Doyle v NSW Maritime
[2011] NSWADT 113
•24 May 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Doyle v NSW Maritime [2011] NSWADT 113 Hearing dates: 8 November 2010 Decision date: 24 May 2011 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The Tribunal has no jurisdiction to hear and determine the Applicant's application for review.
Catchwords: Reviewable decision - whether agency made a decision that was reviewable - whether applicant was an interested person Legislation Cited: Administrative Decisions Tribunal Act 1997
Commercial Vessels Act 1979
Marine Safety Act 1998
Marine Safety (Commercial Vessels) Regulation 2010
Marine Safety (General) Regulation 2009
Water Traffic Regulation-NSWCategory: Interlocutory applications Parties: Dr David Doyle (Applicant)
NSW Maritime (Respondent)Representation: Self (Applicant)
D Gailbraith (Respondent)
File Number(s): 103118
REasons for decision
The applicant, Dr Doyle, is the registered holder of a non-voting Unit in the Unique Boat Share Trust-Fishmarkets. As the holder of a non-voting Unit in the Trust, Dr Doyle has an entitlement to make bookings and use, through Blue Sky Boating, a vessel, the 2007 Sea Ray 310 Sundancer Sport Cruiser, owned by Blue Sky Boating. Dr Doyle contends that, by reason of his holding of a Unit in the Trust, he is also an 'owner' of the vessel.
On 15 February 2010, Dr Doyle wrote to the respondent, NSW Maritime, seeking information about specified boats (including the 2007 Sea Ray 310 Sundancer Sport Cruiser) owned by 'Blue Sky Boating/Unique Boat Share Trust'. In particular, Dr Doyle requested the following:
(a) whether the respondent had 'determined at any time that circumstances existed which justify the [Boat-share Guidelines] being departed from in regard to these vessels';
(b) whether or not an application had been received from Blue Sky Boating for recognition of 'boat share' status pursuant to the Boat- share Guidelines. A copy of the request and the determination thereof was also requested; and
(c) the respondent 'exercise its powers to compel an audit of compliance' by the owners of the vessel [i.e. the Sundancer Sport Cruiser] as it was contended that the Unit Trust, of which Dr Doyle was a registered holder, did not comply with specified provisions of the Boat-share Guidelines.
The Boat-share Guidelines are a publication of the respondent in which it sets out the circumstances in which vessel, the subject of a 'boat-share' arrangement, will be regarded as a vessel that is used for recreational purposes and not commercial purposes. Up until 31 December 2010, a vessel used for commercial purposes was required to comply with the provisions of the Commercial Vessels Act 1979 (the CV Act) . That Act (now repealed), made provision for the issue of permits to commercial vessels operating in State waters and also contained other provisions in regard to the operation of commercial vessels. However, on its repeal, the Act was replaced with the Marine Safety (Commercial Vessels) Regulation 2010 (MS (CV) Act) . These regulations I note contain transition and savings provisions in regard to commercial vessels falling under the repealed CV Act .
The respondent replied to Dr Doyle in a letter dated 5 March 2010. In that letter the respondent confirmed that it had not formally allowed the specified boats owned by Blue Sky Boating to depart from its published boat-share guidelines. The respondent went on to say the following:
'With regard to your enquiry about the boat share status of Blue Sky boating, please note that NSW Maritime does not have a formal recognition process. However, we have received correspondence from some boat share businesses seeking our appraisal of their conformance to the guidelines. In such instances, we send them our considered response following a review of the documentation provided, or after seeking further information. We are currently in the process of such an appraisal with respect to a recent letter from Blue Sky Boating.'
