Port Douglas Dive & Tours Pty Ltd and Barrier Reef Marine Park Authority and Anor
[2000] AATA 851
•21 September 2000
CATCHWORDS – GREAT BARRIER REEF PARK AUTHORITY – permission to upgrade permitted moorings – applicant wanted restoration of moorings to original condition or for it to have given consent.
PRACTICE AND PROCEDURE – whether applicant is a person whose interests are affected by decision within s. 27(1) of the Administrative Appeals Tribunal Act 1975 – whether application is vexatious within section 42B – no standing – proceedings cannot achieve what applicant seeks – application dismissed.
Administrative Appeals Tribunal Act 1975 – ss 27, 37
Australian Heritage Commission Act 1975
Environment Protection (Impact of Proposals) Act 1974
Great Barrier Reef Marine Park Act 1975 – Part V, Part VB, ss 5, 7(1B), 27, 32, 38,A, 38B, 39W, 39ZD, 42B, 66
Great Barrier Reef Marine Park Regulations – rr 5, 6, 10-13, 18-22, 42-45, 51
Australian Conservation Foundation v Commonwealth (1980) 28 ALR 257;(1980) 146 CLR 493; (1980) 45 LGRA 245, (1980) 54 ALJR 176
Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 121 ALR 373; (1994) 32 ALD 71; (1994) 49 FCR 250
Re Lockwood and McMurray and Commissioner for Superannuation (1990) 22 ALD 57
Re Williams and Australian Electoral Commission (1995) 38 ALD 366; (1995) 21 AAR 467
DECISION AND REASONS FOR DECISION [2000] AATA 851
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q1999/931
GENERAL ADMINISTRATIVE DIVISION )
Re PORT DOUGLAS DIVE & TOURS PTY LTD
Applicant
And GREAT BARRIER REEF MARINE PARK AUTHORITY
Respondent
And WAVELENGTH REEF CHARTERS PTY LTD
Party Joined
DECISION
Tribunal Miss S A Forgie (Deputy President)
Date 21 September, 2000
Place Brisbane
DecisionThe Tribunal dismisses the application of the applicant on the basis that it is not a person whose interests are affected by the decision of the respondent dated 23 July, 1999.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 20 August, 1999, the applicant, Port Douglas Dive & Tours Pty Ltd ("Port Douglas Dive") applied for review of a decision of a delegate of the respondent, the Great Barrier Reef Marine Park Authority ("the Authority") dated 23 July, 1999. In that decision, a delegate of the Authority affirmed a decision made on 23 May, 1999 to grant Permit G99/115 to Mr Stephen Simpson of Wavelength Reef Charters Pty Ltd ("Wavelength") to conduct a works programme involving the upgrade on one mooring at Tongue Reef and five moorings Opal Reef. The permission was granted pursuant to the then r. 13AC (now renumbered r. 18 of the Great Barrier Reef Marine Park Regulations ("the Regulations")). By an order dated 20 October, 1999 Wavelength was made a party to the proceeding.
At the hearing, Port Douglas Dive was represented by its solicitor, Mr Naylor and the Authority by Mr Fellows of counsel. Wavelength was not represented but it had earlier supported the Authority's response to Port Douglas Dive's statement of facts and contentions. Regard was had to the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") ("T documents"), the documents lodged on 7 December, 1999 on behalf of Port Douglas Dive and the permit documentation lodged on behalf of the Authority on 4 May, 2000. Both Mr Naylor and Mr Fellows made written as well as oral submissions. No oral evidence was given.
THE ISSUE
There are two issues in this case. The first is whether Port Douglas Dive is a person whose interests are affected within the meaning of s. 27(1) of the AAT Act. If it is, the second issue is whether its application is vexatious.
BACKGROUND
On the basis of the documents to which I have referred, I have made a number of findings of fact for the purpose of considering the application. I will set them out in the following paragraphs.
