Gray, William John v Marine Council (Department of Transport & Construction)

[1983] FCA 362

Re: WILLIAM JOHN GRAY
And: MARINE COUNCIL (DEPARTMENT OF TRANSPORT AND CONSTRUCTION)
No. G39 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.

CATCHWORDS

Administrative Law - Judicial Review - Rules of Natural Justice - No opportunity for applicant to submit relevant facts to decision maker - Suitability of applicant for employment - Relevance of applicant's conduct whilst on leave.

Administrative Decisions (Judicial Review) Act 1977 ss.5(1), 16 Navigation Act 1912 s.45A(9)

HEARING

ADELAIDE

#DATE 1:12:1983

ORDER

1. The matter to which the decision of the Council concerning the applicant of 24 February 1983 related be referred to the Council for further consideration.

2. The Council be directed to give to the applicant 14 days' notice of the date, time and place at which such further consideration will be given and the opportunity to place before the Council for its consideration such further material as he may consider appropriate.

3. Each party be directed to pay his or its own costs of this application.

JUDGE1

This matter commenced with an application by William John Gray ("the applicant") for an order of review of a decision of the Marine Council (Department of Transport and Construction) ("the Council") made on 21 October 1982 pursuant to s.45A(9) of the Navigation Act 1912 ("the Act"). A decision was made on this date to advise the Minister for Transport and Construction that the applicant was unsuitable for engagement as a seaman for the period expiring on 31 January 1992. This decision was qualified in that the applicant was given the opportunity to submit an explanation, at which time the matter would be reconsidered. The consequence of this decision was that the superintendent was obliged to refuse until the specified date the engagement of the applicant as a seaman. Subsequently, in circumstances which it will be necessary to consider in some detail, the Council made a further decision on 24 February 1983 to advise the Minister that the applicant was unsuitable for the period expiring on 31 October 1987 for engagement as a seaman. It also decided that it would further consider the matter at its meeting to be held immediately prior to that date.

Section 45A(9) of the Act is in the following terms:

"(9) Where the Marine Council, or a majority of the members of that Council, has advised the Minister that the character of a person is such, or the conduct of a person has been such, that that person is, during a period specified in the advice, unsuitable for engagement as a seaman, a superintendent shall, during that period, refuse to approve the engagement of that person as a seaman."

An application for an order of review of both decisions was made pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 ("the A.D.J.R. Act"). It was conceded that the applicant was a person aggrieved by each of the decisions and that they were decisions to which the A.D.J.R. Act applied.

Consequent upon the decision of 24 February 1983 the Council submitted its advice to the Minister which to the extent relevant, was as follows:

"Suitability of certain persons for Employment as Seaman

Council examined eight cases of reported misconduct by persons engaged or wishing to engage, in the Australian Merchant Navy four of the cases had been considered at previous meeting and four were new.

As a result of its deliberations and as required under sub-section 45A(9) of the Navigation Act 1912, the Marine Council wished to advise that the characters of each of the undermentioned seamen are such that they are now unsuitable for engagement in the Australian Merchant Navy for the period specified against his name
Name of Seaman Rank or Rating Period of

Unsuitability

Gray (William) Cook Until 31 October

(1950 Aberdeen) 1987 to be reviewed

at meeting immediately prior to that date."

The "reported misconduct" of the applicant was that on his own admission he was found guilty of aiding and abetting in trading in Indian Hemp. On 15 April 1982 he was sentenced to imprisonment with hard labour for the period of one year, the period of imprisonment being suspended upon his entering into a bond in the sum of $250 to be of good behaviour for 3 years.

Upon becoming aware of this conviction and sentence the Council on 1 June 1982 sent the applicant a letter in the following terms:

"DEPARTMENT OF TRANSPORT & CONSTRUCTION

1 JUN 1982 M358/8/220 Mr W. Gray P.O. Box 14 RAMCO S.A. 5322

Dear Mr Gray,

Advice has been received that you were recently convicted after pleading guilty to aiding and abetting trading in marijuana.

