Should the discretion be exercised to refuse relief?
35 The Minister accepted that this question must be considered on the premise that all of CSL's contentions in its originating application are made out: Edelsten at 422. That includes the various alleged errors of statutory construction and the proposition that they are jurisdictional in kind.
36 The Minister contends that:
(1) adequate provision is made by s 107(5)(a) of the Coastal Trading Act under which CSL is entitled to seek a review by the Administrative Appeals Tribunal ("AAT") of the delegate's decision on its merits;
(2) because the voyage the subject of the delegate's decision has been completed, this proceeding is moot; if the Court were to grant relief to CSL in those circumstances, it would be giving an advisory opinion; and
(3) in any case, for the same reason, the issues CSL raises in the present application are of no practical significance so that setting aside the delegate's decision and remitting the matter to the Minister for determination according to law would be futile.
37 Before considering these submissions it is useful to say something more about the relevant provisions of the Coastal Trading Act that establish the process for granting a variation of a temporary licence.
38 Where, as here, the application concerns a proposal to vary the licence to include a matter not already authorised by it, the process for deciding the application is substantially the same as that which applies to an application for a temporary licence (s 53). Within two days of receiving the application, the Minister is required to cause to be published on the Department's website a copy of the application (omitting information that is commercial in confidence or personal to an individual) (s 30). The Minister must also cause to be notified every holder of a general licence and any body or organisation who, or whose members, would be directly affected if the application were granted (s 30). The holder of a general licence may, within 2 business days after the day the application is published under s 30, give the Minister a written notice ("a notice in response") (s 31). The notice in response must state:
(i) all of the passengers specified in the application could be carried under the holder's general licence; or
(ii) all of a particular kind of cargo specified in the application could be carried under the holder's general licence; or
(iii) all of the passengers and all of a particular kind of cargo specified in the application could be carried under the holder's general licence; or
(iv) all of the passengers and all of the cargo specified in the application could be carried under the holder's general licence; or
(v) one or more voyages specified in the application could be undertaken under the holder's general licence.
39 If subpara (i), (ii) or (iii) applies, the notice must also identify which passengers or cargo could be carried. If subpara (v) applies, it must also identify the voyage or voyages that could be so undertaken.
40 Once the Minister receives a notice or notices in response he must give a copy to the applicant (s 32). Within two business days of receiving a notice in response the applicant must undertake negotiations with each holder of a general licence and notify the Minister of the outcome of those negotiations (s 32). The negotiations must relate to whether, and to what extent, the vessel authorised by the holder's general licence is equipped to carry the passengers or cargo specified in the application and whether those passengers or cargo can be carried "in a timely manner" (s 32(3)). In the case of an application relating to the carriage of cargo the negotiations must have regard to the requirements of the shipper (s 32(4)).
41 The Minister decides an application by granting or refusing it (s 34(1)). The Act provides in s 34(2) a list of the matters the Minister may consider. They include the object of the Act and any matter the Minister considers relevant. Section 34(3) details the matters the Minister must consider. They are the outcome of the negotiations, whether and to what extent the vessel authorised by the holder's general licence is equipped to carry the passengers or cargo specified in the application and whether those passengers or cargo can be carried on the expected loading dates or within five days of it. In the case of an application relating to the carriage of the cargo, the mandatory considerations include the reasonable requirements of a shipper of the kind of cargo specified in the application (s 34(3)(d)).
42 The decision must be made within seven days after the application is made (s 54).
43 I infer that the purpose of these provisions is to give the holder of a general licence the opportunity to persuade the Minister that the application should be refused so that it might undertake the voyage instead.
44 Section 10(2)(b)(ii) of the ADJR Act confers a discretion on the Court to refuse to grant an application for review of a decision because "adequate provision" is made by another law under which the applicant is entitled to seek a review of the decision, whether by this or any court, tribunal, authority or person. "Review" is defined in subsection (3) to include "a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order".
45 Section 107(5)(a) of the Coastal Trading Act provides that the holder of a general licence who gave the Minister a notice in response to an application for a variation of a temporary licence may apply to the AAT for review of a decision by the Minister to grant the application.
46 There is no dispute that s 107(5)(a) gave CSL a right to have the delegate's decision reviewed on its merits in the AAT. Although the section refers to the holder of a general licence, it is common ground that the section applies to CSL as the holder a transitional general licence. In Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 ("Bragg") at 33 Davies J explained:
The "review" that s 10(2)(b)(ii) contemplates should, as Burchett J described it in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 62, be a review involving "an independent exercise of powers directly affecting the decision reviewed".
