Mahon, General Manager, Maritime Safety Queensland v Turcinovic
[2022] QDC 10
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- Mahon, General Manager, Maritime Safety Queensland v Turcinovic[2022] QDC 10
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Mahon, General Manager, Maritime Safety Queensland v Turcinovic[2022] QDC 10
Mahon, General Manager, Maritime Safety Queensland v Turcinovic[2022] QDC 10
DISTRICT COURT OF QUEENSLAND
CITATION: | Mahon, General Manager, Maritime Safety Queensland v Turcinovic [2022] QDC 10 |
PARTIES: | ANDREW WILLIAM MAHON, GENERAL MANAGER, MARITIME SAFETY QUEENSLAND (Applicant) v MARC ROBERT TURCINOVIC (Respondent) |
FILE NO: | 3290/21 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane District Court |
DELIVERED ON: | 21 January 2022 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 January 2022 |
JUDGE: | Porter QC DCJ |
ORDERS: |
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CATCHWORDS: | |
LEGISLATION: | Transport Operations (Marine Safety) Act 1994 (Qld) |
CASES: | Fenton-Anderson v Power [2020] QDC 293 |
COUNSEL: | B McMillan for the Applicant M Turcinovic for the Respondent |
SOLICITORS: | Department of Transport and Main Roads for the Applicant M Turcinovic self-represented |
- [1]This is an application pursuant to section 183B of the Transport Operations (Marine Safety) Act 1994 (Qld) (“the Act”) for enforcement orders to effect the removal and safe disposal of a derelict ship from Queensland waters. The ship is an unnamed 11 metre ferrocement Millkraft twin masted sailing ship (“the ship”) (or at least it was twin-masted until probably yesterday when the masts were chopped down) displaying expired registration details VW911Q. It is located at Quarries Reach in the Brisbane River near Colmslie Beach, on the southern side of the Gateway bridges.
- [2]It does not seem to be in dispute on the material that the respondent, Mr Turcinovic is the owner of the ship. The ship has been inspected repeatedly by Marine Officer, Mr Justin Welsh. Mr Welsh has sworn to his opinion about two key matters. The first is the ship was unseaworthy and, secondly, was an obstruction to navigation and safe use of the river by other ships. At paragraph 29 of Mr McMillian’s outline, he summarises the matters that Mr Welsh observed to sustain his opinion, both as to unseaworthiness and as navigational danger. He observed those things in July 2021. He observed the ship to remain in that condition in early and mid-September and November 2021.
- [3]On 23 July 2021 (about the same time as Mr Welsh made his observations), the Brisbane Regional Harbour Master issued the respondent with a notice and direction under section 91 of the Act, informing the respondent the hip was obstructing navigation, and directing him to remove it from Queensland waters by 27 July 2021.
- [4]There is evidence that the direction was given to the applicant and that he confirmed to Mr Welsh he understood it. The ship is still there, so clearly that notice was not complied with. There was ongoing discussion between the respondent and Mr Welsh about plans to remove the ship from Queensland waters, but Mr Welsh was seemingly not satisfied with that exchange. On 2 August 2021, Mr Welsh issued a declaration and direction pursuant to 172AA of the Act, declaring the ship unseaworthy and directing its removal from Queensland waters by 17 September 2021. That is now over four months ago. A shipping inspector has the power to give such a direction. That direction was given on 2 August 2021 and was not complied with.
- [5]Despite numerous attempts to engage the respondent, the ship remains unseaworthy, is causing an obstruction to navigation, and is now risk of causing marine pollution. I am satisfied on the material that the two notice offences under section 183C of the Act were committed by the respondent and that those offences will continue unless enforcement orders are made. I reach that conclusion notwithstanding that Mr Turcinovic is not present in Court. I need to explain how that has come to be.
- [6]The matter was listed before me on Tuesday, 18 January 2022. Prior to that time, my Associate made contact with the applicant, making the usual inquiries about the nature of the case. That was done on the 13 January 2022. Mr McMillian, of counsel, responded on behalf of the applicant and explained that they had not had any contact from the respondent since service of the application.
- [7]On 14 January 2022 at 10.21 am, Mr McMillian sent an email to my Associate, copied to the respondent. He had said that he had received correspondence that the respondent would attend Court in person on Tuesday 18 January 2022, the application would be contested, and that he required Mr Welsh for cross-examination. Mr McMillian confirmed that he would appear in person and that Mr Welsh would attend in person.
- [8]On 17January 2022 at 4 pm, my Associate contacted both parties, giving a not before time of 10.30am for the hearing. On the morning of the hearing, at 7.26 am, the respondent sent an email to my Associate saying that he had woken up not feeling well and had been advised to go for a COVID-19 test, and that if he is meant to keep to himself until he gets results, he could not attend Court that day. He added: “Not sure if the hearing can be adjourned or not??? thanks. Marc”.
