CSL Australia Pty Ltd v Minister for Infrastructure and Transport

REASONS FOR JUDGMENT 1 This matter was listed before me today for the making of orders to give effect to the reasons for judgment in CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 3) [2012] FCA 1261. These reasons should be read with that judgment. 2 Five matters were the subject of submissions. 3 The first was the position of voyage number 1207006005. The applicant accepted that the decision in respect of that voyage should not be the subject of a declaration of invalidity or otherwise be set aside because, as I understood it, the applicant would not now undertake that voyage by one of its vessels. This explains the making of the second declaration but the exclusion from orders numbered 3 and 4 of reference to voyage number 1207006005. 4 The second matter was whether the Court should make a declaration that the decision to grant the application to vary the temporary licence under the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) (the Act) in respect of voyage number 1207006006 and voyage number 1207006012 (referred to as 1207006007) was invalid. In my view it is more appropriate to make an order that the decision be set aside rather than make a declaration. The matter of substance was whether the decision should be set aside without more or whether the decision should be set aside ab initio. In my view it is preferable that it be made clear that the decision is set aside from the date it was made and thus the appropriate form of order is that the decision be set aside ab initio. 5 The third matter, and the matter of greatest substance, was the disagreement between the parties as to the effect under the Act of setting aside the decision in respect of voyage numbers 1207006006 and 1207006012 (referred to as 1207006007). The applicant contended that its notice in response remained extant but that the statutory negotiation procedure had to be redone. The respondents submitted that all that had been attacked, successfully, by the applicant was the making of the decision. It appeared to be common ground between the parties that the decision-maker was required to make a fresh decision on the basis of up to date information: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45. 6 In my view, the following steps under the Act are unaffected by the setting aside of the decision: the application under s 28, the publication and notification under s 30, the written response under s 31, the giving of the notice in response to the applicant under s 32(1), the undertaking of negotiations under s 32(2)(a) and the written notification of the outcome of the negotiations under s 32(2)(b). I have found that the decision-making miscarried subsequent to those steps. The validity of the earlier steps was not and has not been challenged. Further, the statutory time limits do not, in my opinion, bend to require or permit the process to begin from only the s 31 or the s 32(1) point forward. For example, under s 54(2), the statutory clock stops only until there is a notification under s 32(2)(b) or the last day of the period within which the applicant was required to notify the Minister. If I have the power and the issue is one of discretion, I would not exercise the discretion to undo steps that have not been challenged and where the Act specifies time periods. 7 The fourth matter was whether an order should be made requiring a decision to be made by a different delegate. The applicant contended that that was the appropriate order given that I had found that the delegate who made the decision had denied procedural fairness to the applicant. I am not persuaded that that is an adequate basis on which I should make an order requiring a different person to make a decision on remitter. The decision did not turn on any matters of credit and I was not asked to make and did not make any findings of actual or perceived bias on the part of the delegate. I also note the submission on behalf of the applicant that it had no difficulty with this particular delegate generally, which I understood to mean in respect of other matters involving the applicant which may come before her for decision. I therefore remit the matter generally to the first respondent for determination according to law. 8 The last matter was the question of costs. Since the parties are discussing that question I acceded to the proposed order that costs be reserved with liberty to apply on five days notice. 9 I also mention that, as to the balance of the application for review, rather than setting out, by number, nine grounds and refusing relief in relation to them, it is more appropriate to make an order that otherwise the application be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.