Mahon, General Manager, Maritime Safety Queensland v Turcinovic (No. 2)
[2022] QDC 39
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- Mahon, General Manager, Maritime Safety Queensland v Turcinovic (No. 2)[2022] QDC 39
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Mahon, General Manager, Maritime Safety Queensland v Turcinovic (No. 2)[2022] QDC 39
Mahon, General Manager, Maritime Safety Queensland v Turcinovic (No. 2)[2022] QDC 39
DISTRICT COURT OF QUEENSLAND
CITATION: | Mahon, General Manager, Maritime Safety Queensland v Turcinovic (No. 2) [2022] QDC 39 |
PARTIES: | Andrew Mahon, General Manager, Maritime Safety Queensland (applicant) v Marc Robert Turcinovic (respondent) |
FILE NO: | 3290 of 2021 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane District Court. |
DELIVERED ON: | 21 February 2022 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10, 17 and 21 February 2022 |
JUDGE: | Byrne QC DCJ |
ORDERS: |
|
CATCHWORDS: | SHIPPING AND NAVIGATION – MARITIME SAFETY – REMOVAL OF WRECKS – ENFORCEMENT ORDER – COSTS – where ship has potential to create an obstruction to navigation – where ship has potential to create a safety hazard – where the respondent has failed to comply with the directions of the Harbour Master to remove the ship from the waterway – where the respondent has no reasonable excuse for non-compliance with directions – where the respondent is ordered to pay the applicants costs |
LEGISLATION: | Transport Operations (Marine Safety) Act 1994 Uniform Civil Procedure Rules |
CASES: | Great China Metal Co Limited v Malaysian International Shipping Corporation, Berhad (1998) 196 CLR 161 Mahon, General Manager, Maritime Safety Queensland v Turcinovic [2022] QDC 10 |
COUNSEL: | Mr. B. McMillan for the applicant. The respondent was self-represented. |
SOLICITORS: | General Counsel, Department of Transport and Main Roads for the applicant. The respondent was self-represented. |
- [1]This is an application pursuant to various provisions of the Transport Operations (Marine Safety) Act 1994 (“the Act”) to effect the removal and safe disposal of a ship from Queensland waters. The vessel is an unnamed 11-meter ferrocement Millkraft ship, which displays expired registration details VW911Q.
- [2]In an earlier form, it was a twin-masted sailing ship; however the masts were cut down at about the time of an earlier hearing of part of this application. The respondent has told an officer from Maritime Safety Queensland (“MSQ”) that he de-masted the ship himself.
- [3]On or about the 23rd of July of 2021 it drifted from its place of anchorage and came to the attention of MSQ officers. The vessel had been seen for about 12 months prior to these events anchored at Quarries Reach in the Brisbane River on the southern side of the Gateway Bridges. It was towed by them to MSQ moorings at the Pinkenba Reach of the river for safety reasons.
- [4]It had initially been assumed that the vessel had dragged anchor. Closer inspection revealed that at the time of the inspection there was no anchor, and the anchor chain had up to 50 per cent wastage and was in danger of failure. In fact, it seems likely that it had earlier failed, and that is why the ship drifted. Other inspections led to an opinion from a suitably qualified officer of MSQ that the ship was unseaworthy, that it was an obstruction to navigation and the safe use of the river by other ships. I will turn to those findings in due course.
- [5]On the 23rd of July of 2021 the Brisbane Regional Harbour Master issued the respondent with a notice and direction under section 91 of the Act notifying him the ship was obstructing navigation, or may obstruct navigation, and directing him to remove it to safe anchorage by 27 July 2021. (“the first notice” or “the first direction”) The reason for that allegation of obstruction or possible obstruction of navigation is important. In essence, the reason for the direction was the need to clear access to the MSQ moorings for the safe mooring of other vessels that were or could be posing a risk to the safe navigation in the region. The direction states that regard had been had to:
“…the need to ensure the effectiveness and efficiency of the Queensland maritime industry.”
- [6]That direction was based not on any suggestion of unseaworthiness or possibility of breaking up. The applicant now further argues that the ship is a risk to the safe navigation of the river by other vessels through its risk of breaking up and causing an obstruction. The applicant, through his Counsel, accepted that that cannot form a direct basis for the granting of the application, which must be based on the commission of a “notice offence”. However, the applicant argues that it is a matter of relevance to the exercise of discretion, should I be satisfied of the commission of a notice offence.
- [7]I accept, and it is clear, that the respondent understood the direction, although he does not and did not at the time accept that the vessel was a navigational danger. He maintains that position today. It is, however, also clear that he did not understand the limited basis on which that first direction was given.
