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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Mitchell v Birch  QDC 175
TRENTYN DANIEL BIRCH
1896 of 2020
District Court, Brisbane
23 July 2020, ex tempore
23 July 2020
Orders as per amended draft
SHIPPING AND NAVIGATION – WRECKS – REMOVAL OF WRECKS IMPEDING NAVIGATION – where the respondent’s ship sunk – where the respondent committed a notice offence under the Transport Operations (Marine Safety) Act 1994 by failing to comply with a direction to remove the ship – where the applicant sought orders pursuant to the Transport Operations (Marine Safety) Act 1994 for enforcement orders in relation to the respondent’s ship – where the applicant also sought other orders authorising it to take certain actions in the event of non-compliance with the enforcement orders – whether the Court had power to make such orders or should, in the exercise of discretion, make such orders at this stage in circumstances where such orders could otherwise be sought under section 183GA of the Act in the event of non-compliance
Quirk v Wolfe  QDC 108
Mitchell v Darcy  QDC 183
Mitchell v Le  QDC 55
Mitchell v Bensley (District Court of Queensland, Dearden DCJ, 19 May 2020)
Transport Operations (Marine Safety) Act 1994 (Qld) ss 183C, 183E, 183F, 183GA
J Sorbello for the applicant
No appearance for the respondent
Department of Transport and Main Roads for the applicant
No appearance for the respondent
- This is an application which, on its face, purports to be for orders pursuant to sections 183C, 183E and 183GA of the Transport Operations (Marine Safety) Act 1994 for enforcement orders and other orders in relation to a ship which has sunk in waters downstream of the aquarium boat ramp at Hemmant. The respondent, who was served but did not appear to oppose the application, is the owner of the ship. He has committed what is referred to as a notice offence under the Act, by failing to comply with a direction from a harbourmaster requiring removal of the ship.
- Having been satisfied that a notice offence has been committed, the Court has jurisdiction under 183C of the Act to make an enforcement order. The effect of such an order is provided for in section 183E of the Act. Subsection (1) of that section sets out what an enforcement order may direct a person to do. Relevantly, an order may direct a person to do anything required to stop committing a notice offence. The orders sought by the applicant include orders of that kind.
- Subsection (2) provides that if an enforcement order is made, then the Court may do either or both of the following:
- (a)direct the respondent to give a security bond to the State for a stated period for a matter mentioned in the enforcement order or interim enforcement order;
- (b)make another order the court considers appropriate.
- The application initially sought an order that the respondent provide security. It also went on to seek orders which would have permitted forfeiture of the security in the event of non-compliance.
- Section 183E(5) of the Act sets out the circumstances in which the District Court may order forfeiture. That subsection requires an application by the applicant and satisfaction on the part of the Court that there has been a contravention of the enforcement order. The making of an order at this stage authorising future forfeiture of the security without subsequent application to the Court is, it seems to me, problematic. It is unnecessary for me to express a concluded view, because on the hearing of the application, the applicant withdrew the application for orders requiring security.
- In addition to the enforcement orders, the applicant sought orders authorising it to take certain actions in the event of non-compliance with the enforcement orders. Those orders would authorise it to remove the ship and any sunken tender boat, break it up and dispose of it as it sees fit, sell or dispose of it or any part of it as the applicant sees fit, and retain possession of it or any part of it until the respondent pays the cost it has incurred. Orders of this kind are orders which could be made in response to an application made subsequent to contravention of an enforcement order. Such an application would be brought pursuant to section 183GA.
- As I have already noted, the originating application purported to seek orders under section 183GA. That section cannot, however, be availed of at this stage because such orders can only be made, “if the respondent contravenes an enforcement order”. An enforcement order must first be made and contravened before orders under section 183GA can be made.
- It was submitted on behalf of the applicant that section 183E(2)(b), which is the Court’s power, upon making an enforcement order, to also make “another order the court considers appropriate”, is broad enough to make orders today which would authorise the applicant to take those actions in the future without the need to make an application for orders under section 183GA. I was, in that regard, referred to some conflicting decisions of Judges of this Court.
