Wood v Watkins[2007] QDC 115

DISTRICT COURT OF QUEENSLAND

The Issues

1. [1]
   Mr Wood is a professional fisherman, now 49 years old. He has always been a fisherman. He catches crabs around Moreton Bay. He has licences allowing him to fish and to be the skipper of his boat. He has had his skipper’s licence for 26 years.

2. [2]
   On 31 May 2006 his Skipper Grade 3 licence was cancelled. A stay of that order was granted by this court on 15 September 2006.

3. [3]
   The cancellation means that he can continue to fish, and take crabs, but he is not entitled to be the skipper of his boat. It is submitted for Mr Wood that cancellation should be set aside, to be replaced with a period of suspension. For the respondent, it is submitted that the suspension was cancellation, and should not be disturbed.

The Cancellation

4. [4]
   The Maritime Safety Branch is part of Queensland Transport. Its Chief Executive and General Manager have certain administrative powers. They, or a delegate, can grant an “authority” according to Part 6 of the Transport Operations (Marine Safety) Regulation 2004.  In this case, the authority is Mr Wood’s licence to be the master of his fishing ship – in this case a 17 foot metre aluminium boat, powered by an outboard engine, and controlled from a central console.

5. [5]
   If they consider a ground exists to suspend or cancel the authority, they may give the holder of the authority a written notice. It must state:

1. (a)
   the proposed action.

2. (b)
   the grounds for the proposed action.

3. (c)
   an outline of the facts and circumstances forming the basis for the grounds.

4. (d)
   …

5. (e)
   an invitation to the holder to show within a stated time, which must be at least 30 days, why the proposed action should not be taken.

6. [6]
   They must consider all written representations made within the stated time. If they still consider that grounds to take the proposed action exists, they may cancel the authority, or suspend it for a term. Reasons for the decision must be given to the holder of the authority. See Regulation 164(1) – (5).

7. [7]
   It was suggested on behalf of Mr Wood that the proceeding brought against him was unfair, as he (or his solicitors) were not given all the materials against him, held by Maritime Safety. It was said that the Notice of Proposal to Cancel an Authority was lacking in detail and did not disclose, for example, written statements or reports against his interests. Reference was made to the statement of administrative principle discussed in The Laws of Australia, at TLA (2.5.530) to the effect that “Adverse information that is credible, relevant and significant to the decision to be made should ordinarily be disclosed and an opportunity given to deal with it”. To like effect, reference was made to Freedman v Petty & Ors (1981) VR 1001 at 1021, and Moore v Guardianship & Administration Board 1990 VR 902 at 912.

8. [8]
   The procedure for suspension or cancellation is set out in s 164 of the Regulations. The written notice must state “the grounds” for the proposed action, and “an outline of the facts and circumstances forming the basis for the grounds”. They might include, say, an admission by the licensee, statements by witnesses, or a report by a Maritime Safety officer. It is not enough just to assert the conclusions that are drawn from such materials. A licensee will not have an opportunity to seek meaningful advice, and make informed representations, if that view is not adopted. Here, the Notice given to Mr Wood should have gone further than it did, at least with respect to the allegations that he drove his boat dangerously close to other boats.

9. [9]
   Section 43 of the Transport Operations (Marine Safety) Act 1994 provides that:

‘43General obligations on persons involved with operation of ship to operate it safely

(i)A person involved with a ship’s operation (including the owner, master, pilot and crew members) must not cause the ship to be operated unsafely.

Maximum penalty – 500 penalty units or imprisonment for one year.’

10. [10]
    Attention has to be paid to the grounds for suspension or cancellation of an authority. Relevantly, s 163 of the Regulation provides that:

‘The administering agency may suspend or cancel an authority on any of the following grounds –

1. (a)
   The holder has contravened marine safety legislation

…

4. (d)
   The holder has been convicted of –

(i)an indictable offence

…’

11. [11]
    Mr Wood got a ‘show cause’ letter from the General Manager dated 13 April 2006. It enclosed a three page Notice of Proposal to Cancel an Authority. It contained a number of allegations against him. That Notice was signed by Mr Warren Bundschuh, a Director of Maritime Safety.

