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Brisbane Marine Pilots Pty Ltd v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads QCAT 436
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Brisbane Marine Pilots Pty Ltd v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors  QCAT 436
brisbane marine pilots pty ltd
General manager of maritime safety queensland, department of transport and main roads
poseidon sea pilots pty ltd
General administrative review matters
20 December 2021
15 December 2021
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – STANDING TO INSTITUTE PROCEEDINGS – where the applicant’s contract to provide pilotage services in the Brisbane Pilotage Area was not renewed – where Maritime Safety Queensland granted pilot licences to pilots employed by the new provider – where the applicant sought to stay the decision to grant the licences pending internal review – where the applicant challenged the assessment and training of the candidates and the criteria for the granting of the licences – whether the challenge is within the scope of an administrative review
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – STAY OF OPERATION OF DECISION PENDING REVIEW – where the applicant sought to stay the decision to grant licences to pilots in the Brisbane Pilotage Area – whether the public interest is affected – whether there is an arguable case on review – whether the balance of convenience favours a stay
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 35, s 36
Transport Operations (Marine Safety) Act 1994 (Qld), s 3, s 203, s 203A, s 203B, s 203C
Transport Operations (Marine Safety) Regulation 2016 (Qld)
Transport Planning and Coordination Act 1994 (Qld), s 31, s 32, s 34
Allan v Transurban City Link Limited (2001) 208 CLR 167
Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250
Argos Pty Ltd v Corbell (2014) 254 CLR 394
Control Investments Pty Ltd & Ors v Australian Broadcasting Tribunal  AATA 78
Lock the Gate Alliance Ltd v Minister for Natural Resources and Mines  1 Qd R 1
Transurban City Link Ltd v Allan (1999) 95 FCR 553
United States Tobacco Company v Minister for Consumer Affairs and Ors (1988) 20 FCR 520
Matthew Hickey OAM counsel, instructed by Clyde & Co.
Scott McLeod QC and Florence Chen counsel, instructed by Crown Law for the General Manager of Maritime Safety Queensland, Department of Transport and Main Roads
John McKenna QC and Samuel Walpole counsel, instructed by MinterEllison for Poseidon Sea Pilots Pty Ltd, Matt Stannard and Colin Kesteven
REASONS FOR DECISION
- In this matter, the applicant, Brisbane Marine Pilots Pty Ltd, asks the tribunal to stay licences granted to two named individuals to operate as pilots in the Brisbane port area.
- The tribunal’s power to do this derives from its review jurisdiction over decisions made by various public bodies, in this case a decision made by the first respondent, the General Manager of Maritime Safety Queensland, Department of Transport and Main Roads (MSQ), to grant those licences.
- As can be seen below, the tribunal’s power to stay MSQ’s decision to grant the licences arises because the applicant asked MSQ to review the decision by way of ‘internal review’. If the applicant was entitled to make that request of MSQ, then the applicant can also apply to the tribunal for a stay of the decision pending MSQ’s review.
- The context is that since 1989 the applicant has been the sole pilotage provider for the Brisbane Pilotage Area under a series of contracts made with MSQ, an organ of the State of Queensland. From 1 January 2022 the applicant will cease to be the pilotage provider. Instead, the third respondent, Poseidon Sea Pilots Pty Ltd (PSP), has been appointed as pilotage provider for the Brisbane Pilotage Area for the next ten years. A pilotage provider must provide pilots to navigate ships of over 50 metres. The Brisbane Pilotage Area stretches from the Maroochy River in the north out to Cape Moreton and North Stradbroke Island in the east and to the southern end of North Stradbroke island.
- The applicant challenges the training given to the PSP candidates for pilot licences and how they were assessed by MSQ when the decision was made to grant licences. The application is made in respect of two named pilots, Matt Stannard and Colin Kesteven, respectively the third and fourth respondents. But if the applicant is able to, it would seek to challenge the granting of pilot licences to all PSP’s pilots.
- The issues which arise from this matter are largely technical, starting with an understanding of the statutory provisions under which the application is properly made, then the question whether the applicant has sufficient standing on any basis to bring the application for a stay of the decision, and finally whether such a stay should be granted pending an internal review of the decision by MSQ.
What application is being decided?
- The matter was listed before me to consider both the question of standing and the stay of the decision, and evidence has been filed and submissions made on both questions. The direction was:
The application is listed for a Hearing by telephone in relation to the question of standing and the application to stay a decision filed on 9 December 2021 at 9.30am on 15 December 2021.
- This direction seems to require me to consider both issues, and for the reasons given when I consider the stay, it seems right to do this.
- The direction refers to an application to stay a decision filed on 9 December 2021. However, the analysis made below of the applications which have been made to the tribunal and the applicant’s right to apply to the tribunal, shows that this should be a reference to an application for a stay of a decision filed on 3 December 2021. I raised this with the parties at the outset of the hearing and agreement was reached that this was the application before me.
- The evidence shows that on 2 December 2021 the applicant requested MSQ to conduct an internal review of the decision to issue the pilot licences to Mr Stannard and Mr Kesteven. And the application to the tribunal filed on 3 December 2021 was made to stay the decision pending the internal review.
- On 3 December 2021 MSQ refused to conduct the internal review on the grounds that the applicant’s interests were not affected by the decisions. On 6 December 2021 the applicant asked MSQ a second time to conduct an internal review and said that it might apply to the Supreme Court to compel one. On 8 December 2021 MSQ again refused to conduct the internal review on the grounds that the applicant’s interests were not affected by the decisions.
- Then on 9 December 2021 the applicant applied to the tribunal for an urgent hearing, the following day for an external review of the decision to grant the pilot licences and for a stay under section 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
- This application was supported by a letter explaining that since the internal review had now concluded, the application made on 3 December 2021 had been rendered ‘nugatory’, so the applicant wanted to amend its application to seek an external review of the original decision to grant the pilot licences under section 203C(2) of the Transport Operations (Marine Safety) Act 1994 (Qld) (TOMSA).
- Since this application was made in the proceedings GAR662-21, and no fresh proceedings were commenced, this was quite properly treated by the tribunal as an interlocutory application.
- A study of the applicable statutory provisions however, demonstrates that the application made on 9 December 2021 is not one that can be made, and that the application made on 3 December 2021 was not rendered ‘nugatory’ by the General Manager’s refusal to conduct an internal review of the decision to grant the pilot licences.
- To explain this, I need to set these provisions out. First, there are these provisions in TOMSA:
Part 16 Review of and appeals against particular decisions
203 Definitions for pt 16
In this part—
delegate, of the chief executive or general manager, means a person who makes a decision as the delegate of the chief executive or general manager.
original decision means a decision made under this Act by the chief executive, the general manager, a delegate of the chief executive or general manager, a harbour master or a shipping inspector, other than a reviewed decision.
reviewed decision means the chief executive’s or general manager’s decision made, or taken to have been made, on a review under section 203B.
203A Main purposes of pt 16
(set out later in these reasons)
203B Internal review of decisions
- (1)A person whose interests are affected by an original decision may ask the following to review it—
- (a)if the original decision was made by the chief executive or a delegate of the chief executive—the chief executive;
- (b)if the original decision was made by a shipping inspector who is an employee of the Gold Coast Waterways Authority—the Gold Coast Waterways Authority; (c) otherwise—the general manager.
- (2)The Transport Planning and Coordination Act 1994, part 5, division 2—
- (a)applies to the review; and
- (i)for the procedure for applying for the review and the way it is to be carried out; and
- (ii)that the person may apply to QCAT to have the original decision stayed.
- (3)For applying the Transport Planning and Coordination Act 1994, part 5, division 2 to a person other than the chief executive, a reference to the chief executive in that division, including, for example, sections 33 and 34 of that Act, is taken to be a reference to—
- (a)if the original decision was made by the general manager or a delegate of the general manager—the general manager; or
- (b)if the original decision was made by a shipping inspector who is an employee of the Gold Coast Waterways Authority—the Gold Coast Waterways Authority.
203C External review of decisions
- (1)If a reviewed decision is not the decision sought by the applicant for the review, the chief executive must give the applicant a QCAT information notice for the reviewed decision.
- (2)The applicant may apply, as provided under the QCAT Act, to QCAT for a review of the reviewed decision.
Note— The QCAT Act, section 22(3) provides that QCAT may stay the operation of the reviewed decision, either on application by a person or on its own initiative.
- (3)In this section— chief executive means—
- (a)if the reviewed decision is made by the general manager—the general manager; or
- (b)if the reviewed decision is made by the Gold Coast Waterways Authority—the Gold Coast Waterways Authority.
- (3)QCAT information notice means a notice complying with the QCAT Act, section 157(2).
- It can be seen that MSQ’s decision to grant a pilot licence is called an ‘original decision’. That is by section 203 set out above. Since MSQ refused to review the original decision, it did not become a ‘reviewed decision’ as defined in section 203 by reason of a review. There is a provision which deems that a review decision is made after 28 days if no decision is made in that time. This would automatically bring a refusal to conduct a review within section 203 as a decision ‘taken to have been made’, but since the request for an internal review was made on 2 December 2021, the 28 days has not yet expired. Hence in the events which happened it is not yet possible to invoke the tribunal’s jurisdiction under section 203C. This is because the decision was not a reviewed decision and so it could not and does not, come within the terms of section 203C.
