Gippsland Ports Committee of Management v Grenville-Merry
[2022] VCC 1131
•21 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-21-02742
| Gippsland Ports Committee of Management (ABN 98 943 634 870) | Plaintiff |
| v | |
| Peter Grenville-Merry | Defendant |
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JUDGE: | Her Honour Judge Burchell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 June 2022 | |
DATE OF JUDGMENT: | 21 July 2022 | |
CASE MAY BE CITED AS: | Gippsland Ports Committee of Management v Grenville-Merry | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1131 | |
REASONS FOR JUDGMENT
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Subject:PERSONAL PROPERTY – UNCOLLECTED GOODS
Catchwords: Disposal of low value uncollected goods - Whether pt 4.2 of the Australian Consumer and Fair Trading Act 2012 (Vic) applies – Jurisdiction of courts – Where goods removed pursuant to Port Management (Local Ports) Regulations 2015
Legislation Cited: Australian Consumer Law and Fair Trading Act 2012 (Vic); Marine Safety Act 2010 (Vic); Crimes Act 1958 (Vic); Port Management (Local Ports) Regulations 2015 (Vic); Port Management Act 1995 (Vic); Marine Safety Regulations 2012 (Vic); Imperial Acts Application Act 1980 (Vic); Crown Land (Reserves) Act 1978 (Vic)
Cases Cited:Tasman Logistics Services Pty Ltd v Seaco Global Aust Pty Ltd (2020) 60 VR 252; Re Keating [2015] VSC 371; Jayfield Pty Ltd v Cussen [2020] VSC 380; In the Matter of Bradbury Industrial Services Pty Ltd (In liquidation) (ACN 121 279 847) [2021] VSC 828; Ejueyitsi v Victorian Legal Admissions Board [2020] FCA 165
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | - | Ambrose Rajadurai & Associates |
| For the Defendant | - | In person |
HER HONOUR:
1The defendant’s (Grenville-Merry) goods were removed to the plaintiff’s (Gippsland Ports) boatyard purportedly pursuant to reg 46 of the Port Management (Local Ports) Regulations 2015 (“Regulations”) where it has remained in the custody of Gippsland Ports as bailee. Grenville-Merry has allegedly failed or refused requests to take delivery of the goods. Gippsland Ports seeks orders pursuant to the provisions of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (“the ACLFTA”). In particular, Gippsland Ports seeks orders under s60 of the ACLFTA to dispose of the vessel, with unique identifying number ME013 currently located at Gippsland Ports Paynesville Boatyard, being low value uncollected goods, by sale, destruction, appropriation, or any other means. Grenville-Merry objects to the orders requested because he disputes the validity of the Regulations and the authority of Gippsland Ports pursuant to the Regulations.
2In my judgment, Gippsland Ports has made out its grounds for relief. My reasons in respect of each ground are set out below.
3Accordingly, I order that there is judgment for the plaintiff in the proceeding and will order that the plaintiff dispose of the vessel, with unique identifying number ME013 currently located at Gippsland Ports Paynesville Boatyard, being low value collected goods, by sale, destruction, appropriation, or any other means pursuant to the provisions of s60 of the ACLFTA. I also order that there is a stay on the operation of the orders until 4.00pm on 21 October 2022, being 3 months from the date of judgment, and that the defendant pay plaintiff the costs of and incidental to the proceeding on the standard basis, in default of agreement, unless either party has a basis for seeking a different order as to costs. I will invite the parties to prepare draft orders to give effect to these reasons and will determine any issue concerning costs on the papers.
Factual Background
4Gippsland Ports is a government owned corporate entity that was established on 1 July 1996 pursuant to the Crown Land (Reserves) Act 1978 (Vic) to manage and control five local ports and two waterways in the Gippsland region.
5By letter dated 31 January 2018, the defendant’s then solicitors, Mark Woods at Tyler, Tipping and Woods, wrote to the Harbour Master in relation to the defendant’s vessel Katie May Berth LEHW019 stating that:
(a) Gippsland Ports had not specified the “condition” of the vessel which “remains unchanged and overdue for maintenance.” The defendant observed that for a lawful Direction to be made, Gippsland Ports had to provide the defendant with sufficient specificity of the alleged wants of maintenance. The defendant claimed that to simply say the vessel was “overdue for maintenance” was vague and uncertain.
(b) Gippsland Ports had not provided the defendant with sufficient time to engage the appropriately qualified person to undertake an inspection.
(c) Clause 5.6 of the Berthing and Swing Mooring Permit contains four requirements. The defendant contended that it was not clear which of the elements had been infringed and that he remained willing to comply with his permit.
(d) The defendant rejected Gippsland Ports’ proposition that they had the right to remove his vessel to a secure location as the letter did not constitute a lawful direction, was not capable of compliance and he denied that he had breached s5.4 of the Berthing and Mooring Terms and Conditions.
6By letter dated 7 February 2018, the plaintiff’s solicitors wrote to the defendant’s solicitors stating that it appeared that the defendant has not fully informed his solicitors of the relevant facts. The plaintiff noted that:
(a) The defendant had obligations as licensee pursuant to the annual permit to occupy the subject berth and that a breach could result in cancellation or refusal to re-issue the licence.
(b) It is an offence not to comply with the direction of the Harbour Master or to obstruct the Harbour Master (or a person acting under the direction of the Harbour Master) performing a function or exercising any power and that breach attracts a penalty of more than $10,000.00 for the former and $5,000.00 for the latter.
(c) The renewal of a license at the expiry of each annual term is at the discretion of the licensor and proper compliance with the terms of the licence is an essential consideration towards safety and the interests of other licensors and stakeholders.
(d) The defendant was invited to make an appointment to inspect the vessel together with a relevant Port Safety Officer (and any surveyor the defendant wished to engage) and be informed of what needs to be done to render the vessel compliant with the requirements of the Port Manager.
(e) The Port Manager could proceed to exercise statutory powers authorising removal and disposal of the vessel.
7By letter dated 16 March 2018, Gippsland Ports noted that the defendant had not responded to its letter dated 7 February 2018. Gippsland Ports drew the defendant’s attention to the provisions in the legislation authorising port managers to remove or dispose of property if the port manager reasonably believes that the owner of the property will not move the property. The defendant was encouraged to contact Gippsland Ports to make an appointment to inspect the boat. The Port Safety Officer would then inform the defendant in writing regarding maintenance requirements and the deadline for completion.
