Thompson v Waterways Authority - [2006] NSWSC 1395

No judgment structure available for this case.

CITATION: Thompson v Waterways Authority [2006] NSWSC 1395

HEARING DATE(S): 7 August 2006

JUDGMENT DATE :
15 December 2006

JUDGMENT OF: Hislop J

DECISION: (1) The Amended Summons is dismissed; (2) The plaintiff is to pay the defendant’s costs.

CATCHWORDS: Administrative law - Cancellation of licence - No failure to accord procedural fairness - No error of law.

LEGISLATION CITED: Commercial Vessels Act 1979 - s 48
Maritime Services Act 1935 - s 38(4A)

CASES CITED: Ackroyd v Whitehouse (1985) 2 NSWLR 239
Re MIMIA; Ex Parte Lam (2003) 214 CLR 1

PARTIES: Plaintiff - John Lex Thompson t/as Aqua Action Jetskis
Defendant - Waterways Authority t/as New South Wales Maritime

FILE NUMBER(S): SC 30061/06

COUNSEL: Plaintiff - Mr R.M. O'Gorman-Hughes
Defendant - Mr S.J. Free

SOLICITORS: Plaintiff - McDonald Johnson Lawyers
Defendant - Crown Solicitor's Office

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

HISLOP J

15 December 2006

30061/06 John Lex Thompson t/as Aqua Action Jetskis v

Waterways Authority t/as New South Wales Maritime

JUDGMENT

Introduction

1 The plaintiff, trading as Aqua Action Jetskis, conducted a jetski hire and drive business from the Anchorage Marina at Port Stephens, New South Wales. The business was conducted pursuant to a licence issued by the defendant. On 4 October 2005 the licence was cancelled by the defendant on the ground that the plaintiff “was not in compliance with the condition of Hire and Drive Licence number HD0297 requiring the landowners consent to his business operation”.

2 The plaintiff has sought a declaration from this Court that the purported cancellation is invalid and of no effect. Additionally he seeks:

A declaration that, provided that the area of operation of jetskis pursuant to the licence is not changed, a change in the land base of the plaintiff’s business is an irrelevant consideration to the defendant’s decision as to whether or not to renew the licence.

Factual background

3 I accept the following matters, which, unless otherwise indicated, were either common ground or not the subject of significant dispute.

Commercial Vessels Act

1979

b) The requirements of the Act are onerous and the Minister may grant exemptions from the requirements of the Act and Regulations (s 48 of the Act).

Water Traffic Regulations

Maritime Services Act 1935,

d) In 1995 a jetski hire and drive business was commenced at the Anchorage Marina. A licence to conduct the business was issued by the defendant and an exemption from the provisions of the Act was granted.

Water Traffic Regulations

g) Since the amendments of 1 February 1997 the defendant has not licenced any new Hire and Drive operations which involve the hire of PWC to operators who do not hold a PWC licence. However the defendant has not sought to change the licence conditions attaching to those Hire and Drive operations that were established prior to 1 February 1997. Accordingly, only those PWC hire and drive operations which were authorised prior to 1 February 1997 to hire PWC to unlicensed operators continue to be so authorised.

h) The defendant’s policy since that time has been that any proposal to operate a PWC Hire and Drive business from a different land base to that from which it previously operated would need to be assessed as a new operation, a new application for licence would be required and a condition of the grant of the licence would be that jetskis can only be hired to licensed riders.

i) The source of the current exemptions are:

Maritime Services Act

Water Traffic Regulations

Commercial Vessels Act 1979

Water Traffic Regulations

184. The applicant must secure any landowners, council or other government agency approvals which may be required.

l) Although the requirement to obtain the landowner’s approval was referred to in the application checklist form the plaintiff initially failed to provide evidence of such approval. This was pointed out to him when he lodged documents in support of his application with the defendant and he then sought and obtained the required approval from Anchorage Marina.

m) The plaintiff conducted the business from the Anchorage Marina from 18 September 2002 until 12 February 2005 renewing his licence annually.

n) On 12 February 2005 Ian Viles, a director of the company operating the Marina informed the plaintiff that he was no longer permitted to operate his business from the Marina. The plaintiff has not operated his business from the Marina or at all since that date.

