Australia: Federal Court dismisses challenge to variation of temporary shipping licence

In brief - Federal court reviews decision to grant Rio Tinto Shipping variation of temporary licence

In the case CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2013] FCA 152, the Federal Court reviewed a decision of a delegate of the Minister of Infrastructure and Transport to grant a variation of a temporary licence to Rio Tinto Shipping Pty Ltd (Rio Tinto), a competitor of CSL Australia Pty Ltd (CSL).

Three new categories of licence under new Coastal Trading Act

The new system of licensing ships to carry coastal cargo, introduced by the Coastal Trading (Revitalising Australian Shipping) Act 2012, created three new categories of licence: general, temporary and emergency. (For more information about these reforms please see our earlier article Shipping reforms may not achieve desired results for Australian economy.)

On 30 July 2012 Rio Tinto was granted a temporary licence to perform five voyages and on 6 August 2012 it applied to vary that licence. On 8 August 2012 CSL had been granted a five year transitional general licence for the ship "CSL Brisbane".

Rio Tinto application to vary licence granted

CSL was duly notified under the new regime of Rio Tinto's application and filed a Notice in Response advising that it had vessels capable of performing those voyages. On 6 October 2012 the Minister's delegate advised CSL of the preliminary view that Rio's application to vary would be granted. CSL supplied written submissions in response.

On 9 October 2012 Rio Tinto's application was granted and the following day CSL applied to the court to stay the four voyages the subject of the challenge. It failed to halt the four voyages, one of which had been due to load the next day.

CSL claims it was denied procedural fairness

Five weeks later Robertson J, who had heard that application, published his judgment. CSL had advanced 10 grounds as to why its application should be successful and they succeeded on one of them, that the Minister had denied it procedural fairness in respect of the four voyages.

It was ordered that the decisions made to vary Rio Tinto's temporary licence in respect of two of the voyages should be set aside. CSL appealed that decision.

In the meantime a delegate to the Minister invited CSL and Rio Tinto to make further submissions and before the matter was determined, CSL withdrew one of its objections. The delegate granted Rio Tinto's variation in respect of one of the voyages. The present proceedings were commenced for a review of that decision.

By the time the hearing commenced, all four voyages had been performed.

Minister's view that proceedings should be dismissed

Opposition to CSL's application by the Minister was on the basis that on discretionary grounds CSL's relief should not be granted and the proceedings should be dismissed. Alternatively the proceedings should be dismissed summarily as an abuse of the process of the court.

In arguing that the court should reject the application on discretionary grounds, the Minister relied on section 107(5)(a) of the Coastal Trading Act which enables CSL to seek a review by the Administrative Appeals Tribunal (AAT) of the delegate's decision on its merits and because the voyages have been completed, any such decision would be pointless.

Was CSL's entitlement to seek a review by the AAT adequate?

A question for the court was whether CSL's entitlement to seek a review by the AAT was adequate. CSL argued that it was not, because of the inability of AAT to grant declaratory relief and that appeals from the AAT were limited to questions of law; it was likely that any such review would be dismissed as being vexatious as the voyages had been completed and, furthermore, that the AAT was likely simply to follow Robertson J's decision.

Section 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) confers a discretion on the court to refuse to grant an application for review because "adequate provision" is made by another law under which the applicant is entitled to seek a review of the decision, whether by the Federal Court, any other court, tribunal, authority or person.

Section 107(5)(a) of the Coastal Trading Act gives the holder of a general licence, who gives a notice to the Minister in response to an application for variation of a temporary licence, the right to apply to the AAT for review of a decision by the Minister to grant an application.

CSL's application for review on discretionary grounds dismissed

Katzmann J rejected CSL's arguments and expressed the view that an application for review to the AAT was a "suitable and sufficient" step for CSL to have taken and accordingly dismissed CSL's application on discretionary grounds.

In reaching this conclusion, her Honour referred to the decision of the Full Court of the Federal Court in Swan Portland Cement Ltd v Comptroller-General of Customs [1989] 25 FCR 523, in which it was held that where legislation regulating the subject-matter discloses a clear intention as to who should review the administrative decision, the court's proper response should not be to embark upon a full hearing, but to exercise the discretion under section 10(2)(b)(ii) of the ADJR Act.

Stuart Hetherington
Trade and Transport
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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