Dr Doyle wrote two responses to this letter on 1 April 2010. In one letter he made a request, pursuant to section 53 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), for an internal review in regard to the respondent's comment that it did not have a formal recognition process. Dr Doyle asserted that this comment inferred that the respondent had '... affectively decided not to apply the Boat Share Guidelines' in regard to the Blue Sky boats and that it had instead decided to:
'impose a different limited number of unidentified conditions and/or limitations and/or restriction on the registration of the vessel known as "2007 Model, Sea Ray 335 Sundancer Sport Cruiser, 33.5 FT", registration number 57957 (the " Vessel ") (the " Decision ").'
On 19 May 2010, the respondent replied to Dr Doyle's request for internal review. In that reply the respondent contended that the 'decision' for which Dr Doyle had sought review was not a reviewable decision by the Tribunal and that as a consequence he was not entitled to apply for an internal review. Being dissatisfied with this response, Dr Doyle lodged an application with the Tribunal for external review. The respondent continued to assert that the 'decision', for which Dr Doyle had sought review was not a decision that was reviewable by the Tribunal. The respondent also contended that even if its letter of response were found to contain a decision that was reviewable, Dr Doyle did not have any standing to seek review.
By consent, these preliminary issues were heard on 8 November 2010. At the conclusion of the hearing I made directions for the respondent to file and serve a copy of any registration papers or permits for the 2007 Sea Ray 310 Sundancer Sport Cruiser. This material and a short explanation of the material was filed and served by the respondent. Subsequently, on 6 December 2010 and 7 February 2011, Dr Doyle wrote to the Tribunal requesting that the matter be relisted for hearing. It was his contention that further evidence needed to be obtained on issues of jurisdictional fact. The respondent did not agree with this request and submitted that the additional matters raised by Dr Doyle were of no relevance to the jurisdictional issues that had been raised and which, by consent, had been agreed to be dealt with as a preliminary matter.
I agree with the contentions of the respondent. In this application, the issues in regard to jurisdiction are relatively straight forward in that the only questions are: (a) whether the letter of the respondent, dated 5 March 2010, evidenced a decision of the respondent that was a reviewable decision, and (b) if it was such a decision, whether Dr Doyle has standing to make this application. In this regard, the document Dr Doyle attached to his letter of 3 February 2011does not in my view assist in determining these issues. The document would appear to be more relevant to Dr Doyle's wider concerns about the regulation (or lack thereof) of vessels that are used in boat share schemes.
Accordingly, these are my reasons for decision in regard to the preliminary issues raised by the respondent.
Relevant legislation
Jurisdiction
It is not disputed that the Tribunal's jurisdiction to review a decision of an administrator must be sourced from an Act, other than the ADT Act, which provides that a decision made under the other Act is a decision that is reviewable by the Tribunal: see section 38 of the ADT Act.
Nor is it disputed that for the purposes of this application the relevant section is section 42 of the Marine Safety Act 1998 (the MS Act). That section provides as follows:
" 42 Rights of review
A person who is dissatisfied with any of the following decisions under this Act may apply to the Tribunal for a review of the decision:
(a) the refusal to grant a marine safety licence to the person,
(b) the imposition of conditions or any other limitation or restriction on the person's marine safety licence (other than by regulation), and
(c) the suspension or cancellation of a person's marine safety licence (otherwise than by a court)."
As mentioned above, it is the contention of Dr Doyle that the 5 March 2010 letter from the respondent evidenced a decision of the respondent falling within the description of paragraph 42(b) of the MS Act.
Section 55 of the ADT Act sets out what is required in order to lodge an application for external review with the Tribunal. Paragraph 55(1)(a) provides that a person may only apply to the Tribunal for a reviewable decision if the application is made by an 'interested person'. An 'interested person' is defined in section 4 of the ADT Act to mean 'a person who is entitled under an enactment to make an application to the tribunal for ... a review of a reviewable decision ....' By reason of this definition the question as to whether Dr Doyle has standing to make this application must also be found in the provisions of the MS Act.
The Marine Safety Act 1998
The MS Act regulates the use of marine vessels in ports and other waterways within New South Wales. It makes provision for the issue of marine safety licences (see Part 4 of the MS Act) and contains numerous provisions in regard to the safe use of vessels and other related provisions.