12. [12]
    On 16 May 2006 Mr Wood’s solicitors wrote a short letter to Maritime Safety, either denying the allegations or explaining that some were before the Magistrates Court. Cancellation of the authority was resisted.

13. [13]
    Maritime Safety wrote again, on 31 May 2006, enclosing a Notice of Decision. Both were signed by Mr Bundschuh. (There was a suggestion that he did not have authority to do that, but it was shown that he was the lawful delegate of the General Manager). Extending to nine pages, in form it is rather like the judgment of a court. The allegations in the ‘show cause’ letter were considered at some length. The author concluded:

‘In my view the quality of the contraventions warrants serious action to be taken against Mr Wood’s authority in the interests of marine safety.  The contraventions are very serious, relating primarily to deliberate operation of his fishing ship at high speed in close proximity to other ships, sometimes resulting in collisions.  The contraventions have also occurred over a long period of time.  Put together, the contraventions demonstrate that Mr Wood has a blatant disregard for the objectives of marine safety legislation.’

…

I hereby cancel the authority pursuant to s 164 of the Regulation.

…’

14. [14]
    Mr Wood did not have an immediate right to appeal. He had to ask the Chief Executive to review the decision. See s 204B of the Transport Operations (Marine Safety) Act 1994.  A decision on an application to review must be made within 28 days after the application is made.  The Chief Executive, in reviewing the decision, has the same powers as the original decision-maker.  See s 34(1) and (2) of the Transport Planning and Co-ordination Act 1994.

15. [15]
    In this case, the decision was reviewed by Captain Watkinson, the General Manager of Maritime Safety. He concluded that the original decision should be confirmed. His reasons amount to a complete acceptance of the matters in the original decision.

16. [16]
    However, the review decision was not made within the allowable 28 days. Section 34(5) of the above Act then applied:

‘(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.

3. (6)
   In appealing to the appeal court, the decision subject to the               appeal is the reviewed decision and not the original                                                         decision.’

17. [17]
    Therefore, attention has to be paid to the Notice of Decision of 31 May 2006.

This Appeal

18. [18]
    The appeal to this court is brought under s 36 of the Transport Planning and
    Co-ordination Act 1994.  These are the powers of the court:

‘36B(1) In deciding an appeal against a reviewed decision, the appeal court

1. (a)
   has the same powers as the person who made the original decision and

1. (b)
   is not bound by the rules of evidence and

1. (c)
   must comply with natural justice and

1. (d)
   may hear the appeal in court or in chambers.

3. (2)
   An appeal is by way of rehearing.

3. (3)
   The appeal court may –

1. (a)
   confirm the reviewed decision or

1. (b)
   set aside the reviewed decision and substitute another decision that it considers appropriate or

1. (c)
   set aside the reviewed decision and return the issue to the person who made the original decision with the directions that it considers appropriate.’

19. [19]
    Counsel were aware of the decided cases which discuss the different types of appeal and the various powers and procedures of appeal courts. In this case, it was accepted that s 36B, in allowing an appeal against the decision of an officer of Maritime Safety, should be taken to be a new hearing.  That is, all the materials before the officer should be placed before this court, together with any necessary further evidence.  This court should then consider the matter afresh, based on those materials.  While the court should respect the findings of the officer, it is for the court to reach its own conclusions on the evidence before it. 

20. [20]
    It should be recorded that counsel for Mr Wood submitted that this appeal should not be heard before the decisions of the Magistrates Court in three matters are available. Mr Wood is currently contesting charges of breaches of marine safety legislation in the Magistrates Court. In one case, after a three day trial, there is a reserved decision. The other matters have not yet been heard. After argument, I decided to refuse the application to adjourn this hearing to allow that to happen. It was not suggested that these proceedings might compromise any criminal trial^[1].

