FEDERAL COURT OF AUSTRALIA
NAVIGATION ACT 2012, INSPECTOR NO. 126115
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The applicants pay the first respondent’s costs of the interlocutory application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This is an interlocutory application for leave to amend an originating application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act). The originating application, filed on 30 August 2018, relates to the detention of the vessel MV Tomin (the vessel), and seeks declarations that certain orders purportedly made by the respondent (AMSA) under ss 267 and 248 of the Navigation Act 2012 (Cth) are invalid.
2 The proposed amendments are found in the draft “further” amended originating application annexed to the affidavit of JR Kavanagh filed on 8 July 2019. At the interlocutory hearing on 24 July 2019, the applicants sought further leave to amend the first order sought in that draft, such that the orders to be sought in the originating application, should the interlocutory application to amend (as now framed) be granted, would be as follows:
1. A declaration that the decision to issue the Pollution Certificates issued 18 October 2017 for one month is invalid.
2. In the alternative, a writ of mandamus that the respondent decide the application made by the applicants on 15 June 2018 for the issue, renewal or extension of validity of the Pollution Certificates.
3. A declaration that Prohibition Order 001627, issued by an officer of the Respondent with respect to MV Tomin on 6 June 2018, is invalid.
4. A declaration that Detention Order issued by an officer of the Respondent with respect to MV Tomin on 25 June 18, is invalid.
3 The amendments also include significant additions to the grounds of the originating application, in respect of orders 1 and 2 that are now proposed to be sought. In broad terms, the ground in relation to order 1 is that the decision to issue the relevant certificates for only one month was an improper exercise of the power conferred by the legislation; and the ground in relation to order 2 is that there has been unreasonable delay in deciding the application.
4 The applicants, Mr Kraft and Mr Hewitt, are the owners of the vessel.
5 On 18 October 2017, AMSA issued the applicants with an International Air Pollution Prevention Certificate, an International Oil Pollution Prevention Certificate and an International Sewage Pollution Prevention Certificate (referred to collectively as the Pollution Certificates) in respect of the vessel. The Pollution Certificates were dated 18 October 2017, with an expiry date of 17 November 2017.
6 Following the issue of the certificates, the applicants sailed the vessel to the Solomon Islands where work was undertaken on her.
7 On 16 June 2018, the applicants departed the Solomon Islands to sail to Australia. Immediately prior to their departure, the applicants emailed an officer at AMSA to request the re-issue of the Pollution Certificates, which had expired on 17 November 2017.
8 Also on 16 June 2018, AMSA issued a prohibition notice pursuant to s 267 of the Navigation Act, requiring that the vessel not be operated until it held certification. The notice was set aside by this Court on 19 November 2018.
9 On 25 June 2018, the vessel arrived at Yamba and was detained, pursuant to a detention order issued by AMSA at 8.30 pm on that day. This detention order remains in effect.
10 On 31 August 2018, the applicants commenced these proceedings. The originating application sought review of AMSA’s decision to issue the prohibition notice in relation to the vessel. The first ground of review was that the person making the decision to issue the notice did not have jurisdiction to make it. The second ground was that, in making the decision, the issuing officer took into account an irrelevant consideration, namely that the vessel was not correctly certified and that its uncertified operation would be a serious risk to the safety of a person. The third ground asserted that the notice was invalid or ineffective because it was not given to the first applicant by the inspector. The final ground of review was that the issuing of a prohibition notice for the purposes of enforcing the obligations in Chapter 4 of the Navigation Act was the exercise of power for an improper purpose. The originating application also sought review of the decision to detain the vessel. It is not necessary to set out the grounds advanced in support of that.
11 On 5 November 2018, almost 12 months after the decision to issue the Pollution Certificates was made, the interlocutory application was filed. The interlocutory relief sought included leave to make amendments to the form of the final relief sought in the originating application, to the effect that AMSA was originally required to issue the certificates to the applicants with a five year duration.
