Coote Logistics Pty Ltd v Waugh, Delegate of the Director of Quarantine

[2010] FCA 1317

FEDERAL COURT OF AUSTRALIA

Coote Logistics Pty Ltd v Waugh, Delegate of the Director of Quarantine [2010] FCA 1317

Citation:		Coote Logistics Pty Ltd v Waugh, Delegate of the Director of Quarantine [2010] FCA 1317
Parties:		COOTE LOGISTICS PTY LTD v BRENDA WAUGH, DELEGATE OF THE DIRECTOR OF QUARANTINE and AUSTRALIAN QUARANTINE AND INSPECTION SERVICE
File number:		WAD 321 of 2010
Judge:		SIOPIS J
Date of judgment:		2 November 2010
Date of hearing:	2 November 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	9
Counsel for the Applicant:	Mr RL Hooker
Solicitor for the Applicant:	Cocks Macnish
Counsel for the First and Second Respondents:	Mr P Macliver
Solicitor for the First and Second Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 321 of 2010

BETWEEN:

COOTE LOGISTICS PTY LTD
Applicant

AND:

BRENDA WAUGH, DELEGATE OF THE DIRECTOR OF QUARANTINE
First Respondent

AUSTRALIAN QUARANTINE AND INSPECTION SERVICE
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	2 NOVEMBER 2010
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

Stay Order

1.Upon the undertaking of the applicant as to damages, the operation of the decision of the first respondent on behalf of the second respondent made on or about 27 October 2010 to suspend the applicant’s “Quarantine Approved Place” approval is suspended until further order.

2.Each party has liberty to apply in relation to this stay order.

Affidavits

3.The applicant is to file and serve any further affidavits on which it intends to rely by 4.00 pm on 9 November 2010.

4.The respondents are to file and serve any further affidavits on which they intend to rely by 4.00 pm on 19 November 2010.

Submissions

5.The applicant is to file its submissions by 4.00 pm on 19 November 2010.

6.The respondents are to file their submissions by 4.00 pm on 22 November 2010.

Hearing

7.The hearing in this matter is provisionally set for 10.15 am on 24 November 2010.

Costs

8.Costs of today are in the cause.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 321 of 2010

BETWEEN:

COOTE LOGISTICS PTY LTD
Applicant

AND:

BRENDA WAUGH, DELEGATE OF THE DIRECTOR OF QUARANTINE
First Respondent

AUSTRALIAN QUARANTINE AND INSPECTION SERVICE
Second Respondent

JUDGE:	SIOPIS J
DATE:	2 NOVEMBER 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 27 October 2010, a delegate of the Director of Quarantine, Australian Quarantine and Inspection Service, wrote to the applicant informing it that she had decided in the exercise of her discretion under s 46A of the Quarantine Act 1908 (Cth), to suspend the applicant’s Quarantine Approved Place (QAP) approval, effective from midnight on 31 October 2010.

2. The delegate said that she was of the view, given the four incidents of serious non‑conformities by the applicant on 4 May 2010, 26 June 2010, 6 August 2010 and 6 October 2010 respectively, that there were sufficient grounds to suspend the applicant’s QAP approval.  The delegate stated that the latter two incidents were found to have occurred after she had previously written to the applicant, on 14 September 2010, regarding its performance.

3. The applicant, which has carried on business as a Quarantine Approved Place since 1996, has commenced a proceeding to review the suspension decision of the delegate.

4. The applicant has also applied for an order under s 15 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) staying the operation of the delegate’s decision suspending the applicant’s QAP approval.

5. The following are my short reasons for making an order staying the operation of the decision of the delegate, pending the determination of the applicant’s review application.

6. In my view, there is a serious question to be tried in relation to the question of whether in making the suspension decision, the delegate afforded natural justice to the applicant in respect of two important matters.  First, the delegate invited no submissions from the applicant in respect of the incident of 8 October 2010, which the delegate relied on in the making of the suspension decision.  Secondly, before making the suspension decision, the delegate invited no submissions from the applicant in relation to the more general question as to whether suspension of the applicant’s QAP approval was, in the exercise of the delegate’s discretion, the appropriate course in the circumstances.

7. As to the balance of convenience, I take into account, on the one hand, the fact that the applicant has carried on a QAP business for a good number of years and that it employs a number of people in that that business.  It is a matter of some weight that if a stay of the suspension decision is not granted, and even if the applicant was to succeed at trial, there would be a substantial interruption to the applicant’s business, and interference with the lives and livelihoods of the persons who are employed by the applicant.

8. I also accept, of course, as the respondents contended, that there is a strong public interest that quarantine is enforced rigorously in Australia.  However, I do not accept that that factor alone, when weighed against the position of the applicant, is sufficient to tilt the balance of convenience in favour of the respondents - particularly in light of the difficulties that I perceive the respondents face in respect of the issues to which I have referred, in considering the issue of the serious question to be tried.

9. I will also give each party liberty to apply and costs of today will be in the cause.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:       29 November 2010