8By letter dated 14 January 2019, Gippsland Ports wrote to the defendant in relation to three vessels – the Katie May, an unregistered vessel of no name and no unique identifying number and a small timber dinghy registration number BY165 berthed at Cunningham Quay, Lakes Entrance – and giving a direction to remove the vessels. Gippsland Ports noted the continuous presence of the vessels in the public itinerant berthing at Cunningham Quay for a significant period of time. Gippsland Ports stated that it had received continuous feedback from a number of sources regarding what was perceived to be an abuse of an important public asset. Gippsland Ports observed that:
(a) Itinerant berthing is made available to allow vessel owners berth access to different areas within the Lakes and to occupy those berths for short periods, including overnight stays. They are not provided as a permanent berthing arrangement unless a permit has been issued by Gippsland Ports or the Shire.
(b) Gippsland Ports had requested that the defendant find an alternative berth, mooring or anchorage and assisted in identifying a range of alternatives. The defendant continued to take up itinerant berth space at Cunningham Quay on a permanent basis.
(c) Gippsland Ports is the manager of the local port of Gippsland Lakes and is responsible for the safe, efficient, and effective operation of the Port.
(d) Under reg 45(1)(d)(ii) of the Regulations and the powers of a Harbour Master under s232(1)(e) of the Marine Safety Act 2010 (Vic) (“Marine Safety Act”), the Harbour Master directed the defendant to remove the three vessels from the water berth and jetties connected with the Cunningham Quay precinct and Post Office Jetty effective 12:00 hours on Wednesday, 16 January 2019.
9On 9 August 2019, the defendant made an application for an intervention order against the Harbour Master at the Bairnsdale Magistrates Court. The defendant claimed that over a 6-year period, the Harbour Master had subjected him to constant and ongoing discrimination, deprivation of civil rights, has stalked the defendant, taken videos and photos of the defendant, and demanding that he conduct himself in a manner to suit the Harbour Master to the point that the defendant lives in fear and extreme mental anguish.
10The Harbour Master opposed the defendant’s application for an intervention order and denied each and every allegation. The Harbour Master contended that his interactions with the defendant were solely in respect of his obligations as Harbour Master, including s230 of the Marine Safety Act, and as authorised by the Port Manager under the Port Management Act 1995 (Vic) (“Port Management Act”).
11The Harbour Master relied on s11 of the Personal Safety Intervention Orders Act 2010 (Vic) which provides that the Act does not apply to conduct engaged in performing official duties for the administration of any Act. He submitted that the CCTV cameras were installed at various port facilities for safety and security purposes and that the Harbour Master had taken photos of the vessels in port waters and moored at various facilities in the course of his duties. The Harbour Master argued that if an intervention order was granted, it would make it impossible for him to comply with his statutory obligations in fulfilling the functions and exercising the powers under Part 6.4 of the Marine Safety Act.
12On 9 August 2019, the Magistrates Court dismissed the intervention order application.
13By letter dated 4 September 2019, the CEO of Gippsland Ports wrote to the defendant advising that it had observed two vessels owned by the defendant with unique identifiers “GU21” and “ME013” anchored in a designated swing mooring zone in North Arm at Lakes Entrance. The defendant was advised that:
(a) Anchoring a vessel in a designated mooring zone without a permit is an offence under the Regulations.
(b) The vessels did not have a permitted berth or mooring in port waters within the Port of Gippsland Lakes.
(c) The defendant had to apply for a swing mooring permit if he intended to keep his vessels moored in their current location.
(d) An application form was attached to the letter and the defendant was advised that the Gippsland Ports would assist him to make the application if requested to do so.
(e) If the defendant continued to anchor his vessels in a designated mooring area without a permit, penalties would be applied in accordance with reg 32 of the Regulations.
14The defendant moved the two vessels to Cunningham Arm near the vicinity of the Floating Dragon restaurant.
15On 27 September 2019, during a heavy weather event, the two vessels dragged their anchors and were stranded on the beach adjacent to the Floating Dragon restaurant. David Ashworth attended the beached vessels and talked to the defendant who was in attendance with another person attempting to secure the vessel ME013. David Ashworth offered assistance, asked the defendant to keep him informed of his progress, and confirmed Gippsland Ports’ offer to apply for swing mooring.
16The Katie May, being the defendant’s primary residence, was re-floated, however, vessel ME013 remained on the beach and was pumping water.
17By letter dated 8 October 2019, the Assistant Harbour Master wrote to the defendant advising him that a vessel owned by him with unique identifier ME013 had come adrift and ran aground on 27 September 2019 in Cunningham Arm, Lakes Entrance. He advised that the vessel was now beached above the waterline. The Assistant Harbour Master informed the defendant that:
(a) Gippsland Ports had specific responsibilities under reg 45 of the Regulations to direct to remove vessels submerged.
(b) He was directed to remove the vessel with unique identifier ME013 from the Local Port of Gippsland Lakes no later than 12:00 hours on 24 October 2019
(c) Failure to comply with the direction will result in Gippsland Ports removing the vessel to a secure facility with all associated costs recoverable from the defendant.
18After 24 October 2019, being the date that the defendant was to move the vessel, Marine Operations requested permission to arrange the salvage and impoundment of the vessel. They were told to await further instruction.
19On 29 October 2019, David Ashworth, on behalf of the plaintiff, received a text message from the defendant which relevantly stated that the vessel was not abandoned, and it is registered private property. The defendant requested that “all threats, embezelments (sic), intimidations and harassment” be directed to Mark Woods at Tyler, Tipping and Woods.
20By email dated 13 November 2019 from Greg Hatt at Gippsland Ports to the plaintiff’s solicitor, Gippsland Ports informed Mr Rajadurai of the current position in relation to the vessels. At this time, the vessel had shifted such that the stern sat in the deeper water, but the vessel was still technically beached as the bow was still on the sand. The Marine Officer’s position was that, while the vessel had moved slightly, it remained an obstruction. David Ashworth’s position was that it should be impounded without further delay. Greg Hatt confirmed with David Holding that Gippsland Ports needed access to the area of the foreshore to carry out scheduled maintenance and removal of sand before Christmas. He noted that the defendant had not responded to Gippsland Ports’ request of October 2019 with the effect that he had been non-responsive to a direction.