You are undoubtedly aware that the Marine Council, in accordance with sub-section 45A(9) of the Navigation Act 1912, may advise the Minister for Transport & Construction that a person, on account of character or conduct, is unsuitable for engagement in the Australian Merchant Navy for a specified period of time. If such advice is given to the Minister, no superintendent during the period specified can approve the engagement of that person as a seaman.

Marine Council has been extremely concerned about the involvement of seafarers in illegal drug trading.

You are therefore requested to submit a fully detailed explanation of your conduct in this matter within fourteen days of receipt of this letter.

Marine Council will consider whether your character or conduct has been such that you are no longer suitable to engage in the Australian Merchant Navy.

Yours faithfully,

(J.E. HODGSON) Chairman MARINE COUNCIL

Mr. W. Gray C/- SMMO PORT ADELAIDE "

Unfortunately the applicant had left the above address and he did not receive the letter until a copy was handed to him on 22 October 1982 at the Mercantile Marine Office, Port Adelaide. The evidence does not enable me to find that the applicant was negligent in failing to advise a change of address or that it was in consequence of any default on his part that he failed to receive the letter prior to 22 October 1982. However it happened that on the preceding day the Council had held a meeting at which it considered the applicant's conviction and made a decision under s.45A(9). This decision was reported to the applicant in the following letter.

"Commonwealth of Australia DEPARTMENT OF TRANSPORT & CONSTRUCTION

In reply please quote 75/489 Contact

Mr. W.J. Gray C/- P.O. SPRINGTON SOUTH AUSTRALIA 5235

Dear Mr Gray,

On 1 June 1982 the Chairman of Marine Council wrote to you seeking an explanation after advice had been received to the effect that you had been convicted after pleading guilty to aiding and abetting trading in marijuana. A copy of Marine Council's letter is attached.

I am now directed to advise you that at the meeting of Marine Council held on 21 October 1982 the question of your suitability to engage in the Australian Merchant Navy was considered. No explanation had been received from you. Before Council, however, was a report showing that on 31 March 1982 at the Central District Criminal Court, South Australia, you had been found guilty of trading in indian hemop and that on 15 April 1982 you had been sentenced to imprisonment with hard labour for one year; the sentence to be suspended on your entering into a bond to be of good behaviour for 3 years.

Because of the special circumstances of seagoing employment and the possible effects on safety, welfare and discipline on board ship, Marine Council takes a very serious view of involvement in illegal drug trading on the part of seafarers. In this instance Council was particularly disturbed to note the large quantity of drug reportedly involved.

After careful consideration the formal decision of Council was that you are to be considered unsuitable to engage in the Australian Merchant Navy under sub-section 45A(9) of the Navigation Act 1912 until 31 January 1992 or until you submit an explanation and the matter is reconsidered.

If you fail to submit an explanation, the matter will be further considered at the meeting of Marine Council to be held in January 1992; in that event the period of your unsuitablility may be extended.

Yours faithfully,

J.E. Hodgson 1 NOV 1982 Chairman Marine Council "

On 26 November 1982 the applicant commenced proceedings in this Court seeking a review of the decision of the Council on the grounds which generally may be stated as a breach of the rules of natural justice in that he had no opportunity to put relevant matters before the Council. He also contended that the decision was an improper exercise of the power conferred by s.45A(9) in that the offence occurred during a period when he was on leave. Both the applicant and his solicitor filed affidavits reciting the relevant facts and indicating the matters which the applicant contended should have been before the Council when it made its decision.

On or about 16 February 1983 further information comprising the submissions made at trial by the applicant's counsel and the judge's remarks when sentencing the applicant became available to the Marine Council. It appears that, as a result, a decision was made to reconsider the applicant's suitability for engagement at the next meeting which was due to be held on 24 February 1983. This material had not been earlier available to the Council as it was retained by the Court pending an appeal by one of the persons charged with the applicant.

On the following day, 17 February 1983, when attending on a directions hearing in the applicant's proceedings the solicitor for the applicant was orally advised by the solicitor for the Council that the Council proposed to reconsider its previous decision at a meeting to be held in one week's time, namely on 24 February next. The following day the solicitor for the applicant sent to the solicitor for the Council the following letter. "LEWIS ABBOTT & CO. Barristers & Solicitors (H. Lewis Abbott-Consultant) Law Chambers Jonothan L.Abbott 8 Greenhill Road Wayville South Australia

Telephone:[phone] Received 4.50 p.m.