21. [21]
    Counsel for Mr Wood then asked that his affidavits be received in evidence here. That was done. Counsel was also inclined to suggest that a body of further evidence (such as in the Magistrates Court) should be heard in this court, but I discouraged that course, which would have led to an extensive hearing of evidence, preferring instead to rely on the affidavits, and to the evidence before the officer. Counsel, perhaps reluctantly, accepted that course^[2].  The result is that this court has to consider the appeal entirely on the written materials, and without the benefit of oral evidence and cross-examination.

22. [22]
    The standard of proof is not “beyond reasonable doubt”, which is applied in criminal proceedings. Rather, it is enough that:

“… the affirmative of any allegation is made out to the reasonable satisfaction of the (court) … the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question, whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences … where, in a civil proceeding, a question arises whether a crime has been committed the standard of persuasion is, according to the better opinion, the same as on other civil issues … But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is required”.

(Dixon J of the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-3).

Mr Wood’s Convictions

23. [23]
    Mr Wood’s solicitor complained that old convictions were improperly taken into account. However, there is no reason why old convictions cannot be taken into account, if they show something about Mr Wood’s ability and temperament as a skipper. The fact that he has suffered penalties in the past does not mean that his convictions cannot be taken into account in considering his present capacity to be a skipper, and observe marine safety requirements.

24. [24]
    On 23 December 1995 he operated his boat unsafely, by ramming it into another boat. He was fined $300. He failed to report that marine incident, and that resulted in a further $50 fine.

25. [25]
    On 14 January 1996 he again damaged a boat by ramming it. He was charged with causing unlawful damage to the boat, under the provisions of the Criminal Code.  He was convicted and sentenced to three months’ imprisonment.  The Court of Appeal refused to interfere with that sentence.  In addition, he failed to report that marine incident, and he was fined $1,500.

26. [26]
    On 10 May 1996 he again rammed another boat with his boat. He was convicted of operating the boat unsafely, and fined $500. He was also fined $600 for failing to fix a registration certificate properly to his boat.

27. [27]
    Then, on 14 June 1996, he was again convicted of the unsafe operation of his boat. The details are not known. He also failed to report a marine incident. He was fined $1,500 and $500 respectively.

28. [28]
    The above details are taken from the records of conviction, and from the reasons of the Court of Appeal in The Queen v Wood (1998) QCA 029, 6 February 1998, in his appeal against the sentence of three months’ imprisonment.  Mr Justice Pincus discussed the other incidents, which amounted to three occasions when he rammed his boat into another boat.  It seems that all the incidents involved other professional fishermen, and on at least one occasion arose out of Mr Wood’s suspicions that his crabs were being stolen.

29. [29]
    The judge also noted that he had been convicted in 1986 for wilfully setting fire to a motor vehicle, and had been sentenced to imprisonment. In 1989 he was given probation for an assault occasioning bodily harm. In January 1995 there was another assault occasioning bodily harm, for which he was convicted shortly after he committed the offence of 14 January 1996.

30. [30]
    He committed a further offence of assault occasioning bodily harm whilst armed on March 1997. After the decision of the Court of Appeal, he was sentenced in this court to 12 months imprisonment, wholly suspended for a period of four years. His criminal history shows no breach of that suspended sentence. It has not been suggested here that he has committed any further criminal offences, during the past 10 years.

31. [31]
    The Marine Safety Branch took no action against Mr Wood for those maritime offences, committed over a period of about six months. His licence to act as a skipper was renewed. That is, his old licence, issued on 19 August 1981, was superseded. He sat and passed a further examination, and was issued with a perpetual licence on 3 February 1997.  See tabs 32-40 of the bundle.

The Dive Boat Incident

32. [32]
    By late 2003 work was underway to extend the Fisherman Island port by reclaiming an area of land from the sea. Contractors had the task of building a sea wall around the reclaimed area, so that the level of the sea floor could be raised 1.2 metres above high tide. By late 2003 a substantial portion of the sea wall had been built.