21On 1 December 2019, one of the defendant’s vessels was rescued by the coast guard from being sucked out of the Lakes Entrance Channel and across the waters of the bar.
22On 20 February 2020, both vessels broke their moorings and ran aground again as they do not have independent means of propulsion.
23By letter dated 4 March 2020, the CEO of Gippsland Ports issued a formal direction to the defendant to remove the vessels with unique identifiers ME013 and GU21 from their current locations in Lakes Entrance to permitted berths or moorings within the port limits, otherwise to remove them altogether from port waters and/or lands, pursuant to reg 45 of the Regulations. The direction was to be complied with before 12:01 hours on Tuesday, 10 March 2020, failing which the Port Manager would remove the vessel in accordance with reg 46 of the Regulations for storage. The letter informed the defendant that the Port Manager would seek authority to dispose of the vessels if the defendant did not undertake to reimburse the reasonable costs incurred by the Port Manager and to remove the goods from port waters and lands within 30 days of their removal into storage.
24The CEO of Gippsland Ports gave the following reasons for the direction:
(a) The Port Manager has a duty pursuant to the provisions of the Marine Safety Act to provide, so far as is reasonably practicable, control in matters relating to navigation and marine safety in port waters to enable users of a port under the control of the port management body or local port manager to undertake vessel operations safely.
(b) The law places a strict obligation on the port manager to control the operations of vessels within the port waters to minimise risk to safety of persons and damage to the environment.
(c) Gippsland Ports Officers have been concerned about the safe management of two of the defendant’s vessels for some months. Most recently, on 26 February 2020, they again came adrift and ran aground at Cunningham Arm, Lakes Entrance. The vessel ME013 collided with, and caused damage to, the Floating Dragon restaurant.
(d) This is the second time these vessels have dragged their anchors and run aground in the past 6 months.
(e) On another occasion, a line tied from vessel ME013 to a berth pile resulted in an incident where a recreational boater narrowly escaped injury following impact with the line while navigating at night.
(f) On or about the early hours of 10 December 2019, one of the defendant’s vessels had to be rescued by the Coast Guard from being “sucked” out of the channel and across the dangerous waters of the Lakes Entrance Bar.
(g) The two vessels do not have independent means of propulsion and when they break their moorings, they are effectively helpless until assistance arrives by way of a powered vessel capable of towing them to safety.
(h) The Port Manager reasonably believes that if not properly moored at a designated berth or mooring, the continuing presence of these vessels in port waters post a real threat to the safety of life to those on board and to other port users and to emergency workers who may be called out to provide assistance.
25On 11 April 2020, the vessel ME013 was removed to Gippsland Ports’ boatyard at Paynesville and moored afloat with two bilge pumps installed. Vessel GU21 was not moved because the defendant was living on board.
26On 25 March 2020, a survey was conducted of ME013 whilst afloat at the boatyard by an AMSA accredited marine surveyor, Mark McLellan. The survey found the vessel in very poor condition and not fit for use, with a steady flow of water through a hole located in the hull bottom.
27By letter dated 17 April 2020, the plaintiff’s solicitors wrote to the defendant informing him:
(a) That without regular bilge pumping from a battery powered pump placed on board by Gippsland Ports, the vessel would flood and sink in the current location.
(b) There was a dearth of safety and life-saving equipment, operational navigation lights, operational engine, and the vessel was in poor state of repair and an LPG system was in unsatisfactory condition with a compliance certificate date of 25 June 2004 which arguably presented a risk of fire and explosion.
(c) The report estimated the current value of the vessel at around $1,000.00. The defendant was informed that the vessel could not be permitted to remain afloat in port waters for much longer as there was a high risk of it sinking. It only remained afloat because Gippsland Ports was expending resources in pumping out water.
(d) If the vessel sank, the cost of salvage would exceed its estimated value.
(e) The plaintiff’s solicitors requested proof of registration for the two vessels and copies of the certificates by 25 April 2020.
(f) If no evidence of registration was provided, then Gippsland Ports would proceed on the basis that they were unregistered and dispose of the vessels without further notice.
28By letter dated 8 May 2020, the CEO of Gippsland Ports informed the director of Maritime Safety at Transport Safety Victoria of the issues in relation to the vessels with registration numbers GU21 and ME013 and advised that Gippsland Ports considered they posed a real risk to safety of life and the environment. The CEO stated that both vessels do not comply with the conditions of registration prescribed by reg 27 of the Marine Safety Regulations 2012 (Vic) and the provision of safety equipment on board both vessels would be found to be deficient by a reasonable person. Gippsland Ports opined that the vessels do not warrant being registered as they do not comply with the conditions necessary for registration, being deficient from a safety and seaworthy perspective. Gippsland Ports relied on its statutory obligations to request that Transport Safety Victoria urgently assess the condition of both vessels and their management and verify that the continuing operation on state waters is permitted.
29By letter dated 3 June 2020, the director of Maritime Safety at Transport Safety Victoria issued a direction pursuant to s267 of the Marine Safety Act to remove the registered vessel with assigned identification mark GU21 from navigable waters by 5.00pm on 30 June 2020. The reasons for directions included:
(a) The director had received information from the CEO of Gippsland Ports that led the director to believe that the vessel is not in a seaworthy condition and is not permanently secured in a manner that ensures it is not a hazard to other vessels.
(b) The vessel came adrift from its mooring on several occasions in the past six months, most recently 25 February 2020, it does not have effective independent propulsion and is now aground in the vicinity of Lakes Entrance.
(c) The Harbour Master’s Direction issued in relation to GU21 and ME013 on 4 March 2020 had not been complied with.
(d) The director was satisfied on the evidence that the vessel is a danger to the safe navigation of other vessels and also poses a pollution risk to the marine environment.
30The defendant did not apply for an internal review of the director’s decision, nor did he comply with the direction.
31By letter dated 5 July 2020 to the CEO of Gippsland Ports, the defendant sought evidence of the legality of the legislation passed by Parliament as prescribed by the Constitution and the obligation and authority of Gippsland Ports to comply with the legislation.
