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Quirk v Wolfe[2017] QDC 108

DISTRICT COURT OF QUEENSLAND

CITATION:

Quirk v Wolfe [2017] QDC 108

PARTIES:

PATRICK QUIRK, GENERAL MANAGER, MARITIME SAFETY QUEENSLAND

(Applicant)

v

ANTHONY ROY WOLFE

(Respondent)

FILE NO/S:

37/2017

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Cairns

DELIVERED ON:

31 March 2017

DELIVERED EX TEMPORE AT:

Cairns

HEARING DATE:

31 March 2017

JUDGE:

Morzone QC DCJ

ORDER:

  1. Enforcement order (pursuant to section 183C of the Transport Operations (Marine Safety) Act 1994) issue that the applicant be permitted to dispose of the ship, the MV Sattha Uniana, which is currently moored on a Marine Safety Queensland mooring at Thursday Island in approximate position latitude 10 degrees 34 minutes south, longitude 142 degrees 10 minutes east within the Thursday Island pilotage area;
  1. That the applicant be permitted to dispose of the ship, the MV Sattha Uniana, in such a manner as deemed fit by the applicant;
  1. Costs be reserved;
  1. The hearing of the application in relation to any assessment of costs, expenses, and disbursements recoverable on an indemnity basis be adjourned to a date to be fixed.
  1. Each party has liberty to apply upon giving the other party at least two business days’ notice in writing.

CATCHWORDS:

APPLICATION – MARITIME SAFETY – ENFORCEMENT ORDER – power to make various enforcement orders in respect of derelict and unseaworthy ship after failure to comply with requisite notices -  – Condition of ship – whether unseaworthy and very poor state due to neglect and lack of attention – whether danger or risk posed by the ship – Whether likely continued failure to remediate in compliance with harbour master notices – enforcement order for disposal - recovery by State of expenses of taking authorised action.

Legislation

Transport Operations (Marine Safety) Act 1994 (Qld), ss 88(2), 183C, 183E, 183F, 183G, 183GF, 183GC,

COUNSEL:

A Johnson for the Applicant

No appearance for the Respondent (self represented)

SOLICITORS:

Department of Transport & Main Roads, Legal Section, Maritime Safety Queensland Compliance/Legal for the Applicant

  1. [2]
    The applicant seeks enforcement orders allowing Maritime Safety Queensland (‘MSQ’) to be permitted to dispose of a derelict and unsafe ship, the MV Sattha, Uniana, (‘Sattha’) moored within the Thursday Island pilotage area.
  1. [3]
    On the first return of the application, the respondent appeared self-represented. Interim orders were made on the 24th of March 2017 by his Honour Judge Reid preserving the status quo of ownership of the vessel in order for the respondent to have the opportunity to consider his position, provide material, and subsequently for the court to consider enforcement proceedings subject of the balance of the application.
  1. [4]
    At the commencement of this hearing, the respondent did not appear. His name has been called by the court as well as counsel for the applicant during the period of delay until the matter was brought on for hearing. The respondent has failed to appear and has not filed any material pursuant to the interim orders or otherwise.
  1. [5]
    The applicant now seeks final orders subject to the continuation of the preservation orders made on an interim basis as follows:
  1. n enforcement order pursuant to section 183C of the Transport Operations (Marine Safety) Act 1994 (Qld) (“Act”);
  1. that MSQ be permitted to dispose of the ship in such a manner deemed fit by the general manager of MSQ, the applicant;  and
  1. recovery of costs, expenditure, and disbursements on an indemnity basis.

Background

  1. [6]
    The Sattha is a 39 metre long steel general cargo ship registered with MSQ as ST822Q and owned by the respondent, Anthony Roy Wolfe.
  1. [7]
    It is currently moored off Thursday Island with an approximate position at latitude 10 degrees 24 minutes south, longitude 142 degrees 10 minutes east, within the Thursday Island pilotage area. It comes to be so moored after having been grounded on Inset Reef in Shelbourne Bay on the east coast of Cape York in July 2009. The ship subsequently went to anchor in the Ellis Channel near Horn Island in the Torres Straits.
  1. [8]
    There has been an absence of any person caring or dealing with or taking charge of the ship, and the applicant proceeded on the basis that it was an abandoned derelict ship. The MSQ has issued a number of directions to the respondent owner in an attempt to have him meet his obligations as owner, which has not been complied with or otherwise acted upon by way of remedy.
  1. [9]
    Despite his initial appearance at the interim hearing, it seems that he has lost interest in further defending the proceedings by his failure to take any steps in furtherance of the orders made on an interim basis and his failure to appear here.