- Orders empowering the applicant to take actions were made upon the making of enforcement orders in three cases. They were Quirk v Wolfe  QDC 108 in which there was no argument or consideration of the interplay between section 183E and 183GA. Such orders were also made in Mitchell v Darcy  QDC 183 in which it would appear there was, similarly, no argument or consideration of that issue. In Mitchell v Le  QDC 55, Barlow QC DCJ, in considering an application for orders under section 183GA observed that he had in considering an earlier application for enforcement orders, declined to make orders giving power to the applicant to take certain actions, because he considered that such orders could only be made under section 183GA if and when the Court was satisfied that a contravention had occurred. No further reasoning was given for that conclusion. More recently in Mitchell v Bensley, unreported, 19 May 2020, Dearden DCJ preferred the decisions in Quirk v Wolfe and Mitchell v Darcy, in which no reasons were given on this point, to that in Mitchell v Le.
- It is true, as counsel for the applicant pointed out, that section 183E(2)(b) is not expressly limited to orders which are directed to the respondent. The provision is expressed in broad and general terms. The provision should, however, be read in context, rather than in isolation. It is a subparagraph of a subsection of a provision dealing with orders made on an application for enforcement orders against a person who is to be directed to do one of the things set out in subsection (1) in respect of a notice offence or a contravention of an undertaking. When regard is had to the nature of the section and the structure of the Act, it is difficult to see that the purpose or effect of the provision is to permit the Court to confer substantive new rights or powers on the applicant for an enforcement order.
- It may be noted that the explanatory notes to legislation which inserted section 183GA of the Act explain that the new provisions were being inserted to, clarify “that the District Court may make orders allowing an applicant … to carry out a previous enforcement order and take direct action”, something which the explanatory note observes was not clearly authorised by the provisions otherwise.
- Whilst I am inclined to the conclusion reached by Barlow QC DCJ in Mitchell v Le, it was unnecessary for me to reach a concluded view about the limits of section 183E(2)(b) because even if it was open to the Court to make the orders sought by the applicant pursuant to that provision, I would not do so as a matter of discretion.
- Section 183GA provides an available and appropriate avenue for the applicant to obtain orders to act as it wishes in the event of contravention, if that is what the Court then considers is appropriate. In order to obtain such orders, however, the applicant would need to make an application which would be served upon the respondent. It would be for the applicant to satisfy the Court, rather than just itself, that there had been a contravention of the order and the extent to which such a contravention had occurred. Assuming a contravention was proved, the Court would have a discretion indicated by the use of the word, “may” in section 183GA to grant orders, having regard to what the Court thinks is appropriate and having regard to the facts and circumstances which then apply and having regard also to anything that the respondent may wish to put before the Court at that time.
- It is at least conceivable that a respondent who is in contravention of an enforcement order may persuade the Court not to authorise the applicant to do as it wishes. A respondent might, for example, ask the Court to exercise one of its other powers, namely, the power under section 183F(3) to amend the enforcement order by, for example, granting more time to achieve compliance.
- It may be noted, in that respect, that section 183GA(2) provides that the Court’s power under that section is in addition to its other powers. That does not mean that orders under 183GA are necessarily also able to be made under another section such as 183E(2)(b). Rather, it acknowledges that the Court has other powers. Those other powers include, for example, that to which I have just referred, namely the power to cancel or amend an enforcement order.
- It seems to me that the regime which the legislature has put in place pursuant to section 183GA is an appropriate one with appropriate safeguards in respect of the Court’s consideration of the matters before the applicant is authorised to take a particular action. Whilst counsel for the applicant made reference to the objects of the Act in terms of efficiency and achieving an appropriate balance between safety and cost, in underscoring the efficiency and cost savings to be achieved by making the orders sought at this stage so as to obviate the necessity for a future application under section 183GA, I do not consider that those considerations justify or dictate making the orders which it seeks.
- In my view, the better course is to make the enforcement orders and to leave the applicant to make its application under section 183GA if and when it is in a position to establish non-compliance with the enforcement order.
- Published Case Name:
Mitchell v Birch
- Shortened Case Name:
Mitchell v Birch
 QDC 175
23 Jul 2020