Port Douglas Dive
Coral Sea Diving Services Pty Ltd ("Coral Sea Diving") previously operated a commercial tour operation to the outer reef. It installed moorings at three sites: Turtle Bay-Tongue Reef; Opal Reef-BM; and Opal Reef-Green Reef ("the disputed moorings"). The documents in these proceedings, and particularly the letter from Wavelength's solicitors to Mr Naylor, show that there is, for the purposes of these proceedings, no disagreement that the disputed moorings were installed by Coral Sea Diving in 1986.
Permit G89/333 was issued on 22 August, 1989 to Coral Sea Diving Services. Under it, permission was given to use and enter the Cairns Section, Cormorant Pass Section and Cairns Marine Park from 22 August, 1989 until 21 August, 1990 for the purpose of the:
"Conduct of a tourist program – using the vessel 'Aquanaut'
Conduct of approved moorings at Opal Reef (1) and Tongue Reef (1)"
Moorings were to be removed, repaired or relocated by Coral Sea Diving in the event of its ceasing to hold a valid permission for the conduct of the mooring or if directed to do so (clause (14)).
Port Douglas Dive is also a commercial tourist operator. Prior to 9 July, 1992, it was previously known as Haba Resorts Australia Pty Ltd ("Haba Resorts") and has continued to operate a business called Haba Dive Australia. As Haba Resorts, it purchased its business in 1 October, 1989 from Coral Sea Diving Services and conducts daily cruises from Port Douglas to the outer reef. Prior to 1 July, 1999, Port Douglas Dive used the disputed moorings daily.
Under the agreement, Coral Sea Diving Services agreed to assign to Haba Resorts "… all of its right title and interest … in and to the Property." (clause 2). The "Property" is defined in clause 1 of the agreement to mean "… the Sale Items, the Lease and the Business Name." The "Sale Items" are defined to mean the items referred to in the Fourth Schedule to the agreement. The Fourth Schedule specifies as the Sale Items the letterhead, stationery and advertising material associated with the business name, the stock-in-trade and the fixtures and fittings. The "stock-in-trade" is stated in clause 1 of the agreement to mean that to which the purchaser "… is obliged or elects to purchase in accordance with Clause 10 …" of the agreement. Clause 10 provided that Haba Resorts agreed that it would "… purchase sixty per centum (60%) of the stock-in-trade (such value not to exceed FIFTEEN THOUSAND DOLLARS ($15,000.00)) situated at the Premises on … [1 October, 1999] at the wholesale value of the stock-in-trade …". "Fixtures and Fittings" are defined to mean the items listed in the First Schedule to the agreement. No mention is made of a mooring or moorings in the First Schedule.
Clause 9.1.1 of the agreement provided that it was subject to and conditional upon Haba Resorts' obtaining by 20 September, 1989 the consent in principle of the Authority to issue it a permit similar to permit G89/333 to conduct diving operations in the Marine Park.
On 13 September, 1989, Haba Resorts applied for a permit for purposes which it described "As per Permit no. G89/333 operated by Coral Sea Dive conduct of a tourist programme." Coral Sea Diving requested the Authority to cancel permit G89/333 with effect from 10 October, 1989. Its letter was dated the same day. The original permit was received and destroyed by the Authority on 9 November, 1989.
The Authority then issued a Permit G89/513 to Mr M Ikeda of Haba Resorts for use and entry in the Cairns Section and Cairns Marine Park. The purpose of the use and entry authorised by the permission between 28 November, 1989 and 27 November, 1990 was:
"Conduct of a tourist program – Recreational activities including fishing, snorkelling and diving using various permitted charter vessels".
Paragraph (6) stated that:
"For permitted sites in the Cairns Section, visitation rate not to exceed two visits per week unless approved moorings are installed."
In the copy supplied by the Authority, this clause has four small diagonal lines marked through it. In view of them, the status of the paragraph is unclear but there is no need to make further enquiries about it in the context of this case.