- [8]In any event, he made arrangements to move the vessel on 29 July 2021 with the help of another, but they were thwarted by unfavourable weather conditions. On 2 August 2021, the vessel was seen at its current position at Quarries Reach. It had been seen at the MSQ facility on 29 July 2021, so it must have been moved between those two dates, that is, only a few days after the deadline stated in that first direction.
- [9]An experienced officer of MSQ had closely inspected the vessel on 28 July 2021 while it was still at the MSQ facility. On 20 August 2021 he issued a declaration and direction pursuant to section 172AA of the Act, declaring the ship unseaworthy and directing its removal from Queensland waters by 17 September 2021. (“the second notice” or “the second direction”) That direction has not been complied with. More recent inspections of the vessel, albeit not as detailed, as I understand the material, suggest that it remains unseaworthy.
- [10]This application was mentioned by Porter QC DCJ on 18 January 2022, and then heard by him on 21 January 2022. Between those two dates, the masts of the vessel had been cut down and were hanging off the vessel. This resulted in another direction and notice being issued on 20 January 2022. This latter direction and notice is not relied on as constituting a notice offence for the purposes of the application and need not be considered further, although the conduct giving rise to it is of relevance.
- [11]On 21 January 2022, his Honour made enforcement orders to the broad effect that within 14 days the respondent was to submit to MSQ a written towing and shipping plan for the vessel, and he was ordered to remove the ship from Queensland waters in accordance with the towing plan as it had been approved. His Honour also ordered the respondent pay the applicant’s costs of and incidental to the application, including the costs of the hearings on 18 January 2022 and 21 January 2022. His Honour’s reasons are reported as Mahon, General Manager, Maritime Safety Queensland v Turcinovic [2022] QDC 10.
- [12]The hearing of the balance of the application was ultimately adjourned to 10 February 2022. As noted in his Honour’s decision, although the respondent had earlier been present in the Court building, he was not present at the time of the actual hearing. He has subsequently informed me in his submissions, and I accept, that he was adversely affected by the courtroom environment impacting on the mental health condition he suffers, and he felt as though he had to leave the building.
- [13]The respondent was supplied with a copy of his Honour’s orders prior to the hearing on 10 February 2022. The enforcement orders were not complied with, and the balance of the application came before me for hearing on that date.
- [14]Before that hearing came on before me, and more precisely on 24 January 2022, MSQ made arrangements for removal of the cut-down masts to be retrieved from the side of the vessel and taken to an MSQ storage facility. There is evidence, which I accept, that the respondent was abusive, aggressive and angry at that time. Since then, and again before the hearing came on before me, the sides of the vessel had been graffitied with comments derogatory of MSQ, such as:
“MSQ Filth” and “Corrupt Scumbags”
- [15]The respondent volunteered at the hearing that he had graffitied the boat after MSQ had removed the masts.
- [16]On 10 February 2022, the respondent sought a rehearing of the whole of the application. That was treated by me as an application under rule 667(2)(a) of the Uniform Civil Procedure Rules. I considered the merits of the application, but ultimately refused it, largely given the futility of allowing it. That was because although the respondent denied the ship was a risk to navigation, he told me several times he accepted the ship was unseaworthy, although he qualified that by saying he had no intention of taking it to sea.
- [17]I pause to note that although Porter QC DCJ in his judgment referred the first direction as requiring the vessel to be removed from Queensland waters, which direction had not been complied with, it actually required movement to a safe anchorage or mooring, and had been moved, albeit one or two days after the stipulated deadline. The error in his Honour’s judgment replicated an error in the outline of submissions from the applicant. This is most regrettable. Judges sitting in busy application days are entitled to rely on counsel’s outlines, at least so far as they deal with factual matters, as accurate. The applicant concedes there is no evidence before the Court to permit a finding that the current anchorage or mooring is not safe. Nothing turns on the error in his Honour’s earlier order as the more serious allegation is that of unseaworthiness.
- [18]The respondent was told, after I gave that ruling, that he could adduce any evidence he wished to in response to the next stage of the application. Until this morning, there had been no evidence adduced. This morning there have been a series of photographs tendered.
- [19]Doing the best I can, the submissions were broadly that:
- (1)the respondent accepted the ship was unseaworthy, but said it was not intended to be taken to sea;
- (2)he intended to get the vessel seaworthy and started repairing it prior to MSQ involvement;
- (3)he stopped repairing it when he received the directions because he perceived the authorities would not accept that anything he did made it safe, and he did not wish to continue wasting time and money;
- (4)similarly, he had not sought to get permission to move the vessel to a small creek where he thought it could be repaired, because of his perception it simply would not be approved, and
- (5)although he had previously lived at an address at Nundah, that was no longer a suitable residence as the elderly occupant could not handle the respondent’s mental health condition. He intended to live on the ship, he said, while he repaired it and asserted that he was, at the time of the hearing, then living there.