Our ref : JLA:AE 82/7254 Your ref : The Deputy Crown Solicitor, 18 February 1983 Commonwealth Crown Solicitor's Officer, DX 105, ADELAIDE.

ATTENTION MISS A.VICIC

DEAR SIR,

RE; GRAY VERSES MARINE COUNCIL

We refer to your intimation in the Federal Court before his honour Mr. Justice Fisher yesterday to the effect that your client, the Marine Council, now wishes to reconsider its reccommendation (sic) against our client in the light of further information which was not before the Council when its recommendation for a ten year suspension was made.

We are writing to ask you to clarify that intimation and to state in particular.

1. Whether it is the Council's intention to consider its recommendation in respect of our client anew, or

2. Whether it is the Council's intention to reconsider the earlier recommendation for a ten year suspension, that is in the terms of the Council's letter to our client dated 1st November 1982.

If the former, then we assume that at its next meeting on Thursday of next week the Council will revoke its earlier decision, advise our client accordingly and invite our client to put before it all matters that he wishes to have considered in his favour. This opportunity our client will greatfully accept.

If the latter, then it is not our client's intention to make any further representations at this stage, as he does not accept the validity of the Council's present decision, and which would be the starting point of any reconsideration.

If it is simply the Council's intention to reconsider the order it had made against our client, and not to consider the matter de novo, then we fail to see any reason why our application should be held up, as we consider that we still have a number of grounds upon which to challenge the validity (sic) of the Council's decision of 21st October 1982. Our instructions are, in this case, to make immediate application to have the matter called on again in the Federal Court and to ask that a date for hearing be fixed.

Yours faithfully,

LEWIS ABBOTT & CO.,

PER: "

It was conceded that this letter was received by the solicitor for the Council at 4.50 p.m. on 22 February 1983. On that day she wrote to the applicant's solicitor the following letter which was received by him on the same day. 7th floor A.M.P. Building 1 King William Street Adelaide S.A.5000 DX NO.L05 22 FEB 1983 COMMONWEALTH OF AUSTRALIA Deputy Crown Solicitor G.P.O. Box 2150 Adelaide,S.A. 5001

P82/2224 w. Miss Vicic 2163111

22 February 1983

Messrs Lewis Abbott & Co Barristers & Solicitors Law Chambers 8 Greenhill Road WAYVILLE SA 5034 ATTENTION: Mr.J. Abbott

Dear Sirs

Re: Your Client : William John Gray Your reference: JLA:CMW 82/7254

I refer to the discussions which occurred on the 17th February 1983.

I confirm that the Marine Council will reconsider your client's matter on the 24th February 1983 and that your client has been invited to present submissions in relation to his case to the Council should he be so minded.

Yours faithfully

E.A. Clancy DEPUTY CROWN SOLICITOR

per "

The Council duly held its meeting on 24 February 1983 and in making its decision gave careful consideration to all material which could be in any way relevant other than of the letter of the applicant's solicitor to the Council's solicitor of 18 February. The minutes of the meeting of the Council were before the Court and they record very fully matters before and discussed by the Council. However there is a complete absence of any reference to the letter of the applicant's solicitor or the contents thereof in either the minutes or the reasons provided pursuant to s.13 of the A.D.J.R. Act. The minutes record that the Council made its decision after "noting the continued absence of any correspondence from Gray setting out any explanation, mitigating circumstance or undertakings as to future conduct".

By letter dated 28 February 1983 the solicitor for the Council answered the applicant's solicitor's letter of 18 February and the following portion of that letter is relevant. "On the question of your letter dated the 18th February 1983 which I received on the 22nd February 1983, I would be grateful if you could note that the Council is not considering this matter de novo but merely carrying out a reconsideration. You will appreciate that the submissions on sentence and the sentencing remarks in the Central District Criminal Court were not previously accessible to the Council because of the exigencies of the appeal process.