Legislative Regime

  1. [10]
    Part 13A of the Act provides the court power to make various enforcement orders, including those sought by the applicant. In particular, they are found in Part 13A, Divisions 1 and 2. In relation to the making of such an order, section 183C provides:

183C  Making Enforcement Order

  1. (1)
    The District Court may make an enforcement order if the court is satisfied about any of the following –
  1. (i)
    a notice offence has been committed or, unless an enforcement order is made, will be committed;
  1. (ii)
    a division 4 undertaking has been contravened or, unless an enforcement order is made, will be contravened.
  1. (2)
    Subsection (1) applies whether or not there has been a prosecution for the notice offence.
  1. [11]
    The court’s powers about enforcement orders are further contained in section 183F as follows.

183F  Powers of District Court about enforcement order of interim enforcement order

  1. (1)
    The District Court’s power to make an enforcement order or interim enforcement order to stop, or not to start, an activity may be exercised whether or not –
  1. (i)
    it appears to the court that the person against whom the order is made intends to engage, or to continue to engage, in the activity;  or
  1. (ii)
    the person has previously engaged in an activity of the kind;  or
  1. (iii)
    it appears to the court a marine incident may happen if the person engages, or continues to engage, in the activity
  1. (2)
    The District Court’s power to make an enforcement order or interim enforcement order to do anything may be exercised whether or not –
  1. (i)
    it appears to the court that the person against whom the order is made intends to fail, or continue to fail, to do the thing;  or
  1. (ii)
    the person has previously failed to do a thing of the kind;  or
  1. (iii)
    it appears to the court a marine incident may happen if the person fails, or continues to fail, to do the thing.
  1. (3)
    The District Court may cancel or amend an enforcement order or interim enforcement order.
  1. (4)
    The District Court’s power under this section is in addition to its other powers.
  1. [12]
    Section 183E deals with the effects of an order and section 183GA provides powers to the court if the enforcement order is contravened.
  1. [13]
    Section 183G permits the making of such an order without an undertaking as to damages or costs being required. Here, it seems to me that none is required for the reasons which are embodied in this decision.
  1. [14]
    Section 183GB provides for the recovery by the State of expenses of taking authorised action. The section provides:

183GB  Recovery by State of expenses of taking authorised action

  1. (1)
    This section applies if the prescribed applicant incurs expense, whether the expense is the prescribed applicant’s expense or the State’s expense, in taking the authorised action.
  1. (2)
    The State may recover the amount of the expense, as a debt, from the persons liable for the expense.
  1. (3)
    If, under subsection (2), more than one person is liable for the same expense, the persons who are liable for the expense are jointly and severally liable.
  1. [15]
    Section 183GC provides for recovery by other persons of damages in particular circumstances. There are other relevant provisions related to those which I’ve set out above, including the relevant definitions contained variously in the Act.
  1. [16]
    The relevant notice offence for this proceeding and application of Part 13A of the Act is the failure by the respondent to comply with the harbourmaster’s direction on the 22nd of March 2016, thereby contravening section 88(2) of the Act.
  1. [17]
    On the 12th of December 2016, a harbourmaster issued a seizure notice pursuant to section 175A of the Act dealing with removal of abandoned property.

Condition of the Ship

  1. [18]
    The latest assessment/survey report of the state of the ship conducted by Gary Owens of Braemer, Shipping Services (previously Go Marine Surveyors) on 13 February of 2017 provides cogent evidence and opinion that the ship is in an unseaworthy and very poor state due to neglect and lack of attention.
  1. [19]
    Mr Owens had undertaken a previous assessment and provided a report in 2013. A comparison of the two reports make it all the more clear of the ship’s significant decline in respect of matters going to seaworthiness, hull integrity, and its general state.
  1. [20]
    The ship was inspected by the regional harbourmaster as deposed to in his affidavit. In summary, the harbourmaster found, and I accept:
  1. The Sattha to being in a very poor condition with excessive corrosion of the vessel structure which is/was fundamentally compromised;
  1. The Sattha has/had no independent means of propulsion and control, nor power to control or manage its cables and mooring;
  1. The Sattha is at immediate risk of sinking;
  1. There is currently no means by which any water infiltrating the Sattha may be pumped from the ship, save by external means (as has been performed by previous contractors);  and
  1. There is/was reason to believe that the Sattha’s own mooring and cable ability may malfunction if required due to the Sattha’s poor material state.