For the purposes of this application, the relevant provisions are those contained in Part 4 and 5 of the MS Act.
Part 4 of the MS Act relates to Marine safety licences. In this Part, Division 1 makes provision for various types of licences (see section 29), Division 2 deals with the grant of a licence (including conditions on a licence) (see sections 30 to 37), Division 3 deals with the suspension or cancellation of a licence (see sections 38 to 40) and Division 4 deals with reviews to the Tribunal (see section 42). As can be seen from the extract of section 42 above, the decisions that are subject to review by the Tribunal are decisions concerning: (a) the grant or refusal to grant a marine safety licence, (b) the imposition, variation or revocation of conditions on a marine safety licence and (c) the suspension or cancellation of a marine safety licence.
Section 29 makes provision for 8 different types of marine safety licences. They include the following:
(a) vessel registration certificate - being a marine safety licence for a vessel that is required by Division 2 of Part 5;
(b) survey certificate - being a marine safety licence for a commercial vessel that is required by Division 3 of Part 5;
...
(e) boat driving licence - being a marine safety licence to operate a power-driven recreational vessel that is required by Division 5 of Part 5. ...'.
At the time of Dr Doyle's request to the respondent and up to the time of hearing only (a) and (e) above were in operation. That is, the provisions relating to a survey certificate had not come into operation at that time.
Division 2 of Part 5 of the MS Act makes provision for the registration of vessels. Subsection 49(1) in this Division provides that 'all commercial and recreational vessels that operate in NSW State waters are required to be registered under this Act unless exempt from registration.' Section 50 sets out those vessels that operate in NSW State waters that are exempt from registration and section 51 makes it an offence for an owner to operate a registrable vessel in NSW State waters without being registered.
Accordingly, the MS Act requires all vessels (other than those that are prescribed as exempt) operated in State waters to be issued with a marine safety licence in the form of a vessel registration certificate. This requirement applies regardless of the purpose for which the vessel is used (i.e. recreational or commercial).
The Minister is given power to grant a marine safety licence under section 30 of the MS Act. These licenses are issued subject to prescribed conditions and any the Minister may choose to add (see section 31). Once a licence has been issued the Minister has the power to add, vary or revoke any conditions on the licence (see subsection 31(3)). However, the Minister cannot vary or revoke the conditions that are prescribed in the regulations (see subsection 31(4)). In regard to the Minister's power to add, vary or revoke conditions after a marine safety licence has been issued, subsection 31(3) of the MS Act provides as follows:
31 Conditions of licences
(1) ...
(2) ...
(3) After granting a marine safety licence, the Minister may, by notice in writing to the holder of the licence:
(a) impose conditions or further conditions on the licence, or
(b) vary or revoke any of the conditions to which the licence is subject.
The Commercial Vessels Act 1941
The CV Act applied vessels and motors used for a commercial purpose, other than those prescribed in section 4A of the Act. Subsection 5(6) defined what was meant by that expression for the purpose of the CV Act. It relevantly provided as follows:
(6) A reference in this Act to the use of a vessel or motor for a commercial purpose is:
(a) in the case of a vessel-a reference to the use of the vessel:
(i) for the carriage of persons or goods for money or any other valuable consideration,
(ii) in any way in, or in connection with, a business or trade or commerce, or
(iii) by hiring it out, or making it available, in the course of a business or in trade or commerce, or
Vessels to which the CV Act applied were required to be issued with a permit under Part 2 of that Act. A permit set out where and how the vessel to which the permit related was to be used (see section 8). Furthermore, applications for a permit were to be investigated by a surveyor (see section 16). Permits were issued by the Minister and the CV Act made no provision for review of a decision of the Minister in regard to permits.