- (1)
- [20]In response, and again broadly speaking, the applicant submitted that:
- (1)there had been no compliance with the two directions given, and given the conduct of the respondent concerning the de-masting of the ship and the spraying of graffiti on the ship’s side, together with the history of his conduct overall, I could be comfortably satisfied there will not be compliance with any orders made; and
- (2)it was doubtful that he in fact used the ship as living premises, but, if he did, the order was required to ensure his own safety.
- [21]I adjourned the application for one week to allow the respondent the opportunity to submit a towing plan of his choice to MSQ for consideration, ultimately, by the Harbour Master. The respondent attended the adjourned hearing with a towing plan. He explained it had not been submitted to MSQ because he understood he had to bring it to Court. I accept his explanation for it not having been earlier submitted to MSQ. The towing plan has been made an exhibit on the hearing.
- [22]The towing plan does not cater for removal of the ship from Queensland waters, but contemplates moving the vessel to an unnamed place, where the waters move more quietly so that it may be repaired. That is to occur on an unstated date. In submissions at the earlier hearing, the respondent had referred to the possibility of removing it to a small creek for those purposes.
- [23]On that date, the applicant strongly opposed any further adjournment to allow the Harbour Master to consider the towing plan. It was submitted it would inevitably be rejected, at least because it did not cater for the removal of the ship from Queensland waters. While further delays in the hearing in the matter were regrettable, I considered the respondent was entitled to have the towing plan considered by the appropriate authority. Although I did not expressly state it at the time, he at least was entitled to that process so he could consider the availability of administrative review and I did earlier suggest that a towing plan might provide a basis for meaningful discussion between the parties.
- [24]That towing plan has now been considered and rejected. The applicant has been provided with reasons for the rejection. The letter to him outlining those reasons is attached to the sixth affidavit of Justin Welsh, for which leave was given to file and read today. The reasons for rejection numbered seven in total.
- [25]Firstly, they are said to do with the lack of the respondent’s licensing and the lack of registration, and hence lack of any insurance for the vessel. I pause to note that the respondent to date submits that part of his towing plan was to allow him time to get a licence.
- [26]The second group of reasons given for the rejection of the towing plan can be broadly stated as the plan only allowing for two days’ notice of moving the ship, which does not allow sufficient time to undertake an assessment of weather conditions and scheduled activities for other waterway users.
- [27]Thirdly, observations are made concerning the lack of detail concerning the power of the outboard motor which would be said to be attached to the subject’s ship, how it would be mounted, and power to the outboard motors on each of the two “tinnies” to be tied to each side of the ship. It refers to the fact the ship has an approximate weight of 10 tonne and raises concerns as to how it would be controlled or steered. I again pause to note that the respondent has today observed that it was removed from the MSQ facility simply by using the tide. Be that as that may, depending on where it is to be taken, it may not be a sufficient answer.
- [28]Fourthly, the letter of refusal refers to the fact that there is an unknown location stated as to where the repairs would be undertaken.
- [29]Fifthly, it speaks of the plan not providing for contingencies, for example, towing failure, structural failure, pollution discharge or water ingress during the towing operation, which is describes as fundamental requirements of any towing plan.
- [30]Sixthly, it refers to the condition of the ship and, seventhly, it refers to the suggestion that, given that the ship has been identified as taking water previously, there is a possibility it could take water, causing it to flounder or sink. It asserts there are no viable or working bilge pumps fitted to the boat. The respondent contends that there are two batteries with a value of about $700 that could provide that power.
- [31]In order to succeed on the application, the applicant must prove the commission of at least one notice offence - section 183C, subsection (1)(a) of the Act. He need not prove the respondent has been convicted of a failure to comply with the direction, but he must satisfy me that is the case, that is, that a notice offence has occurred. A notice offence is relevantly defined at Schedule 1 of the Act in such a way that non-compliance with either of the notices or directions issued to the respondent amounts to a notice offence.
- [32]Strictly speaking, there has probably been a notice offence committed in relation to the first direction but only because the vessel was not moved by the time stipulated in the direction. It was moved at most a few days late in circumstances where an earlier effort to move it, again albeit a day or two late, had been thwarted by weather conditions. There is no evidence before me to prove that the place it is now anchored or moored is not safe. In the circumstances, the failure to strictly comply with that first direction is not a suitable basis to justify the granting of the order; an order that effectively deprives the respondent of his property, regardless of any debate about its value.