Danger or Risk Posed by the Ship

  1. [21]
    It is plain on the evidence that the very poor material state and unseaworthiness of the Sattha continues to pose a serious risk to the State’s marine and coastal environment from ship source pollution and to shipping within the pilotage area or sea lanes of communication.
  1. [22]
    The respondent owner has obviously neglected and failed to comply with MSQ directions and he has not undertaken any steps to deal with the Sattha or this proceeding since last mentioned.
  1. [23]
    He therefore remains in a state of non-compliance.

Likely Continued Failure

  1. [24]
    The respondent owner (and his predecessor) have been issued with harbourmaster directions which have not been complied with nor has the state of the ship been remedied.
  1. [25]
    The respondent has asserted that he became the owner of the Sattha after purchasing it for $1 and he has purported to exercise the powers of the owner. Indeed, he appeared at this proceeding on an interim basis in that capacity.
  1. [26]
    Notwithstanding since March 2016, the respondent has asserted that he would take action to comply with the issued directions. He has continually failed or neglected to so comply. At one point, he asserted that the ship was to be towed to Papua New Guinea or perhaps the Philippines for repair. However, it’s clear that all proposals to take action have not been carried out by the respondent or anyone else. The sorry history of the exchanges between the MSQ and the respondent are set out in the various affidavits. In particular, the affidavit of the harbourmaster, Mr Ferguson, provides the chronology of contact and the lack of success in securing compliance with the relevant directions.
  1. [27]
    The respondent has also had a significant history of non-compliance with regulatory requirements of the State. His previous conduct has seen him incarcerated by a custodial sentence in relation to both marine and land-based environmental offences.
  1. [28]
    It seems that his conduct here is of a similar kind and lends further weight to the submission of likely continued non-compliance or failure on his part.
  1. [29]
    The material discloses that MSQ has already incurred significant expense which is likely to increase as it takes steps to continue mitigating the relevant risks and dealing with the ship in due course. This may well either sea dumping the demolition of the suitable facility ashore in the most cost effective matter as determined by the appropriate officers of MSQ.
  1. [30]
    More recently, since the first return date before this court on the 24th of March 2017, the respondent has been given a further opportunity to show cause as to why the orders ought not be made as a final order. He has made no attempt to do so and has failed to appear today despite several calls by the court and by the applicant’s counsel.

Conclusion

  1. [31]
    It seems to me that the significant decline in seaworthiness and the material state of the Sattha have created an urgent need to expeditiously secure compliance with the Act in order to remove the serious risks to and to take steps to protect the State’s marine and coastal environment from pollution and risks posed by the Sattha.
  1. [32]
    The effect of the interim orders made on the 24th of March 2017 ought in the circumstances continue until the matter is resolved by execution of the further orders I will make.
  1. [33]
    Additionally, given the urgency of the matter, an enforcement order pursuant to section 183C of the Act ought be made so as to permit MSQ to dispose of the Sattha in such a manner as deemed fit by the general manager at an appropriate opportunity.
  1. [34]
    It seems to me that this is also an appropriate case that the applicant recover costs, expenses, and disbursements of the disposal and those costs ought be recovered on an indemnity basis. This is warranted having regard to the continued non-compliance and disregard to the authority of MSQ and this court in dealing with an obviously dangerous situation posed by the derelict ship.

Orders

  1. [35]
    For these reasons, I will make orders in terms of the draft, that:
  1. Enforcement order (pursuant to section 183C of the Transport Operations (Marine Safety) Act 1994) issue that the applicant be permitted to dispose of the ship, the MV Sattha Uniana, which is currently moored on a Marine Safety Queensland mooring at Thursday Island in approximate position latitude 10 degrees 34 minutes south, longitude 142 degrees 10 minutes east within the Thursday Island pilotage area;
  1. That the applicant be permitted to dispose of the ship, the MV Sattha Uniana, in such a manner as deemed fit by the applicant;
  1. Costs be reserved;
  1. The hearing of the application in relation to any assessment of costs, expenses, and disbursements recoverable on an indemnity basis be adjourned to a date to be fixed.
  1. Each party has liberty to apply upon giving the other party at least two business days’ notice in writing.
Close

Editorial Notes

  • Published Case Name:

    Quirk v Wolfe

  • Shortened Case Name:

    Quirk v Wolfe

  • MNC:

    [2017] QDC 108

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    31 Mar 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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