33. [33]
    While the work was going on, Mr Wood continued to operate his crabbing business in the reclamation area, by setting his crab pots some distance outside the sea wall.

34. [34]
    Various contractors worked on the project. The sea wall was being constructed by FPE Seawall Alliance. Diving operations were necessary. They were subcontracted to a company called Marine Engineering and Diving Pty Ltd. That company wanted to establish a safe working environment. They placed yellow special markers in the water, about 200 metres out from the perimeter of the sea wall. See map C7-95 at tab 45 of the bundle.

35. [35]
    On 5 November 2003 the FPE Seawall Alliance wrote to Mr Wood. He was well aware of the nature of the work since August 2003, and had had some discussions with the contractor, in addition to his regular visits to the site to check his crab pots.

36. [36]
    The letter warned Mr Wood that, from the start of November 2003, several additional activities were commencing in the reclamation area. The letter pointed out that the various activities would create a number of submerged hazards for vessels in the immediate vicinity. It noted that yellow flashing marker buoys had been used to ensure that the construction site was clearly delineated. A diagram was attached. There was no mention of diving.

37. [37]
    The letter also included an updated Notice to Mariners. This is the substance of the notice:

‘Mariners are advised that additional construction works will commence on the Fisherman Islands port extension on Friday, 31 October 2003 until approximately 30 April 2005.

The works will be conducted from various floating plant that will remain on site for the duration of the work.  The floating plant will display relevant navigation lighting and appropriate day shapes. 

In preparation for the commencement of works, a series of temporary Yellow Special Mark buoys has been established around the perimeter of the sea wall construction zone approximately 200 metres apart.  The buoys will display yellow flashing navigational lights.  Please refer to the attached “as built drawing” for the location of the delineation buoys.

The area enclosed by the delineation buoys contains submerged objects that may severely restrict or cause a hazard to navigation.  In order to maintain navigational safety mariners are requested to operate in transit outside this area and travel at a speed consistent with safe navigation …’

38. [38]
    Mr Wood continued to enter the area marked by the yellow buoys on a daily basis to check his crab pots. At one stage, he had about 50 crab pots in that general area. However, by 17 December 2003, he had only one crab pot near the sea wall. According to Mr Wood, the pot was about 65 metres from the wall.

39. [39]
    On that day a barge was moored some distance from the end of the rock wall, called the ‘South Bund’. See Mr Underwood’s sketch at tab 53. He had divers in a work boat, and he was heading north from the end of the South Bund to deploy a diver. The international dive flag was placed at the end of the Southern Bund.

40. [40]
    Mr Wood approached his crab pot. He says that he was travelling at a speed of about 10 to 12 knots. Mr Underwood saw him, and judged him to be approaching at a rapid speed, of about 30 knots.

41. [41]
    Mr Wood said that he did not see the dive flag on the rock wall, as it was obscured by the sun. He headed towards his crab pot as a speed of about five knots. He then saw the dive boat, which had previously been near the barge, approach his boat at a speed of about seven knots. He says that he slowed right down to collect his pot. The dive boat came very close. As the boats were close each turned so that they were side by side. The boats collided, but there is no suggestion that either was damaged. Mr Wood says that his boat’s console hit the right side of his chest. (His doctor later told him that he had a cracked rib.)

42. [42]
    Some strong words were exchanged. Mr Underwood pointed out the dive flag. There were three divers in wetsuits on his boat. Mr Underwood told him ‘I want you to slow down and stay clear when you see a dive flag in this area’. Mr Wood said that he would report Mr Underwood because of the collision. In turn, Mr Underwood said that he would report Mr Wood, because of the dive flag.  Mr Wood recognised it as a dive flag, because of his previous experience. 