- The Transport Planning and Coordination Act 1994 (Qld) (TPCA) also gives the tribunal some jurisdiction. Part 5 Divisions 2 and 3 of that Act are applied to reviews in decisions where a transport Act says that it applies. In this case 203B(2)(b) of TOMSA says that those Divisions apply to an internal review by the General Manager. Only Division 2 is relevant. The provisions are:
Division 2 Review of original decisions
31 Applying for review
- (1)A person may apply for a review of an original decision only within 28 days after notice of the original decision was given to the person under the transport Act.
- (2)However, if—
- (a)the notice did not state the reasons for the original decision; and
- (b)the person asked for a statement of the reasons within the 28 days mentioned in subsection (1); the person may apply within 28 days after the person is given the statement of the reasons.
- (3)In addition, the chief executive may extend the period for applying.
- (4)An application must be written and state in detail the grounds on which the person wants the original decision to be reviewed.
32 Stay of operation of original decision
- (1)If a person applies for review of an original decision, the person may immediately apply for a stay of the decision to the relevant entity (unless the decision is a prescribed authority decision mentioned in the Transport Operations (Road Use Management) Act 1995, section 65A(3), or relates to the automatic extension of the person’s prescribed period under that Act, section 91VA).
- (2)The relevant entity may stay the original decision to secure the effectiveness of the review and any later appeal to or review by the relevant entity.
- (3)In setting the time for hearing the application, the relevant entity must allow at least 3 business days between the day the application is filed with it and the hearing day.
- (4)The chief executive is a party to the application.
- (5)The person must serve a copy of the application showing the time and place of the hearing and any document filed in the relevant entity with it on the chief executive at least 2 business days before the hearing.
- (6)The stay—
- (a)may be given on conditions the relevant entity considers appropriate; and
- (b)operates for the period specified by the relevant entity; and
- (c)may be revoked or amended by the relevant entity.
- (7)The period of a stay under this section must not extend past the time when the chief executive reviews the original decision and any later period the relevant entity allows the applicant to enable the applicant to appeal against the decision or apply for a review of the decision as provided under the QCAT Act.
- (8)The making of an application does not affect the original decision, or the carrying out of the original decision, unless it is stayed.
- (9)In this section— relevant entity means—
- (a)if the reviewed decision may be reviewed by QCAT—QCAT; or
- (b)if the reviewed decision may be appealed to the appeal court—the appeal court.
33 Review panels
34 Decision on review
- (1)A decision on an application for review of an original decision must be made within 28 days after the application is made.
- (2)If the chief executive was not the original decision maker, the chief executive, in reviewing the decision, has the same powers as the original decision maker.
- (3)If within the 28 days, the chief executive confirms or amends the original decision or substitutes another decision, the chief executive must give the applicant written notice (the decision notice) of the confirmed, amended or substituted decision (the reviewed decision).
- (4)If the reviewed decision is not the decision sought by the applicant for the review, the decision notice—
- (a)for a reviewed decision that may be reviewed by QCAT—must comply with the QCAT Act, section 157(2); or
- (b)for a reviewed decision that may be appealed to the appeal court—must state—
- (i)the reasons for the reviewed decision; and
- (ii)that the applicant may, within 28 days, appeal against the reviewed decision to the appeal court.
- (5)However, if a decision is not made on the application within the 28 days, the chief executive is taken to have made a decision (also the reviewed decision) at the end of the 28 days confirming the original decision and the reasons given for it.
- (6)In applying to QCAT for a review or appealing to the appeal court, the decision subject to review or appeal is the reviewed decision and not the original decision.
- Section 31 limits the time to apply for a review of an original decision. Section 32 provides that an applicant for the review may immediately apply to a relevant entity for a stay of the decision, and as can be seen from subsection (9) the relevant entity is the tribunal.
- It is clear to me from the provisions of Division 2 that where a person has applied for an internal review of an original decision which could be the subject of a review by the tribunal, that person can immediately apply to the tribunal for a stay. As section 32(2) says, this is to secure the effectiveness of the review and any later review by the tribunal. It is clear to me that the tribunal has jurisdiction immediately to grant a stay under these provisions even if an internal review is refused, as happened here. This is because the jurisdiction arises on the application for an internal review and does not depend on the outcome of that application.
- If there is no decision made on an application for a review of the original decision, then on the expiry of 28 days from the date when the application for an internal review was made then the position is different. This is because a decision is deemed to be made by section 34(5). Effectively this would convert an original decision into a reviewed decision if, as happened here, the original decision maker refused to conduct an internal review. However, here the 28 days has not passed. The applicant first asked for an internal review on 2 December 2021.
- The applicant also made an application to the tribunal on 10 December 2021 on Form 23 (‘Application to review a decision’) seeking to review a decision made on 8 December 2021. The decision which is impugned here, seems to be the one in the General Manager’s letter of 8 December 2021 refusing to conduct an internal review. Again this application was made in the proceedings GAR662-21, and no fresh proceeding was commenced. I cannot see that the tribunal has any jurisdiction to hear that review because it is not a ‘reviewed decision’ under section 203C.
- So my conclusion is that the tribunal’s jurisdiction to hear this matter does not derive from section 203C of TOMSA but from section 32(1) of the TPCA for a stay of the original decision granting pilot licences to two marine pilots. That is the application for a stay made to the tribunal on 3 December 2021.
Applications to join the two pilots
- Applications have been made to the tribunal to join Mr Stannard and Mr Kesteven, the two pilots concerned. There is no objection this. They are represented by solicitors and counsel instructed by PSP and do not wish to adduce any further evidence so joining them will not adversely affect the proceedings.
- In the circumstances I agree that it is right to join them as respondents because they are persons who should be bound by or have the benefit of the tribunal’s decision and because their interests are affected by the proceeding.
Does the applicant have sufficient standing?
- As stated above, the tribunal’s jurisdiction under section 32 of the TPCA to decide whether to stay an original decision arises upon a person’s application for a review of an original decision. But it must be the case that only lawful applications to review an original decision could give the tribunal that jurisdiction. I say that because of the way the provisions in the two Acts work together. It would not be the objective intention of the legislature that a person without any right to apply for an internal review could apply for such a review and thereby give the tribunal jurisdiction to stay an original decision under section 32.
- It follows that the applicant may only apply to the tribunal for a stay of the original decision if, in the terms of section 203B of TOMSA the applicant is:
A person whose interests are affected by an original decision
- In this particular case there are a number of aspects to the question whether the applicant comes under the terms of section 203B. One matter on which I was addressed was whether the applicant needs standing at the time of the hearing of the application, or whether it is sufficient only to have it at the time of the application. This is relevant because, as can be seen below, the applicant’s interests changed between the two dates.
- Another matter is whether, having regard to the statutory provisions which apply here, the tribunal is able to review the administrative decision to grant the pilot licences where that decision was a natural and inevitable consequence of earlier non-reviewable decisions.
At what time does the applicant need to be a person whose interests are affected by the original decision?
- In order for the tribunal to have jurisdiction to hear an application for a stay under section 32 by a person, that person should have interests which are affected on the date of the request for the internal review. This is 2 December 2021.
- Relying on what was said in Transurban City Link Ltd v Allan (1999) 95 FCR 553 and in other authorities, Mr McLeod on behalf of MSQ submits that any such interest must be maintained to the hearing of the application. The authorities relied on, however, were not under the statutory provisions that we are considering here, and when Allan went on appeal to the High Court, Kirby J expressed the view that the statutory provisions being considered meant that standing should be tested at the time of the application.
- Certainly it would seem right that an applicant for a stay under section 32 should have such interests on the date of the application for a stay, in this case made on 3 December 2021.
- It might also be the case that it is right to consider this question as at the date of the hearing for the stay, or even when the decision is finally made, that is 20 December 2021.
- Because of the uncertainty about this, I shall consider the issue of standing on all the relevant dates.
- It also seems to me to be right that it does not matter that an effect might be a past one, present one or future one or even a contingent one, provided that it is a real effect which exists at the relevant time.
What sort of interests are sufficient?
- The type of ‘interests’ which need to be affected in order to have standing are clearly understood.
- United States Tobacco Company v Minister for Consumer Affairs and Ors (1988) 20 FCR 520:
The term “interest” has long been an expression used in the law with respect to parties so as to require an involvement with a case greater than the concern of a person who is a mere intermeddler or busybody. Nevertheless, the criterion for standing prescribed by the Act is not a restrictive one. The broadest of technical terms has been selected. The necessary interest need not be a legal, proprietary, financial or other tangible interest. Neither need it be peculiar to the particular person.
- Davies J when referring to section 30 of the Administrative Appeals Tribunal Act 1975 (Cth) said in Control Investments Pty Ltd v Australian Broadcasting Tribunal  AATA 78:
In their context in ss 27 and 30, the words "interests are affected" denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest. As Brennan J said in McHatten v Collector of Customs (New South Wales) (1977) 18 ALR 154 “The relevant ‘interests’ do not have to be pecuniary interests or even specific legal rights .. Restrictions of that kind are incompatible with the variety of decisions which are subject to review – some decisions affecting legal rights, others being unlikely to do so.
