Dolphin Dive Centre Fremantle Pty Ltd v Australian Maritime Safety Authority
[2014] FCA 1444
•24 December 2014
FEDERAL COURT OF AUSTRALIA
Dolphin Dive Centre Fremantle Pty Ltd v Australian Maritime Safety Authority [2014] FCA 1444
Citation: Dolphin Dive Centre Fremantle Pty Ltd v Australian Maritime Safety Authority [2014] FCA 1444 Parties: DOLPHIN DIVE CENTRE FREMANTLE PTY LTD (ACN 146 403 698) v AUSTRALIAN MARITIME SAFETY AUTHORITY File number: WAD 388 of 2014 Judge: MCKERRACHER J Date of judgment: 24 December 2014 Date of hearing: 24 December 2014 Place: Perth Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 10 Counsel for the Applicant: Ms KA Vernon Solicitor for the Applicant: Darren Jones Barrister & Solicitor Counsel for the Respondent: Mr P Macliver Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 388 of 2014
BETWEEN: DOLPHIN DIVE CENTRE FREMANTLE PTY LTD
(ACN 146 403 698)
ApplicantAND: AUSTRALIAN MARITIME SAFETY AUTHORITY
Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
24 DECEMBER 2014
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.Paragraph 1 of the Urgent Application before start of proceeding filed on 19 December 2014 be amended in terms of the Minute of Proposed Amended Urgent application before start of proceeding annexed hereto and marked “A”.
2.Upon the Applicant’s undertaking as to damages and undertaking that further log book records will record the latitude and longitude of the most westerly location of any voyage, the operation of the following decisions be stayed until further order:
a.the decision of the Respondent made on 13 November 2014 to suspend the Applicant’s Certificate of Operation COO1209-1; and
b.the decision of the Respondent made on 3 December 2014 requiring the Applicant to Show Cause why the Applicant’s Certificate of Operation COO1209-1 should not be revoked,
(Decisions).
3.Upon the undertaking of the Applicant as to damages, all or any proceedings under the Decisions, save and except for the internal review of the suspension decision, be stayed until further order.
4.Without limitation as to other means of service, service of this order is dispensed with and instead service of this Order on the Respondent is permitted by forwarding by facsimile an original or copy of the Order to the Respondent at (02) 6279 5017.
5.Liberty to apply on 48 hours notice to discharge, vary or extend the operation of this Order.
6.The costs of and incidental to this application be reserved.
7.The substantive application be filed by 29 December 2014 and be listed for hearing on 10 and 11 February 2015 (Hearing Date).
8.The Applicant is to file any further materials, except submissions, 14 days prior to the Hearing Date.
9.The Respondent is to file any further materials, except submissions, 7 days prior to the Hearing Date.
10.The Applicant and Respondent are to otherwise confer on filing submissions.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 388 of 2014
BETWEEN: DOLPHIN DIVE CENTRE FREMANTLE PTY LTD
(ACN 146 403 698)
ApplicantAND: AUSTRALIAN MARITIME SAFETY AUTHORITY
Respondent
JUDGE:
MCKERRACHER J
DATE:
24 DECEMBER 2014
PLACE:
PERTH
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
On 13 November this year, a sub-delegate of the respondent, AMSA, suspended the Certificate of operation held by the applicant vessel charterer, Dolphin Dive, pursuant to s 52(1)(a) of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth), because of a number of safety problems that provide potential serious risk to human life, as then perceived by the sub-delegate. On 3 December, a marine safety inspector authorised under the National Law issued a direction pursuant to s 109 requiring three of Dolphin Dive’s vessels to be subject to an out of water survey to be completed by 31 December (Direction Decision). Also on 3 December, the sub-delegate gave notice in writing inviting Dolphin Dive to show cause why the Certificate should not be revoked pursuant to s 72(1) of the National Law (Show Cause Decision).
Those Decisions have given rise, after many communications, to an urgent application today, supported by extensive affidavit material and argument advanced both on behalf of Dolphin Dive and on behalf of AMSA, in relation to the issue.
It is the peak usage time of the year for Dolphin Dive. Inability to operate poses a serious financial risk to the viability of the business and its employees. Dolphin Dive seeks an injunction staying the operation of the Decisions as urgent relief pending the commencement of an application for judicial review pursuant to s 23 of the Federal Court Act 1976 (Cth) (Act) or an order under s 15 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) staying the operation of those Decisions until the hearing of the substantive application. Dolphin Dive contends it has not been afforded natural justice in the reaching of those Decisions. I have dealt with the application as a stay application. I should add that the Direction Decision has been revoked so does not need to be considered.