I am still awaiting the advice of the Marine Council concerning the reconsideration. Yours faithfully

E A CLANCY DEPUTY CROWN SOLICITOR

per Encls. "

The letter from the solicitor to the Council to the applicant's solicitor of 18 April 1983 is also relevant: "COMMONWEALTH OF AUSTRALIA

7th floor, A.M.P. Building 1 King William Street, Adelaide S.A. 5000 DX No. 105

Ref: P82/2224 DEPUTY CROWN SOLICITOR j G.P.O. Box 2150 Phone: [phone] Adelaide S.A.5001

18th April 1983

Messrs Lewis, Abbott & Co Solicitors DX 103 ADELAIDE

Dear Sirs,

GRAY v. MARINE COUNCIL Your reference C:82/7254

I refer to previous correspondence herein. As you know, on the 24th February 1983 the Marine Council reconsidered your client's case. The decision is that your client is considered unsuitable to engage in the Australian Merchant Navy pursuant to Section 45A(9) of the Navigation Act 1912 until 31st October 1987 and that the Council will further consider the matter at the meeting to be held immediately prior to the 31st October 1987.

I note that your proceedings at present focus only on the decision of the Marine Council on the 21st October 1982. I view this decision as no longer operative.

It was made clear to you at the Directions hearing before Mr. Justice Fisher on the 2nd February 1983 that the Marine Council would reconsider the matter. Despite this fact and the fact that your client has had every opportunity to put further material to the Marine Council he has declined to do so. Notwithstanding this the Marine Council obtained further material and then proceeded to reconsider the matter.

If you wish to challenge this decision then I suggest that you immediately take action to amend your pleadings or issue other proceedings.

Should you fail to take such action I will apply to the Federal Court on the 10th May 1983 to have your application struck out or, alternatively, apply for a stay of proceedings on the ground that your application is vexatious in embarking on an investigation of an earlier decision.

I have prepared and enclose herewith a statement with reference to the Marine Council's decision of the 24th February 1983 which is akin to a Section 13 Statement pursuant to the Administrative Decisions (Judicial Review) Act 1977.

Would you please advise the course of action you intend to take.

I look forward to hearing from you.

Yours faithfully,

E A CLANCY."

Subsequently the applicant amended his application to seek a review of the decision of 24 February 1983 upon the same grounds as previously stated. However in August 1983 in argument before the Court his counsel limited his contentions to two points, namely that the Council exceeded its powers under s.45A(9) when it made the decision to advise the Minister in reliance upon conduct which occurred whilst the applicant was on leave and also that the Council breached the rules of natural justice. On the latter ground his counsel relied in particular upon the audi alteram partem rule which he said had been breached by the failure of the Council to give him an opportunity to present his case.

The applicant contends that in making a decision to advise the Minister that he was unsuitable for engagement as a seaman the Marine Council exceeded its powers in that it took into account and in fact based its decision upon misconduct which occurred whilst the applicant was on leave. An alternative way of putting this contention is that the Council took into account a consideration, namely misconduct on leave, which was irrelevant. It is somewhat uncertain whether the Council based its decision on its view of the character or alternatively the conduct of the applicant. However to my mind this is of little significance, for the one reflects the other. His misconduct was a consequence of a defect in character, or alternatively in assessing his character it is, subject to considering the arguments put before me, proper to take into account his behaviour whilst on leave.

The applicant's problem is that s.45(A)(9) expressly gives the Council an unfettered discretion, restricted only by the scope and purpose of the legislation. The Council has given cogent reasons why the suitability of a person for engagement as a seaman is not to be judged exclusively by his competence in that capacity. It has drawn particular attention to the special circumstances of seagoing employment and the fact that for lengthy periods seamen live together in close proximity. Because of its possible effect on safety, welfare and discipline the Council said that it takes a serious view of involvement in drug trading. It was this involvement on the part of the applicant which prompted the Council to take an adverse view of his conduct and to make a critical assessment of his character.