However, a person seeking joinder must be able to identify a relevant interest which is his. In other contexts, dicta in cases have used the adjectives "real", "genuine" and "direct" to describe the relationship required between the decision and the interest. Sections 27(1) and 30(1) do not make use of adjectives but they do require that the applicant demonstrates genuine affection of an interest which attaches to him. The nature of the interest required in a particular case will be influenced by the subject matter and context of the decision under review.
What interests of the applicant are said to be affected by the decision to grant the pilot licences?
- This is set out in the main affidavit evidence filed by the applicant, from Captain Scott John Young, a highly experienced marine pilot and a director of the applicant who was previously its Acting Chairman. He says that there were four ‘key reasons’ why the decision affects the applicant:
- (a)that from week commencing 6 December 2021 MSQ proposed that PSP would perform pilotage services in the Brisbane Pilotage Area as part of an ‘operation readiness assessment’;
- (b)during the month of December the new pilots would be operating in the same waters as the applicant’s pilots, creating quite unacceptable risks for all users of the port, not only the applicant;
- (c)the applicant had serious and well-founded concerns for the safety of people, the environment, ships and port infrastructure as a result of the dramatic change in the training and licensing of pilots which is experimental at best and has never occurred in any major Australian port;
- (d)MSQ have issued Level One Pilot Licences and Pilotage Endorsements to PSP’s pilots but they have not conducted the required observational trips in the Brisbane Pilotage Area for that level – they should have started at Level Four.
- As said in the authorities cited above, merely being an interested member of the public is insufficient interest to give standing, so in so far as the applicant’s case might express an interest in the recruitment assessment and training of the new pilots this cannot, without more, give sufficient standing to apply for a stay of the decision to grant pilot licences to PSP’s employees. This applies while the applicant continues as pilotage provider up to 31 December 2021, and also after that date when it will be a former pilotage provider. Although Captain Young’s evidence and Mr Hickey’s written submissions (in so far as they reflect that evidence) might suggest that this is the applicant’s case, ultimately this was not how I understood it as presented by Mr Hickey.
- Instead, in the applicant’s case the above four reasons merged into one, and for the period before 31 December 2021, the applicant’s interests affected by the decision is said to arise from the duplication of pilotage services planned during December. This plan was described in a document issued by MSQ called the Parallel Pilotage Operations Protocol. It is convenient to call it the parallel pilotage plan. This, it was said, was an unacceptable risk to the applicant, because the licences were granted under a fundamentally different licensing criteria and assessment method which creates an additional layer of risk because the applicant’s pilots cannot anticipate how PSP’s pilots will react.
- However, by the time of the hearing circumstances had changed in two important respects.
- Firstly, by letter on 14 December 2021, the day before the hearing, MSQ abandoned the parallel pilotage plan, and I was told by counsel that MSQ have undertaken not to reintroduce this plan. Mr Hickey suggested that in this way, MSQ had acted to ‘neutralise’ any adverse effect arising from the parallel pilotage plan, by removing any impact arising from this upon the applicant. The implication was that this was a tactical move in the proceedings. However, the letter dated 14 December 2021 shows that the applicant had been alleging that the parallel pilotage plan would be a breach of its pilotage service contract. The MSQ letter said that this was not accepted but ‘in order to avoid a potential dispute during the transition of services ... we wish to inform you that MSQ will no longer be pursuing this proposal’. So it could be that this was not a tactical move.
- Secondly, on 13 December 2021, two days before the hearing, the applicant had entered into a contract to charter a dumb barge to carry four of its pilot boats which it had ‘committed to sell’. This barge would have to be towed to Cairns, and since the overall length of the tow was over 100 metres in length it would require a PSP pilot when navigating through the Brisbane Pilotage Area. This trip would occur sometime in January 2022.
- Thus, it was said, the applicant’s interests are affected because the tow could be unsafe in the hands of such a pilot because of the fundamentally different licensing criteria and assessment method which had been adopted by MSQ.
- Overall, the interest the applicant relied on can therefore conveniently be described as follows:
- (a)As at 2 and 3 December 2021 there was an interest because of the parallel pilotage plan which was to start in the week commencing 6 December 2021 and which would continue to the end of December. The applicant says this caused it concerns because of the extra layer of danger arising from possible poor communication between pilots caused by the different assessment and training.
- (b)At the hearing on 15 December 2021 there was an interest because sometime in January 2022 the applicant’s four pilot boats were to be moved in the Brisbane Pilotage Area with the assistance of a PSP pilot, which caused concern because the pilot’s assessment and training said to be insufficient.
- Interest (a) cannot be relied on as an interest at the time of the hearing on 15 December 2021 and at the date of this decision on 20 December 2021, because it never happened and will not do so. However, if valid it seems to me that it could be relied on as an interest on 2 and 3 December 2021.
- Interest (b) cannot be relied on as an interest on 2 and 3 December 2021, but if valid, it could be relied on as an interest at the time of the hearing on 15 December 2021 and at the date of this decision on 20 December 2021.
Weakness in interest (b), that is the tow voyage
- The factual basis for the suggestion that there is an adverse effect from the tow voyage is given in the affidavit of Andrew Clements Cambridge dated 13 December 2021. He is one of the applicant’s marine pilots. He says that the applicant has ‘committed to selling’ four of its pilot boats and they will be placed on a dumb barge and towed to Cairns. Since the overall length of the tow is more than 100 metres a pilot would be required for the outbound journey through the Brisbane Pilotage Area.
- The contract to charter the dumb barge is dated 13 December 2021. It shows that the applicant would suffer loss if there is a collision while under pilotage or by reason of delay. It can be seen from the contract that the applicant has contracted to use the barge on a date between 1 and 23 January 2022, the actual date to be specified upon giving 10 days notice.
- It is said in the evidence that the pilotage would be done by a PSP pilot and there was concern about the safety of this because of the training of these pilots and their lack of on water experience in the Brisbane Pilotage Area.
- It was pointed out to me at the hearing by Mr McCleod for MSQ that it is strange that the applicant would enter into this contract which required the pilotage of a PSP pilot if it were so concerned about the safety of this. Although not directly expressed, the implication was that this might have been a tactical move by the applicant to create an adverse interest where none previously existed. Against this is the fact that the applicant would need to liquidate assets used to provide pilotage services and so it could be that this was not a tactical move.
- Nevertheless, it does tend to suggest that the applicant is not in fact concerned about the safety of this voyage. And if so, this would be because it is in fact, safe.
- In answer to the tow issue, MSQ say they would consider providing the applicant with an exemption for the voyage which would allow the tug to be exempted and piloted by one of the applicant’s pilots instead. The statutory provision which might permit this is section 18A of TOMSA which permits an exemption from a regulatory provision. A condition could be imposed such as a requirement that the tow is under the command of one of the applicant’s pilots when in the compulsory pilotage area. It is said that if such an exemption were provided, then it would automatically extinguish any adverse effect suffered by the applicant by reason of the contract.
- But the applicant submits that to change the pilot would require a written agreement under section 102A of TOMSA between MSQ and the applicant’s pilot or the applicant itself. And, it was said, there is nothing to show that such agreement would be forthcoming. In other words, the applicant might refuse to agree to be allowed to use their own pilot instead of a PSP pilot.
- Although at first sight it would seem unlikely that the applicant would be so unco-operative, it is given some credence by what happened before. To help to achieve a proper handover from the applicant to PSP, MSQ asked the applicant to permit the new pilots during December 2021 to observe the applicant’s pilotage operations on the bridge. The idea was that this would give the new pilots ‘on water’ experience in the Brisbane Pilotage Area in real life situations. Since the existing pilots were all employed by the applicant, the applicant had direct control over whether or not this handover would occur. However, the applicant refused to co-operate with this proposal. At the hearing before me, through counsel the applicant offered an explanation for this saying that there was no contractual or statutory obligation to co-operate in this way.
- Despite this, to my mind if a section 102A agreement were needed, the applicant would be likely to agree because after 1 January 2022 there would be no reason not to do so.
- So my finding is that the only likely scenarios (in order of likelihood) are that MSQ will grant a conditional exemption under section 18A which would be sufficient automatically to extinguish the applicant’s stated concern, or the applicant will make a section 102A agreement with MSQ which would have the same effect.
- If neither of those things happen then it will be because using a PSP pilot is in fact, safe.
- Under any of these scenarios it can be seen that the applicant will not be a person whose interests are affected by the decision to grant the pilot licences, by reason of this prospective voyage.
- Since there is no other adverse interest which could apply at the time of the hearing or as at the date of this decision, it follows that the applicant did not have standing on those dates.
Weakness with respect to concerns about assessment and training
- My finding above that the applicant did not have any standing as at the date of the hearing of the application for a stay nor at the date of this decision might be the end of the matter but there remains the possibility that standing should be tested as at the date of the application for a stay on 3 December 2021.