32By letter dated 14 July 2020, the plaintiff’s solicitor wrote to the defendant relevantly advising that:
(a) The legal basis upon which the Port Manager acted was set out in the letter dated 17 April 2020.
(b) The vessel will not be permitted to be operated, moored, or anchored within port waters until it is rendered seaworthy and safe as certified by an accredited AMSA surveyor. The onus is on the defendant to provide the Port Manager with such a survey report.
(c) The defendant was otherwise required to remove the vessel onto land, and have it transported to a location outside port waters and land until such time that a survey report by an AMSA accredited surveyor attested to its seaworthiness and safety, after which the Port Manager will permit its operation within port waters.
(d) Gippsland Ports is incurring cost and inconvenience maintaining the vessel afloat in the boatyard. If the defendant did not take the requested action, the Port Manager will have no option but to seek court orders to have the vessel disposed of as low value abandoned goods.
(e) Based on the condition of the vessel and the market situation, the Port Manager is of the opinion that the vessel has negative value.
33By letter dated 20 July 2020, the director of Maritime Safety at Transport Safety Victoria relevantly advised the CEO of Gippsland Ports that given ME013 has been seized by Gippsland Ports and is retained in its possession and is not capable of being operated by the registered person pursuant to s27 of the Regulations, the registered person is not currently in breach of a condition of the registration by virtue of the unseaworthiness of the vessel. In the absence of any evidence that the vessel is in any other way in breach of the Marine Safety Act or the Regulations, the director is unable to suspend or cancel the registration of vessel ME013.
34By letter dated 4 December 2020, the plaintiff’s solicitors advised the defendant that:
(a) 5 months had lapsed since the request to retrieve the vessel or deal with the matter.
(b) Despite the Port Manager running two bilge pumps in an effort to maintain the vessel afloat, water ingress has continued to increase such that there was a serious risk of the boat sinking if it was not removed from the water.
(c) The Port Manager lifted the boat out of the water and placed it on a hard stand at the Paynesville boatyard on 3 December 2020.
(d) The boatyard manager opined that if the boat is left out of the water on the hardstand for too long, it might suffer irreparable damage. If the boat is to be salvaged, it needs to be repaired and returned to the water as soon as possible.
(e) If the defendant had not abandoned the vessel, he was invited to respond to take possession of the boat and remove it from the boatyard.
35By letter dated 1 April 2021, the plaintiff’s solicitors informed the defendant that they had not received a response from him to remove the vessel from the boatyard. The defendant was told that if no communication was received by 4.00pm on 20 April 2021, then Gippsland Ports would proceed to make an application to the County Court of Victoria for orders authorising disposal of ME013 as a low value uncollected good.
36The plaintiff commenced this proceeding on 2 July 2021.
37The Gippsland Ports made an offer dated 1 June 2022 that Gippsland Ports pay up to $1,000.00 towards an advertisement for the sale of the boat “as is” and that the buyer be required to remove the boat from the boatyard within 30 days of sale. The defendant was at liberty to draft the wording of the advertisement. If the boat is sold, the Gippsland Ports will allow transfer of the title free of any encumbrances with respect to storage and other charges and Gippsland Ports will cancel any charges owed by the defendant in relation to the boat. The defendant could retain the entire proceed of sale in respect of the boat. If the advertisement was not arranged before 1 July 2022 or no valid contract of sale was entered before 1 August 2022, then Gippsland Ports may dispose of the boat. The offer was open until 1.00pm on 3 June 2022.
38By letter dated 3 June 2022, the defendant rejected the offer to settle stating that he does not “agree to ANY offer from Pirates. Any offer from pirates is a crime under the Crimes Act 1958”.
Legislative Framework
39Pursuant to s44A of the Port Management Act, Gippsland Ports was appointed the local Port Manager over Anderson Inlet, Corner Inlet and Port Albert, Gippsland Lakes, Snowy River and Mallacoota.
40The Port Management Act provides for the functions of port managers (s44A(3)), their general powers (s44B) and delegation powers to any of its employees (s44C).
41Port Managers are declared to be waterways managers for their port waters under the Marine Safety Act. The principal responsibility of the waterways managers is to ensure the safe operation of vessels in these waters pursuant to the provisions of s1 of the Marine Safety Act.
42Under s220(4) of the Marine Safety Act, the local ports of Corner Inlet and Port Albert and the Gippsland Lakes are required to engage licensed Harbour Masters. The Harbour Master’s functions and powers are set out in Chapter 6 of the Marine Safety Act.
43The Regulations are made under s98 of the Port Management Act. The objective of the Regulations is to provide for the safe, efficient, and effective management of local ports within the meaning of the Port Management Act (s1).
44Under Part 6.2 of the Marine Safety Act, the Harbour Master, whilst an employee of Gippsland Ports is licensed by the Transport Safety Director to act as Port Manager.
45Part 4.2 of the ACLFTA came into effect on 1 September 2012. Part 4.2 of the ACLFTA reflects the position that goods left behind by a bailor constitute an “involuntary bailment” arrangement.[1] Part 4.2 now applies to the possession of goods under bailment, regardless of whether possession was taken before or after the commencement of Part 4.2 (s56(1) of the ACLFTA).
[1] In the Matter of Bradbury Industrial Services Pty Ltd (In liquidation) (ACN 121 279 847) [2021] VSC 828 per M Osborne J at [119]
46Under Part 4.2, a “receiver” may apply to a court for an order to dispose of uncollected goods. If a court order has been made for the disposal of uncollected goods, the “provider” is entitled, on payment to the “receiver” of the “relevant charge”, to delivery of the goods at any time before their disposal.[2]
[2] Ibid.
47The ACLFTA defines:
(a) “bailment” to include bailment for reward, bailment in the course of a business, gratuitous bailment, involuntary bailment, and any sub-bailment (s3 of the ACLFTA);
(b) a “receiver” as the person who takes possession of the goods under a bailment (s3 of the ACLFTA);
(c) a “provider” as the person who gives possession of goods under a bailment (whether or not the person is the owner of the goods) (s3 of the ACLFTA); and
(d) a “relevant charge” as the amount payable by the provider to the receiver for goods under bailment that entitles the provider to take delivery of the goods (s55(1) of the ACLFTA).