… we find that the encumbent operator has placed the Anchorage Marina in a difficult position. A number of contractual defaults and non compliance issues have left us with no alternative other than to remove landholders’ consent from the encumbent operator’s Hire and Drive Licence.

I am advised that this operation has ceased and that application has not been made to transfer the license to another operator at that location. The current licence was issued for the operation to be conducted from the Anchorage Marina and may not be transferred to another location.

q) On 7 April 2005 the plaintiff signed a document authorising Graham Oborn to act on his behalf in any matter relating to hire and drive licence number HD0297 and any transfer thereof.

If Mr Thompson wants to transfer his Hire and Drive license to another location, he would need to make a new application for a Hire and Drive licence. A new licence would be issued subject to the conditions that are applicable to all new licences issued today, that is, that jetskis can only be hired to licensed riders. If Mr Thompson wants to present a plan, we would consider that on its merits. Mr Oborn in evidence said he didn’t recall the precise substance of the conversation. I accept Mr Dunkley’s evidence in this regard.

I will be forwarding a request to your Authority in relation to interpretation of the terms and conditions of the Licence as noted in paragraph 184 on page 2 and paragraph 500 on page 6 – version dated 31 March 2005.

Should no land base be available to the operator, the Hire and Drive Licence issued by Maritime NSW will lapse and the tourist facility will be lost for all time.

On face value I am not willing to support the site based on noise and conflict with swimmers but need to report to Councillors on this. Can you please advise Maritime’s stance on transferring the hire and drive licence and the proposed transit lane off the beach to the operational area.

v) On 29 July 2005 a comment was placed on the defendant’s computer that:

Due to landowner’s consent for this Hire and Drive Licence being revoked, please do not generate or send out a renewal for this licence.

No renewal form was sent to the plaintiff.

w) On 5 September 2005 the following fax from Anchorage Marina was received by the defendant:

Please treat this fax as our formal advice to NSWMA of our decision to withdraw and cancel landholders’ consent previously supporting the Hire and Drive licence for the Aqua Action Jetski hire business effective immediately.

x) On 14 September 2005 a telephone conversation occurred between Mr Dunkley and the plaintiff. Mr Dunkley deposed to the conversation as follows:

The plaintiff in his affidavit in reply said he did not intend and had never intended to establish a jetski hire business from D’Albora Marine and the “new operation” was using other type of craft such as small catamaran style boats. He said in cross examination that in his conversation with Mr Dunkley he was talking about jetskis which he proposed to operate from Soldier’s Point as well as other craft from D’Albora Marine. Mr Dunkley believed the conversation was about jetskis only. To the extent there is any discrepancy of significance between the plaintiff’s and Mr Dunkley’s version of the conversation I prefer the evidence of Mr Dunkley as it is confirmed by his contemporaneous file note.

I would now advise that NSW Maritime has been informed by the operator of The Anchorage Marina that landowners consent has been withdrawn for the operation of your Hire and Drive Business from the premises.

As landholders consent is a condition for the issuing of a Hire and Drive License I would advise that NSW Maritime will not be in a position to renew your Hire and Drive License number HD0297 when it expires on 23 September 2005.

This letter was not received by the plaintiff until 27 September 2005.

z) The plaintiff, on about 15 September 2005, specifically asked Mr Oborn to renew the licence.

aa) On 15 September 2005 Mr Oborn renewed the licence at the defendant’s Rozelle office.

GO: I would like to inquire about leaving a pontoon in the water.

AW: You would need a mooring for that. Where do you want to put it?

GO: Salamander Bay.

AW: Well, there is a waiting list for that bay so it would probably be a while before you can get a site. Is there any other bay that would be good for you? What do you want to use the pontoon for?

GO: I want to anchor it and ferry people out for jetski rides. Could I leave it anchored overnight away from its mooring?

AW: Well for that you will need a commercial mooring which requires Council permission and a Hire and Drive licence, and to my knowledge, no new Hire and Drive licences for that kind of activity are being issued. You wouldn’t be able to leave it unattended overnight.

