Wood v Director (Maritime Safety) Maritime Safety Queensland
[2006] QDC 362
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- Unreported Judgment
- Wood v Director (Maritime Safety) Maritime Safety Queensland[2006] QDC 362
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Wood v Director (Maritime Safety) Maritime Safety Queensland[2006] QDC 362
Wood v Director (Maritime Safety) Maritime Safety Queensland[2006] QDC 362
DISTRICT COURT OF QUEENSLAND
CITATION: | Wood v Director (Maritime Safety) Maritime Safety Queensland [2006] QDC 362 |
PARTIES: | GREGORY MARK WOOD Applicant and DIRECTOR (MARITIME SAFETY) MARITIME SAFETY QUEENSLAND Respondent |
FILE NO/S: | No 1997 of 2006 |
DIVISION: | Civil Jurisdiction |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 15 September 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 July 2006 |
JUDGE: | O'Sullivan DCJ |
ORDER: | Appeal stayed. |
CATCHWORDS: | Application for stay of appeal; cancellation of fishing licence; marine safety. |
COUNSEL: | Mr. Scott-McKenzie for the applicant Mr. D. Lang for the respondent |
SOLICITORS: | Wellners Lawyers for the applicant Crown Solicitor for the respondent |
- [1]This is an application for an order that the decision of the Director (Maritime Safety) Maritime Safety Queensland, to cancel the applicant’s recognition as a Skipper Grade 3, be stayed until a hearing of the appeal of this decision by the District Court.
- [2]The applicant was the holder of a Certificate of Recognition Skipper Grade 3 number A008235 under the Transport Operations (Maritime Safety) Regulation 2004, until it was cancelled pursuant to s 163(a) of that regulation by the Maritime Safety Agency of Queensland on 31 May 2006.
- [3]Section 163 of the Regulation provides:
“The administering agency may suspend or cancel an authority on any of the following grounds:
- (a)the holder has contravened Maritime Safety legislation.”
- [4]Regulation 164(2) provides:
“If, after considering all written representations made within the stated time, the administering agency still considers grounds to take the proposed action exists, the administering agency may
- (b)if the proposed action was to cancel the authority – cancel the authority or suspend it for a term”.
- [5]The applicant submitted that this Regulation does not empower the administering agency to consider documents or evidence on which the holder of an authority has not been afforded an opportunity to make representations.
- [6]Under Part 16 of the Transport Operations (Maritime Safety) Act 1994 the holder of an authority may appeal against the decision of the administering agency.
- [7]Sub-section 164 (7) of the Regulation provides:-
“(a) the suspension or cancellation does not take effect until:
- (i)the end of the time to appeal against the conviction; and
- (ii)if an appeal is made against the conviction – the appeal is finally decided.”
- [8]Section 203(1) of the Act gives the applicant a right of appeal to the court and the court has the power to stay the reviewed decision to secure the effectiveness of the appeal.
- [9]Counsel for the applicant submitted that the decision maker took into consideration extraneous documents and evidence which he was not authorised to take into consideration by the legislation, and other documents on which the applicant had not been afforded an opportunity to make representations. The documents relied on by the administering agency comprised files of the authority which, appeared from the decision notice to “contain a good deal of evidence including witness statements and witness testimony.” (T5). An example given by counsel for the applicant was in respect of number 1 of the matters of contravention; the Decision refers to “witness testimony documented by the Queensland Water Police and contained on file 720/05377.” (T5).
- [10]The authority was purportedly cancelled on the ground that the applicant had contravened maritime safety legislation. Three of the matters relied on, the most recent matters, are either before a court or (I am advised) will proceed to court in the future. One matter was not the subject of any action. Four of the contraventions relate to offences which occurred more than 10 years ago.
- [11]Counsel for the Applicant submitted that s 163(a) of the Regulation does not permit cancellation of the authority by reference to contested matters presently before a court or proceeding to court; because they are ‘nothing more than allegations’ (T28).
- [12]Counsel for the applicant submitted that because the applicant has been the holder of an authority for approximately 25 years, and four of the matters taken into consideration by the administering agency occurred more than 10 years ago, he has good prospects of success on the appeal.
- [13]The applicant deposes that the consequences of a stay order not being made would be financially and otherwise devastating for him and his business because without the authority he “cannot earn a living” (paragraph 60).
- [14]On this point, counsel for the applicant submitted that the stay provision is designed to avoid the consequences deposed by the applicant, namely depriving him of his livelihood and the ability to earn a living in the meantime, in circumstances where the appeal may not come on for some time. (T21).
- [15]Counsel for the applicant submitted that there was no evidence before me concerning the applicant’s ability to fish, because the appeal concerns only an authority to skipper the boat; without an authority, and ability to operate a boat, the applicant cannot go out to sea and fish.
- [16]Counsel for the applicant submitted that public safety will not be affected if a stay order is made because four of the matters occurred more than 10 years ago, one matter is alleged to have occurred two and a-half years ago, two matters are alleged to have occurred approximately two years ago, and the fourth matter is alleged to have occurred more than one year ago. Further, the administering agency did not give the Show Cause Notice until approximately one year after the date on which the most recent incident is alleged to have occurred.
- [17]The applicant submitted that a failure to make a stay order would render success on the appeal nugatory.
- [18]In written submissions on behalf of the respondent, reliance is placed on the applicant’s failure to make further submissions on the original decision (31 May 2006) and thus Maritime Safety Queensland confirmed the original decision, in its review decision (10 July 2006).
- [19]Written submissions on behalf of the respondent note that the grounds for the stay are not listed on the originating application filed in the District Court on 10 July 2006 and no appeal documents had been lodged when the originating application was lodged. In particular, in the amended application on 18 July 2006 there is a failure to state which decision is sought to be stayed. Paragraph 16 of written submissions for the respondent notes that it is therefore assumed that the stay application refers to the review decision.