Other requirements under the CV Act included a need for ongoing surveys and motor checks of registered commercial vessel. There was also a requirement for commercial vessels to be crewed by properly qualified persons. Section 48 of the CV Act gave the Minister power to exempt persons, vessels or a class of person or vessel from a requirement under the CV Act or its regulations. That power had to be exercised by giving written notice to the person concerned or by publication in the Gazette.
As I have mentioned, the MS (CV) Reg., which replaced the CV Act, no longer requires a commercial vessel to be issued with a permit. However, as mentioned above, paragraph 29(b) of the MS Act makes provision for a certificate of survey for vessels used for a commercial purpose. I also note the MS (CV) Reg. contains provisions in regard to a survey (Part 3 Division 2) and appropriately qualified crew (Part 4 and 5). The Regulation also make provision for exemptions to the requirements contained in the Regulations (Part 13). It is unnecessary, for the purpose of this application, to recite these provisions.
The vessel
The documents filed by the respondent show that the vessel, 2007 Sea Ray 310 Sundowner Sport Cruiser, was purchased, in October 2007, by Blue Sky Boating The Spit Pty Ltd. This vessel appears to have originally been registered in the name of Mr Leckie, a Director of Blue Sky Boating. He had written to Waterways (i.e. NSW Maritime), in 2004, providing details of the company's proposed boat-share operation. These details included a Draft Unit Trust Deed. In response to Mr Leckie's 2004 letter, Waterways noted that although no vessels had been nominated in the documents provided, the 2 vessel registration numbers that were provided were issued to Mr Leckie as a private individual. The letter went on to say that if the vessel registrations were to be transferred to the Trust, NSW Maritime would require the vessels to be placed in 'commercial registration'. It was noted that 'commercial registration' was an administrative category of registration under the Water Traffic Regulations - NSW (now repealed) and did not correspond to a vessel being 'in survey' under the CV Act. The letter advised that, on the information provided, the proposed Trust did not constitute 'use for commercial purpose' under the CV Act, which meant that the requirements of that Act relating to survey and safety crewing did not apply.
In any event, in October 2008, Mr Leckie made an application to NSW Maritime to change the vessel registration to a 'commercial registration' in the name of Blue Sky Boating the Spit Pty Ltd. A new registration certificate was issued on 24 November 2008. It was a commercial vessel registration certificate, valid for 12 months and in the name of 'Blue Sky Boating Sydney City Pty Ld'. In issuing the certificate of vessel registration, the respondent advised that the vessel was exempt from certain provisions of the CV Act, by reason of an exemption, made by the Minister pursuant to section 48 of the CV Act and published in the Gazetted on 11 January 2008. On the basis of this information I have assumed that when the registration of the vessel was changed as requested by Mr Leckie, the vessel also became subject to the provisions of the CV Act, other than those contained in the exemption. The terms of the exemption, I note, contained a condition. That condition was that the exemption only applied so long as there was full compliance with each of the matters contained in Schedule 2 and 3 of the Gazetted exemption. These matters included matters relevant to ensuring the safety of the vessel and also the safe manning of vessels.
The respondent advised that the vessel's commercial registration was renewed in November 2009 and again in November 2010. Whether the same exemption from compliance with the provisions of the CV Act applied, is not clear. In any event, for the purpose of determining the issues about jurisdiction in this application, whether the exemption did or did not apply is not material to this application. What is material is that the Minister had, in November 2009, issued, pursuant to section 30 of the MS Act, a vessel registration certificate (i.e. a marine safety licence) for the 2007 Sea Ray 310 Sundowner Sport Cruiser. I also note from the material provided that each vessel registration certificate was valid for 1 year.
Is there a reviewable decision of the Respondent?