Mr Oborn then asked to speak to Mr Woodfield off the record or confidentially and then said:

GO: I don’t know what is going on, but there seems to be some sort of conspiracy or campaign being conducted to make sure Aqua Action’s licence isn’t renewed. Do you know Charlie Dunkley? What’s he like? He seems to be running it.

AW: Charlie is my boss. He is regional manager for this area and is an incredibly honest bloke. The authority is a very transparent organisation. Anything that has been done would have been as per policy and there wouldn’t be any campaign or conspiracy.

GO: Well I’ve already got the licence renewed without anyone knowing I’ve done it.

AW: How did you do that?

Mr Woodfield informed Mr Dunkley of this conversation on 4 October 2005.

cc) Condition 025 of the licence empowered the defendant to cancel a licence if the owner failed to comply with any of the licence conditions.

NSW Maritime advises that the abovementioned Hire and Drive Licence has been cancelled due to the landowners consent being revoked.

It is noted that a payment of $192 was paid at our Rozelle office on 19/9/05, this amount has been refunded and cheque is attached.

As advised in our letter dated 14 September 2005 (copy attached) NSW Maritime was advised that the landowners consent had been revoked, therefore the licence cannot be renewed.

ee) The defendant did not give separate notice of its intention to cancel the licence prior to sending the letter dated 4 October 2005.

ff) In his affidavit sworn 7 April 2006 the plaintiff stated:

I propose, subject to obtaining reinstatement of my Licence, to operate the business as follows:

(a) Soldiers Point Marina is to be land base of the business;

(b) I will take customers by boat from the Marina to the Buoyed off Area; and

Discussion

4 It was common ground between the parties, and I accept, that there is no formal statutory or regulatory machinery to challenge the refusal to renew or to cancel a hire and drive licence. There is no statutory or regulatory requirement that advance notice of a proposed cancellation be given.

5 The plaintiff asserts a failure to accord procedural fairness and/or error of law. These matters are discussed separately hereunder.

Denial of procedural fairness

6 The plaintiff submitted there had been a denial of procedural fairness as the defendant did not:

(a) give notice of its intention to cancel the licence;

(b) give notice of its reasons for so doing;

(c) afford the plaintiff an opportunity to be heard as to why the licence should not be cancelled;

7 The plaintiff relied upon the statement of Samuels JA in Ackroyd v Whitehouse (1985) 2 NSWLR 239 where, at 258 C – D, his Honour said:

… the Director, before cancelling the licence, was bound to give the appellant notice of his intention to do so and upon what grounds, and to permit the appellant to answer.

8 The defendant accepted that the decision to cancel the licence attracted a duty to accord procedural fairness but submitted the decision to cancel the license could not be viewed in isolation but must be viewed as part of a single sequence incorporating the related issue of the renewal of the license. The question was whether there had been a lack of fairness judged from a practical point of view having regard to all of the circumstances. The defendant submitted, so judged, there was no denial of procedural fairness, alternatively, if there was, the result would have been no different.

9 The defendant relied upon the comments of Gleeson CJ in Re MIMIA; Ex Parte Lam (2003) 214 CLR 1 (at [34] and [37]): His Honour there said:

The ultimate question remains whether there has been unfairness [in the procedure adopted] ...

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

10 As observed by McHugh and Gummow JJ in Lam at [48]:

… the particular requirements of compliance with the rules of natural justice will depend upon the circumstances.

11 In my opinion the circumstances were such that there was no failure to accord procedural fairness.

12 The defendant’s position throughout was that:

(a) it would not renew the licence if the plaintiff lacked the approval of the landowner at the Anchorage Marina; and

(b) if the plaintiff wished to operate the business from a new location a fresh application would be required and, if granted, a new licence would be issued subject to the conditions applicable to all new licences, that is, that jetskis could only be hired to licensed riders. This accorded with the defendant’s policy (see paragraphs (3)(g) and (h) above).