12 The form of the amendments sought was modified on 8 July 2019, when an affidavit was filed indicating the applicant then sought relief by way of a declaration that the certificates issued on 18 October 2017 were valid for a period of five years.
13 The application for interlocutory relief was further modified at the hearing on 24 July 2019, close to 21 months after the decision to issue the Pollution Certificates was made. The intended form of the proposed amendment is set out above. In substance, the applicants now seek a declaration that the decision to issue the original certificates was invalid. The late amendment to the relief sought in the interlocutory application was unfortunate, as the written submissions filed in respect of it advanced a case in which, so it was said, the relief sought would have the result that the vessel would hold the required certificates.
14 Section 130 of the Navigation Act enables regulations to be made requiring specified classes of vessels to hold specified pollution certificates so as to give effect to Australia’s international obligations in relation to the prevention of pollution from ships. Section 131 provides that a person may apply for the issue of pollution certificates, as specified in the regulations.
15 Subsection 342(1) provides that AMSA may make Marine Orders with respect to any matter for which provision may be made by the regulations. AMSA has made the following Marine Orders of present relevance:
(a) Marine Order 1 (Administration) 2013 (Cth) (MO1) — Division 3 of MO1 provides general rules for applications made under certain other Marine Orders;
(b) Marine Order 97 (Marine pollution prevention - air pollution) 2013 (Cth) (MO97) — s 10 of MO97 requires certain vessels to hold, inter alia, an International Air Pollution Prevention Certificate;
(c) Marine Order 91 (Marine pollution prevention - oil) 2014 (Cth) (MO91) — s 10 of MO91 requires certain vessels to hold an International Oil Pollution Prevention Certificate; and
(d) Marine Order 96 (Marine pollution prevention - sewage) 2018 (Cth) (MO96) — s 10 of MO96 requires certain vessels to hold an International Sewage Pollution Prevention Certificate.
In each of MO97, MO91 and MO96, subs 11(2) provides that Division 3 of MO1 applies in relation to applications for the issue of the relevant certificates.
16 In the present case, the parties appear to agree that the MV Tomin is within the relevant classes of vessels such that it requires the pollution certificates identified above.
17 The above provisions are considered in more detail, where necessary for the purposes of the interlocutory application to amend, below.
18 The respondent opposes the interlocutory application for leave to amend, on different bases for each of the two proposed new orders.
Proposed new order 1
19 In relation to the proposed new order 1, the respondent submits that leave should be refused because of the following central contentions:
(a) there is no acceptable explanation for the delay in challenging the decision to issue the Pollution Certificates for only one month, given that the 28 day period for applying for review under s 11 of the AD(JR) Act expired in November 2017, and the relief now proposed to be sought could not achieve the same outcome as is sought in the current originating application; and
(b) there is no utility in making the declaration proposed to be sought, as it will not bring about an end to the detention of the vessel, as desired by the applicants.
20 The applicants, on the other hand, submit that there is utility in the declaration being made. They say that there is an “ongoing regulatory relationship” with AMSA and that, at some point, further applications to AMSA in relation to the vessel will be made and the declaration sought will mitigate “against the exercise for that power by AMSA in a similar fashion in the future”. Further, it is said that there is a broader public utility in holding AMSA to account, as others will no doubt make similar applications to the regulator in the future, and it is only in very rare (if any) cases that it is appropriate for AMSA to issue certificates for such short periods of time.
Acceptable explanation and the extension of time
21 Reference was made to the leading statement of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, at 348-349, of the approach to be taken where an extension of time is required for review of a decision under the AD(JR) Act. Taking the helpful summary provided by Griffiths J in Mentink v Minister for Home Affairs  FCAFC 113 at , the points of relevance in the present case are as follows:
(a) Section 11 does not place any onus of proof upon an appellant for extension and special circumstances need not be shown, but the Court generally will not grant an extension unless positively satisfied that it is proper to do so. Prima facie, proceedings commenced outside the 28 day time period will not be entertained. The appellant must show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.