43. [43]
    An internal investigation was conducted by a marine safety officer, Mr Moran. He accepted that Mr Wood had entered the reclamation area at high speed. That caused a ‘possible dangerous situation’ for the divers. Mr Underwood, the master of the dive boat, had realised the strong possibility of a dangerous situation, and headed towards the crab boat to warn Mr Wood about the divers, and to request him to keep clear of the area. These were the conclusions of the safety officer:

‘I recommend that no proceedings be commenced against Woods, for causing a dangerous situation by travelling at a high speed in an area clearly marked by a diving flag as Woods stated that he could not see the diving flag due to it being obscured by the sun.  He has also noted that there is no mention of the diving operation in the Notice of Mariners No. 405 dated 24 October 2003 or a letter sent to Woods by FPE Alliance on 5 November 2003.

I recommend that no proceedings be commenced against Mr Underwood for a breach of the Col Regs Rule 14 as it was clearly Underwood’s intention not to collide with Woods’ vessel but to stop him from entering an area marked for divers and creating an unsafe situation.’

44. [44]
    In this court, it was accepted by counsel for Maritime Safety that the dive flag should have been on the dive boat. It also seemed to be the case, as Mr Wood observed, that no divers were in the water at the time. There is no mention of divers in the water in the safety officer’s report. That report was adopted, and no proceedings were commenced against Mr Wood.

45. [45]
    In these proceedings, it is submitted for Marine Safety that it should be found that he committed the offence of causing his boat to be operated unsafely. In the Notice of Decision it is found that he did that, as he had contravened marine safety legislation by operating his ship unsafely in the following respects:

1. (a)
   By entering an area that was subject to notice to mariners at high speed, effectively disregarding the notice.

2. (b)
   By disregarding the presence of the yellow special marks used to identify the reclamation area.

3. (c)
   By disregarding the presence of the code flag A indicating that divers were in the water in the vicinity.

46. [46]
    It should be noted that he was not found to have contravened a particular provision of s 221:

‘221(6) A person who is the owner or master of a ship must not operate the ship within 30m of a diver in the water if a code               A flag is displayed in the vicinity of the diver.’

47. [47]
    It was found that Mr Wood did not operate his boat unsafely in relation to the collision. That was because of the role played by Mr Underwood in approaching Mr Wood’s boat.

48. [48]
    Some observations may be made about those findings. First, the letter and the Notice to Mariners did not require him to keep out of the reclamation area. It ‘requested’ mariners to operate in transit outside the area and travel at a speed consistent with safe navigation. Secondly, it is not quite clear what is meant by the finding that he ‘disregarded’ the presence of the yellow special marks. No evidence was given in these proceedings about any special significance of those marks, apart from the obvious fact that they were used to mark the work area. Thirdly, the diving flag was in the wrong place, and no divers were in the water at the time.

49. [49]
    It should be accepted that Mr Wood was travelling at high speed before he slowed down to approach his crab pot. It should be accepted that he did not see the dive flag, on land.

50. [50]
    On balance, it can be seen that it has not been proved that he committed an offence against s 43 of the Act. No doubt Mr Wood was a persistent nuisance to the contractors, and there was the potential for a dangerous situation, if the divers were in the water. However, the facts do not establish the commission of an offence on this occasion.

The Crab Pot Incident

51. [51]
    Concern about Mr Wood’s behaviour on 17 December 2003 led to a strengthening of control over the reclamation area. Advantage was taken of Regulation 181 of the Transport Operations (Marine Safety) Regulation 1995:

‘181.Ships and activities prohibited in certain waters

1.The owner and master of a ship, or type of ship, must not anchor, berth, moor or operate the ship in waters if doing so endangers marine safety …

2.A person must not conduct an activity in waters if doing so in the water endangers marine safety …

3.For subsection 1 and 2 the general manager, by gazette notice, may state the waters where the anchoring, berthing, mooring or operating of a ship, or type of ship, or the conducting of a stated activity endangers marine safety.  …’

52. [52]
    Captain Watkinson, the general manager of Maritime Safety, published a Notification of Prohibition in the Queensland Gazette on 13 February 2004, at p 635.  The effect of the notice was that all persons (apart from those who were doing work on the reclamation area) were forbidden from anchoring, berthing, mooring or operating any ship within the area delineated by the yellow markers around the sea wall.  Those things were deemed to endanger marine safety in that area.