- I need therefore to consider whether there was such standing on that date arising from the adverse effect alleged to arise from the parallel pilotage plan. I have concluded that in this particular case the tribunal should not accept that the applicant had standing on those grounds because it is outside the scope of an administrative review.
- This conclusion also applies to the question of standing as at the date of the hearing of the application for a stay and at the date of this decision based on the adverse effect arising from the use of a PSP pilot for the tow voyage, and so is an additional reason why the applicant does not have standing at that time.
- My consideration of this point arises because the decision to grant the pilot licences was the culmination of a series of earlier non-reviewable decisions. So the question is whether this is within the scope of an administrative review if the challenge is really of those earlier decisions.
- In order to consider this, I need to recite how the impugned decision was reached and then return to the question of standing.
How the impugned decision was reached
- The first policy decision which set the scene for later events appears to be how to conduct the renewal procedure when the applicant’s pilotage service contract expired. We know that this contract was made on 17 July 2013 and originally would have expired on 31 December 2020 but it was extended to 31 December 2021 because of the pandemic.
- Queensland has a procurement policy and although there is little evidence about this, it seems likely that it required MSQ to conduct the renewal procedure in a certain way. This notion tends to be supported by Ms Dawson’s description of it as ‘a competitive tender process’. An Invitation to Offer dated February 2020 was sent to those who were interested and who satisfied certain requirements. PSP submitted its proposal on 28 August 2020, and it is said to have been subject to ‘rigorous scrutiny’ by MSQ over nearly four months, which involved presentations, explanations, and various meetings, MSQ decided to accept PSP’s offer. From the applicant’s evidence it can be seen that it too had a ‘lengthy consultation process with MSQ’s procurement panel’ but it was unsuccessful.
- The ‘Pilotage Services Agreement (Brisbane Pilotage Area)’ contract between PSP and MSQ was signed on 8 January 2021, and under this contract PSP was to provide pilotage services from 1 January 2022 to 31 December 2031.
- PSP then progressed with its plans to provide those services. The internal arrangements to do this, and industry consultation carried out by PSP are described by Simon Green, the General Manager of PSP’s parent company, in his affidavit. For my purposes I need to understand the involvement of MSQ in this process. Captain Robert Ronald Buck, a very experienced ship’s master and marine pilot, who was appointed as General Manager of PSP, and who supervised the overall administration of the pilot training program for PSP, describes the process in his affidavit as working closely with MSQ, and that there was an extensive suite of training documents created in consultation with, and approved by, MSQ in February 2021.
- The evidence shows that PSP set a very high level for candidates to apply – a matter I describe when considering the public interest later in these reasons. This resulted in 27 people being engaged by PSP.
- As for the training of these pilots in the Brisbane Pilotage area, this was achieved by use of an advanced training course followed by assessment. I describe this in more detail when considering public interest.
- Of relevance here, the original plan was for PSP’s candidates to accompany the applicant’s pilots during December 2021 on the bridge of ships during the applicant’s pilotage operations. The idea was that this would provide on water experience in the Brisbane Pilotage Area. The applicant refused to cooperate with this plan so it never happened.
- Captain Buck explains that because the bridge observation plan was not possible, another plan to train the pilots in the Brisbane Pilotage area was devised in consultation with MSQ. This was a combination of training on a simulator and on water training on the dredge Brisbane.
- As mentioned earlier in these reasons, PSP also agreed with MSQ that in the month of December 2021, the new pilots would provide pilotage services. This would mean that the applicant’s pilots would be working in the same area of water as PSP’s pilots under the parallel pilotage plan. To manage this, MSQ representatives including the Chair, and the Regional Harbour Master VTS joined PSP in the Operational Readiness Group. The applicant was asked for its cooperation. Messrs Green and Huggett explain that a meeting had been arranged to discuss this on 16 November 2021 but the applicant declined to attend. As mentioned earlier in these reasons, this plan was abandoned.
- Finally and more importantly for my purposes, MSQ needed to consider whether to grant pilot licences to those who had come through the above process. The assessment criteria for this were changed from the usual ones, which required on water observation and training by a locally licensed pilot. Those previous assessment criteria appear in writing in the Licensing and Training of Marine Pilots in Queensland Version 1.7 document which is dated 11 October 2019, and in the 15 February 2021 version of the Record of Qualifications and Training for Queensland Port Pilots.
- Captain Young for the applicant, describes the new criteria as being:
- (a)Simulation training.
- (b)Familiarisation training on the dredge Brisbane.
- (c)Blind chart examination with the deputy harbour master.
- Captain Young describes this as a ‘radical and untested departure from the Training and Licensing Requirements’.
- Mr Huggett, who actually assessed the applications for a pilot licence, describes the criteria as:
- (a)Consideration of the information provided in the application form (which is exhibited). This can include consideration of:
- previous experience as a pilot including the length, type and number of ships piloted, and the complexity of the port conditions;
- qualifications and knowledge;
- professional references;
- (b)written examination and interviews;
- (c)completion of Continuous Professional Development (CPD) courses;
- (d)performance in simulation exercises; and
- (e)pilot assessments, including on water trips, from highly experienced mariners.
- Mr Huggett describes how he assessed the Mr Stannard and Mr Kesteven against these criteria when deciding whether or not to grant them pilot licences.
- For criterion (d) Mr Huggett says that each candidate was assessed over a minimum of 10 ship movements. How criterion (e) was done is unclear. But nevertheless it can be seen that there was a radical departure from the previously required on water training and assessment by a locally licensed pilot as described in the Record of Qualifications and Training for Queensland Port Pilots.
- The process leading up to the granting of the licences therefore had a number of stages. The last stage, that is the granting of the pilot licences was an assessment against criteria which had changed radically. The decision to change that criteria was not a reviewable decision. The applicant challenges the correctness of the change in the criteria. This means that the attempt to review the decision to grant the licences is effectively an attempt to review the decision to change the criteria.
- I can now return to consider how to decide whether the applicant has standing in this matter in the light of the above.
How to decide whether the applicant is a person whose interests are affected by the decision to grant the pilot licences
- Whether interests are sufficiently ‘affected by’ a decision needs to be determined by reference to the subject matter, scope and purpose of the statutory provisions. As was said in Allan v Transurban City Link Limited (2001) 208 CLR 167:
The expression “affected by” and cognate terms appear in a range of laws of the Commonwealth. This is not the occasion for a disquisition on that topic. It is necessary to answer the questions posed above in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as “standing”. “Standing” is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies.
- The importance of the statutory provisions in an administrative review was explained by Davies J in Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250, citing a short passage from United States Tobacco Company v Minister for Consumer Affairs and Ors (1988) 20 FCR 520:
‘The nature of the interest required in a particular case will be influenced by the subject matter and content of the decision under review.’ This must be so with respect to the phrase "interests are affected", when used in a statute which provides for the administrative review of an administrative decision. In such event, the review, which forms part of the process of administrative decision-making, is provided to promote the achievement of the objects of the statute. The term "aggrieved", when used in the context of judicial review, may have a different connotation, for the object of judicial review is to ensure that the law is observed.
- It is therefore helpful to identify the objectives of TOMSA and how the review process within the jurisdiction of the tribunal promotes those objectives. The objectives set out in section 3 demonstrate that it is meant to enable the Government to implement its policies for the Queensland maritime industry whilst ensuring marine safety, by setting safety standards and managing the operation and activities of ships and (of relevance to this matter) providing for planning and managing operational issues.
- Section 34 of TOMSA explains that there are various mechanisms to ensure safety including (of relevance to this matter) licensing of certain key groups of people and section 35 explains the use of pilotage areas and the requirement that certain ships must use a pilot in compulsory pilotage areas.
- The tribunal’s role is set out in Part 16 which provides for review of, and appeals against, particular decisions:
203A Main purposes of pt 16
The main purposes of this part are to provide for—
- (a)reviews of particular decisions made under this Act, whether the decisions are made by the chief executive, the general manager, a delegate of the chief executive or general manager, a harbour master or a shipping inspector; and
- (b)the application of the Transport Planning and Coordination Act 1994, part 5, divisions 2 and 3; and
- (c)appeals from decisions under section 202A, including, for example, decisions disqualifying persons from holding or obtaining licences.
- It seems important for this matter that section 203D of TOMSA excludes from the review or appeal process, any decision by the Governor in Council or a decision of the chief executive or general manager about a standard.
- A standard made by the general manager or a regulation made by the Governor in Council can be about the operation and activities of ships generally or about matters of marine safety for example the establishment, registration and control of buoy moorings, or about the design, building, surveying, maintenance, equipment, crewing, and stability of Queensland regulated ships, and a standard or regulation may specify its objectives and the manner of assessing achievement of those objectives. A standard or regulation may apply Australian marine safety agreements, be about dangerous substances, prescribe distress signals, control events or activities on the water including speed limits, and deal with removal of obstructions.
- It can be seen therefore that decisions about matters of policy and operational matters governed by TOMSA would not come to the tribunal for review.
- In contrast, are those matters which could come to the tribunal for review. These can be found in TOMSA or in the Transport Operations (Marine Safety) Regulation 2016 (Qld) made under TOMSA.
