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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Mitchell v Le  QDC 55
ANGUS MITCHELL, GENERAL MANAGER, MARITIME SAFETY QUEENSLAND
9 April 2020
3 April 2020
Barlow QC DCJ
SHIPPING AND NAVIGATION – WRECKS – REMOVAL OF WRECKS IMPEDING NAVIGATION – GENERALLY – enforcement order made – whether additional orders ought to be made where those orders required the court to be satisfied that the respondent had contravened an enforcement order – whether the court had power to make such orders in circumstances where the respondent had not yet contravened the enforcement order
SHIPPING AND NAVIGATION – WRECKS – REMOVAL OF WRECKS IMPEDING NAVIGATION – GENERALLY – enforcement order made – respondent contravened enforcement order – whether further orders ought be made to authorise the applicant to take action to ensure compliance with the Transport Operations (Marine Safety) Act 1994
SHIPPING AND NAVIGATION – WRECKS – REMOVAL OF WRECKS IMPEDING NAVIGATION – GENERALLY – enforcement order made – respondent contravened enforcement order – further orders made pursuant to s 183GA of the Transport Operations (Marine Safety) Act 1994 – whether costs incurred in taking the authorised action were recoverable by the applicant
Transport Operations (Marine Safety) Act 1994 ss 183C, 183E, 183GA, 183GB
Mitchell v Darcy  QDC 183 considered
Quirk v Wolfe  QDC 108 considered
BI McMillan for the applicant
Department of Transport and Main Roads for the applicant
- On 3 April 2020 I made an order authorising the applicant to take certain steps. The respondent was present by telephone, but needed the assistance of an interpreter during the hearing. I considered it appropriate, in the circumstances, not to deliver ex tempore reasons, but to make the order and give my reasons later. These are my reasons for making that order.
- The respondent, Mr Le, is the owner of a commercial fishing trawler, the “James J Cook”. That vessel has sunk in the Brisbane River and is lying on the river bed near the Gateway Bridge, with parts of it extending above the surface of the water. It has been in that situation since 3 February 2019.
- On 30 January 2020 I made an enforcement order against the respondent, pursuant to ss 183C and 183E of the Transport Operations (Marine Safety) Act 1994. By that order, Mr Le was directed to submit, to Maritime Safety Queensland for approval by the Brisbane Regional Harbour Master, a written towing and slipping plan for the vessel and to remove the vessel from Queensland waters in accordance with an approved towing and slipping plan. Mr Le was also ordered to provide a security bond in the amount of $120,000 to the State of Queensland.
- The orders were made because I was satisfied that Mr Le had failed to comply with a direction given to him by the Harbour Master, under s 91, to remove the vessel. Therefore, I was satisfied that he had committed a “notice offence”, giving rise to the court’s jurisdiction to make an enforcement order.
- On that occasion I was asked, but I was not prepared, to make additional orders to the effect that, if Mr Le failed to comply with the enforcement order, the applicant may cause the ship to be removed from the river, cause it to be broken up or disposed of, including by sale, and any security bond paid by the respondent be forfeited to the State. I declined to make those orders because I considered that they could only be made, pursuant to s 183GA, if and when the court is satisfied that a respondent has contravened an enforcement order. I therefore adjourned the originating application to 3 April 2020 in order to give the respondent the opportunity to comply with the enforcement order. In this respect, I respectfully considered that her Honour Judge Muir had erred, in Mitchell v Darcy  QDC 183, in making both an enforcement order and further orders under s 183GA at the one time.
- On the basis of the evidence now before me, I am satisfied that Mr Le has contravened the enforcement order. He has not submitted a towing and slipping plan to the Harbour Master, nor has he removed the vessel from the river. I am also satisfied that the vessel is a navigation hazard and an environmental hazard (it has a significant quantity of diesel fuel in its fuel tank). It is therefore necessary to have it removed carefully and the respondent clearly will not do that.
- Under s 183GA, the court may authorise the applicant to “take the action stated in the further order.” Therefore, I have a wide discretion. Any orders I make should be directed to effecting the purpose of part 13A of the Act: that is, to provide for alternative ways of ensuring compliance with the Act. I should also take into account the overall objectives of the Act as stated in s 3, namely to ensure marine safety.
- I disagree, with respect, with the decision of Judge Morzone QC in Quirk v Wolfe  QDC 108, in which he made similar orders to those made by me on 3 April 2020, but stated that they constituted an enforcement order under s 183C. An enforcement order may only be made against a respondent, whereas the orders that I made on 3 April and that his Honour made, authorising the prescribed applicant to take the action stated in the order, may only be made under s 183GA, if the respondent has already contravened an enforcement order under s 183C.
- As I am now satisfied that the respondent has contravened the enforcement order I made on 30 January 2020, and that further action needs to be taken to remove the vessel, I made the further orders under s 183GA.
- One order that had been sought in the application was that, should the costs incurred on behalf of the applicant in undertaking any authorised action exceed the amount of any forfeited security bond, the respondent should pay the applicant the balance of those costs. The applicant did not pursue that order when the application came on before me on 3 April. With respect, the applicant was correct in not pursuing it, as it would be unnecessary and also not in compliance with the Act. Section 183GB relevantly provides that, if the prescribed applicant incurs expense in taking the authorised action, the State may recover the amount of the expense as a debt from the persons liable for the expense. Therefore, if the applicant incurs an expense in taking the authorised action in this case, whether himself or at the State’s expense, the State (and not the applicant) may recover that expense as a debt due to it, if it demonstrates that the respondent is liable for the expense. Such an action would have to be brought separately by the State and not by the applicant.
- For these reasons, at the hearing of the application on 3 April 2020, I made the orders authorising the applicant to take appropriate further steps.
- Published Case Name:
Angus Mitchell v Danh Le
- Shortened Case Name:
Mitchell v Le
 QDC 55
Barlow QC DCJ
09 Apr 2020