47 Plainly, the review for which the AAT Act allows answers this description.
48 The starting point, however, is that an applicant may rely upon all or any of the available remedies: Kelly v Coats (1981) 51 FLR 69 at 70 per Toohey J; [1981] FCA 58. Section 10(1) of the ADJR Act provides that the rights conferred by s 5 are "in addition to, and not in derogation of", any other rights the person has to seek review, whether by the court, another court, or another tribunal, authority or person. Still, the Act expressly allows for the refusal of relief where adequate provision is made for review of the decision in another way. The question here is whether the entitlement to seek a review in the AAT is adequate. CSL submits that it is not.
49 In substance CSL's argument is threefold. First, it points to the inability of the AAT to grant declaratory relief and the fact that appeals from the AAT are limited to questions of law. Secondly, it submits that, as the journey is over, there is every prospect that a review in the AAT would be dismissed as vexatious under s 42B of the AAT Act. Thirdly, it contends that the AAT would simply follow the decision of Robertson J. None of these points is persuasive.
50 While the AAT cannot make a declaration, it has very wide powers. It may stay administrative decisions to secure the effectiveness of the hearing and determination of the application for review: Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"), s 41(2). It may exercise all the powers and discretions conferred by the relevant enactment on the decision-maker (s 43(1)). It may affirm, vary or set aside the decision under review or make a decision in substitution for it (s 43(1)). In the course of its decision it will give its interpretation of the law. The decision will bind the parties. It also has the power to receive evidence that was not before the Minister or his delegate. As the Minister points out, these powers are substantially broader than those conferred on the Court by the ADJR Act and s 39B(1) of the Judiciary Act. In neither case can the Court review the merits of the decision. The Court does not stand in the shoes of the Minister. In contrast, the AAT offers a forum in which all the matters the subject of the present application (and more) could be agitated. Like the Court, the AAT is obliged to give reasons for its decisions (s 43(2)). If requested to do so within a certain period of time, it must provide them in writing (s 43(2A). As with the Court, save in special circumstances hearings before the AAT are held in public (s 35). As in the Court, the parties may be legally represented (s 32). The tribunal is required to conduct its proceedings with as much expedition as the relevant legislation and a proper consideration of the matters before it permit (s 33). It is obliged to give the parties a reasonable opportunity to present their cases, inspect documents and make submissions on them (s 39). If CSL had applied to the AAT for a review of the decision and failed to persuade it of the merits of its argument, it could appeal to this Court. While it is true that the appeal would be limited to questions of law (AAT Act, s 44), that does not mean that the review is not adequate.
51 A provision for review may be adequate although it does not allow for every conceivable remedy. A review is adequate within the meaning of s 10(2)(b)(ii) of the ADJR Act if it is suitable or sufficient: Edelsten at 424. In Edelsten Northrop J held that review by the Medical Services Review Tribunal provided for by the Health Insurance Act 1973 (Cth) was such a review. A review in the AAT can certainly answer this description: McGowan v Migration Agents Registration Authority (2003) 129 FCR 118 (Branson J). The fact that the appeal rights from the two tribunals were limited to questions of law did not preclude either Northrop J or Branson J from deciding that a review was adequate. In my opinion, the fact that the AAT cannot grant declaratory relief is no impediment either.
52 A decision by the AAT would include a decision on questions raised by CSL's originating application. It would also include a decision on the facts. The process of review would enable a full consideration of the relevance of Rio's insistence on a liquidated damages clause, unconstrained by the limits of judicial review. A decision by the AAT would not only bind the parties but would doubtless affect the Minister's approach in the future.
53 I am satisfied that the provision made in the Coastal Trading Act for review by the AAT is adequate within the meaning of s 10(2)(b)(ii) of the ADJR Act. It was both suitable and sufficient.
54 Of course, the fact that adequate provision is made for review does not mean that relief must be refused for this reason. Still, the general practice of the Court is not to consider a dispute for the resolution of which a satisfactory administrative remedy is available and it is generally desirable that the Court's time not be taken up with resolving disputes for which the Parliament had established adequate administrative remedies: Bragg at 34 (Davies J). As Davies J remarked in that case (at 34), this Court is too busy and its processes too costly for its resources to be used where there is an informal and expeditious administrative tribunal established to resolve the dispute. That remark is as apt now as it was when it was made. I would add that review in the AAT is far less expensive than it is in this Court.
55 The legislature clearly intended that reviews of decisions made under the Coastal Trading Act be conducted in the AAT where costs are much lower and where there would be a full examination of the merits. This right of review was not available in analogous circumstances under the previous licensing regime established by the Navigation Act 1912 (Cth).