13 In my opinion, the defendant’s position was known to or communicated by the defendant to the plaintiff either directly or through his agent as:

(a) the plaintiff knew when he first applied for the licence that its grant was conditional upon the obtaining of the approval of the land owner, Anchorage Marina (see paragraph (3l) above). The plaintiff knew when Anchorage Marina withdrew its approval on 12 February 2005 that he could no longer operate the business at that site (see paragraph (3n) above). The plaintiff, through his agent, knew that there being no land base approval the licence would lapse (see paragraph (3t) above), and the plaintiff was told by Mr Dunkley on 14 September 2005 that the reason no renewal notice had been sent to him was that the approval of Anchorage Marina had been withdrawn (see paragraph (3x) above). These matters cause me to conclude the plaintiff was on notice that the defendant would not renew the licence when it fell due because the plaintiff did not have the approval of the landowner, Anchorage Marina or indeed any landowner;

(b) in May 2005 the plaintiff, through his agent, knew that if he wished to operate the business from a new location a fresh application would be required and, if granted, a new licence would be issued subject to the conditions applicable to all new licences, that is, that jetskis could only be hired to licenced riders (see paragraph (3r) above). This was confirmed to the plaintiff directly by Mr Dunkley on 14 September 2005 (see paragraph (3x) above). Additionally the plaintiff’s evidence was that it was always said that if he changed anything he would have to make a new application.

14 The plaintiff through his agent indicated he would be forwarding a request to “your Authority” in relation to the interpretation of conditions 184 and 500 of the licence (see paragraph (3s) above). There was ample opportunity for the plaintiff to take this step had he wished. There was no evidence it was taken. The plaintiff indicated to Mr Dunkley he would seek legal advice and write to the Minister (see paragraph (3x) above). There is no evidence he wrote to the Minister. There was opportunity for the plaintiff to take this step prior to the date fixed for the renewal of the licence.

15 Instead of taking those steps the plaintiff renewed the licence at the defendant’s Rozelle office. The renewal was made by Mr Oborn paying a renewal fee by telephone to that office. The renewal was processed at that office in circumstances where previous dealings in relation to the licence had been with officers of the defendant located at the defendant’s offices at Newcastle or Nelson Bay. These offices were proximate to the Anchorage Marina and Mr Oborn’s office at Morpeth. Mr Oborn’s actions followed the conversation between the plaintiff and Mr Dunkley on the preceding day following which instructions were given to him by the plaintiff to renew the licence. Mr Oborn’s explanation for renewing the licence at the Rozelle office was that:

I renewed the licence at the Rozelle office in Sydney. I do a fair bit of travelling and, because it was on my mind that the licence needed to be renewed, I found the Rozelle office and took care of it while I was in Sydney on business.

16 At the time of renewal the plaintiff had no landowner’s approval for any land base and that had been the case since 12 February 2005. I find that the licence would not have been renewed if the renewal had been sought to be effected at the defendant’s Newcastle or Nelson Bay offices. The timing and circumstances surrounding the renewal lead me to conclude that the plaintiff was aware that the licence would not be renewed if its renewal was sought to be effected at the defendant’s Newcastle or Nelson Bay offices and it was for that reason that it was sought to renew the licence at the Rozelle office. That conclusion is supported by the evidence of Mr Woodfield (see paragraph (3bb) above).

17 I find that the renewal of the licence came about only because the renewal was sought at an office of the defendant whose officers were not familiar with the matter.

18 Mr Dunkley acted to cancel the licence at the earliest opportunity once he became aware of the fact of renewal and within a few days after the date the licence was due for renewal.

19 The issue which arose between the parties was whether the licence should continue. It was the same issue whether it related to renewal or cancellation. In the circumstances the defendant’s submission that the decision to cancel the licence should not be viewed in isolation but should be viewed as part of a single sequence incorporating the related issue of the renewal of the licence should be accepted. In my opinion there was no lack of procedural fairness in respect of the defendant’s decision not to continue the licence and to cancel it.

20 Accordingly I do not accept this ground of the application.

Error of law

21 The defendant cancelled the licence because the plaintiff was not in compliance with condition 184 of the licence which provides:

The applicant must secure any land owners, council or other government agency approvals which may be required.