In his written submissions, dated 13 August 2010, Dr Doyle contended that the respondent's letter of 5 March 2010 was a 'decision' of the respondent pursuant to subsection 31(3) of the MS Act because:
(a) it was a 'notice in writing' of the respondent's refusal to apply the formal recognition process for the boat-share status of the vessel and also the boat-share status of similar vessels in New South Wales; and
(b) by deciding not to apply a formal recognition process for boat-share status on the vessel, the respondent had varied and/or revoked the conditions on the marine safety licence for the vessel as it was assumed that the licence for the vessel had been issued pursuant to the respondent's Boat- share Guidelines, which he asserted required a formal recognition process.
In his written submissions, dated 11 October 2010, Dr Doyle sets out a lengthy and convoluted argument as to what constitutes a 'decision' and how the respondent's letter of 5 March 2010 amounted to a decision of the respondent under the MS Act. At paragraph 23 of his submissions he summarised the respondent's response in the following terms:
i)NSW Maritime does not allow the vessel to depart from the BSG; but
ii)NSW Maritime does not have a formal recognition process to recognise whether the vessel complies with the BSG: but
iii)There is an allegedly informal "appraisal" process and NSW Maritime is "looking into" matters raised by the Applicant as to compliance of the vessel with the BSG via this process.
As I understand it, Dr Doyle's concern is that by not having a formal appraisal process, the respondent is compromising the safety of vessels, which are part of a boat-share scheme, as these vessels are not required to meet the more stringent requirements of the provisions of the CV Act. This is because they are classified as a recreational vessel and not a commercial vessel under the respondent's Boat-share guidelines.
While I understand Dr Doyle's concerns about vessel safety and their safe use, in my view, his arguments that the respondent's letter of 5 March 2010 evidenced a decision of the respondent under subsection 31(3) of the MS Act are misconceived.
In my view, without considering the relevant legislative provisions, on its face, the respondent's letter is no more than a response to the inquiries made by Dr Doyle in his letter of 15 February. While the response may have been worded more clearly and also been more informative, there is nothing in the content of the letter to indicate that as a result of Dr Doyle's inquiry, or otherwise, the Minister had made a decision, pursuant to subsection 31(3) of the MS Act, to add, vary, or revoke conditions of the 2009 marine safety licence for the 2007 Sea Ray 310 Sundancer Sport Cruiser after it had been issued. Nor does the letter evidence a decision of the Minister to impose another form of restriction on the vessel's licence after the licence had been issued in November 2009.
Dr Doyle also appears to have misunderstood the purpose of the respondent's Boat-share Guidelines. On a proper reading of the Guidelines they cannot be construed as a formal recognition process. They are no more than a guide as to the types of vessel boat-share arrangements that will be recognised as an arrangement where a vessel is used for recreational purposes and not commercial purposes. Even if the Guidelines were to be construed as contended by Dr Doyle, they would need to be read in conjunction with the provisions of the MS Act and the CV Act and to the extent they were inconsistent with either Act, the provisions of the Acts would prevail.
In its written submissions of 2 September 2010, the respondent explained that the Boat-share Guidelines were formulated in 2008 in recognition of a number of new businesses offering schemes providing part ownership of a boat, allowing people to access larger vessels at a fraction of the cost. Where vessels the subject of such schemes (i.e. boat-share scheme) were intended to be used by the participants of the scheme for a recreational purpose only, there was an issue as to whether the CV Act applied to these vessels. Accordingly, the respondent formulated the guidelines, as an administrative aid, to determine whether a particular vessel, the subject of a boat-share scheme, was not required to comply with the requirements of the CV Act. As the Guidelines make clear, it is only in particular boat-share arrangements, where the vessel, the subject of such an arrangement, will be considered not to be used for commercial purpose.
As pointed out by the respondent, regardless of whether a vessel was, at the time, subject to the CV Act, the vessel if operated in NSW State waters had to be licensed (i.e. registered) under the MS Act. As I have already mentioned, the evidence is that the 2007 Sea Ray 310 Sundancer Sport Cruiser was issued with a registration certificate by the Minister, under the MS Act, in the latter months of 2009. This was some 3 months before Dr Doyle made his request to the respondent. As I have indicated, whether the vessel also continued to be subject to the provisions of the CV Act is not material as Dr Doyle does not assert that the decision for which he seeks review is a decision under that Act. Had he asserted this to be the case, as pointed out above, decisions under that Act are not decision which are reviewable by the Tribunal.