48Section 54 relevantly provides that goods under bailment are uncollected goods if they are ready for delivery to the “provider” as required by the terms of the bailment, but the “provider” has not taken delivery and has not given directions as to their delivery (s54(1)(a) of the ACLFTA).
49A “receiver” can dispose of low-value uncollected goods if the “provider” is given written notice of the intention to dispose of the goods (s60(1)(a) of the ACLFTA) and the “provider” has not taken delivery of the goods, or given directions as to their delivery, within 28 days of the provider’s giving the notice (s60(1)(b) of the ACLFTA).
50If the receiver cannot locate or communicate with the provider to give the notice, after making reasonable attempts to do so, the receiver can dispose of the goods 60 days after they became uncollected goods (s60(2) of the ACLFTA).
51The goods may be disposed of by sale, destruction, appropriation, or any other means (s60(3) of the ACLFTA).
52Section 55 determines the “relevant charge” payable by a “provider” to a “receiver” of the goods under “bailment” in order that the “provider” can recover the goods. It provides:
(1) The relevant charge is the amount payable by the provider to the receiver for goods under bailment and payment of which entitles the provider to take delivery of the goods.
(2) Unless determined otherwise by a court order, the amount payable to the receiver is the sum of the following—
(a)for any… storage of the goods…—
(i) the amount agreed to by the provider and receiver as the charge payable to the receiver;
(b)the amount of costs for any storage…-
(ii) the making of an application for a court order under Division 3 until the disposal of the goods.
53Division 2 of Part 4.2 of the ACLTFA permits a “receiver” to dispose of uncollected goods of low value, medium value or high value. These categories are defined in s 3 and may be altered by regulations. The ways in which the disposition of uncollected goods under div 2 is permitted depends on the value of the uncollected goods. In accordance with s 60(3) ‘Low value uncollected goods’ may be disposed of by sale, destruction, appropriation or any other means.
54Division 3 of Part 4.2 of the ACLTFA provides for a “receiver” of uncollected goods to apply to the Court for an order to dispose of uncollected goods.
55Section 56(o) provides that this part does not apply to any uncollected goods under any other Act that is prescribed for the purposes of this paragraph. Division 5 of the Marine Safety Act deals with the disposal of recreational vessels including uncollected recreational vessels and Division 6 of the Regulations relating to vessels, goods and other things left unattended. There is no exclusion under either the Marine Safety Act or Regulations for the purposes of s56 of the ACLFTA.
56Under s68 of the ACLFTA, a “receiver” may apply to a court for an order to dispose of uncollected goods.
57Pursuant to s70(1) of the ACLFTA, on an application under ss68 or 69, the Court may make any orders including authorising the disposal of specified goods under “bailment”.
Parties’ submissions
58The plaintiff contends that the requirements under s60 of the ACLFTA have been satisfied.
59Gippsland Ports requested that the defendant collect the vessel ME013 from the boatyard. The defendant has failed to collect the boat. The boat is uncollected goods. The Gippsland Ports has applied to the Court for orders consistent with the provisions of the Act in relation to dealing with uncollected goods.
60Gippsland Ports submits that on 4 March 2020, the Port Manager issued the defendant with a Direction, pursuant to reg 45 of the Regulations to remove the vessels with unique identifiers ME013 and GU21 from their current locations in Lakes Entrance to permitted berths or moorings within the port limits, otherwise to remove them altogether from port waters and/or lands.
61Gippsland Ports relies on reg 46 of the Regulations which states that a Port Manager may move or dispose of a vessel, goods or other thing which may be the subject of a direction given under reg 45(1) if the owner, master, or person responsible, as the case may be, has been given a direction under reg 45(1) and has not complied with that direction within the specified time.
62Gippsland Ports says that, on or about 11 March 2020, the vessel ME013 which was anchored unmanned at Lakes Entrance, was towed by Gippsland Ports to the Gippsland Ports Paynesville Boatyard, pursuant to reg 46 of the Regulations. It argues that reg 46(2) of the Regulations stipulates that the Port Manager may move the vessel, goods or other thing to a place located within or outside the local port for storage.
63Gippsland Ports submits that reg 46(2) of the Regulations authorised the vessel to be involuntarily bailed into the custody of the Port Manager, for it to be subsequently collected by the owner and dealt with lawfully.
64Pursuant to s3 of the ACLFTA, bailment is defined to include “bailment for reward, bailment in the course of business, gratuitous bailment, involuntary bailment and any sub-bailment”. Gippsland Ports says that the exclusions under s56(2) of the ACLFTA do not apply in the present case.
65Gippsland Ports argues that, in issuing the Direction and subsequently removing the vessel, it reasonably believed, pursuant to reg 45 of the Regulations, that the vessel ME013 had been left unattended and/or was likely to cause risk of harm or damage to the safety of personnel, port facilities, other property, and the environment. Gippsland Ports reasonably believed the vessel to be unseaworthy and in danger of sinking.
66Gippsland Ports relies on a survey of the vessel by an AMSA accredited surveyor from Marine Survey Australia, Mr Mark McLellan dated 25 March 2020. Mr McLellan inspected the vessel whilst it was afloat alongside the Paynesville boatyard, found the vessel to be unseaworthy, not fit for use and that without continuous pumping out of the bilges was in great risk of flooding and sinking. He opined that extensive work and substantial expenditure was required to render the vessel fit for purpose and estimated its value then as $1,000.00.
67The plaintiff also relies on a valuation survey by Mr Wade Stubbs from the same firm of surveyors on 7 June 2022, who found that the condition of the vessel had deteriorated since the inspection in 2020, was considered derelict and a liability. He opined that it had no monetary value.
68Gippsland Ports say that it has repeatedly requested the defendant to collect his goods from the boatyard. On 1 June 2022, the plaintiff offered to pay towards advertising the vessel for sale and if sold agreed that the defendant retain the entire proceeds. The defendant rejected the offer. Gippsland Ports says that the defendant has refused to collect the goods, or to take action to recover the vessel
69Gippsland Ports wants Grenville-Merry to take delivery of the vessel. Given the state of the vessel, it would need to be taken to a boatyard for repair. If it is to be returned to port waters, the vessel would need to be repaired so that it is seaworthy, and a survey conducted by an accredited marine surveyor.
