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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Mitchell v Darcy  QDC 183
Kyra Lee Darcy
D2227 of 19
4 September 2019 (ex tempore)
16 August 2019 and 4 September 2019
Order as per annexure A of these Reasons.
CIVIL – APPLICATION – MARITIME SAFETY – ENFORCEMENT ORDER – power to make various enforcement orders in respect of derelict and unseaworthy ship after failure to comply with the requisite notices – where the respondent is the owner of the vessel – where the respondent’s vessel is located on the waters on South Stradbroke Island – whether the vessel is derelict and unseaworthy – whether danger or risk posed by the ship – enforcement order for disposal
Transport Operations (Marine Safety) Act 1994, ss 183B, 183C
Transport Operations (Marine Pollution) Act 1995
B. McMillan for the appellant
A. Marinac for the respondent
Queensland Department of Transport and Main Roads for the appellant
Pacific Maritime Lawyers for the respondent
- This is an application pursuant to section 183B of the Transport Operations (Marine Safety) Act 1994 (Act) for enforcement orders to effect the removal and safe disposal of a vessel owned by the respondent and currently located on waters on South Stradbroke Island adjacent to Paradise Point, the Gold Coast. The vessel’s name is the Aurora Star.
- The application first came before me on 16 August 2019, at which time the applicant sought to persist with obtaining orders for enforcement in the face of vehement opposition by the respondent through her legal representation. On 16 August 2019, I determined that, given that there was some evidence from the respondent that she had expended costs and carried out some work on the vessel since the previous inspection by the Marine Safety Queensland branch of the Queensland Department of Transport and Main Roads [who are the regulators for maritime safety and ship sourced pollution in Queensland waters] that I ought to allow a further inspection. The previous inspection of the vessel had been in October 2018. I therefore adjourned the application and made directions for a further inspection of the vessel within seven days and for the filing of material by both parties.
- The applicant complied with the directions I made and has filed a further affidavit from Mr John Moss Kircher, the shipping inspector appointed under the Act and an authorised officer under the Transport Operations (Marine Pollution) Act 1995. There was also a subsequent affidavit from Mr Kircher amending some errors contained in his earlier affidavit.
- The respondent did not comply with the directions made as to the filing of an affidavit as to her capacity to meet the estimated costs of repairs within the timeframe of 2 September 2019. When the matter came before me this morning, the solicitor for the respondent was in the difficult position where he has been unable to obtain clear instructions but had prepared a draft affidavit for his client to consider and execute. Again, and so as to afford the respondent procedural fairness, as I must, I stood the matter down so that the solicitor for the respondent could have the opportunity to obtain further evidence.
- Since standing the matter down, I have now received into evidence the affidavit of Ms Darcy, sworn today. This affidavit is replete with non-expert opinion evidence about the state of the vessel, broad assertions without any documentary support about the respondent’s capacity to meet any expenses to fix the boat and broad assertions without any supporting documents as to the amount that the respondent has expended to date on the vessel. It also contains vague statements about the appointment of an unnamed marine surveyor to inspect the vessel.
- It was also submitted that the respondent has had an unfortunate family emergency within the last week which has prevented her from making the vessel available for inspection by her proposed marine surveyor and in providing instructions to her solicitor. This evidence is vague and does not explain why, prior to last week, more was not done.
- These excuses and explanations must be considered, in my view, in light of the respondent’s overall conduct over the last year, which does not reflect well upon her and, indeed, in my view, reflects that she has put her head in the sand about the vessel. I want to make it clear that my criticisms of the affidavit are not in any way directed towards the respondent’s solicitor. In my view, he has done everything in his power to assist the Court in resolving the issues.
- The relevant sections of the Act are set out in some detail in the applicant’s outline of submissions, and I will not repeat them in these brief reasons, essentially, because, in my view, they accurately reflect the relevant principles. The respondent does not cavil with the applicant’s statements of the law nor with the chronology as presented by the applicant in the submissions, which is supported in the affidavit material. The respondent recognises, I might add, that she has failed to engage effectively with Marine Safety Queensland.
- It is uncontroversial that I have jurisdiction and power to make the order under the Act, and it is conceded in this case that a notice offence has been committed for the purpose of section 183C(1)(a) of the Act.
- It follows I am satisfied that the court’s power to make the order applied for is enlivened. The two crucial aspects in my determination [which the respondent disputes] are whether the vessel is derelict and unseaworthy and whether the order sought is now necessary.
- The material reveals that the Aurora Star is a 15 metre plastic and timber houseboat. The evidence establishes that since July 2018, employees or agents of the applicant have attended the ship and observed it to be in very poor condition. The first notice declaring the ship unseaworthy and requiring it to be removed was issued on 11 July 2018, and the ship was required to be removed by 10 August 2018. On 24 October 2018, the vessel was inspected by Mr Knowles and Mr Kircher, who considered the ship unseaworthy.
- The subsequent chronology reveals that the respondent has not complied with any of the three notices requiring her to remove the vessel from Queensland waters and that she repeatedly failed to take steps towards removing the ship despite obvious efforts to move and modify the vessel.
- There was evidence of the rebuilding of the rear deck since October last year, the coating of the hulls and plastic welding being placed on the seams of the holes. There was also evidence of flotation testing of the vessel and replacement of the side cap works with a 19 millimetre construction. A further expert opinion [from the applicant] based on a subsequent inspection of the vessel on 22 August 2019, revealed that the vessel remains unseaworthy, that the vessel’s superstructure is unsound, that there has been a failure of the pontoon brackets, which will detach the pontoon and result in the sinking of the vessel. The expert opinion of Mr Kircher is that the pontoon should be removed from the superstructure and tested for water penetration, that the fabricated HDPE bracket should be tested and specialised repairs conducted, that the ingress of water into the interior superstructure will continue to cause further deterioration until repairs are made and that the electrical wiring is unsafe and not functional.