- [9]My Associate responded saying that Mr Turcinovic could appear remotely via Webex Teams. She provided the instructions. He responded that he was not tech-savvy and could not do a video call. I should say there is not a real lot of complexity to attending by Webex Teams, but not everyone can manage it. He then said in his email to may Associate:
“if it cannot be adjourned I will have to let you all decide my future and whether or not I will be homeless in my absence. Then hopefully there is an avenue of appeal on the grounds of medical reasons with medical certificate.”
- [10]At 10.00am on Tuesday 15 January 2022, my Associate sent an email to Mr Turcinovic and asked Mr Turcinovic to provide a mobile number so that the bailiff could call him when the hearing commenced (That last email was not copied sent to the applicant by oversight). Mr Turcinovic did not appear today by telephone at 11.30am. The applicant pressed me to continue with the application. I decided not to do that and adjourn the application until today. My Associate, at my instruction, undertook responsibility for informing Mr Turcinovic of the adjournment and that he could attend in person or by telephone, and he responded by email to my Associate that he would be attending in person.
- [11]The matter came on for hearing at 10.00am today, and a number of people who recognised Mr Turcinovic said that he was here in Court at that time.
- [12]I am informed by Mr McMillan and by the bailiff that Mr Turcinovic went outside and told Mr McMillan’s instructing solicitor that he was feeling a lot of anxiety sitting in Court, and that he remained outside for some time. The bailiff went out and spoke to him and suggested that he remain in the vicinity of the Court until his matter was reached. The matter was reached at about 11.30am and, unfortunately, Mr Turcinovic was not present. Exhaustive efforts were made to find him in any room on this floor, and an officer of the applicant who knows Mr Turcinovic by appearance went and looked for him downstairs in the main foyer of the Court, the coffee shop, and the concourse. He could not see him.
- [13]A party is entitled to a fair opportunity to be heard, not to an absolute opportunity to be heard, no matter how much delay, obstruction or difficulty is caused by that party.
- [14]In this particular case, I am willing to infer that Mr Turcinovic’s disappearance from the Court, despite coming here, was a function of his acute anxiety about dealing with the proceedings. However, notwithstanding that, I do not intend to adjourn the matter further for the following reasons.
- [15]First, he has had a reasonable opportunity to be heard. The proceedings were served some time ago. They were adjourned on Tuesday 15 January 2022, despite his last-minute non-appearance, to today. He appeared today, and he was not able, it seems, to participate.
- [16]Second, the circumstances of this particular case call for if not urgent, at least prompt, action. The ship is clearly unseaworthy and a risk to navigation. That risk has been greatly increased by the odd consideration that, sometime in the last 48 hours, the masts have been chopped down, but left attached to the hull – or should I say hulk. Mr Welsh suggests that that creates a particular risk to navigation, and I agree.
- [17]Third, there has been a process that has now continued for six months in which the applicant, with considerable patience, has attempted to cause the respondent to address the clear problems with the ship. The only matter which I can identify from the various materials, texts, and responses from the respondent in response to the application is that he says the ship is not unseaworthy. I respectfully disagree, and no persuasive basis for disputing Mr Welch’s evidence appears to exist. Mr Turcinovic also suggested that the boat was his home, and he would be homeless without it. Mr McMillan put before me evidence of a driver’s licence with a landbound address. Whether that is persuasive evidence that he has another residential address or not, I am not sure. But the real issue is that, based on what Mr Welsh says about the ship, Mr Turcinovic is not safe on it. It is not a persuasive reason to refuse the orders sought.
- [18]Fourth, I can well accept that Mr Turcinovic’s personal anxieties make it impossible for him to participate in the proceeding, but as I observed in Fenton-Anderson v Power [2020] QDC 293 at [67], if a person’s particular characteristics mean that they cannot participate and there is no basis to think things will change in the future, then there is no point in an adjournment. And I think there is some indication that that is the case here. It appears that Mr Turcinovic was not able, to manage his anxieties, sufficiently to just wait outside for an hour and a half. It seems doubtful that I can be confident he will be up to appearing and conducting a defence. There is no point adjourning a matter if a litigant in person has little realistic prospect of ever being able to grapple with the application.
- [19]Finally, the evidence favouring the making of the orders sought, in my respectful view, is overwhelming, and there is some urgency, as I said, about it now.
- [20]In all the circumstances, I proceeded in Mr Turcinovic’s absence, and I make orders in terms of the draft. Fourteen days might be thought to be a fairly short time to come up with a safety plan and to give effect to it. I am nonetheless making the order in those terms because of the history of the matter and the urgency that attends, I think, now with the mast removed.
- [21]There is also the fact that the ship has been there for a long time, and we are coming into cyclone season and while there is no cyclones on the horizon at the moment, if there was a significant rain event, it would suddenly become acutely urgent to get the ship out of the water. For those reasons, I have imposed a pretty tight timeframe in the order given to me by Mr McMillan, which I have signed and dated and placed with the papers.