In January, 1990, permit G89/513 was issued with effect from 22 January, 1990 to 27 November, 1990. It gave Mr M Ikeda of Haba Resorts permission to enter and use the Cairns Section and Cairns Marine Park for:
"Conduct of a tourist program – Recreational activities including fishing, snorkelling and diving using various charter vessels that have existing GBRMP permit access for those zones and locations to be visited."
Permit G90/267 was issued in July, 1990 to Mr M Ikeda of Haba Resorts and had effect from 10 July, 1990 to 9 July, 1993. It permitted Haba Resorts to use and enter the Far Northern Section, Cairns Section and Cairns Marine Park for the purpose of:
"Establishment of a tourist program – recreational activities including fishing, snorkelling and diving using the vessel 'Haba Qeen'".
Clause (6) of the Permit stated that, "For permitted sites in the Cairns Section, visitation rate not to exceed two visits per week unless approved moorings are installed".
On 2 September, 1993, Permit G93/211 was issued to Port Douglas Dive trading as Haba Dive Australia for the period 2 September, 1993 to 1 September, 1999. That permit gave it permission to enter and use the Far Northern Section, Cairns Section and Cairns Marine Park for the purpose of:
"Conduct of a tourist program using the vessel 'Haba Queen' (maximum passenger capacity 32) – Activities being fishing, scuba diving and snorkelling.
Construction and conduct of two (2) approved moorings at Opal Reef."
One of the conditions of the Permit was that moorings could only be installed, relocated or removed in the presence of an officer of the Managing Authority unless the Managing Authority gave written advice to the contrary (clause (15)). They had to be installed within 90 days of the commencement of the Permit (clause (18)). Port Douglas Dive was also required to relocate or remove any moorings if required to do so by the Managing Authority (clause (16)). The moorings were required to be maintained (clause (20)).
On 6 July, 1998, the shareholders in Port Douglas Dive agreed to sell their shares to Mr Bruce Funch and Ms Josann Reynolds. They agreed that the assets of the company included a number of specified items. Among those items were Authority Permits G96/553 and G93/211. I note that Permit G96/553 is not a permit among those sent to the Tribunal by the Authority after the hearing. G96/553-1 was included but it was issued to Port Douglas Dive trading as Haba Dive Australia on 18 August, 1998 and so after the date of the agreement.
Permit G96/553-1 gave Port Douglas Dive permission to use and enter the Far Northern Section, Cairns Section and Cairns Marine Park. It was given for the:
"Conduct of a tourist program – Activities being SCUBA diving, snorkelling and fishing, using the vessel 'Dive Hard' (registration number 118969QC; overall vessel length 17 metres; maximum passenger capacity 40 passengers and six (6) crew)."
The mooring conditions that form part of the Permit were:
"12) The Permittee must only access Opal reef if a mooring permitted by the Great Barrier Reef Marine Park Authority is used by the Permittee at Opal Reef.
13)The Permittee must ensure that any mooring used by the Permittee is safe to use and of type and design suitable for the vessel used under this permit."
After purchasing the business from Coral Sea Diving and until some date in 1999, Port Douglas Dive states, it has used the moorings on a regular, if not daily, basis. Port Douglas Dive considers that the mooring hardware installed by Wavelength is incompatible with its vessels.
Applications by Mr Stephen Simpson of Wavelength
On 23 May, 1995, Permit G93/152 was issued to Mr Stephen Simpson of Wavelength. It was valid from that day until 22 May, 2001 and gave permission to use and enter the Cairns Section and the Cairns Marine Park. The purpose of the use and entry was:
"Conduct of a tourist program – Activities being SCUBA diving, snorkelling, fishing and fish feeding using the vessels 'Wavelength I' (maximum passenger capacity 25 and 2 two (2) crew) and 'Wavelength II' (maximum passenger capacity 30 and 2 two (2) crew).