22 The plaintiff submitted the basis for cancellation of the licence was wrong in law as condition 184 did not require the licensee to have approval at all times during the licence period but only when the land base was being used. He submitted that unless so construed the plaintiff could be liable to a penalty by reason of the operation of s 48(2) of the Act.

23 The defendant accepted that if an error of law was established the decision to cancel the licence was liable to be set aside.

24 The defendant submitted there was no error of law as condition 184 required that the licensee have the approval of the landowner to operate the business from the land owner’s premises at all times.

25 I prefer the construction advanced by the defendant. In my opinion, the landowner’s approval and such other approvals as are required pursuant to condition 184 should be secured prior to the grant of the licence and continued thereafter. This accords with the interpretation which the defendant adopted in requiring the land owner’s approval (see paragraph (3l) above. It is also consistent with the use of the word “applicant” in the condition in contrast to “owner/operator” or “licensee” used in other conditions imposed by the licence. The alternative construction would be inappropriate and impracticable in requiring that approvals need be obtained only when the land base was being used, particularly insofar as condition 184 applies to approvals from councils and other government agencies.

26 The plaintiff submitted the effect of construing condition 184 so as to require the landowner’s consent at all times during which the licence was held (regardless of whether the plaintiff was operating the business or not) would have the effect of rendering the plaintiff liable to prosecution resulting from a breach of the licence condition following the withdrawal of the consent of the landowner, even though any use of the jetskis ceased immediately thereafter – see s 48(2) of the Act which provides:

The Minister may, by a notice given or published under subsection (1) require compliance with specified conditions instead of compliance with the provision of this Act or the regulations … and a breach of such a condition shall be deemed to be a breach of that provision.

27 The defendant submitted that s 48(2) has application only in situations where a specific condition is imposed in lieu of a provision of the Act or Regulations in which case breach of that condition will be deemed to be a breach of the provision of the Act or Regulations.

28 The exemption from the operation of the Act in this case is referred to at paragraph (3)(i)(II) above. It is expressed in general terms and as such, in my opinion, does not attract the operation of s 48(2). The exemption provides its own remedy for default namely the exemption is lost and compliance with the Act is required.

29 The plaintiff had no approval to use any land base when he sought renewal of the licence or when the licence was cancelled. He had not had land owner’s approval since 12 February 2005. He was therefore in breach of condition 184, the licence was duly cancelled and such cancellation was not attended by any error of law.

30 This finding makes it unnecessary to determine whether the location of the land base was an irrelevant consideration.

31 Had it been necessary to determine that issue I would have held the location of the land base was not an irrelevant consideration as a change of it would result in a need to consider the potential impacts on navigation and marine safety, and semble environmental impacts, noise etc. However it is unnecessary to further consider this aspect.

Conclusion

32 In my opinion there was no failure to accord the plaintiff procedural fairness, the licence was properly cancelled and its cancellation was not attended by any error of law.

Orders

33 I make the following orders:

(1) The Amended Summons is dismissed;

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Citations

Thompson v Waterways Authority [2006] NSWSC 1395

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

2

Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6

CITATION:	Thompson v Waterways Authority [2006] NSWSC 1395
HEARING DATE(S):	7 August 2006
JUDGMENT DATE :	15 December 2006
JUDGMENT OF:	Hislop J
DECISION:	(1) The Amended Summons is dismissed; (2) The plaintiff is to pay the defendant’s costs.
CATCHWORDS:	Administrative law - Cancellation of licence - No failure to accord procedural fairness - No error of law.
LEGISLATION CITED:	Commercial Vessels Act 1979 - s 48 Maritime Services Act 1935 - s 38(4A)
CASES CITED:	Ackroyd v Whitehouse (1985) 2 NSWLR 239 Re MIMIA; Ex Parte Lam (2003) 214 CLR 1
PARTIES:	Plaintiff - John Lex Thompson t/as Aqua Action Jetskis Defendant - Waterways Authority t/as New South Wales Maritime
FILE NUMBER(S):	SC 30061/06
COUNSEL:	Plaintiff - Mr R.M. O'Gorman-Hughes Defendant - Mr S.J. Free
SOLICITORS:	Plaintiff - McDonald Johnson Lawyers Defendant - Crown Solicitor's Office