53. [53]
    On the same day as its gazettal, a Water Police officer handed Mr Wood a copy of the Notice of Prohibition. He then knew that he was prevented from entering the area to retrieve his crab pot, or pots. On 17 February 2004 he had an interview with Mr Moran of Marine Safety.  He says that he told Mr Moran that he had pots in the area and that he wanted to retrieve them.  Mr Moran told him that he had until 9.00 am the following morning to remove them.  Mr Moran was the Marine Safety officer who had written the report about the dive boat incident.  Mr Wood’s account of the conversation is not contradicted.

54. [54]
    Mr Wood entered the exclusion zone and picked up his crab pot. He was then stopped by the same Water Police officer who had handed him the Notice. He was asked if he had been in the exclusion zone. He said that he had. He told the officer that he had been given authority by Mr Moran to remove the crab pot before 9.00 am. He asked the officer to telephone Mr Moran to confirm it. The officer declined, and gave him an on-the-spot ticket.

55. [55]
    Mr Wood elected not to pay the ticket, and to have a trial in the Magistrates Court. It has not yet been heard.

56. [56]
    It was not suggested here, on behalf of Mr Wood, that Mr Moran had any effective authority to give him permission to enter the exclusion zone, contrary to the Notice. On the available facts, it seems clear that he did not actually endanger marine safety. However, the Notification declares that he did. It was understandable for Mr Wood to retrieve his crab pot after speaking to Mr Moran.  He committed an offence, but his criminality was low.

The Incident of 15 November 2004

57. [57]
    In Mr Bundschuh’s decision, it was found that Mr Wood was on his boat near St Helena Island, when he deliberately steered it at high speed close to another fishing boat.  It was found that Mr Wood had not disputed the allegation.

58. [58]
    Mr Wood apparently denies this allegation, but he gives no details of his denials. He says that the matter has been tried in the Magistrates Court over a period of three days, that the decision has been reserved, and is still awaiting written submissions. He says that he is ‘extremely confident of an acquittal’.

59. [59]
    The available information here comes from statements provided by two other fishermen. It seems that Mr Wood was in his boat, out on the bay, and his son Jason was in another boat, accompanied by a man called Sean Loathian. For some reason there was tension or bad blood between Mr Wood, his son, and some other fishermen who were out that day. They were Jimmy Addeley and Lyle Rosenberg who were together in a boat. They were in company with Trevor Scarborough and Wayne Martin, who were in another boat. The police obtained three witness statements about Mr Wood’s conduct. All three witnesses made complaints to police. When that was done, the police conducted an interview with Mr Wood. It was recorded on tape. However, a copy of that tape is not available here.

60. [60]
    The three complaints were made by Messrs Addeley, Scarborough and Martin. The substance of the complaints is that Mr Wood approached them at about 30 knots in his boat. He would have collided with the other boat if Mr Addeley had not taken some evasive action. Mr Wood then did a 180 degree turn, and approached them again. For the second time, Mr Addeley took evasive action to avoid a collision. The statements indicate that Mr Wood drove his boat within a length of Mr Addeley’s boat.  After that he chased Mr Addeley who finally got away, because his boat was the faster. 

61. [61]
    The statements indicate that Mr Wood was in a very excited, aggressive state, and offered to fight Mr Addeley. According to Mr Addeley, Jason Wood was also trying to pick a fight with him. Mr Addeley says that there had been a previous altercation between himself and both of them, and that Mr Wood had threatened to kill him. He was fearful when Mr Wood approached him. He rang the Water Police and other people who he knew were on the water. He was feeling very scared. He avoided two collisions with Mr Wood’s boat, which approached very rapidly, as described above. He says that Mr Wood was extremely agitated. He left at high speed because of his fear that Mr Wood might carry out previous threats to him. When he got home, he attended the Water Police station and provided a statement. He had suffered some bruising, because of the sudden movements of his boat.