(b) Action taken by the appellant other than by making an application for review under the ADJR Act is relevant to the consideration of whether an adequate and acceptable explanation for delay has been provided.
(e) The merits of the substantive application are properly to be taken into account in considering whether to extend time. Considerations of fairness between the appellants and other persons in a similar position are also relevant to the exercise of the Court’s discretion.
22 Griffiths J there also referred (at ) to additional observations of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98:
The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the decision to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. 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.
23 Reference might also be had to the comments of French J in Seiler at 96:
The exercise of the discretion to extend time, for which s 11(l)(c) provides, must be informed by the purposes served by the statutory limitation and associated dispensing power. The limitation is directed to achieving certainty and finality in administrative decision-making. In the ordinary course, where a reviewable decision is taken, and the review procedure is not instituted within the prescribed period, the decision-maker is entitled to proceed on the basis that the decision stands and will not be called into question by way of judicial review. Finality and certainty are not ends in themselves, but means to the end of efficient administration. If the relevant decision-maker or others act upon a decision after the prescribed period expires then the objective of efficient administration may be compromised if the decision can be challenged and set aside after that expiry. Time and resources may have been expended to no effect. Where it is clear that an applicant for review of an administrative decision has, at all times, pursued the reversal of that decision administratively then the statutory purpose is less likely to be jeopardised by a liberal approach to the grant of an extension of time.
24 In the present case, the applicants’ evidence (such as it was at the interlocutory hearing) was that:
(a) Mr Kraft, the first applicant, was unaware that the issuing of the Pollution Certificates for just one month “was in any way unusual”, although he “thought it a little odd”;
(b) he was not aware that he could question the length of time for which the certificates were issued;
(c) after departing Australia following the issue of the certificates, the applicants’ focus was in the Solomon Islands on completing the work on the vessel, and it would have been very difficult to legally challenge the decision from that location; and
(d) Mr Kraft’s understanding was that he would be able to have new Pollution Certificates re-issued effectively on request, and he expected the re-issue to be for a similar duration, and he knew that he and Mr Hewitt would need to attend to having them renewed.
25 The applicants might characterise this evidence as revealing that there was at the time no good reason known to them to dispute the issue of the certificates for a duration of one month. Were the applicants still applying for a declaration that the certificates ought to be taken as having been valid for a period of five years, as was the position advanced prior to the interlocutory hearing, the explanations might have been more relevant. If the relief sought in the application was for orders that the certificates remained in effect, their ignorance of the right to seek review might have deprived them of the opportunity to propound a case which would have the consequence of maintaining the existence of certain statutory rights.
26 However, the case now sought to be agitated by seeking the proposed order 1 is that the issue of the certificates was invalid entirely (albeit on the basis the issue was only for one month). On the assumption that the certificates were valid, they would have long since lapsed and are no longer of any effect, such that, whether a declaration of invalidity is made or not, the present rights and obligations of the applicants would not be affected. In those circumstances, the claims by the applicants that they were unaware of their legal rights are of little weight, in the sense that it will not have caused them any prejudice.
27 That is particularly so in circumstances where the applicants did — and were happy for AMSA to — rely on the validity of the certificates to the extent that enabled the vessel to sail for the Solomon Islands. Although some attempt was made to suggest that the applicants had indicated to AMSA that they considered the issuing of certificates for one month to be invalid, there was no evidence of that. This matter should proceed on the basis that ASMA was not informed at an early stage of the applicants’ allegations that the certificates were invalid.