Construction and conduct of one (1) approved mooring at Low Isles.
Conduct of five (5) approved moorings at Opal Reef (16-025) and one (1) approved mooring at Tongue Reef (16-026)."
Installation, relocation or removal of moorings was only permitted in the presence of an officer of the Authority (clause (12)). The permittee was required to maintain the mooring (clause (18)).
On 18 January, 1999, Mr Simpson, who was then trading as Wavelength Reef Charters (subsequently Wavelength), applied for a permit to upgrade five existing moorings at Opal Reef and one at Tongue Reef (T documents pages 30-41). Two of those moorings at Opal Reef and that at Turtle Reef are the disputed moorings in this case. Mr Simpson's application was accompanied by a submission dated 15 September, 1998 from a naval architect. The mooring design and specification was for a single point day mooring for an 18 metre catamaran to be installed at the location of each of the existing six moorings.
As required by the GBRMP Act, the Regulations, the Cairns Section Zoning Plan and Cairns Area Plan of Management prepared under the GBRMP Act, the Environment Protection (Impact of Proposals) Act 1974 and the Australian Heritage Commission Act 1975, the Authority considered the effects of Mr Simpson's proposal to upgrade the moorings on the Great Barrier Reef Marine Park ("Marine Park").
On 11 May, 1999, a delegate of the Authority granted a permit and on 14 May, 1999 a delegate of the Director of the Queensland Department of Environment and Heritage granted a permit for the period 14 May, 1999 until 30 June, 1999 (T documents, pages 56-58). Under the permit, permission was granted to Mr Simpson for use and entry to the Cairns Section and Cairns Marine Park. Permission was only granted in respect of the Buffer Zone and Habitat Protection Zone at Opal Reef and the Habitat Protection Zone at Tongue Reef under the Cairns Section Zoning Plan prepared in accordance with the GBRMP Act. The permit was given for "…Works associated with the upgrade of one (1) mooring at Tongue Reef and five (5) moorings at Opal Reef in accordance with naval architect design submission M98/06 dated 15 September 1998" (T documents, page 56).
The manner in which the work was to be undertaken was also set out in the permit. The mooring conditions attached to the permit provided for the installation, relocation or removal of moorings. That was to occur in the presence of the Managing Agency unless Wavelength received written advice to the contrary. In the event that Wavelength ceased to hold a valid permit for the conduct of the mooring permitted by permit G99/115, clause (10) of the permit conditions required that it remove that mooring from the Marine Park within 30 days unless informed in writing by the Managing Agency that such removal was not required. If required to relocate or remove any moorings permitted, clause (11) provided that Wavelength must do so.
Wavelength did not complete the work within the time allowed by the permit and, through its solicitors, sought an extension of the time allowed. It did so in a letter dated 28 June, 1999 (T documents, page 76). Mr Simpson made an application for a renewal on 28 June, 1999 (T documents, pages 81-84). Wavelength removed the mooring hardware on 2 July, 1999. That removal was supervised by Mr Gleeson. At that time, permit G99/115 had expired. By virtue of the operation of r. 51 of the Regulations, however, and in light of Mr Simpson's application for renewal and the absence of a decision either to grant or refuse the application, Wavelength was deemed to have the permission given by Permit G99/115. It was deemed to have that permission for a period up to and including 2 July, 1999 when the works were carried out.
LEGISLATIVE BACKGROUND
The Authority is responsible for the management of the Marine Park (s. 7(1B)). It has been given a number of specific functions relating to it and those functions are conferred either by the Act or by the Regulations made under s. 66 of the Act. Among those functions are those to prepare zoning plans in accordance with Part V, plans of management in accordance with Part VB and those functions conferred on the Authority either by the Act or Regulations (7(1)(c), (caa) and (d)). The Authority must "… perform its functions in accordance with any general directions given by the Minister not inconsistent with the Act." (s. 7(2)).