A primary concern for me is the extent to which safety is at risk. A primary issue underlying the safety question was the extent to which, if any, there has been overloading of passengers on vessels operated by Dolphin Dive. Evidence has been adduced by the director of Dolphin Dive, Daniel Lippiatt, on that topic and he has been cross-examined on that topic. I form no final view in relation to that issue, in light of the manner in which I propose to dispose of today’s application for a stay of the Suspension and Show Cause Decisions. In light of the timing of the application, I do not propose to rehearse all of the arguments which were advanced before me both in support and against the contention that there are serious issues to be tried.
I am mindful that the challenges for Dolphin Dive in demonstrating that there are grounds for review under the ADJR Act are not to be underestimated in light of the statutory structure, particularly in relation to s 52 of the National Law and the question of whether the statute contemplates a right to be heard in these circumstances. Nevertheless, a number of arguments have been advanced and I am persuaded that there is an arguable case that Dolphin Dive may possibly be entitled to a successful judicial review on the basis that it was not afforded an opportunity to be heard in relation to the Suspension Decision. It is possible that perceived problems may have been explained. I do not propose descending, at this point, into an analysis of the strength of the argument, other than to observe that there are clearly challenges in the arguments that are advanced by Dolphin Dive. Nevertheless, I am satisfied that there are arguable grounds.
It is then important to consider the balance of convenience and protection of the public, which is of utmost importance. That protection clearly includes the safety of the public generally, but in particular, passengers on the vessels. As I say, the issue which was primarily focused upon in the course of argument was the numbers of passengers permitted to board the vessels at particular locations. It is proposed that in the short term there be a new method of recording, in the log books of Dolphin Dive, the latitude and longitude to which the vessels steam. By reference to that information, the particular location of the vessels will be clear, and that location, in turn, will dictate the number of passengers permitted to be aboard the vessels.
From a more practical perspective, the nature of the communications to date between the parties and their representatives, the nature and extent of the arguments today and what is at risk from the point of view of Dolphin Dive, together mean that there is a very clear understanding from Dolphin Dive’s perspective, that its activities will potentially be under the microscope by AMSA and its representatives, particularly if a brief interlocutory stay is granted.
I am satisfied that if Dolphin Dive is granted a brief stay of the Decisions that have been made by AMSA, the public interest will be protected, particularly bearing in mind the matters I have just mentioned.
In light of those impressions and conclusions that I have formed following this urgent hearing, I propose granting some preliminary relief to Dolphin Dive to stay, on various conditions, the Suspension Decision and the Show Cause Decision until the issues can be more thoroughly ventilated with the benefit of further evidence and legal argument, at a hearing early in February next year.
I will make the following orders
1.Paragraph 1 of the Urgent Application before start of proceeding filed on 19 December 2014 be amended in terms of the Minute of Proposed Amended Urgent application before start of proceeding annexed hereto and marked “A”.
2.Upon the Applicant’s undertaking as to damages and undertaking that further log book records will record the latitude and longitude of the most westerly location of any voyage, the operation of the following decisions be stayed until further order:
a.the decision of the Respondent made on 13 November 2014 to suspend the Applicant’s Certificate of Operation COO1209-1; and
b.the decision of the Respondent made on 3 December 2014 requiring the Applicant to Show Cause why the Applicant’s Certificate of Operation COO1209-1 should not be revoked,
(Decisions).
3.Upon the undertaking of the Applicant as to damages, all or any proceedings under the Decisions, save and except for the internal review of the suspension decision, be stayed until further order.
4.Without limitation as to other means of service, service of this order is dispensed with and instead service of this Order on the Respondent is permitted by forwarding by facsimile an original or copy of the Order to the Respondent at (02) 6279 5017.
5.Liberty to apply on 48 hours notice to discharge, vary or extend the operation of this Order.
6.The costs of and incidental to this application be reserved.
7.The substantive application be filed by 29 December 2014 and be listed for hearing on 10 and 11 February 2015 (Hearing Date).
8.The Applicant is to file any further materials, except submissions, 14 days prior to the Hearing Date.
9.The Respondent is to file any further materials, except submissions, 7 days prior to the Hearing Date.
10.The Applicant and Respondent are to otherwise confer on filing submissions.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 13 January 2015
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