- [33]The more serious allegation is that of the unseaworthiness raised in the second direction. There is no statutory definition of the term unseaworthy. I apply the considerations referred to by the High Court in Great China Metal Co Limited v Malaysian International Shipping Corporation, Berhad (1998) 196 CLR 161 at [27] – [31]. The place and intended use of the vessel are relevant considerations. They are, of course, not ultimately wholly determinative. As the High Court said:
“Seaworthiness is judged having regard to the conditions the vessel will encounter.”
- [34]The respondent accepted in submissions that the Brisbane River is capable of experiencing fast flowing currents. That is why he suggested moving the ship to a small creek where he could undertake the repair work. Among the many defects in the vessel, it does not have any propulsion system of its own. I note the suggestion that there are outboards available, but based on the evidence before me, it at least needs assistance with movement, if not needing to be wholly towed.
- [35]There is no evidence the anchor chain has been replaced, although the respondent submits that to be so. Even if I were to accept that it has not been replaced, I must recognise there is no evidence that the vessel has again broken free since being returned to its current placement on 2 August 2021.
- [36]Nonetheless, and given the condition of the vessel overall, I accept that it meets the common law definition of unseaworthiness even if it is not intended that it be taken to sea. It is also noteworthy that the respondent has clearly submitted on a number of occasions that he does not intend to remove the vessel from Queensland waters.
- [37]I accept there is some risk the ship may further deteriorate, break up and thereby pose an identifiable risk to navigation at least while it is in the Brisbane River. However, the city of Brisbane has recently experienced severe wind gusts over a number of days. It is not suggested the vessel further deteriorated as a result of being exposed to them and so I do not accept that the risk is as imminent as might be understood from some of the affidavit material. Nonetheless, the condition of the vessel means that the risk inherently exists. As earlier noted, this is not a standalone basis for the granting of the application, but I accept it is a relevant feature for the exercise of my discretion.
- [38]As earlier noted, the recently submitted towing plan has been rejected. It is not my function to assess the correctness or otherwise of that decision.
- [39]Other than that recent towing plan, there has been no attempt to comply with the second direction, that dealing with unseaworthiness, during the many months that have now passed.
- [40]I am satisfied one notice offence has been proven, based on the non-compliance with the second direction. Further, on the basis of the respondent’s conduct, and in his dealings with MSQ in particular, I am satisfied it is unlikely there would be any meaningful attempt at compliance if more time were given. I am also satisfied it would be futile to adjourn the application further to allow the respondent time to make the vessel seaworthy. Even to the untrained eye, and assuming it is possible to do so, there is much work to be done. It would take much, much time and there is some risk of deterioration.
- [41]I have considered the issue of the respondent’s residency. The applicant contends that the respondent is not residing on the boat and is probably residing at a stated address. Between the hearing on 10 February 2022 and 17 February 2022, officers from MSQ approached the place the ship was anchored at once a day on almost every day. On each occasion they observed the ship had not been moved. That is perhaps not surprising; it had no propulsion system. However, they noted on each occasion there was no tender attached to the vessel, thereby inferentially suggesting the respondent was not at the ship and not residing on the ship. There are other features in the evidence to suggest that he does not reside on the ship, and I accept that to be the case.
- [42]In any event, were I to be wrong in that, although the respondent says he “cannot” reside at the Nundah residence, it seems to me on the material before me that it is not impossible to do so, although I accept there may well be difficulties. There are, of course, other residency options the respondent could explore if necessary. I am satisfied this issue should not result in the application being refused given the public safety matters that justify the making of the order.
- [43]My expectation is that when, and indeed if, MSQ do take possession of the vessel, the respondent will be allowed sufficient reasonable time to remove his personal property from the ship, if an earlier agreement cannot be reached concerning the fate of the vessel. I specifically note the orders sought relate to the possession of the vessel and not to the personal property of the respondent.
- [44]In all of the circumstances, I am satisfied the application should be granted, but only the basis of the notice offence constituted by non-compliance with the second notice or direction.
- [45]In terms of the issue of costs, the usual order is that costs follow the event. Porter QC DCJ made orders as to the costs of the application, including the hearings on 18 January 2022 and 21 January 2022. Given that those orders have dealt with those costs, the respondent should pay the applicant’s costs of and incidental to the application, being the costs of the hearing on 10 February 2022, 17 February 2022 and today, 21 February 2022.