28 These factors militate against the conclusion that it is fair and equitable to extend time to allow the proposed amendments in the present case. That is especially so where the earlier informal or merely administrative challenges to AMSA’s conduct (particularly at the time of the vessel’s detention), and indeed in the originating application as filed, were not agitated on the basis that the initial certificates were invalid. Although AMSA has been aware that its conduct in relation to the vessel is disputed, and has been for some time, the relief now proposed to be sought is a declaration entirely contradictory to the premise of the relief proposed prior to the interlocutory hearing on 24 July 2019, albeit advanced on similar grounds.
Utility of granting the declaration
29 The next factor for consideration is whether the relief which the applicants now wish to pursue might ever be granted.
30 The applicants did not point to any immediate or direct consequence of relevance that would flow from the making of the declaration proposed to be sought. It was not ultimately in contention that the Pollution Certificates could no longer remain in force, such that their invalidation would have no current or prospective consequence.
31 Indirectly, however, so the applicants submitted, the declaration would inform the “ongoing regulatory relationship” between the parties, such that it might have consequences for future decisions that AMSA may make in relation to the vessel. It was also submitted that the declaration would be of broader public utility in holding the regulator to account and ensuring other vessels are not subjected to similar treatment.
32 The making of a declaration is a discretionary form of relief: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582. It will not generally be proper to exercise the discretion to make a declaration in circumstances where it will produce no foreseeable consequences for the parties: Gardner v The Dairy Industry Authority of New South Wales (1977) 52 ALJR 180 at 188 per Mason J and 188-189 per Aickin J. There, the submission as to the utility of the declaration was summarised as follows (at 188):
All that was suggested was that the Executive might in some undefined way initiate administrative or legislative action which would improve the lot of the appellants and persons in the appellants’ position.
33 That is not dissimilar to the general thrust of the applicants’ submissions in this matter.
34 The applicants conceded in their written submissions (by reference to Minister for Immigration and Multicultural Affairs v Ozmanain (1996) 71 FCR 1) that “the applications ought not to be heard if the declaratory relief was futile, in the sense that it was unable to affect the rights or obligations of either party.” However, as mentioned previously, those submissions were made in support of a different proposed amendment of the relief sought in the originating application.
35 Nevertheless, the applicants submitted that the present circumstances were similar to those pertaining to the decision of Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs (1995) 37 ALD 633 at 688-689 (WA v Minister). There, Carr J granted declaratory relief despite there being no entitlement to consequential relief that might accompany the declarations made. It was submitted that part of the reason for the making of those declarations was that the decisions the subject of them were intertwined with another impugned decision.
36 The submission made in this case that followed from the above was that, here, the invalidity of the “preliminary” decision (to issue the certificates for one month) would impugn the validity of the “final” decision to detain the vessel. That submission might have had some validity were the applicants continuing to seek a declaration that the effect that the Pollution Certificates remained valid for a period of five years, rather than one month. Were that to be so, as one of the bases of the detention decision was a failure to hold certificates, that submission might well have been of substantial weight. However, where the declaration now proposed to be sought (as amended at the hearing of the interlocutory application) is that the decision to issue the certificates was invalid, that submission, even if it correctly states the position at law, could no longer be of relevance.
37 In further reliance on the decision in WA v Minister, it was submitted that the making of the declarations would have some impact upon AMSA’s decision-making process were it to subsequently consider an application for the issuing of certificates. However, here there is no suggestion that the applicants will once again make an application for the issuing of the certificates in circumstances similar to those in which they originally did. Unlike the position in WA v Minister, where it was likely that substantially the same type of decision might be made in the future, no similar scenario exists here.
38 The applicants also submit that if a declaration was made that the initial decision to issue the certificates for one month was declared invalid, it would have the consequence that AMSA would rescind its decision to detain the vessel. In essence, it seems to be suggested that such a declaration would impose some moral pressure on AMSA to release the vessel, because it was seized because the pollution certificates had lapsed, and that if AMSA had acted properly it would have issued them for longer. That seems to rely upon a tacit assumption that, if AMSA had not issued the certificates for a month, it would have issued them for a much longer period. There is, however, no foundation for that assumption. It may well have been that the issuing of certificates valid for one month was the longest duration for which AMSA would have issued them. If it were the case that it was not entitled to issue them for that period (which has not been established), it may well not have issued them at all. In these circumstances it has not been established that the making of the declaration will have any or any sufficient impact on the “regulatory relationship”, as it was described, between the parties, such that it appears that the making of the declaration sought would be inutile.
