s application and his attempt to agitate questions on appeal is not in the usual class of case where a party has been unsuccessful and seeks to re-agitate issues on appeal which have been wholly found against him.

194    Fourth, the Registrar acted unlawfully in making the entry in the Register which deprived Mr Mentink of his protected position under the Act. It must have been obvious to the Registrar that Mr Thackray’s pressing agitation to secure the removal of the ship from the Register was a matter of great importance to Mr Thackray so that he might subsequently seek to deal with the ship and potentially create interests in it. An essential step in the dealings in the ship on the evidence before the primary Judge was securing the Registrar’s intervention to remove the ship from the Register. The Registrar elected to act on the bald assertions of Mr Thackray (which may or may not have been correct) but which were immediately put in contest when the Registrar elected to tell Mr Mentink of the entry he had made in the Register after the event. It follows that the Registrar’s conduct lies at the centre of the matter and, as already mentioned, Mr Mentink has the benefit of a finding that the Registrar acted without statutory authority, and the effect of that entry is regarded, in law, as lacking legal foundation, and is to be treated as no entry at all. Mr Mentink also has the benefit of a declaration made by the Supreme Court which reflects the finding on this question made by the Supreme Court. Had the Registrar not so acted, Mr Mentink would not have been put to the steps of trying to secure rectification of the Register.

195    Having regard to these considerations it seems to me that the interests of justice are not served by making a security for costs order which from the moment it might be made, the making of the order will entirely foreclose the appeal about which an extension of time is to be given.

196    The Registrar ought not to be able to say that although a declaration has been made by a superior court that he acted unlawfully by removing the ship from the Register (from which the Registrar has not appealed), any challenge to that step, or the consequences of that step, on appeal, ought properly be made only on the footing that the costs of the Registrar in answering the matter on appeal are secured by the party most directly affected by the conduct.

197    The application for security for costs must be dismissed.

198    As to the costs of the application for an extension of time, the costs will be reserved for determination upon the resolution of the appeal. As to the costs of the security for costs application, there will be no order as to costs.

Associate:

Dated:    24 October 2014