Given the legislative scheme for the issue of a marine safety licence, it is also difficult to see how Dr Doyle's letter could have given rise to a decision of the Minister under subsection 31(3) of the MS Act. At no time has Dr Doyle suggest that he could be an applicant for a marine safety licence for the vessel, or apply for the variation or adding of conditions on the existing licence of the vessel. On the contrary, his letter suggests an acknowledgement that he was not the 'holder of the licence' for the 2007 Sea Ray 310 Sundancer Sport Cruiser and could do no more than obtain information about the vessel's status in so far as the safety provisions of the CV Act applied.
Finally, there is no evidence before the Tribunal that after the issue of the 2009 registration certificate for the 2007 Sea Ray 310 Sundancer Sport Cruiser and before Dr Doyle's request, the Minister had, pursuant to subsection 31(3) of the MS Act imposed further conditions, or varied or revoked the conditions he had placed on the vessel's 2009 certificate of registration. Nor was there any evidence of the Minister having placed any other restrictions on the vessel's marine safety licence (i.e. registration certificate).
Accordingly, I find, contrary to Dr Doyle's assertions, that the respondent's letter of 5 March 2010 does not evidence a decision of the Minister under subsection 31(3) of the MS Act. On this basis, for the purpose of the Tribunal's jurisdiction, the letter does not contain a decision of the Minister that is reviewable by the Tribunal pursuant to section 42 of the MS Act. To remove any doubt, I also agree with the respondent's construction of section 42, in that it only applies to decisions of the Minister that are made under Part 4 of the MS Act (i.e. decisions under sections 30, 31, 38 and 39 of the MS Act). At the time of Dr Doyle's request, the only decisions the Minister was authorised to make under this Part related to applications for, conditions of, suspending and cancelling a marine safety licence in the form of a vessel registration certificate or a boat driving licence. At the time, whether a vessel was also subject to the provisions of the CV Act was not material to a decision under Part 4 of the MS Act.
Does Dr Doyle have standing?
In light of my findings above it is unnecessary to deal with this issue. However, I would again indicate that this issue should be approached by first construing the terms of section 42 of the MS Act. In my view, the very convoluted manner in which Dr Doyle has approached this issue is also misconceived.
In this regard, without making any conclusive findings, on the material before the Tribunal, the contentions of the respondent appear to be more persuasive. Namely, section 42 of the MS Act only vests a right of review to persons who have made an application for a marine safety licence and those persons who are holders of a marine safety licence under section 30 of the MS Act. In this regard I note that clause 53A of the Marine Safety (General) Regulation 2009 provides that a registration certificate 'may be granted only to a single natural person or other legal entity.'
Dr Doyle has never contended that he is the holder of the marine safety licence for the 2007 Sea Ray Sundancer Sport Cruiser. As mentioned above, the holder of the licence is a company, Blue Sky Boating The Spit Pty Ltd. It is my understanding Dr Doyle does not have any legal or equitable interest in this company. At the same time, I accept that Dr Doyle has an interest in knowing that the vessel he uses, as part of his interest in the boat-share arrangement of which he is a member, is appropriately licensed for that use. It is difficult to see how this interest of knowing is an interest falling within section 42 of the MS Act.
Conclusions
For the reasons set out above, I have found that the 'decision' for which Dr Doyle has sought review is not a reviewable decision as prescribed in section 42 of the MS Act. By reason of that finding, the appropriate order is that the Tribunal has no jurisdiction to hear and determine Dr Doyle's application.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
Decision last updated: 24 May 2011
0
6