In my opinion it can not be said that the Council exceeded its powers in taking into account the applicant's misconduct whilst on leave. Its discretion is unfettered by the terms of the section and the approach of the High Court in The Queen v Australian Broadcasting Commission (1979) 144 C.L.R. 45 at p.50 is on point.

"The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute."

In Sean Investments Pty. Ltd. v McKellar (1981) 38 A.L.R. 363 at p.375 Deane J. said:

"In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards."

It follows that there is under the legislation no embargo on the Council taking into account, in determining the applicant's suitability of a seaman, his conduct whilst on leave. In fact, in the environment in which he will live and work whilst on duty, it is entirely proper for his character to be assessed in the light of his conduct whilst on leave, and for that conduct to be regarded as relevant in the making by the Council of its decision. I reject this submission of counsel for the applicant.

I find the second ground for review difficult to determine because of the uncertainty consequent upon the Council's decision to review its earlier advice. To some extent this uncertainty was engendered by the advisors to the parties. . With some hesitation on certain aspects, I make the following findings. Prior to the first decision the Council very properly notified with appropriate formality what it proposed to do and gave the applicant adequate notice of this and adequate time to make representations. It was not established as the fault of either party that the applicant did not receive this notice until after the decision had been made. When making its decision the Council very fairly offered both a further opportunity to the applicant to submit an explanation and a reconsideration of its decision. The applicant however went ahead with an application for a review, substantially at least based on the contention that his conduct whilst on leave was irrelevant. Upon receiving further information concerning the circumstances of the applicant's involvement in the criminal charges, the Council in February 1983 decided to reconsider its earlier decision. However I am satisfied by the reasons for decision and the minutes of the meeting at which the decision of 24 February 1983 was made that the Council had in mind considering not only this new material but also any correspondence from Gray setting out any explanation, mitigating circumstance or undertakings as to future conduct.

Unfortunately exactly what was proposed to be considered at the meeting and what was sought from the applicant was not made known to him or his solicitor. An appropriate notice similar to that of 1 June 1982 was not given. Instead an informal intimation was made shorlty prior to an appearance in Court, which was confirmed in writing only two days before the meeting. There is no evidence as to when or where on the day in question the meeting was to be held or whether representation could be made orally or in writing. Upon receiving the intimation the solicitor for the applicant, unwisely in my opinion, did not set about making the most of the opportunity offered to present, in the short time available, the applicant's case at the further hearing. Instead he wrote rejecting, in effect, the offer to his client to put forward further material if there was to be only a "reconsideration" and accepting the offer if there was to be a hearing "de novo". Doubtless considerable significance was attached at the time to the contention that the Council was acting beyond power if it relied upon conduct occurring whilst the applicant was on leave, a contention which I have rejected. However notwithstanding the reiteration of the Council's solicitors that their client only contemplated a reconsideration, there is little doubt that the members of the Council considered all the known circumstances of the applicant. This they did without the benefit of, in their words, "any correspondence from Gray setting out any explanation, mitigating circumstance or undertakings as to future conduct" and without the benefit of the letter of the applicant's solicitor of 18 February. It was altogether a very unfortunate set of circumstances, for which it is of no profit to apportion blame except to the extent I have already expressly or impliedly done. For one reason or another the applicant has not had the opportunity to place the material before the Council which that body was at least expecting to receive and felt it should have had before it. For this the applicant was not solely to blame. The Council for its part might well have deferred consideration, if it had been told of the applicant's letter of 18 February 1983. This would have enabled misunderstandings to be clarified and relevant material provided.

Section 16 of the A.D.J.R. Act vests the Court with considerable discretionary powers once an application for an order of review has been made. Such powers can be exercised notwithstanding that the decision under review is not set aside or squashed. I refer in particular to two orders which under that section the Court may make, which illustrate the extent of the power.

"(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit

(d) an order directing any of the parties to do, or refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties."

In my opinion it is appropriate that I refer the matter back to the Council for further consideration. It is proper that I direct that the applicant be formally advised, with 14 days notice, of the date upon which another meeting is to be held and that he be invited to place such material as he wishes before the Council. I so order.

In all the circumstances it is appropriate that each party bear it or his own costs of the application.