- The matters are wide ranging but can be categorised as those which deal with the registration of ships, dealing with licensing of individuals, training and assessment of individuals, appointment of officers, controlling particular navigational areas, dealing with marine incidents, granting exemptions from the usual rules, requiring or releasing information, direction of marine traffic, and miscellaneous matters.
- It can be seen from the list why the opportunity to apply for a review of a decision has been given to ‘a person whose interests are affected’ by such decisions. The obvious case is a disappointed applicant for registration, licence, appointment or an exemption from the usual rules, a person who has had a licence suspended after a marine incident or a person who is asked to provide an undertaking where the general manager reasonably believes that a contravention will happen. An application for review might be made by those affected by operational decisions for marine safety, for example riparian owners or mooring owners or those conducting time sensitive operations in the case of speed limits and control of particular navigational areas or who have received a direction to operate a ship in a stated way with respect to a pilotage area. A person may be aggrieved by a decision to release information or not to do so, or where the user of a recreational ship finds that the placement of a new navigational aid obstructs the use of a particular mooring.
- It is more difficult to see why a right to apply for a review has been given for the approval of forms.
- It can be seen however, that subject to that one exception, a right to apply for a review of a decision has been given where there will be a person whose direct and private interests will be affected by the decision.
- It is also notable that those matters excluded from the right to apply for a review are matters of policy or overall safety requirements which are stated and made by standard or by regulation.
- The tribunal is established to review administrative decisions. This appears in the explanatory note to the QCAT Bill 2009 when discussing clause 9, which later became section 9 of the QCAT Act which conferred review jurisdiction on the tribunal:
Review jurisdiction is the jurisdiction of the tribunal to review administrative decisions made by government agencies and statutory bodies. Currently, appeals from administrative decisions are heard by a range of bodies including the courts, the Children Services Tribunal, the Gaming Commission, the Treasurer, the Independent Assessor Queensland Civil and Administrative Tribunal Bill 2009 Page 28 under the Prostitution Act 1999, the Panel of Referees under the Fire and Rescue Services Act 1990 and the Fisheries Tribunal.
- The study of TOMSA and the regulation made under it conducted above demonstrates that the scheme of this legislation does not depart from the intention when the tribunal was established, that it may review administrative decisions. The tribunal was not established to review any matters of policy or decision making in areas not specifically open to it. It would not be possible to seek a review of the criteria against which MSQ assessed the candidates for pilot licences. Yet the applicant challenges the correctness of the change in the criteria.
- I accept that sometimes it might be possible to review such a decision. Take the case of a disappointed candidate for a pilot licence who failed in the application because objectively, the criteria were not satisfied. It is clear that such a candidate would be able to apply to the tribunal for a review even if ultimately, the candidate needed to argue that the criteria under which the assessment was made were incorrect. This is clear because the candidate would have suffered a direct or proximate effect on their interests and the study of the statutory provisions shows that within the objective of TOMSA, such a disappointed candidate should be entitled to apply for a review of the decision. If and in so far as the challenge involved considerations of policy or whether the criteria were correct, then the tribunal would be able to consider this when deciding what was the correct and preferable decision.
- The applicant’s position however is different because the effects which it alleges as arising from the grant of the licences are not as direct and proximate as the disappointed candidate. And also because the applicant’s real challenge is the decision to change the criteria rather than the decision that the candidate met the criteria.
- There was a similar contrast of positions in Argos Pty Ltd v Corbell (2014) 254 CLR 394. In that case the question was whether supermarket owners who were likely to suffer financially by a development approval were ‘persons aggrieved by the decision’, and also whether their landlord was also a person aggrieved. The High Court had no difficulty finding that the supermarket owners were persons aggrieved but this was more difficult for the landlord. Hayne and Bell JJ said:
The focus of the inquiry required by the words is upon the connection between the decision and interests of the person who claims to be aggrieved. The interests that may be adversely affected by a decision may take any of a variety of forms. They include, but are not confined to, legal rights, privileges, permissions or interests. And the central notion conveyed by the words is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from its effect on the public at large.
- Hayne and Bell JJ then considered the positions firstly of the supermarket owners and then the landlord:
The effect to which the second and third appellants pointed was immediate and direct. In effect, each said that “If the Minister’s decision stands, and is carried into effect, I will earn less profit”.
By contrast, the first appellant pointed to a less immediate and direct effect. In effect, it said that: “If the Minister’s decision stands, and is carried into effect, my tenant may go out of business and, if that happens, I may lose the benefit of the lease I have made.”
The difference between the two claims can be expressed in several different ways. Earlier in these reasons it was expressed as a difference between “would result” and “might result”. But the same ideas can be expressed by reference to “direct” as opposed to “indirect” effects, or by describing one consequence as more “remote” than another. None of these expressions is, or should be used as if it were a term of art having a single fixed meaning. And none of these expressions is, or should be, used as if, divorced from the context in which it is used, it provides a satisfactory, self-contained explanation of the application of the statute. Each is used as a means of describing the qualitative judgment that is made.
- By analogy, the disappointed candidate for a pilot licence would immediately and directly be affected by the refusal as the supermarkets were. In contrast, the applicant’s interests were only indirectly affected if they were affected at all, and so the applicant is more in the position of the landlord in Argos.
- It seems to me therefore that greater care should be taken when determining whether there was sufficient affection of the applicant’s interests by the decision which was impugned. In the passage cited above in Argos, Hayne and Bell JJ described the decision as a ‘qualitative judgment’, and it can be seen from what was said in the passages cited above in Allan and in Alphapharm that this probably resolves to a question of statutory interpretation: can it be said that the objective intention of the legislature when enacting these provisions was that an applicant in these circumstances would have the right to apply to the tribunal for a stay of the impugned decision?
- I am also assisted by the way it was put by Bowskill J in Lock the Gate Alliance Ltd v Minister for Natural Resources and Mines  1 Qd R 1, when citing Argos, she said:
In determining the question whether a person’s interests are affected by a decision, it is necessary to consider the legal effect and (practical) operation of the decision, and then to make a judgment as to whether the legal or practical operation of the decision has been to result in an adverse effect on identified interests of the person.
- Since it is necessary to make a qualitative judgment about this there can be no one correct way to test it. But whichever route is taken, it comes to the same answer – ‘no’.
- I would start by restating the two interests said to have been adversely affected:
- (b)At the hearing on 15 December 2021 there was an interest because sometime in January 2022 the applicant’s four pilot boats were to be moved in the Brisbane Pilotage Area with the assistance of a PSP pilot, which caused concern because the pilot’s assessment and training said to be insufficient.
- In both of these necessarily the applicant needs to challenge the criteria. And in so far as the criteria were products of earlier decisions, the applicant may need to challenge those earlier decisions. If the tribunal finds on review that there was no cogent reason and no reason in the interests of justice to depart from the criteria or the earlier decisions on which they were based, then the tribunal would be bound to find that the correct and preferable decision was to grant the licences to Mr Stannard and Mr Kesteven and indeed to any other pilot. This is because the applicant does not say that Mr Stannard and Mr Kesteven, did not meet the criteria. The case is solely that the criteria was incorrect.
- On that basis it is clear that the challenge is really on the criteria and not on the granting of the licences. Yet decisions made establishing the criteria are all non-reviewable ones.
- A wider view of the events leads to the same result. It can be said that what led to the granting of the pilot licences which are the subject of this application for a stay, was a series of decisions made by the Queensland government and by MSQ, none of which are reviewable by the tribunal. Those decisions were the procurement policy itself, the decision to consider PSP’s offer, the decision to accept that offer, the decision to adopt a particular training program for the new pilots, in particular the decision to replace the observational on water training which could not proceed because the applicant refused to cooperate with experience on the dredge and in the simulator, the decision to conduct the parallel pilotage plan and the recent decision to abandon that.
- Returning to the test as set out by Bowskill J in Lock the Gate Alliance this seems very close to a test of causation, and may even be one. Using the way it is expressed in that test, it seems to me as a matter of common sense that it was not the granting of the pilot licences to Mr Stannard and Mr Kesteven that resulted in the two adverse effects alleged here. Instead, effect (a) was a result of the parallel pilotage plan combined with decisions made about assessment and training and the establishment of criteria for the granting of the licences. Effect (b) (if it happens) will not be a result of the granting of the pilot licences either; instead, it will be the result of decisions made about the pilot’s assessment and training and the establishment of criteria for the granting of the licences.
- To put this in yet another way, the granting of the pilot licences to Mr Stannard and Mr Kesteven, or indeed to any of the new pilots, did not result in any effect on the applicant’s interests at all. This was because those interests were already affected to the full extent to which they could be affected by the earlier non-reviewable decisions about assessment and training and the establishment of criteria for the granting of the licences, and in the case of (a) the parallel pilotage plan. The granting of the pilot licences natural and inevitable consequence of those earlier non-reviewable decisions.
Conclusion as to standing
- In the circumstances I answer the question whether the applicant was a person whose interests are affected by the impugned decision (in the terms of section 203B of TOMSA) as ‘no’. That is to say the applicant was not such a person on any date between 2 December 2021 and 20 December 2021 (inclusive).