70Gippsland Ports submitted that it did not seek the removal and storage costs from Grenville-Merry.
71The defendant submits that he is acting within the law because both vessels are registered by Transport Safety Victoria. The registration certificates disclosed that the registrations were in force for the vessels and expired on 19 July 2020 and 18 December 2020.
72The defendant claims that the statutory provisions are invalid and are unlawful. He does not recognise the authority of the Port Manager to regulate activity within the port waters. He relied on s8 of the Imperial Acts Application Act 1980 (Vic) that “all promises of fines and forfeiture of particular persons before conviction are illegal”. The defendant said that he requested proclamations for the legislation relied on by Gippsland Ports and he has not been provided with a copy.
73Grenville-Merry said that Gippsland Ports are in breach of s28 of the Crimes Act 1958 (Vic) in making a demand of him with a threat to destroy his vessel.
74Grenville-Merry contended that the vessel is an historic, 90 - 100 year old, 28ft NZ Kauri 45hp diesel Saloon Cruiser Marine Vessel “Leanica ME-013”, which was lawfully and privately registered with VicRoads.
75Grenville-Merry argued that the vessel was stolen goods, not uncollected goods. He claimed that Gippsland Ports unlawfully removed his vessel by an act of piracy and without a lawful court order or lawful authorisation. He said that the vessel was removed without lawful authority whilst securely at anchor in Cunningham Arm, Lakes Entrance, being Crown Lands and Waters, by unlawful interference with the essential safety equipment by cutting the anchor rope, leaving the brand-new anchor, swivel and 15 metre, short link chain on the seabed, and being towed to another port by David Talko-Nicholls and David Ashworth, vexatiously and in their private capacity.
76Grenville-Merry contended that, contrary to the submissions of the plaintiff, he has repeatedly requested of Gippsland Ports to return the vessel to the position which it was lawfully anchored and in the condition it was in when it was taken by the plaintiff together with payment of damages. He says that the vessel was not unseaworthy as he just had the corking repaired, antifouled, and repainted, with two new rule bilge pumps fitted and a new anchor and anchor rope. Grenville-Merry submits that the vessel was posing no threat or risk to the local port facilities or the natural environment, was not interfering with the safe, efficient, or effective operation of the port or safe navigation of vessels, nor was the vessel unseaworthy, sinking, partially submerged, or posing a risk to safety of personnel as claimed by Gippsland Ports. He felt that he was being unfairly targeted by the plaintiff and expressed discontent towards the actions of Gippsland Ports.
77Grenville-Merry said that he purchased the vessel from a property in Nowa Nowa, being of sound hull, battened seamed and in solid condition. The defendant said that the “Leanica’s” battened seamed hull was checked, repaired and anti-fouled prior to transportation to the North Arm in Lakes Entrance on 11 April 2017. The vessel was fitted with a new 250-watt solar panel, two new 1000gph Rule bilge pumps, float switches, 15-amp marine grade wiring, anchor light, a new 780-amp hour Century Marine battery, a new 26kg plough anchor, 15m of new short link galvanised gypsy chain and 30 meters of new anchor rope prior to being launched in the North Arm.
78Grenville-Merry said that the vessel was purchased to be used as a diving/work vessel to run his registered business “Gippsland Ports” Diving & Salvage (ABN 65 490 359 526). He claimed that much has been invested into the “Leanica", including a new Bauer $8,000.00 dive compressor, a $3,000.00 Tusa dry diving suit, a $1,500.00 Cressi semi dry diving suit, a new $3,600.00 124,000gph 3” trash pump and other equipment. However, no invoices or receipts were produced in support of the claimed expenses. The defendant contended that the vessel was not poorly maintained as he worked on and improved it on a daily basis. He asserted in his letter of demand dated 23 May 2022 that the value of the vessel was $50,000.00. Grenville-Merry did not file any independent expert report as to the value of the vessel.
79Grenville-Merry submitted that he has requested proof of Gippsland Ports’ authority to seize his property and that this request has been ignored.
80The defendant claims that the vessel is worth tens of thousands of dollars. Grenville-Merry claimed that the unlawful removal and seizing of his vessel has deprived him of income. He says that he was building up a business in Lakes Entrance to service the growing demand for hull, prop and rudder cleaning and inspections and replacement of sacrificial anodes on private and commercial vessels in the Gippsland Lakes fleet.
81The defendant did not file and serve a counterclaim, despite Court orders providing a timetable for the defendant to do so. The defendant had previously issued an invoice by way of demand dated 24 May 2022 in the sum of $241,122.02 seeking damages in the sum of $1,000.00 per day for every day that vessel ME013 was not in his possession and $10,000.00 would be charged every day he is required in court to settle the matter. The defendant informed the Gippsland Ports that payment would be “aggressively pursued in [the] Australian High Court. Debt collectors will be engaged. Piracy is a Crime, Crimes Act 1958”. No forensic accounting evidence or supporting evidence, such a valuation for the vessel, the applicable interest rate, or invoices for Grenville-Merry’s work was filed in support of the alleged loss of opportunity. Gippsland Ports said that if they were unsuccessful in the present proceeding, it would still be open to Grenville-Merry to issue separate proceedings seeking his alleged loss and damage and it would not raise an Anshun estoppel point.
82Grenville-Merry submitted that, since 10 September 2018, his vessels have been lawfully at anchor at itinerant berths and moorings. He said that he has constantly requested that the Gippsland Ports return his vessel to the place from where it was unlawfully removed.
83By order of Judicial Registrar Muller made on 6 June 2022, the defendant was to file and serve his opening submissions, a chronology (if he disagreed with the plaintiff’s chronology) and an expert report as to value of the goods by 21 June 2022 at 4.00pm. The defendant did not comply with the orders of the Court and contended that he relied on his affidavit filed in the proceeding and his oral submissions.
84Grenville-Merry said that he had made enquiries of another boat owner in Lakes Entrance who had a suitable trailer to remove the vessel from the plaintiff’s boatyard. He said that it would not be available for his use for about 3-4 months as the owner was using the trailer to work on his own vessel.