39 In further answer to the above submission, Mr del Villar for AMSA identified that the reasons given for the detention of the vessel included more than the absence of the pollution certificates, and that there were a number of other defects on which AMSA might have relied for concluding that it was unseaworthy. On that basis he submits that a declaration of invalidity of the certificates would not ensure the release of the vessel from detention.
40 The applicants also submit that there may be utility in the Court expressing its disapproval at any excess of power engaged in by a regulator, and ensuring that such bodies are held to account. That may be appropriate in some circumstances where, although there is little utility in the making of a declaration, there exists a strong prima facie case warranting proceeding to hear the matter. That scenario does not exist in the present matter, where the merits of the proposed declaration sought have not been clearly articulated.
41 In light of the above considerations, it can be seen that, upon the final hearing of the application, there would be a very strong case against the grant of the first declaration proposed to be sought, even if the grounds for it were made out. It would simply have no utility in relation to the existing or future rights and obligations of the parties inter se.
Conclusion on proposed new order 1
42 In those circumstances, where this is (in effect) an application for an extension of time in which to seek the proposed declaration, where it is acknowledged that the declaration could not have any immediate or direct effect, where the discretionary factors weigh against any declaration being made, and where the explanation for the delay does not nearly counterbalance the length of the delay and the earlier reliance upon the now impugned decision, it is not appropriate to extend time or grant leave for proposed new order 1 to be sought.
43 The interlocutory application, to the extent it relates to the first proposed new order, must be dismissed.
Proposed new order 2
44 The second proposed order seeks mandamus to require AMSA to decide an application for the re-issue of the Pollution Certificates (or the issue of new certificates) that was requested by email on 16 June 2018.
45 The short points put against the applicants by the respondent are as follows:
(a) any valid application for the renewal or re-issue of the certificates would be deemed refused if not decided within 90 days, such that there could be nothing left for AMSA to decide upon which mandamus might issue; and
(b) any valid application for the extension of the one-month Pollution Certificates could not be granted without surveys being conducted, which surveys have not been, and therefore must necessarily be refused, such that mandamus would serve no purpose.
46 The respondent’s submission was put in terms that assumed an email sent by the applicants on 16 June 2018 might be effective as, in the primary case, an application for the issue of new pollution certificates or, in the alternative, an application for an extension of the Pollution Certificates. However, Mr Marinac, appearing for the applicants, accepted that the Pollution Certificates “could not be extended, because they had expired”. It is therefore appropriate to decide the matter on the basis of the first assumption posited by the respondent. (It is not necessary to consider whether the email of 16 June 2018 was actually effective as constituting either of the assumed applications.)
47 The points taken by the respondent are said to go to the merits of the proposed amendment. In that respect, the observations of French J in Seiler (set out above in paragraph ) are of relevance.
Would any application for renewal still remain undecided, such that mandamus might issue?
48 The respondent submits that an application to “renew” or “re-issue” the Pollution Certificates must be taken as, in effect, an application for the new issue of each. Reference was made to Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 406 and 429; and R v Central Australia District Licensing Court; Ex parte Glen Pines Pty Ltd (1978) 20 ALR 112 at 117. The applicants did not appear to quarrel with that approach, and it conforms with the ordinary meaning of the terms “renew” and “re-issue”.
49 Division 3 of MO1 applies to applications for the relevant pollution certificates. In that Division, the following provisions are relevant:
12 Request for further information
(1) AMSA may, in writing, ask the applicant to provide any information or document that AMSA reasonably considers necessary for consideration of the application.