56 That CSL is now out of time to bring an application is beside the point. As I observed in ActewAGL v Australian Energy Regulator (2011) 195 FCR 142 at 183 [191] (see, too, Kimberley-Clark Ltd v Commissioner of Patents (1988) 15 ALD 740 per Jenkinson J), the discretion to refuse relief conferred by s 10(2)(b)(ii) does not rest on the fact that another proceeding is pending. Nor does it matter that the time in which to appeal has elapsed. CSL did not contend otherwise. It is enough that the person aggrieved by the decision could have applied to the AAT for review.
57 I accept CSL's submission that it is probable, if not inevitable, that the AAT would follow Robertson J where there are common issues. But if CSL did not like the result, it could appeal.
58 The Full Court said in Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530 that in many, (if not most) circumstances, where the legislation regulating the subject-matter discloses a clear intention as to who should review an administrative decision, the Court's proper response should not be to embark upon a full hearing but to exercise the discretion under s 10(2)(b)(ii) adversely to the applicant. In my view, this is a proper case in which to do so (cf. Darling Downs Bacon Co-Operative Association Ltd v Comptroller-General of Customs (1994) 50 FCR 435 at 442 per Moore J). Even if I am wrong in the conclusion I have reached, the Court has a residual discretion under s 16 of the ADJR Act to refuse relief (Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516 at 536 [87]) which, for the following reasons I would exercise.
59 The object of the judicial process is the final determination of the rights of the parties to an action: Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 at 356 [47]. What rights are affected by this proceeding now the voyage is over? Rio Tinto's application was to vary its temporary licence to permit five particular voyages. All those voyages have now taken place. Consequently, as the Minister submitted, the subject matter of the proceeding has become moot.
60 In argument and notwithstanding the nature of the relief sought, CSL accepts that it would be futile to send the matter to the Minister or his delegate to re-determine the application for a second time. The delegate's decision does not affect any future voyages or any future applications. CSL contends, however, that the case raises important questions of statutory interpretation, not all of which will be decided in the appeal from Robertson J. Yet in Bonan v Hadgkiss (2007) 160 FCR 29 ("Bonan") and Hope Downs (Management Services Pty Ltd v Hammersley Iron Pty Ltd (2000) ATPR ¶41-733; [1999] FCA 1652 ("Hope Downs"), where the same point was raised in comparable circumstances, albeit on appeal, the courts permanently stayed the proceedings. In Hope Downs the Full Court was not persuaded by a submission that it should hear the appeal, which was otherwise moot, because it would resolve a "very important issue of statutory interpretation". In Bonan the Full Court cited with approval the following remarks of Cooper J in Civil Aviation Safety Authority v Administrative Appeals Tribunal (2001) 33 AAR 439; [2001] FCA 1319 (an application for judicial review of a decision of the AAT to stay a suspension of the applicant's pilot's licence) at [17]. They have a particular resonance here.
What CASA seeks in par 2 of the relief sought is in the nature of an advisory opinion or a direction to the AAT as to how it shall, by its members in all future matters, exercise the discretion under s 41(2) of the AAT Act in a particular way in respect of any reviewable decision under the Act. As between CASA and the AAT, the declaration sought involves no declaration of a legal right in actual controversy which the declaration would confirm or modify and which remains capable in a real and genuine sense to be enjoyed: Beitseen v Johnson (1989) 29 IR 336 (FC) at 337 - 338. It is insufficient that CASA has a genuine interest in having the legal issues resolved for the benefit of its administration of the Act in future cases which may arise. Those issues will, in an appropriate case, be resolved in litigation where they are real and will have a practical effect in respect of a controversy.
61 For present purposes I will assume that CSL will continue to have dealings with Rio Tinto under the Coastal Trading Act and will make submissions to the Minister in the future about applications by temporary licence holders. The delegate's decision in this case will not bind anyone in future cases, even those involving the same parties. Should the issues raised in this case arise again, CSL may put its arguments to the delegate. It may have more success on that occasion. It may not. If it does not, it can seek a review of the delegate's decision in the AAT or, if it chooses, and subject to the discretion to grant relief, it may bring proceedings in this Court. In the present proceedings the issues raised in the application are essentially of academic interest.