62. [62]
    In this court, all the available evidence is against Mr Wood. Whatever he said to the police is unavailable. His son has not provided any evidence. There is nothing, effectively, to contradict the allegations against him. It should be found that he operated his boat unsafely, by steering directly towards another boat, at high speed, causing its skipper to take evasive action on two occasions.

The Incident of 1 June 2005

63. [63]
    Mr Paul Smith is a professional crabber. He and Mr Wood knew each other. Indeed, Mr Wood in his affidavit says this about Mr Smith:

‘I can say that this incident involved another professional fisherman by the name of Smith.  Mr Smith, in 1997, rammed by vessel and sank it.  Mr Smith was convicted of unsafe operation in the Magistrates Court as a result of this action.  Needless to say there is considerable animosity between myself and Mr Smith.  I denied the charge of unsafe operation.  This matter is due to be mentioned on 7 November 2006.’

64. [64]
    Mr Smith was alone in his fishing boat on 1 June 2005 at about 6.30 am. He had left Raby Bay boat ramp and was going to Cleveland Point. As he reached Cleveland Point he saw Mr Wood tending his crab pots not far from where Mr Smith kept his pots. 

65. [65]
    Mr Smith says that he then went to wait until Mr Wood’s finished his pots, to avoid a confrontation, as had happened in the past. He says that he waited about 300 – 400 metres away from Mr Wood. Mr Wood then accelerated his boat at 25 – 30 knots directly towards Mr Smith’s boat. Mr Smith says that Mr Wood did in fact swerve and miss his boat by no more than about a metre. He yelled abuse as he went past. Mr Wood turned his boat and again approached him, but on this occasion there was no closeness between the vessels. Mr Smith moved out of its path.

66. [66]
    The incident was witnessed by a man who was fishing. He was standing on the rock wall at Cleveland Point, adjacent to the lighthouse on the northern side of the point. As he puts it:

‘At approximately 5.55 am I noticed a white and yellow boat coming out from the boat ramp near the Volunteer Marine Rescue Base at Raby Bay.  As it approached the deep water I saw an aluminium-hulled boat heading towards the yellow and white boat at what I considered to be at medium to high speed.  The aluminium boat came close to colliding with the yellow and white boat.  I could not see exactly how far apart they were, but I was concerned by the actions of the man driving the aluminium boat.  The yellow and white boat made a big circle to avoid being hit by the aluminium-hulled boat.  The aluminium-hulled boat then chased the yellow and white boat into a circle.  The yellow and white boat veered off out of the path of the aluminium boat. …  The aluminium-hulled boat then powered northbound, away from the yellow and white boat. …  I have never seen either the occupants of the boats, or the boats before.  I regularly fish in this area.  I have been involved in fishing and boating for approximately 35 years.  I consider myself to be of moderate boating experience.  I have never seen an act such as this occur before …’.

67. [67]
    Mr Wood was interviewed by police. The tape is not available here. According to a summary, before the Marine Safety officer, Mr Wood recalled the incident, but claimed that he simply spoke to the complainant at the time of the incident. He denied passing Mr Smith’s vessel at close quarters. He denied all the allegations put to him.

68. [68]
    Particularly because of the statement of the independent witness, it should be accepted, in these proceedings, that the events took place as Mr Smith and the witness say they did. The first approach by Mr Wood amounted to unsafe operation of his boat.

The Decision

69. [69]
    Mr Bundschuh reached this conclusion:

‘In my view, the quality of the contraventions warrants serious action to be taken against Mr Wood’s Authority in the interests of marine safety. The contraventions are very serious, relating primarily to deliberate operation of his fishing ship at high speed in close proximity to other ships, sometimes resulting in collisions. The contraventions have also occurred over a long period of time. Put together, the contraventions demonstrate that Mr Wood has a blatant disregard for the objectives of marine safety legislation. 