- The evidence from the applicant is that the vessel will have to be removed from the water. The evidence which I accept from the applicant is that the vessel will have to be removed from the water onto a hardstand to carry out the repairs and that the total cost of the repairs could be as high as $70,000.
- The respondent submits that the vessel will not need to be removed and that the costs are considerably less. The respondent also seeks an adjournment of the application so that she can place further evidence before the Court. I am not satisfied that even if the vessel did not need to be removed or the repair costs were less than $70,000 that the respondent has the capacity to meet any repair costs or that an adjournment is in the interests of justice in this case.
- The respondent’s evidence is that she is a widow with no means of support other than the financial resources indicated in paragraph 3 of her affidavit. This paragraph contains a broad assertion that the respondent does have financial resources in excess of $70,000. On the last occasion it was submitted in the presence of the respondent that she does not live on the vessel. Her recent evidence is that she has lived on the vessel for seven years. This inconsistency is another matter that concerns me in this case.
- In my view, the respondent has not adduced sufficient evidence to satisfy me that the matter ought to be adjourned or that she ought to be afforded more time to place further evidence before the Court. The respondent accepts in her affidavit that the vessel has problems and that she feels that she has been “ripped off” by the vendor of the vessel. The respondent appeared in Court on the last occasion in a very distressed state, and earlier this morning I am told that she was very distressed, and she has appeared, a moment ago, distressed and has left the Court.
- I can appreciate and accept that the respondent has much going on in her life and an attachment to the vessel as her home. But there are a number of factors that I must consider in this application, including the overall interests of the community and the proper application of the Act, which provides for the safe disposal of unsafe vessels.
- I am satisfied on the balance of probabilities that the Aurora Star may endanger life because it is a ship that is being or intended to be operated and it is not safe. I am not satisfied that there is sufficient evidence to support a finding that the ship can be operated safely and rectified in a reasonable timeframe.
- It follows that it is appropriate and necessary for enforcement orders under section 183C of the Act to be made. I will make the in terms of the draft order provided by the applicant subject to the changes [in particular that the security bond should be $35,000 and not $70,000 as originally submitted by the applicant] that I had indicated prior to giving my reasons.
DISTRICT COURT OF QUEENSLAND
ANGUS MITCHELL, GENERAL MANAGER,
MARITIME SAFETY QUEENSLAND
KYRA LEE DARCY
4 September 2019
Originating Application filed 25 June 2019
THE ORDER OF THE COURT IS THAT:
- Pursuant to s. 183E of the Transport Operations (Marine Safety) Act 1994 (‘the Act’), the respondent is ordered to:
- (a)Submit to Maritime Safety Queensland, for approval by the Gold Coast Regional Harbour Master, within 14 days of this Order, a written towing and slipping plan for the vessel 'Aurora Star' Queensland recreational registration, number AFE45Q (“the vessel”), taking into account safety and environmental factors;
- (b)Remove the vessel from Queensland waters, in accordance with the towing and slipping plan as approved by the Gold Coast Regional Harbour Master, within 21 days of this Order;
- (c)Within 21 days of this Order, give to the State of Queensland a security bond in the amount of $35,000.00 in the form of a bank guarantee from an Australian bank registered under the Banking Act 1959 (Cth), and to be effective for the earlier of:
- (i)the period of 12 months, from the date on which the order is made by the Court, and irrevocable during that time; or
- (ii)the period until the applicant notifies the Court that the vessel has been removed from Queensland waters by the respondent.
- Further, if the respondent not comply with the orders made in terms of paragraph 1, the applicant may:
- cause the vessel to be removed from Queensland waters; or
- cause the vessel to be broken up and disposed of as the applicant sees fit
- Further, if the applicant takes any action in accordance with paragraph 2 of this Order:
- Any security bond given by the respondent pursuant to paragraph 1(c) of this Order shall be forfeited to the State of Queensland for any costs incurred on behalf of the applicant in undertaking any such action; and
- The applicant may retain possession of the vessel or any part of the vessel until the respondent pays to the applicant the costs incurred on behalf of the applicant for removal or disposal of the vessel and any debris from it, and the costs of storing the vessel, less any amount forfeited to the State of Queensland from the security bond.
- Further, if the respondent does not pay to the applicant the costs incurred by the applicant described in paragraph 3(b) of this Order within 60 days of the applicant making a demand for those costs,
- the vessel or any remaining part of the vessel is forfeited to the State of Queensland, for sale or disposal as the applicant sees fit; and
- any money realised from such sale or disposal to be first applied against the expenses of the sale or disposal and the costs described in paragraph (3)(b) of this Order, and any remaining money be given to the respondent.
- Further, should the costs incurred on behalf of the applicant in undertaking an action described in paragraphs 3 and 4 of this Order exceed the amount of any forfeited security bond, the respondent shall pay to the applicant the balance of the applicant’s costs.
- The respondent is to pay the applicant’s costs of and incidental to this application on the standard basis.
A copy of the order is annexure A of these Reasons which have been revised and published at the parties’ request.
- Published Case Name:
Mitchell v Darcy
- Shortened Case Name:
Mitchell v Darcy
 QDC 183
04 Sep 2019