As soon as possible after an area has been declared to be part of the Marine Park, the Authority is required to prepare a zoning plan in respect of that area (s. 32(1)). The zoning plan provides that, for the purposes of the Act, the area constitutes either a single zone or is divided into two or more zones described in the plan (s. 32(4)). The disputed moorings come within the Cairns Section Zoning Plan ("CS Zoning Plan") prepared by the Authority. In particular, the moorings at Opal Reef come within the Buffer Zone and Habitat Protection Zone and the mooring at Tongue Reef within the Habitat Protection Zone under the CS Zoning Plan.
While a zoning plan is in force in relation to a zone, s. 36 of the Act provides that:
"(1) … the Authority shall perform its functions and exercise its powers in relation to the zone in accordance with that plan and not otherwise.
(2)While a zoning plan is in force in relation to a zone, each Minister shall give all such directions and do all such things as can be given or done by him for ensuring that the Department administered by him or her and each authority of the Commonwealth in relation to which he or she has ministerial responsibilities performs the functions and exercises the powers that it has in relation to the zone in accordance with that plan."
A person may not intentionally or negligently use or enter a zone for a purpose other than a purpose that is permitted under the zoning plan relating to that zone (s. 38A). Contravention may lead to the imposition of a fine. A zoning plan may provide that a zone may not be used for a particular purpose except with the permission of the responsible agency within the meaning of that plan or of the Authority. If a permission is required, s. 38B(1) provides that, subject to a qualification that is not relevant in the context of this case (s. 38B(2) and r. 6(2)):
"… a person must not intentionally or negligently use or enter the zone for that purpose unless:
(c)the use or entry is authorised by a permission granted or transferred to the person under the regulations, being a permission of a kind declared by the regulations to be a permission to which this section applies; or
(d)the use or entry is authorised by an authority given to the person in accordance with a condition to which such a permission is subject."
Again, contravention of s. 38B(1) may lead to the imposition of a fine.
Pursuant to s. 39W(1) of the Act, the Authority may prepare plans of management for one or more areas of the Marine Park, one or more species within the Marine Park or within an area in it and one or more ecological communities within the Marine Park or within an area in it. If a plan of management contains provisions prohibiting or regulating the doing of something, or requiring the doing of something, those provisions are known as "enforcement provisions". They are included in a separate part of the plan. (s. 39ZD(5)). Among those matters that the enforcement provisions may prohibit or regulate are:
"(a) entry into an area, or a part of an area, to which the plan relates; or
(b)the use (generally), or a particular use, of an area, or a part of an area, to which the plan relates." (s. 39ZD(8))
Sections 39ZD(6) and (7) of the Act make further provision as to the matters which the enforcement provisions may prohibit:
"(6) The enforcement provisions may prohibit the doing of an act even though the doing of the act would, apart from the enforcement provisions, be permitted or authorised by or under this Act.
(7)The enforcement provisions may exclude from their operation acts or omissions of a kind that were lawfully engaged in before the enforcement provisions come into force."
The objectives of the various zones are set out in Part 2 of the CS Zoning Plan as are the purposes for which they may be used and entered. The written permission of the Authority is required for purposes such as the installation and conduct of moorings.
Where the CS Zoning Plan provides that permission is required for certain purposes, regard must be had to s. 38B of the Act. Section 38B(1) provides that a person shall not use or enter the zone for those purposes unless a permission is granted to the person under the Regulations or in accordance with an authority given pursuant to a condition to which such permission is subject. The Regulations are concerned with the manner in which permission may be sought from, and granted by, the Authority. Only permission granted under rr. 13, 22 or 45 of the Regulations is declared to be permission to which s. 38B of the Act applies (r. 5(1)). Such permission is referred to in the Regulations as a "relevant permission" (r. 4(1)). Certain procedural steps must be followed in making an application for a relevant permission (rr. 10-13, 18-22 and 42-45).