Should the decision be stayed pending the review?
- Having decided ‘no’ to the question of standing there would normally be no need to consider whether the decision should be stayed, but there are three reasons why I should do so. One is that much evidence was filed on this issue and it was fully argued, and the second is that the directions of 10 December 2021 provided that the hearing on 15 December 2021 was to be both in relation to the question of standing and the application to stay. The third reason is that section 34(5) of the TPCA will in a few days time deem a decision to have been made by MSQ on the internal review, thereby giving the tribunal jurisdiction to hear a application for a review of that deemed decision. If the applicant were to apply for such a review and apply for a stay, the same considerations would apply as I am considering here.
- As stated earlier in these reasons it is the originating application for a stay of 3 December 2021 which I am considering here, and not the interlocutory application for a stay filed on 9 December 2021.
- The normal approach taken by the tribunal in stay applications, as set out in section 22(4) of the QCAT Act probably apply by analogy. This would require me to consider:
- (a)the interests of any person who interests may be affected by the making of the order or the order not being made;
- (b)any submission made to the tribunal by the decision-maker for the reviewable decision; and
- (c)the public interest.
- Since the application for the stay is made under section 32 of the TPCA it is relevant that section 32(2) provides that the tribunal may stay the original decision to secure the effectiveness of the review and any later review by the tribunal.
- In addition to this, the tribunal would consider whether there is an arguable case to upset the decision being impugned and the tribunal would also consider whether the balance of convenience favours a stay.
- To consider balance of convenience properly I need to understand how long the stay is likely to be. The stay I could grant today is only an interim one, pending internal review. It seems to me that I could grant a stay pending internal review up to about Tuesday 11 January 2022. It seems to me I should then assume that on the same grounds the applicant would successfully obtain a further stay under section 22(3) of the QCAT Act upon starting a proceeding for an external review.
- This means that when I consider what period of stay may be granted, I would have regard not only to the period of stay which I could grant now pending internal review, but also the period of stay which the tribunal could grant if the applicant applied for a stay upon the expiry of the stay pending internal review.
- I need also to assume I think, that such a stay would not only stop Mr Stannard and Mr Kesteven from acting as pilots in the Brisbane Pilotage Area but would also stop the other PSP pilots from doing so because having successfully obtained a stay of the decision in respect of Mr Stannard and Mr Kesteven, the applicant would apply for a stay in respect of the other pilots on the same grounds. I asked this of Mr Hickey and this does seem to be the position. Where extensions of time to apply for a review and/or a stay would need to be applied for, these would probably be granted on the basis that the applicant did not know the names of the other pilots or the dates when they were granted the licences and in any case it was reasonable to wait for the outcome of the application before me before making applications about the other licensees.
- Mr Huggett deposes to prejudice which would be suffered by MSQ should there be a stay. He has concerns that since the applicant has sold four of their pilot boats then they would be unable to continue piloting services in January. However, I am told that the applicant continues to be ready and available to provide pilotage services beyond 31 December 2021 until the external review is heard and determined. Since the applicant is providing pilotage services until 31 December 2021 it seems likely that it could continue beyond that date.
- When considering the balance of convenience therefore, it is right to assume that if I granted a stay this would effectively result in applicant’s pilotage contract being extended or renewed until the completion of the review, and PSP’s contract being suspended over that time. The tribunal’s review could take some months.
- As for the question of safety, which is something to consider under section 22(4)(c) (the public interest), there has been much evidence filed by the parties. All the applicant’s evidence about safety has been contradicted except the views expressed by Captain Young about the dangers arising from having two differently assessed and trained sets of pilots operating on the water at any one time. Credence is lent to the view that it is probably better to have one set of pilots operating at any one time by the fact that largely, for 32 years and as planned for the next 10 years also, MSQ has regarded the best arrangement to be that there is one pilotage provider.
- However, it is said by Kirsten Jane Dawson, Acting Project Director in Policy, Planning and Regulation at MSQ (statement dated 14 December 2021) that the applicant is not an exclusive provider of piloting services in the Brisbane Pilotage Area, so that at any one time there will be ships piloted in other ways. Some of her evidence is contradicted by the evidence of Ernest John van Buuren of Clyde & Co in his affidavit dated 15 December 2021.
- Overall, it would appear that it is not normally regarded as dangerous to have differently sourced pilots operating in the same waters.
- The applicant’s evidence about safety with respect to the process used to recruit, assess and train the PSP candidates for pilot licences and the criteria applied to grant those licences come from Captain Young, and from Juliette Sperber, the applicant’s General Manager. There is also evidence from Captain Peter Keith Dann who is also an extremely experienced marine pilot and president of the Australian Marine Pilots Institute (AMPI) which represents marine pilots throughout Australasia and which has established a set of training standard both for initial and continual training for pilots.
- The evidence is that in the past, in order to obtain a pilot licence in the Brisbane Pilotage Area it has been necessary to undertake on water observation and supervision and check pilot training on ships in and out of the port, with a pilot licensed and endorsed for that port. This is not controversial, and the documents exhibited by Captain Young and Ms Sperber show clearly that this was MSQ’s policy as stated in the Licensing and Training of Marine Pilots in Queensland Version 1.7 document which is dated 11 October 2019, and also in the 15 February 2021 version of the Record of Qualifications and Training for Queensland Port Pilots.
- As explained above when dealing with MSQ’s decision making process for the granting of the pilot licences, these requirements were changed quite radically for PSP’s candidates and replaced by a combination of training and assessments on a dredge and in a simulator. The evidence shows that these changes were done in consultation with those in the industry although there is criticism about the extent of that consultation. Ms Sperber exhibits the MSQ Pilotage Regulatory Change Advisory Panel terms of reference of August 2021. This shows that an independent panel providing advice to MSQ received a document proposing ‘the introduction of the use of simulators as a replacement and enhancement for part or current on-water training requirements for pilots’. Mr Huggett confirms that advice and comments from the panel were considered before a final decision was made. But Captain Dann says that his organisation AMPI was not told about this change formally until 3 December 2021, after hearing rumours about it from people who had attended an AMOU meeting.
- Captain Dann says that AMPI does not support the change. He says it does not comply with the International Maritime Organization’s (IMO) recommendations, or those of the International Maritime Pilots’ Association (IMPA).
- He refers to the International Maritime Organization resolution a960, which recommends in paragraph 5.2 that pilots’ training should include practical experience gained under the close supervision of experienced pilots in vessels under actual piloting conditions which may be supplemented by simulation, both computer and manned model, classroom instruction, or other training methods. Bearing in mind that most of the PSP pilots are existing qualified pilots it would appear that the arrangements for assessment and training did not fail to correspond with the IMO’s recommendation for those pilots. Captain Buck says that the IMO resolution was adopted 18 years ago and is out of date and does not reflect advancements in simulation technology. In any case the recitals to the resolution make it clear that these are only recommendations and that the IMO ‘does not intend to become involved with either the certification or the licensing of pilots or with the systems of pilotage practised in various States’.
- The IMPA resolution that is mentioned has been extracted from some other document and is very difficult to understand out of context. I suspect that it is incorrectly extracted because it seems to read that use of simulators in assessment is inappropriate, which seems unlikely. It then says that the sole use of simulators for training is inadequate. But that is not what MSQ has done.
- Captain Young said that this dramatic change in training and licensing of pilots is experimental and has never occurred in any major Australian port, and Ms Sperber said she was not aware of anywhere else in Australia or overseas where pilots do not receive on water training or assessment. But Mr Huggett points out that MSQ has used simulation assessment to issue licences to pilots operating in the Port of Amrun (which was required because the port was not yet built), and for pilots in Gladstone in the operations for KNG tankers, and for other port licences. Captain Buck says that many ports in Australia and around the world exclusively use simulator training for marine pilots and the training courses on the simulator are endorsed by the Australian Maritime Safety Authority (AMSA) and other industry bodies.
- According to Captain Buck, in evidence filed on behalf of PSP, the simulator provided an extremely accurate replication of the Brisbane Pilotage Area. He says that the simulator which was used was highly acclaimed and is used to train pilots in many other settings. In his opinion it was more effective than traditional on water training methods because it permitted practice in varied conditions and vessels and in marine incidents. As stated elsewhere, training on the simulator for the PSP candidates was supplemented by many hours training on water on the dredge.
- Mr Huggett says that the simulator facility is the centre for maritime excellence in the Southern hemisphere, and has played a crucial role in raising the standards of qualifications and competence levels for marine pilots across Australia. Many Australian marine pilots register for courses on the simulator. The simulator includes a full mission bridge replicating the real thing, with standard navigation equipment and engine controls. There is a separate helmsman interpreting the pilot’s directions and a tug master following instructions as would occur in a real life situation, with simulated and required communications between the pilot, vessel traffic services operator and tug master.
- Mr Huggett says that the simulator provides a ‘high fidelity’ replication of the on water environment, but that it has the advantage of enabling exercises in a variety of ship types, ports, weathers and tidal conditions. He says that for the assessment for the purpose of area endorsement (which assesses the candidate competence in the Brisbane Pilotage Area) each PSP candidate did a minimum of 10 ship movements.