- [20]The respondent submitted that there were grounds for the authority taking disciplinary action because the applicant was convicted on 14 January 1996 in the District Court of a charge of wilfully and unlawfully damaging a boat in the night-time. An appeal to the Court of Appeal was dismissed. This conviction constitutes a ground for taking action pursuant to s 163(d)(i).
- [21]Submissions for the respondent set out (paragraph 38) the applicant’s contraventions of maritime safety legislation, including six items commencing 29 July 1997 through to 18 February 2004. The contraventions on 29 July 1997 and 24 October 1997 resulted in prison terms, but the latter was reduced on appeal to a fine. In respect of the contravention on 17 December 2003, the applicant was prevented from fishing in the area in which the incident occurred. At the final appeal the contraventions will be proved to the required standard (balance of probabilities), which is all that is required pursuant to the relevant legislation.
- [22]The respondent submitted that the grounds for a stay do not include a test of financial hardship and that, while the consequences for the applicant must be considered, it is not the only factor. It relies on Neary v Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development [2004] QSC 77. The respondent submitted that issues of public safety are paramount and cites Re Martin; ex parte Dipane (2005) 222 ALR 358. In that case, criminal proceedings had not concluded and it was argued that the cancellation therefore involved a breach of natural justice. The appeal was unsuccessful.
- [23]Counsel for the respondent submitted that even if the stay is dismissed, the applicant can still earn a living as the cancellation of his authority does not affect his fishing licences.
- [24]Counsel for the respondent submitted that the grant of the stay requires an exercise of discretion and there are two competing interests, one being the public and boating safety and the other a possible financial effect on the applicant.
- [25]Counsel for the respondent submitted that given the serious nature of the allegations against the applicant over a long period of time, the court should put the safety of the members of the public and others before any inconvenience to the applicant. I have given careful thought to this submission.
- [26]Counsel for the respondent submitted that the application for a stay should be dismissed and an urgent hearing date should be set, including directions for the future conduct of the appeal.
- [27]The applicant is the holder of the following licences:
Commercial Fisher Licence number 22636;
Buyer Licence number 46396;
Commercial Fishing Boat Licence 4192, and Boat Mark FYQT;
Commercial Fishing Boat Licence number 7042, Boat Mark FHVF.
- [28]The respondent contends that the applicant is able to work on these boats and thus is not prevented from earning a living; the effect of the cancellation is that the applicant can no longer skipper the boat. Counsel for the respondent submitted (T14) that Mr Wood is a commercial fisherman, he has a buyer’s licence which allows him to buy and sell crabs, he has authority to operate two boats and the effect of the cancellation is simply that his livelihood as a fisherman is only affected to the extent that he cannot be the skipper on the boat. He can be on board, he can be a crew member, but he cannot skipper the boat. Counsel noted that the applicant has a licence for two boats and thus, in any event, he requires a skipper for the other boat.
- [29]Counsel for the respondent submitted that the power to stay the reviewed decision to secure the effectiveness of the appeal includes a preservation of assets and, in particular, whether they might leave the jurisdiction; whether the appeal can be conducted in a suitable place and time; whether the appeal would be rendered nugatory. In respect of the last point, he submitted that this does not apply here because the matter involves a licence that can be applied for again at a particular point in time. I have given careful thought to this submission.
- [30]Counsel for the applicant submitted that the review decision was made out of time and as a consequence it was a deemed decision, and a deemed decision is confirmation of the original decision on the grounds in the original decision. By virtue of sub-section 34(6), the decision being stayed is the reviewed decision.
- [31]I note that in Bannister and Others v Director-General Department of Corrective Services [2002] QSC 469, Justice Holmes referred to the balancing exercise involved (paragraph 10). She referred to McMahon v Gould (1982) 7 ACLR 202, where Wootten J set out a series of guidelines relevant to the exercise, including: “(l) that in an appropriate case the proceedings may be allowed to proceed to a certain stage, for example setting down for trial, and then stayed.”
- [32]I agree with counsel for the applicant that it is relevant that the most alleged contravention occurred more than 12 months ago and yet it is only in the last couple of months that the administering agency has taken action to cancel the applicant’s authority. The more serious earlier matters occurred 10 years ago and no action has been taken in the interim. The last three matters are proceeding to court or will proceed to court. Therefore, the preservation of the status quo would not pose a risk to the public safety. I agree with this submission.
- [33]I grant the stay, conditional on compliance with the following:
- (a)The respondent disclose the following material within seven days hereof:
- (i)Maritime Safety Queensland (“MSQ”) file 720/03858 entitled “Collision Vessel ‘Seahorse’”;
- (ii)MSQ file 720/05377 entitled “Gregory Wood Unsafe Operations”;
- (iii)All material considered by MSQ in relation to a Marine Infringement Notice No. M000031908;
- (iv)All material considered by MSQ in relation to an allegation of a contravention of the Marine Safety Legislation on 17 December, 2003;
- (v)MSQ file 715/0153 entitled “Marine Certificates Gregory Mark Wood”.
- (b)The appellant advise the respondent in writing of documents contained in those files which it requires within 10 days thereafter.
- (c)The respondent provide copies of the documents as requested within 10 working days.
- (d)The appellant file further affidavit material (if any) within 10 days thereafter.
- (e)The appellant file and serve his Outline of Argument within 21 days thereafter.
- (f)The respondent file and serve its Outline of Argument within 21 days thereafter.
- (g)The parties sign and file a Certificate of Readiness within 14 days thereafter.