85Gippsland Ports consented to giving Grenville-Merry a period of 3 months to take delivery of the vessel at the boatyard at his own expense and without payment of any charge under s55 of the ACLFTA. If Grenville-Merry does not take delivery by 4.00pm on a date 3 months from the date of judgment, then the Gippsland Port seeks orders that it may dispose of the vessel pursuant to s60 of the ACLFTA.
Analysis
86The recent Supreme Court of Victoria decisions of Justice Garde in Tasman Logistics Services Pty Ltd v Seaco Global Aust Pty Ltd[3] and Justice McMillan in Re Keating[4] are of assistance in the present proceeding.
[3] (2020) 60 VR 252.
[4] [2015] VSC 371.
87In Ejueyitsi v Victorian Legal Admissions Board,[5] Justice Perram, in relation to a claim made under the ACLFTA, confirmed that s224 of the ACLFTA does confer jurisdiction in relation to such a claim. Jurisdiction is conferred on the Victorian Civil and Administrative Tribunal or any Court of competent jurisdiction.
[5] [2020] FCA 165 at [26].
88Justice Garde in Tasman Logistics Services Pty Ltd v Seaco Global Aust Pty Ltd[6] highlighted that ss56(4) and (6) of the ACLFTA are important provisions governing the operation of Part 4.2 and, consequently, the jurisdiction of the Courts and the Victorian Civil and Administrative Tribunal under Division 3.
[6] (2020) 60 VR 252 at [26], [48]-[50].
89Justice Garde set out the applicable principles of interpretation in construing provisions that confer jurisdiction on a court as stated by Gaudron J in Knight v FP Special Assets Ltd,[7] and applied by the High Court in Mansfield v Director of Public Prosecutions for Western Australia:[8]
“It is contrary to long-established principle and wholly inappropriate that the grant of power to a Court including a conferral of jurisdiction should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, the grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.”
[7] (1992) 174 CLR 178, 205.
[8] (2006) 226 CLR 486, 492 (Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ).
90A similar statement is found in the decision of the High Court in Oshlack v Richmond River Council:[9]
“The provisions of s 69 of the Court Act which confer upon the Court the discretion exercised by the primary judge attract the application of the general proposition that it is inappropriate to read a provision conferring jurisdiction or granting powers to a court by making conditions or imposing limitations which are not found in the words used. The necessity for the exercise of the jurisdiction or power by a court favours a liberal construction. Considerations which might limit the construction of such a grant to some different body do not apply.”
[9] (1998) 193 CLR 72, 81 [21] (Gaudron and Gummow JJ).
91Justice Garde concluded that s70(1)(a) of the ACLFTA is to be read to empower the Court in its discretion to authorise any means of disposal of uncollected goods including disposal by sale, destruction, or appropriation. He stated that:[10]
“the jurisdiction of the Court under s 70(1)(a) to authorise disposal of goods under bailment is not limited to any specified form of disposal. There is no textual indication that suggests it should be. To the contrary, s 70(2)(a) requires the Court in an order under s 70(1)(a) to specify ‘the authorised means of disposal of the goods’. This suggests that the legislature intended that the Court have regard to the different means of disposal, and authorise the means of disposal that was most appropriate in the circumstances.”
[10] (2020) 60 VR 252 at [48]-[50].
92Justice Garde affirmed his reasoning more recently in Jayfield Pty Ltd v Cussen[11] in which he restated that ss56(4) and (6) of the ACLFTA uphold the private rights of providers and receivers to agree about the disposal of uncollected goods. However, Justice Garde further clarified that where parties have made an agreement concerning the disposal of uncollected goods, the agreement has primacy and takes effect according to its tenor. Part 4.2 may not apply at all or may apply only in respect of matters not dealt with by the parties in the respective agreement.
[11] [2020] VSC 380 at [79]-[81].
93In Jayfield Pty Ltd v Cussen,[12] the legal relationship between parties was governed by a sub-lease. There was a complete lack of detail in the provisions of the agreement as to the manner of disposal, whether a sale is to be conducted by public auction or private sale, what notice is to be given, how the price is to be determined, and how storage and disposal costs are to be borne. In turn, Justice Garde conclude the sub-lease agreement provided no impediment to the jurisdiction of the Court under Part 4.2 of the ACLFTA.[13]
[12] Ibid.
[13] Ibid at [80]-[81].
94There exist limited case authorities in respect of claims made pursuant to s 60 of the ACLFTA and in particular low value goods. However, the case of Re Keating[14] has some relevance and analogous circumstances to the present proceeding.
[14] [2015] VSC 371.
95In Re Keating[15] Justice McMillan considered a matter in which the plaintiff (“STL’’) was the executor of the estate of Desmond Keating, deceased. He was survived by his adult children, Mr Keating, and Ms Calligaro.
[15] Ibid.
96The relevant facts of the case were as follows:
(a) The principal asset of the estate was a property in Seaford which had been sold. During the preparation of the property for sale, STL determined that certain personal items at the property belonged to Ms Calligaro. It removed the items from the property and placed them in storage. The items comprised ten bags of clothing and shoes, a bicycle and helmet, a printer, two sewing machines, an alarm clock, a compact disc player and a photo album. STL deposed that none of the items had any commercial value and estimated the total value to be between $130.00-$160.00.
(b) STL’s requests of Ms Calligaro for instructions as to the disposal of the various personal items had not been answered. No plausible explanation had been provided to STL as to why the requested information from Ms Calligaro had not been forthcoming.
(c) STL requested instructions and/or co-operation in delivering those personal items to Ms Calligaro, or in their disposal, on nine separate occasions. Although three separate items of correspondence had been received in which Ms Calligaro had directed STL to preserve the personal items, she had not provided any direction as to their delivery or disposal. STL noted that it was not economic to ship the personal items to the United Kingdom, as Ms Calligaro had not agreed to the offers to ship them at her expense. STL had been quoted shipping costs at $2,300.00. The shipping of the personal items was not properly an estate expense.
97Justice McMillan referred to s60 of the ACLFTA which provides a procedure allowing for the disposal of low value goods after notice to the appropriate person. The definitions section of the ACLFTA provides that low value goods are those worth less than $200.00.[16]
[16] Ibid at [30].
98STL submitted that, as it had lawful possession of the goods as the executor of the estate and through its administration of that estate, Ms Calligaro is a “provider “for the purposes of s 3 of the ACLFTA, and STL is a “receiver”, as it took possession of the goods under a “bailment”.[17]
[17] Ibid.