- Captain Young points out that normally pilots are granted Level 4 licences and then progress as they get more experience to Level 1, but here MSQ has issued Level 1 licences straight away. But he recites Mr Huggett’s response when this was raised with him on 23 November 2021 that the licence matched the actual competency of the pilot who was granted the licence. As Mr Huggett points out, a Level 4 licence is a trainee marine pilot level and restricts the pilot to smaller ships, and he has discretion at which level to licence the pilot depending on performance, previous experience and competency.
- Mr Huggett says that where a Level 1 licence was granted this represented previous significant experience as pilot in other Australian ports on all possible ship types which could come into Brisbane along with other examinations, specific ship runs and manoeuvres on the simulator, including assessments by experienced Check Pilots.
- Ms Sperber deposes to concerns expressed to her about the experience, training and licensing of the PSP pilots by those in the industry who (seemingly) had regular contact with the applicant. She also refers to people representing parts of the maritime industry, both internationally and nationally, having expressed concerns in writing about the training and licensing of PSP pilots.
- However, if one reads the alleged concerns it is clear that they are very mild in comparison to those much more direct and forceful concerns expressed in the evidence from the applicant’s main witnesses.
- There is a letter from the Australian Maritime Officers Union (AMOU) dated 23 September 2021. This says that AMOU represents 30 members employed by the applicant and also members employed by PSP currently under training to become pilots. The letter expresses a concern that the training and licensing standards would ‘evolve’ in order to achieve the licensing of the new pilots which will be ‘unlikely to involve a strengthening of certification, training, licensing and safety’.
- On 25 November 2021, AMOU published a media release describing the changes as a ‘weakening of training and licensing criteria’, complaining about not being consulted fully, and alleging a conflict of interest because the Department of Transport and Main Roads owns and manages the simulator provider in question and would be receiving fees for its use.
- It is said by Ms Sperber that the Maritime Industry Australia Limited (MIAL) expressed concerns, but the exhibits show that MIAL were largely asking for more information, and then on 30 November 2021, recited what they had been told by MSQ that the on water local knowledge component had been provided by on water experience on dredger and by simulator time, without expressing any view one way or the other whether this was appropriate.
- Ms Sperber refers to a discussion with an industry member who said that others had expressed ‘disbelief’ that pilots would be fully licensed in 12 months and not have undertaken any supervised or observational transits on large ships in and out of the port. The industry member raised this with the General Manager of MSQ as a result of which any concerns were eased for some months. But after that others said that they would be ‘wearing the risk of the unknown’ of an ‘experiment’ in pilot training and that precautionary measures would have to be taken.
- These passages clearly suffer from the fact that they are double hearsay and not of the quality that would be needed for me to find damage to the public interest by the changes to assessment and training of the prospective pilots.
- They can also be contrasted with what is said by Captain Buck for PSP. He says that he has engaged with various stakeholders especially PSP’s future shipping customers, who he knew from his work in Melbourne, and having explained PSP’s operations all of them have confirmed that they are happy to use PSP and have complete faith in him to run a safe operation.
- I agree with the submissions made by Mr McKenna on behalf of PSP, that the views expressed by the applicant’s witnesses are not given with the benefit of actual knowledge of the pilots involved or the training that they have received.
- It is also the case that the views were expressed without knowledge of the process of recruitment, assessment and training undertaken by PSP before engagement of the prospective pilots and without knowledge of the assessments against criteria carried out by MSQ for the granting of the pilot licences as now set out in the affidavits.
- In particular the comments clearly were not made in the knowledge that all PSP’s candidates for pilot licences are highly experienced ship masters and most of them are qualified pilots, albeit mostly with experience in other ports.
- The facts about the recruitment process are given in the evidence of Captain Buck of PSP. Candidates were required to be ship masters with Class 1 Certificate of Competency or equivalent, which is the highest qualification for a ship’s master, authorising the master to operate nearly all types of ships anywhere in the world. The candidates needed extensive ship handling experience and/or previous pilotage experience and preferably recently completed Bridge Resource Management Training, Advanced Marine Pilots Training and CPD course recognised by the Australian Marine Pilots Institute (AMPI). A total of 50 candidates were interviewed by an experienced panel and this was shortlisted to 30, 16 of whom were existing marine pilots. This was further reduced to 25 who were offered employment between June and August 2021. PSP also recruited 7 experienced marine pilots. At the time of the hearing, PSP had engaged 27 as marine pilots, whose experience and qualifications are provided in Captain Buck’s affidavit.
- They then went through a training process for the Brisbane Pilotage Area. This is described by Captain Buck but in short it started in July 2021 and the candidates joined it as they relocated to Queensland with the training continuing to date. Since all the candidates already had Master 1 certification, they already had the requisite ship handling skills and experience and so they only needed to be trained about the local conditions of the Brisbane Pilotage Area. The training is fully described in Captain Buck’s affidavit and it is unnecessary for me to describe it in detail. The main point to make about it is that the training was designed by two highly experienced marine pilots in consultation with, and the agreement of MSQ as the safety regulator and Captain Buck supervised the administration of the training.
- The training program was supported by training on the simulator and on the dredge Brisbane. The simulator has been described above, each new pilot did about 160 hours training on the simulator. The training on the dredge Brisbane was day and night 12-hour observation trips with theoretical and practical training relating to the pilotage design of the Port of Brisbane. Each new pilot did about 85 hours of training on the dredge.
- Finally there was assessment by MSQ for the grant of the pilot licence as I have described elsewhere.
- As pointed out by Mr McKenna for PSP, the licensing of PSP’s pilots was the culmination of almost two years of work by MSQ and PSP to provide a new pilotage service, ‘a process supervised by some of the most experienced marine pilots in Australia, Captains Pelecanos, Watkinson and Buck’. This is not gainsaid by the applicant.
- Mr Green, the General Manager of PSP’s parent company Australian Marine Systems Group (AMSG), explains how PSP was set up as a separate company to present an offer for the pilotage provider contract. He explains the strategies adopted to move towards implementation of the contract, the bid having been successful. And he explains how the company has liaised with stakeholders in readiness for 1 January 2022 when PSP takes over as pilotage provider.
- The decision made about whether or not to grant the pilot licences was made by Mr Huggett who is delegated to assess licence and exempt master applications for all Queensland marine pilots and exempt masters, having considered about 146 and 189 of these respectively. He is a highly experienced officer in MSQ with a distinguished career history in the Royal Australian Navy, himself an experienced mariner and who had been responsible for the Continuous Professional Development program for marine pilots in association with the AMPI, and winner of the 2021 Public Service Medal for Outstanding Public Service to Maritime Safety in Queensland.
- For Mr Stannard and Mr Kesteven, Mr Huggett describes the criteria that he applied and how they satisfied the criteria. He says that both were marine pilots albeit having worked in other Australian ports, but they were highly experienced (more than 10 years) and had extensive experience and capability on all the ship types that enter the Brisbane Pilotage Area, including piloting identical ships to those that visit the Port of Brisbane. It can be seen that they were both ideally qualified to be granted pilot licences for the Brisbane Pilotage Area.
- Mr Stannard has worked in the maritime industry for 24 years starting as a Chief Officer with BP then as Master for two years, then becoming a marine pilot for the Sydney Ports Corporation about 14 years ago, becoming a full licensed pilot 11 years ago. He was appointed to the position of Pilot Manager and then Deputy Harbour Master in Sydney.
- Mr Kesteven has worked in the maritime industry for 46 years moving up to Master some 36 years ago, with experience with a wide range of vessels in international waters. He started as a marine pilot about 17 years ago in the ports of Sydney, Botany and Eden did relief work as a Harbour Master, and he is an unrestricted Check Pilot for the Port of Sydney.
- I have had to assess the evidence without the benefit of cross examination, and I am conscious that the parties have had little opportunity to file evidence in rebuttal if they had wished to do this. But overall I have to take a view based on the totality of what I have heard and read as to whether there is a risk to the public, or to shipping or to the port if a stay is not granted. My answer is that it does not appear to me that there is such a risk.
- In the circumstances, the merits of a review can only be said to appear to be very poor.
Balance of convenience
- In the absence of a public interest element here, we are left with two stark effects of a stay.
- The first is a significant interference with the contractual arrangements made by the parties. A stay would probably oblige MSQ to revive or extend its contract with the applicant beyond 31 December 2021, and a suspension of the contractual arrangements made between MSQ and PSP until the review was heard by the tribunal. The consequences of this interference in the contractual arrangements to these parties is unclear because the contracts have not been put in evidence.
- The second is the damaging effect on PSP and its employees if a stay were to be granted. I accept the evidence filed by Mr Green that this would put in danger the $9m which has already been spent or committed to by PSP, although it appears that some $5.1m of this could presumably be recouped or partially recouped because it is for purchase of vessels and vehicles and equipment. There would be an ongoing waste of monthly operating cost of $1.46m per month which would be lost if PSP were prevented from delivering services under the contract. There would also obviously be loss of profit under the contract which can be calculated from the figures provided by Mr Green.