As Opal Reef and Tongue Reef come within the CS Zoning Plan, an application must be made under r. 18. While applications for permission to engage in traditional fishing, hunting and gathering require additional matters to be taken into consideration, the Authority must have regard to the following issues in considering all applications:
"(a) the objective of the zone; and
(b)the need to protect the cultural and heritage values held in relation to the Marine Park by traditional inhabitants and other people; and
(c)the likely effect of granting permission on future options for the Marine Park; and
(d)the conservation of the natural resources of the Marine Park; and
(e)the nature and scale of the proposed use in relation to the existing use and amenity, and the future or desirable use and amenity, of the relevant area and of nearby areas; and
(f)the likely effects of the proposed use on adjoining and adjacent areas and any possible effects of the proposed use on the environment and the adequacy of safeguards for the environment: and
(g)the means of transport for entry into, use within or departure from the zone or designated area and the adequacy of provisions for aircraft or vessel mooring, landing, taking off, parking, loading and unloading; and
(h)in relation to any structure, landing area, farming facility, vessel or work to which the proposed use relates:
(i)the health and safety aspects involved, including the adequacy of construction; and
(ii)the arrangements for removal upon the expiration of the permission of the structure, landing area, farming facility or vessel or any other thing that is to be built, assembled, constructed or fixed in position as a result of that use; and
(i)the arrangements for making good any damage caused to the Marine Park by the proposed activity; and
(j)any other requirements for ensuring the orderly and proper management of the Marine Park; and
(k)any charge payable by the applicant in relation to chargeable permission (whether or not in force) that is overdue for payment; and
(l)if the application relates to an undeveloped project, the cost of which will be large – the capacity of the applicant to satisfactorily develop the project."
CONSIDERATION
At the heart of the factual background to this matter is Port Douglas Dive's claim that it owns the disputed moorings. Its ownership, it states, means that the Authority should have approached it to determine whether Permit G99/115 should be subject to its consent. At the heart of the legal background to this matter is the scope of any review that the Tribunal is able to carry out according to its powers. This is relevant both to the question of whether or not Port Douglas Dive is a person "whose interests are affected by the decision" within the meaning of s. 27(1) of the AAT Act and to the question whether its application is frivolous or vexatious within the meaning of s. 42B of that legislation.
I will consider first whether Port Douglas Dive is a person "whose interests are affected by the decision" within the meaning of s. 27(1). In particular, are its interests affected by the Authority's decision to permit Wavelength to upgrade the disputed moorings? As Mason J (as he then was) said in Australian Conservation Foundation v Commonwealth (1980) 28 ALR 257 (Gibbs, Stephen, Mason and Murphy JJ):
"… I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi for, as I said in Robinson v Western Australian Museum (1977) 51 ALJR 806 at 824; … 'The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another.'
In this difficult field there is one proposition which may be stated with certainty. It is that a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi in a case of the kind now under consideration. I entirely agree with Gibbs J when he says that: 'A belief, however, strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi." (page 284)
There are, however, some general principles that may be gleaned from the authorities. The first is that there is no "… general presumption that … the 'interests' concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law. …" (Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 121 ALR 373 at 395, per Gummow, Davies and Burchett JJ). Finally, the interpretation of the word "interests" must be considered in light of the particular scope and purpose of the legislation in question (Alphapharm at page 395).
In this case, whether a person's "interests are affected by a decision" within the meaning of s. 27 of the AAT Act must depend upon the scope and purpose of the Act and of the Regulations and also upon the nature of the decision itself. I have already set out the structure of the Act and Regulations. The purpose of the Act is to establish the Marine Park and the Authority is responsible for its management. In general terms, regulation of that park has regard to, among other matters, the conservation of the Great Barrier Reef, its reasonable use while also protecting that reef and the regulation of activities that exploit the grounds of the Great Barrier Reef. Use of, and entry into, the Marine Park is regulated by specifically listing those purposes for which no permission is required other than that found in the relevant zoning plan (in this case the CS Zoning Plan) and those purposes for which permission is required from the Authority.
