Fleet Management Limited and Australian Maritime Safety Authority
[2006] AATA 390
•5 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 390
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/256 & A2005/329
GENERAL ADMINISTRATIVE DIVISION ) Re FLEET MANAGEMENT LIMITED Applicant
And
AUSTRALIAN MARITIME SAFETY AUTHORITY
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date5 May 2006
PlaceCanberra
Decision The applications by the Australian Maritime Safety Authority that the application in each of matters A2005/256 and A2005/359 be dismissed pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) are dismissed.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Frivolous or vexatious application – Ships detained and then released before scheduled sailing date – Whether Tribunal proceedings would be devoid of any practical effect – Whether applications should be dismissed pursuant to Administrative Appeals Tribunal Act 1975 s 42B.
Navigation Act 1912 (Cth) s 210(1).
Administrative Appeals Tribunal Act 1975 (Cth) s 42B.
Re Williams and Australian Electoral Commission (1995) 38 ALD 366.
Re Theo and Secretary, Department of Family and Community Services [2005] AATA 699.
Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324.
REASONS FOR DECISION
5 May 2006 J.W. Constance, Senior Member INTRODUCTION
1. Fleet Management Limited is seeking a review of decisions of the Australian Marine Safety Authority to detain two of its vessels. The Authority has applied to have the application in respect of each vessel dismissed on the basis that the Tribunal’s determination of the applications can have no useful effect as the vessels have already been released.
2. For the reasons which follow I am not satisfied that the Tribunal should exercise its power to dismiss the proceedings.
FACTS
3. MV Afric Star is an international trading ship operated by Fleet Management Limited. It docked in Port Adelaide, South Australia, on 12 August 2005.
4. On the day it arrived the ship was inspected by a representative of the Authority and provisionally detained. This action was taken under subsection 210(1) of the Navigation Act 1912 (Cth) which gives the Authority power to provisionally detain a ship which appears to the Authority to be unseaworthy or substandard. It is an offence for the master of a ship which has been provisionally detained to take it to sea before it has been released.
5. Some remedial work was done on the ship and it was released on 16 August 2005. The ship was not delayed beyond its scheduled sailing date.
6. MV Noble Dragon is another international trading ship also operated by Fleet Management Limited. It was provisionally detained in the Port of Dampier on 18 August 2005 in circumstances similar to those of the Afric Star. The ship was released later the same day. Like the Afric Star it was not delayed beyond its scheduled sailing date.
7. Mr Mishra, a director of Fleet Management Limited gave evidence. He said that detention of a vessel can have the following negative effects on the operator, the manager and the owner of the ship:
· public websites such as record detentions which can affect the trading reputation of the operator;
· the freight earning of a vessel is compromised as potential clients will take advantage of this negative effect on the trading reputation of the operator to negotiate a more favourable deal;
· in some Flag states there are tax advantages for vessels which have not been detained in the previous two years; and
· the opportunity for a vessel to obtain “Qualship21” status is adversely affected (“Qualship21” is a system used by the United States Coast Guard to identify high quality ships).
8. An affidavit of Mr Allan Schwartz was filed on behalf of the Authority. Mr Schwartz is a Manager Ship Inspections in the Authority. He gave evidence that:
· he did not believe “the two detentions under review have impacted greatly on the commercial operation of Fleet Management” (emphasis added); [1]
· the tax advantage applies to the registered owner of the ship and that Fleet Management Limited is the manager in each case; and
·“[d]etentions by AMSA have no direct impact on the QUALSHIP21 award” (emphasis added). [2]
[1] Ex. R1 para. 17.
[2] Ex. R1 para. 25.
LEGISLATIVE BACKGROUND
9. Section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) gives the Tribunal the power to dismiss an application at any stage if it is satisfied that “the application is frivolous or vexatious”.
THE RESPONDENT’S ARGUMENT
10. The Authority argues that because both vessels have been released from detention and neither was detained beyond its scheduled departure time, the outcome of these proceedings would be “devoid of any practical effect” as stated by the Tribunal in Re Williams and Australian Electoral Commission (1995) 38 ALD 366. In that matter the Tribunal decided that even though the proceedings were not commenced vexatiously, they had become vexatious by reason of events which occurred subsequent to the commencement of proceedings.
REASONING
11. In Re Theo and Secretary, Department of Family and Community Services [2005] AATA 699 the Tribunal set out a number of principles it took into account in determining whether proceedings were frivolous or vexatious.[3] Those relevant to this application are:
a)the discretion given by the section is to be exercised judicially, having regard to the relevant considerations which need to be given appropriate weight according to the competing considerations and interests of the parties, the evidence adduced and the circumstances of the particular case;
b)the power is to be exercised “cautiously and sparingly” but this does not mean that it should never be exercised;
c)the power may be exercised if the application is otherwise devoid of utility; and
d)the policy underpinning the power is to promote the proper dispatch of the business of the Tribunal and to ensure proper use of the Tribunal’s resources.
[3] At [38].
12. Taking into account all of the evidence before me I am not satisfied that either application is “devoid of utility”. Mr Mishra has raised a number of concerns Fleet Management Limited has in relation to the possible economic effects of the continued listing of the detentions on the trading capability of each vessel. While the evidence called on behalf of the Authority suggests that these concerns may never materialize it does not establish that they are groundless. It is not necessary that the company prove that there will in fact be some detriment to its business; it is for the Authority to show that the continuation of these proceedings can have no useful purpose.
13. In relation to the possible effects of the detentions Mr Schwartz was careful to qualify his evidence on at least two occasions. He was not prepared to say that the detentions would have no impact on the business of Fleet Management Limited. As Mr Mishra pointed out it was ironic that Mr Schwartz relied on records of the number of previous detentions of the vessels in supporting his view that the detentions in issue have not impacted greatly on the commercial operations of Fleet Management Limited.
14. The company is entitled to seek to have the decisions under review set aside. A successful outcome for the company will result in one or both of the detentions recorded against its vessels being removed. To paraphrase the comment of von Doussa J in Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324, Fleet Management Limited is entitled to “a day in the Tribunal.”
DECISION
15. The applications by the Australian Maritime Safety Authority that the application in each of matters A2005/256 and A2005/359 be dismissed pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) are dismissed.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 13 March 2006
Date of Decision 5 May 2006
Representative for the Applicant Mayank Mishra
Counsel for the Respondent Chris ErskineSolicitor for the Respondent Australian Maritime Safety Authority, Legal
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