99Justice McMillan accepted STL’s submission that it was reasonable to infer that the personal items had no significant value to Ms Calligaro, and it was reasonable to conclude that her failure to direct how the items should be dealt with flowed from the same motivation as her failure to verify her identity and provide her banking details to STL.[18]
[18] Ibid at [31].
100Further, despite personal items not being estate assets, they were in the possession of STL, and it was reasonable for STL to seek the Court’s advice about resolving what should be done with the various personal items. This was particularly so as Ms Calligaro’s responses did not assist STL and that she would express discontent with whichever course of action STL takes in respect of the disposal of the items.[19]
[19] Ibid.
101Accordingly, it was in the interests of both parties that the Court approve STL to follow the process outlined in s60 of the ACLFTA regarding the personal items.[20]
[20] Ibid at [32].
102In the present proceeding, the vessel has been removed for storage by Gippsland Port pursuant to reg 46 of the Regulations. The vessel has been held under “bailment” when the defendant failed to comply with the plaintiff’s direction issued under reg 45 of the Regulations.
103In electing not to comply with the direction, I accept the plaintiff’s submissions that the defendant has in effect given possession of the vessel to the plaintiff under “bailment”. The vessel therefore falls within the meaning of uncollected goods pursuant to s54 of the ACLFTA.
104Pursuant to s60 of the ACLFTA, a “receiver” may dispose of low value uncollected goods if the provider does not take delivery of the goods or give directions as to their delivery after 28 days have elapsed since the giving of the notice of the “receiver’s” intention to dispose of the goods. Despite the oral submissions made by Grenville-Merry, at the hearing, that he had repeatedly made requests for Gippsland Ports to return the vessel to the berth that it was originally taken from and in the state that it was in when it was removed, there was no evidence of any such direction being given, let alone within the 28 days after being given the notice(s).
105It is uncontested that Grenville-Merry has not taken delivery of the goods. It has been more than 28 days since Gippsland Ports gave written notice to Grenville-Merry of their intention to dispose of the vessel on 14 July 2020, 4 December 2020, and 1 April 2021. There is no evidence before the Court that Grenville-Merry has given directions as to the vessel’s delivery. Pursuant to s60(3) of the ACLFTA, the vessel may be disposed of by Gippsland Ports.
106Applying the principles set out by Justice Garde in Tasman Logistics Services Pty Ltd v Seaco Global Aust Pty Ltd,[21] s70(1)(a) of the ACLFTA is to be read so as to empower the Court in its discretion to authorise any means of disposal of uncollected goods including disposal by sale, destruction, or appropriation. Furtherthat ss56(4) and (6) of the ACLFTA uphold the private rights of “providers” and “receivers” to agree about the disposal of uncollected goods.
[21] (2020) 60 VR 252 at [26], [48]-[50].
107There are no applicable exclusions under s56 of the ACLFTA relevant to the current evidence or facts in the proceeding. Further, there are no applicable exclusions or prescriptions in respect of uncollected goods for the purposes of Part 4.2 of the ACLFTA under the Regulations, Port Management Act 1995 and Marine Safety Act.
108Similar to the legal relationship between the parties in Jayfield Pty Ltd v Cussen[22] in the present matter, there is no agreement between Gippsland Ports and Grenville-Merry that would impede the jurisdiction of the Court under Part 4.2 of the ACLFTA.
[22] Ibid.
109On the evidence before the Court, there exists no agreement between Gippsland Ports and Grenville-Merry, with Grenville-Merry merely relying on the registration of the vessels with Transport Safety Victoria as the basis for his claims. In turn, the current facts can be analogised with those in Re Keating[23] which consider ss56 and 60 of the ACLFTA application to the disposal of goods where there is no agreement or matters are not dealt with in an agreement.
[23] Ibid.
110Applying Justice McMillan’s reasoning, s60 provides a procedure allowing for the disposal of low value goods after notice to the appropriate person. Here, Grenville-Merry has been put on notice on multiple occasions. The vessel, with unique identifying number ME013 currently located at Gippsland Ports Paynesville Boatyard has a low, if not now negative value, based on the uncontested valuation evidence of Mr Wade Lindsay Stubbs. I accept Gippsland Ports’ submission that the relevant time for the valuation of the goods is the time when the orders to dispose the uncollected goods is being made. This is consistent with the language of the Act which provides that low value goods “are of a value less than …$200”.
111Gippsland Ports had lawful possession of the vessel pursuant to its powers under the Regulations, Port Management Act 1995 and Marine Safety Act. In particular, powers under Division 6 of the Regulations relating to vessels, goods and other things left unattended.
112It could be inferred that the vessel has no significant value to Grenville-Merry given his failure to direct how it should be dealt with and lack of response to assist Gippsland Ports, particularly when he was informed on 4 December 2020 that the vessel had been removed from the water and placed on a hardstand and could suffer irreparable damage. It is reasonable for Gippsland Ports to seek the Courts advice in relation to resolving what should done with the vessel. It is in the interests of both parties that the Court approve Gippsland Ports to follow the process outlined in s 60 of the ACLFTA regarding the vessel being its sale, destruction, or appropriation.
113Finally, given the lawful exercise of its functions and powers as set out above, I do not accept Grenville-Merry’s claim that Gippsland Ports is in breach of the Imperial Acts Application Act 1980 (Vic) or the Crimes Act 1958 (Vic).
Conclusions
114For the foregoing reasons, the Court makes orders authorising the plaintiff to dispose of the vessel with unique identifying number ME013 currently located at Gippsland Ports Paynesville Boatyard, being low value uncollected goods, by sale, destruction, appropriation or any other means, pursuant to s60 of the ACLFTA. There is a stay on the operation of the orders until 4.00pm on 21 October 2022, being 3 months from the date of judgment, to enable Grenville-Merry to take delivery of the vessel at the boatyard at his own expense and without payment of any charge under s55 of the ACLFTA.
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Certificate
We certify that these 31 pages are a true copy of the judgment of Her Honour Judge Burchell delivered on 21 July 2022.
Dated: 21 July 2022
Andrea Ko & Nikki Thomson
Associates to Her Honour Judge Burchell
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