62 CSL contended that there is "a real, practical utility" in granting the declaratory relief it has sought but I am unable to see it. CSL submitted that the approach taken by the Minister's delegate frustrates the central objects of the Coastal Trading Act and there is a public interest in determining the issues thrown up by this case. In essence, CSL wishes its application to be heard to avoid a similar argument in the future. CSL asserted that it would risk disrupting trade and prejudicing the prompt administration of Australia's coastal shipping regime to leave the questions to be ventilated in later proceedings. But save for the questions that will be agitated before the Full Court, the other questions may never arise again. If they do, there is every prospect that the Full Court's decision on the matters of statutory construction raised in the appeal will have a bearing on how they should be answered. In any event, future conflicts between CSL and Rio Tinto or other general licence holders and temporary licence holders are likely to raise other issues. In my opinion, whatever public interest there may be in resolving the questions raised by the originating application is outweighed by the public interests to which s 37M of the FCA are directed. Moreover, as I observed earlier, the purpose of giving general licence holders an opportunity to be heard on an application to vary a temporary licence is to give them a chance to conduct the voyages to be covered by the licence. For the Court to go on to consider CSL's application would not serve that purpose.
63 In this case, to deny relief would have no significant practical consequence for CSL. Sure, in respect of the issues that are unique to this proceeding it will not have a chance to see its view of the law endorsed. But that time may come in an appropriate case where there are rights to be vindicated. There is no suggestion here that the delegate's decision and, in particular, her interpretation of the law which is under challenge, has harmed, will or could harm CSL's business or commercial reputation (contra Ainsworth v Criminal Commission (1992) 175 CLR 564).
64 CSL submitted that that the Minister's complaint about utility might have had much greater force in the AAT, noting that proceedings become vexatious when circumstances change so that no legitimate purpose can be achieved by continuing with them: see e.g. Fearnley v Australian Fishing Management Authority [2006] FCAFC 3 at [17]-[19] (Finn and Sunberg JJ), [97] (Emmett J).
65 In Re Williams and Australian Electoral Commission and The Greens (1995) 38 ALD 366, the tribunal accepted that the applicant had an interest which was affected by the disputed decision but took the view that the interest related to a possible future event. As the possibility of that event occurring had ceased to exist by the time of the hearing, the tribunal dismissed the proceeding under s 42B of the AAT Act. In Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 569 [69] the Full Court (Black CJ, Hill, Sundberg, Marshall and Kenny JJ) held that if after an application is filed there is a change of circumstances that removes from an applicant the interest he initially had in the proceedings, his application should be dismissed.
66 CSL submitted that had it applied for review in the AAT its application would have been liable to be dismissed as vexatious after the relevant voyage had been performed. The submission assumes, however, that the application would not have proceeded to conclusion before the voyage was complete. The impugned decision was made on 14 December 2012. Reasons were provided on request on 3 January 2013. CSL could have asked the AAT for an urgent hearing. Alternatively, CSL could have asked the AAT to stay the operation or implementation of the decision pending the hearing. Had the AAT granted a stay or heard and determined the matter promptly, the voyage would not have taken place and the question of the utility of the proceeding would not have arisen. If a stay had not been granted, then the AAT might have dismissed the proceeding as vexatious. It might not. But the issue then would be no different from the utility argument levelled against CSL now.
67 Robertson J declined to exercise his discretion to refuse relief: CSL (No 3) at [154]. Understandably, CSL relied on his decision in this respect. For the most part, however, the reasons his Honour gave are inapplicable here.
68 First, his Honour noted that the originating process sought urgent interlocutory relief in relation to an imminent voyage. In the present case the originating process did not seek urgent interlocutory relief and by the time it was filed loading of the cargo was already well under way.
69 Secondly, his Honour said that the proceedings involved questions of law as to the construction of the Act where there has been no earlier judicial consideration. Now, as a result of his Honour's judgment, there has been judicial consideration and soon those questions will be considered by the Full Court. Their resolution will largely dispose of most of the legal issues raised in the present proceeding.
70 Thirdly, his Honour said that the early final hearing made it impossible to identify separate questions of law appropriate for resolution in this Court while leaving other questions for determination by the AAT. That is not the position here and, to the extent that the present application raises additional issues, they are largely dependent on the facts.
71 Fourthly, his Honour said that in relation to the first voyage, which was over by the time of the hearing, it was difficult to see what relief the AAT could grant. While this might also be said of the present case, as the Minister pointed out his Honour's observation was made in the context of a finding that the delegate had denied CSL procedural fairness, a complaint not made in the present proceeding.
72 I do not overlook the fact that the appeal is pending and that similar issues will be raised in that case but that, it seems to me, does not advance CSL's position.
73 For the same reasons, even if the delegate's decision was infected by jurisdictional error, I would refuse relief under s 39B(1) of the Judiciary Act. Constitutional writs may be denied if there is "a more convenient and satisfactory remedy" or "if no useful result could ensue": R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400. More recently, the availability of another remedy was described as "a compelling discretionary bar" to the grant of relief of the kind for which s 39B(1) provides: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1093; [2003] HCA 26 at [33] (Gummow and Callinan JJ).