The purposes for which the permits were granted to Port Douglas Dive and Wavelength (and to Coral Sea Diving at an earlier time), require permission from the Authority. As is apparent from the permits issued by the Authority to the parties in this case and to Coral Sea Diving, they have been issued for installation and conduct of moorings and for access to the reef so that the holders of the relevant permit might conduct a tourist programme. The Authority's decision to issue Permit G99/115 is a decision to upgrade existing moorings. I have assumed that none of the disputed moorings can be the two installed by Port Douglas Dive pursuant to Permit G93/211 for it is common ground that the disputed moorings were installed much earlier in 1986.
The permits to which I have been referred show that, at the date of the decision of which it seeks review, Port Douglas Dive had the right to conduct a tourist programme in the Cairns Section. Both Opal Reef and Tongue Reef are located in the Cairns Section. There is nothing in the papers to suggest that Port Douglas Dive was not entitled to use the disputed moorings at those reefs. Assuming that to be the case, Port Douglas Dive had an interest in the Authority's decision to permit the mooring hardware to be altered. That alteration meant that Port Douglas Dive's vessels could no longer use the moorings.
Assuming that the disputed moorings were those which Coral Sea Diving had installed and assuming that Port Douglas Dive had purchased them, Port Douglas Dive had a further interest in the decision. Its interest lay in the fact that it owned the mooring hardware and it had an interest in its location and disposal. Even if it did own the moorings, I note that Permit G89/513, which was issued to it after it bought the business from Coral Sea Dive, did not give it permission to conduct the moorings. Despite not holding a permit to conduct the disputed moorings, Port Douglas Dive did not lose ownership for that reason. It was open to the Authority to require it to remove the hardware. Although I have not seen a copy of the permit allowing Coral Sea Diving to install moorings in 1986, that issued to it in 1989 (Permit G89/133) certainly required it to remove all facilities from the Marine Park if instructed to do so by the Authority (clause (15)). It also required the permittee to remove the moorings if it ceased to hold a valid permission for the conduct of the moorings.
It follows that I am satisfied that, at the time the decision was made on 23 May, 1999, Port Douglas Dive was a person whose interests were affected by the decision. The decision under review in this case, however, is not that dated 23 May, 1999 but that dated 23 July, 1999. This follows from the fact that r. 22(6) of the Regulations gives a person a right to apply to the Tribunal for review of a decision made under r. 22(4). That is the decision made by the Authority in response to a request it receives to reconsider its decision. For the reasons given in a case such as Re Lockwood and McMurray and Commissioner for Superannuation (1990) 22 ALD 57 (Deputy President Forgie, Lynch and Brennan (Members)) and the cases referred to in those reasons, the operative decision is that dated 23 May, 1999, which was affirmed by the reconsideration decision. While that is so, it is still relevant in circumstances such as those presented by the present case to have regard to the date of the reconsideration decision.
By the date of the reconsideration, 23 July, 1999, Wavelength had altered the mooring hardware. Port Douglas Dive no longer had an interest in a decision that permitted Wavelength to conduct a works programme involving the upgrade of the disputed moorings. It then had an interest in a decision that Wavelength be required to restore the moorings to their original state. That is a different decision from a decision made upon an application to upgrade the disputed moorings. Even if the Tribunal were to decide that the decision to allow the upgrade of the moorings should not have been made, the Tribunal could do no more than substitute a decision refusing Wavelength permission to upgrade. The Authority's power under r. 22 is limited to granting or refusing permission requested in an application. Its powers are limited by the terms of the permission requested. The Authority could not, for example, substitute a decision that Wavelength restore the moorings to their original state when Wavelengths request for permission was to upgrade the moorings. Wavelength's request could have been refused or granted with or without conditions. Although restoration might be a condition upon which a permission was given in the first instance or it could be a decision made on a separate application for permission to restore the moorings, it could not be the operative decision upon Wavelength's application for permission to upgrade moorings.