14 Period for consideration of application
An application must be considered:
(a) if no request for further information or documents is made under section 12 — within 90 days after AMSA receives the application; or
(b) within 90 days after AMSA receives all the information, documents or final responses requested under section 12; or
(c) if AMSA does not receive all the information, documents or final responses requested under section 12 within a reasonable period for the kind of request — within 90 days after that period.
15 Decision on application and notification of decision
(2) If AMSA does not decide the application within the period mentioned in section 14, AMSA is taken to have decided:
(a) not to approve the application; …
50 AMSA submits that it cannot be required to decide the application now, because, by operation of s 15(2)(a), the application is taken to have already been decided in the negative.
51 The applicants refer to an email sent by the relevant officer at AMSA on 18 June 2018 (in response to their email of 16 June 2018 requesting the renewal of the Pollution Certificates), the text of which is as follows:
Good morning Dan,
Thank you for the request below.
(1) Please complete the attached request for survey and email back the completed form to FSC@amsa.gov.au
(2) Please advise the proposed dates of the transit voyage back to Australia, Port of arrival, duration in Australia and expected departure date and country of return.
AMSA will advise further on receipt of the above document and information.
52 The applicants submit that AMSA’s email is a request for information under s 12(1), therefore extending the relevant time under s 14. At its highest, the submission is put that AMSA was requesting a survey of the vessel, and that a reasonable period for a survey to be conducted, in circumstances where the vessel has been detained by AMSA, is not simply a matter of a few days, and as such the time in s 14(c) has not necessarily expired and the decision has therefore not been deemed to be made by s 15(2)(a).
53 AMSA submits that the email of 18 June 2018 is plainly not a request for a survey to be conducted. The email asks for an attached form to be completed and returned, and for details of the vessel’s sailing. The attached form, an “Application for Survey / Certification of Ship or Ship’s Equipment” includes, above the place for the signature of the owner of the vessel, a statement that “I, the undersigned … request [AMSA] to survey the above ship or equipment, at the place, date and time specified”. AMSA’s submission should be accepted. Although the email of 18 June 2019 revealed that AMSA would ultimately require a survey to be conducted, and the applicants may have viewed the email in that light, the “information or document” requested is not the survey report itself.
54 Given that the request was made in June 2018, the “reasonable period” plus 90 days prescribed by s 14(c) must, on any view, have expired by now, and by the day of the hearing of the application to amend, on 24 July 2019. Similarly, such a time must also have expired by the time the “further” amended draft application was filed, on 8 July 2019. Given that latter date was the first time an order in the nature of mandamus was sought, that might be thought to be the earliest possibly relevant date. Even if the relevant date for assessment was the date the interlocutory application was filed, 5 November 2018, it would seem clear that (in the context of a decision required to be made promptly) the relevant “reasonable period” plus 90 days would have expired, although there might be more argument about that point.
55 In any event, if the email of 16 June 2019 is taken to be an application for the renewal or re-issue of the Pollution Certificates, it is clear that the Court could not now make the order proposed to be sought, because it purports to require a decision to be made in circumstances where, by operation of s 15(2)(a), that decision has already been made.
Conclusion on proposed new order 2
56 In the result, there is no prospect of success by the applicants in seeking the relief in the second proposed new order. The interlocutory application, to the extent it relates to the second proposed new order, must be dismissed.
57 The proposed amendments to the originating application for judicial review (including the amendments to the opening paragraphs, the “details of claim” and the grounds), all relate to and are advanced to support the proposed amendments to the orders sought.
58 In circumstances where the amendments to the proposed orders must be refused, it follows that the supporting amendments must also be refused leave.
59 As such, the appropriate order is that the interlocutory application filed on 5 November 2018 be dismissed.
60 There is no reason why costs should not follow the event, and no party submitted to the contrary. It follows that the applicants must pay the first respondent’s costs of the interlocutory application.