- It is said on behalf of the applicant however, that any such financial losses would be compensable by money if the applicant is ultimately unsuccessful. However, this could only be by enforcement of an undertaking as a condition of a stay and no such undertaking is being offered. The tribunal would have to impose this under section 22(6) of the QCAT Act, but this would only apply to a stay of anticipated review proceedings. Evidence has been filed and not controverted, that the applicant does not own any assets in Queensland or in New South Wales. The implication being that any undertaking as to damages which might be offered, or required by the tribunal, might be difficult to enforce.
- Such an undertaking might also need to be given with respect to the PSP employees who would be added as respondents in so far as they might suffer financial loss by the granting of the stay. Mr Green also says that 41 additional employees have been recruited to carry out the services. They have all resigned from other roles in order to join PSP to provide the services. PSP was set up as a standalone company to provide those services.
- Many of the employees and the new pilots, and their families, have relocated to Brisbane to take up their new engagements. If there is a stay but the application for review is unsuccessful, the delay to the start of the PSP contract would obviously be personally disruptive for some people.
- It is clear from the above that in the absence of concerns about public safety, and having regard to the limited and only speculative benefit to the applicant but the extensive harm which would be suffered by PSP and its employees if the stay is granted, compared with the position if the stay is not granted, the balance of convenience is against a stay being granted.
- I have found that at no time between 2 December 2021 and 20 December 2021 inclusive was the applicant ‘a person whose interests are affected by an original decision’ to grant pilot licences to Mr Stannard and Mr Kesteven. These dates start when the applicant first asked MSQ to review the decision to grant the pilot licences and end on the final decision being made in this matter.
- In the circumstances the applicant did not have a legal right to ask MSQ to review the decisions, and in turn does not and has not, a right to apply to the tribunal for a stay of MSQ’s decision about this.
- There are two applications for a stay of MSQ’s decision before the tribunal. The only one in the tribunal’s jurisdiction is the one before me today, that is GAR662-21 made on 3 December 2021. In the circumstances, I dismiss this application.
- If I am wrong to dismiss GAR662-21 and should consider the question of the stay, then I would refuse the stay on the grounds stated in these reasons.
 Affidavit of James Anthony Huggett, executive director, Port Operations and Vessel Traffic Services at MSQ made on 14 December 2021, .
 Affidavit of Simon Brooks, General Manager of Australian Marine Systems Group, Poseidon’s parent company dated 14 December 2021.
 Affidavit of Juliette Sperber, General Manager of the applicant, exhibit TAB 12: Media release 25 November 2021 from AMOU.
 Sperber,  and , also the affidavit of Captain Scott John Young dated 3 December 2021, .
 Direction, 10 December 2021. This was changed later to an in-person hearing.
 Submissions dated 3 December 2021, .
 Under section 35 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
 Section 36.
 Affidavit of Ernest John van Buuren of Clyde & Co dated 9 December 2021, exhibit page 6.
 Application for miscellaneous matters on Form 40.
 Section 34(5) of the Transport Planning and Coordination Act 1994 (Qld).
 Although section 34(5) applies to a decision by the chief executive, it also applies to a decision by the General Manager: section 203B(3)(a) of TOMSA.
 Letter from Clyde & Co age page 49 of the exhibits to the affidavit of Captain Scott John Young dated 3 December 2021.
 Van Buuren 9 December 2021, exhibit page 11.
 The wording used in section 42 of the QCAT Act.
 , .
 (1988) 20 FCR 520 at 527.
 Affidavit dated 3 December 2021.
  to .
 Young, exhibit page 30.
 Submissions dated 13 December 2021, page 12.
 Huggett, exhibit JAH-4.
 Huggett, .
 This would be because such a voyage would be safe if piloted by a PSP pilot, Huggett, .
 Affidavit of Captain Scott John Young dated 3 December 2021,  and .
 Kirsten Jane Dawson, Acting Project Director in Policy, Planning and Regulation at MSQ (statement dated 14 December 2021), .
 Dawson, exhibit KJD-2.
 Affidavit of Simon Brooks, General Manager of Australian Marine Systems Group and ‘Mobilisation Director’ of Poseidon, dated 14 December 2021, .
 Young, .
 Affidavit of Captain Robert Ronald Buck dated 14 December 2021, .
 Green,  and -.
 Buck, .
 Buck, .
 Green, , Huggett .
 Sperber exhibit, TAB 2.
 Sperber exhibit, TAB 4.
 Young, .
 Huggett, .
 Huggett,  to .
 Huggett, .
 Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, .
 Section 219B.
 Section 207.
 Section 218(2).
 Section 208.
 Section 208(2) and (3).
 Sections 212 to 218.
 Registration as recreational or as other regulated ship: section 28 of the regulation, or cancellation or suspension of registration: section 59 of TOMSA.
 Granting of pilot licence: section 71 of the regulation, or recreational marine driver licence or personal watercraft licence: section 61 of the regulation, or granting or refusal of licences to operate a ship or to act as crew member generally: section 62 of TOMSA, or grant of temporary permit for master or crew member: section 75 regulation.
 Inquiring about a person’s suitability to conduct examinations or conduct training programs: section 205A of TOMSA; approving a person to conduct examinations of applicants for recreational marine driver licence or personal watercraft licence: section 65 of the regulation; and conducting examinations to establish whether an application is qualified for the licence: section 73 of the regulation.
 Appointment of harbour master: section 74 of TOMSA, or shipping inspector: section 157 of TOMSA.
 Declaring an exclusion zone: section 130A of TOMSA; defining an area of water as a buoy mooring area: section 182 of the regulation; approving a harbour master to deal with buoy moorings: section 181 of the regulation; and stating an area to be an area of danger due to anchored ships or for other reasons: sections 195 and 197 of the regulation.
 Requiring an investigation into a marine incident section 126 of TOMSA; and suspension or amendment of a licence after a marine incident: section 117 of the regulation.
 Granting a restricted use authority for a ship: section 53 of the regulation; granting a pilotage exemption certificate: section 166 of the regulation; exempting a person or ship from a provision of a regulation or a speed limit: section 18A of TOMSA; and consenting to use of distress signal for training or demonstration purposes: section 77 of the regulation.
 Releasing information about a person: section 63I of TOMSA; asking the master of a ship for cargo information: section 94 of the regulation; and changing reporting times for ships with dangerous cargo.
 In exceptional circumstances directing the master of a ship to navigate or operate a ship in a stated way with respect to a pilotage area, including to anchor or moor the ship: section 191; and fixing speed limits for ships (by gazette notice): section 206A of TOMSA.
 Setting up an aid to navigation: section 105 of TOMSA; approval of forms: section 206B of TOMSA; and believing that a contravention will happen, request undertakings to be given section 183H of TOMSA.
 Although the tribunal would not depart from Government policy unless there was a cogent reason to do so: Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Agriculture, Fisheries and Forestry  QCATA 161, Senior Members O'Callaghan and Stilgoe OAM and Member Richards, , and would apply lawful and relevant policy unless it is not in the interest of justice to do so: Yeeha Tours and Holidays Pty Ltd v Department of National Parks, Sport and Racing  QCAT 345, Senior Member Howard, .
 This is having regard to sections 32(7), 34(1) and section 34(5). The application for an internal review was made on 2 December 2021 and so the 28 days starts then, meaning that a decision would have to be made by midnight 30 December 2021, and the tribunal could add a few more days to allow an application for a review of the reviewed decision to be made. Since the tribunal’s Brisbane office is closed until Tuesday 4 January 2022, and since most solicitor’s offices are also closed over Christmas, the stay would reasonably continue to about Tuesday 11 January 2022.
 Huggett, .
 Submissions of Mr Hickey, .
 Affidavit dated 3 December 2021.
 Affidavit dated 7 December 2021.
 Affidavit dated 13 December 2021, see in particular .
 Sperber exhibit, TAB 2.
 Sperber exhibit, TAB 4.
 Sperber exhibit, TAB 10.
 Huggett, .
 Dann, .
 Dann,  to .
 Dann exhibit, page 30.
 Buck, .
 Young, .
 Sperber, .
 Huggett, .
 Buck, .
 Buck, .
 Captain Buck, , .
 Huggett, .
 Huggett, .
 Young, .
 Young, .
 Huggett, .
 Huggett, .
 Sperber, .
 Sperber exhibit, TAB 5.
 Sperber exhibit, TAB 12.
 Sperber exhibit, TAB 18
 Buck, .
 Buck, .
 Buck, -
 Buck, .
 Buck, .
 Buck,  and -.
 The experience and background of these men is described in Gree, -.
 Green, , , -.
 Green, -.
 Green, -.
 Huggett, .
 Huggett, .
 Huggett, .
 Buck, (e).
 Green, .
 Affidavit of Samantha Louise Betzien, dated 14 December 2021, .
- Published Case Name:
Brisbane Marine Pilots Pty Ltd v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors
- Shortened Case Name:
Brisbane Marine Pilots Pty Ltd v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads
 QCAT 436
20 Dec 2021