Port Douglas Dive has submitted that the grant of permission to Wavelength to upgrade the moorings should be conditional upon Port Douglas Dive's consent. It may be that a condition to that effect could have been inserted in the permit to ensure the orderly and proper management of the Marine Park. That would need to be considered. Now that the moorings have been upgraded, it is difficult to see how the Tribunal could, on review, substitute a decision requiring that the consent be sought to an action that has already taken place. Again, the effect of what Port Douglas seeks is the restoration of the moorings to their original state and the whole application and decision making process to be started afresh.
As I have said, restoration is not a decision which it is within the power of the Tribunal to made in reviewing the Authority's decision of 23 July, 1999. Restoration is the decision in which Port Douglas Dive has an interest but it is not the decision under review in this case. It follows that I do not consider that Port Douglas Dive may apply for review of the Authority's decision dated 23 July, 1999.
If I am incorrect in this decision, I have also considered the matter in light of s. 42B(1)(a) of the AAT Act. That provides:
"Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a)dismiss the application; …"
It was considered by the Tribunal in Re Williams and Australian Electoral Commission (1995) 38 ALD 366 (Mathews J, President, Beaumont and Hill JJ, Presidential Members) where the following general principles were stated:
"(30) The power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly: per Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1965] ALR 636; (1964) 112 CLR 125. The mere fact that a proceeding is shown to have no foundation in fact is insufficient to justify a finding that it was commenced vexatiously or without reasonable cause: Per von Doussa J in Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324.
(31) The manifest untenability of a proceeding provides one ground for finding that the proceeding is a vexatious one. …" (page 372)
The Tribunal went on to consider the relevance of futility in the context of s. 42B. In that case, it had decided that, whatever the outcome of any review, that review could not have any effect upon the matter of concern to Mr Williams. Despite that, it also accepted that Mr Williams genuinely believed that the contrary was the case. The Tribunal then went on to distinguish between a genuine but mistakenly held mistake of fact and one of law:
"(37) The genuineness of the applicant's belief might well have been a relevant factor in his favour – and possibly a decisive one – had the subject of his mistake been a factual one rather than a matter of law. As von Doussa J commented in Hatchett, an applicant who genuinely holds a mistaken belief as to a state of facts which, if correct, would support the claim which is made in the proceedings, is ordinarily entitled to 'a day in court'. In that event, it could operate very unfairly to an applicant to prejudge the issues without affording him/her an opportunity to support his/her case with appropriate evidence. But where, as here, the significant factual matters are agreed between the parties, and the only issues in dispute relate to the legal consequences which follow, the genuineness of the applicant's legitimacy of his claim must bow before a finding that, as a matter of law, no legitimate purpose can be achieved by continuing with the proceeding. …" (page 374)
In this case, I accept that Port Douglas Dive is genuine in its belief that it can achieve what it seeks by means of the review process in the Tribunal. For the reasons I have already given, I do not consider that it is able to do so. The reasons why it is not able to do so are based on the powers of the Tribunal and so on matters of law rather than (on the assumptions I have made) of fact. It follows that the proceedings have become vexatious in the sense that they cannot achieve what Port Douglas seeks and so are futile. Therefore, its application should be dismissed pursuant to s. 42B.
For the reasons I have given, I dismiss the application of the applicant on the basis that it is not a person whose interests are affected by the decision of the respondent dated 23 July, 1999.
I certify that the fifty one preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed: ...........................................…….
S Thomson Personal AssistantDate of Hearing 2 March, 2000
Date of Decision 21 September, 2000
Solicitor for the Applicant Mr S Naylor
Counsel for the Respondent Mr M Fellows
Solicitor for the Respondent Australian Government Solicitor
1
1
0