The decision to suspend cancel a licence or other authority must be exercised keeping in mind the activities that the person is authorised to undertake, and the objectives of regulating those activities (see Hughes and Vale Pty Ltd v State of New South Wales (1995 93 CLR 127 156) and Australian Broadcasting Tribunal v Bond (1990 170 CLR 321).

Having regard to all the relevant facts and circumstances, and the objectives of the Act, it is my decision that the grounds for cancellation of the Authority as provided by section 163 (a) of the Regulation are made out.’

Discretionary Factors

70. [70]
    Several things should be kept in mind. First, like a driver’s licence, the granting of an authority to act as a skipper of a fishing boat is a privilege, rather than a right. The marine safety legislation does place emphasis on safety. The first objective is to ensure marine safety. On some occasions, that will mean the suspension or cancellation of an authority, to protect the public. There are many examples of disciplinary actions against members of various professions, trades or callings.
    Those proceedings are designed primarily to protect others.  It is often said that no element of punishment is involved in the revocation of a licence or authority to carry on that work or profession.

71. [71]
    Secondly, it is nonetheless relevant to take into account, in appropriate cases, the personal impact upon the person who may lose the privilege. In this case, it was submitted on behalf of Mr Wood that he has no other occupation, and would suffer great hardship if he is not allowed to be the skipper of his own boat. It is said that he will not be able to earn a living without it. Those assertions were not made on the basis of any evidence about the issue. It may be accepted that the need to pay another skipper would cause him financial loss.

72. [72]
    His situation is like that of a car driver, holding a licence. The courts often take into account the impact of a suspension or cancellation of the licence of a particular offender. For example, see the Court of Appeal in R v Oberin (2002) QCA 444 at para 15 and R v Dean (2006) QCA 256, where family circumstances were taken into account.

73. [73]
    Thirdly, there is the question of the passing of time. The old convictions can undoubtedly be taken into account in showing us Mr Wood’s temperament and the way he may behave in the future. Some may find it surprising that no action was taken after June 1996. His licence was re-issued about six and a half years passed before his next incident. There are now the concerning incidents of November 2004 and June 2005. They were directed towards other fishermen, as he apparently feels very strongly about their conduct. They probably have equally strong feelings about his conduct.

74. [74]
    There has been no further criminal offence for 10 years, and no further maritime offence for two years. He is getting older. What, then, is the appropriate response? It must be accepted that cancellation of the licence was within the range of a proper decision by Mr Bundschuh. This court’s task is to consider the penalty afresh. It must take into account the somewhat different findings here, about the dive boat incident, and the crab pot incident, which was not serious. On the other hand, it is established that Mr Wood has been a reckless and aggressive man, prepared to use violence against others, usually his competitors, when angry with them.  The officers of Maritime Safety were right to be concerned about his poor conduct in the past, and the risk of further danger to others. 

75. [75]
    In my opinion, the more appropriate response is suspension of the licence. At present it does not require cancellation, which is quite likely to be permanent, and may have significant financial consequences for Mr Wood.

76. [76]
    Mr Wood should clearly understand that any repetition of dangerous or reckless conduct will almost certainly be his last, as a skipper.

77. [77]
    It is appropriate to suspend the licence for 12 months. It is not clear how long Mr Wood has actually been without it – see the Maritime Safety letter of 7 July 2006.  It may be safe enough to infer that he has already been without the licence for, say, 2 months.

78. [78]
    The orders of the court are:

3. 1.
   Allow the appeal.

3. 2.
   Set aside the reviewed Notice of Decision of 31 May 2006. In lieu thereof, order that Mr Wood’s licence as a Skipper Grade 3 be suspended for 10 months from the date that the licence is surrendered to Maritime Safety Queensland.

3. 3.
   Costs reserved.