CSL Australia Pty Ltd v Minister for Infrastructure and Transport

Federal Court of Australia|2014-11-03|Before: Rares J

nister for Immigration and Citizenship (2011) 244 CLR 144 applied Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 applied Ruddock v Taylor (2005) 222 CLR 612 applied Shagang Shipping Co Ltd v Ship "BULK PEACE" as surrogate for the Ship "DONG-A ASTREA" [2014] FCAFC 48 applied The Ship "Gem of Safaga" v Euroceanica (UK) Ltd (2010) 182 FCR 27 applied

Date of hearing: 29, 30 April 2014

Division: GENERAL DIVISION

Counsel for the First Respondent: Dr KA Stern SC with Mr BD Kaplan

Solicitor for the Second Respondent: Holman Fenwick Willan

IN THE FEDERAL COURT OF AUSTRALIA IN ADMIRALTY NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1585 of 2013

AND: MINISTER FOR INFRASTRUCTURE AND TRANSPORT

JUDGE: RARES J DATE OF ORDER: 3 NOVEMBER 2014 WHERE MADE: SYDNEY

The decision of the delegate of the first respondent made on 3 September 2012 to grant the second respondent's application for a temporary licence 0041TL001 (the licence) under s 35 of the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) (the Act) was invalid by reason of jurisdictional error in that the second respondent was not a person entitled pursuant to s 28(1) of the Act to apply for the licence.
The decision of the delegate of the first respondent made on 2 April 2013 to grant the second respondent's application for a variation of the licence under s 55 of the Act (the 2 April 2013 variation) was invalid by reason of jurisdictional error in that the licence was incapable of variation in the circumstances the subject of declaration 1.
The decision of the delegate of the first respondent made on 9 July 2013 to grant the second respondent's application for a variation of voyage 23 of the licence under s 47 of the Act (the 9 July 2013 variation) from one for the carriage of 20,000 metric tonnes of grains from Albany to Melbourne with an expected loading date of 15 August 2013 to one for the carriage of 45,000 tonnes of coal from Port Kembla to Whyalla with an expected loading date of 2 August 2013 (voyage 23) was invalid by reason of jurisdictional error in that: (a) the variation was not of any matter authorised by the licence and could not be granted under s 47; (b) the licence was incapable of variation in the circumstances the subject of declarations 1 and 2.
The second respondent used the licence in a way that circumvented the purpose of the general licence provisions and the object of the Act within the meaning of s 63(1) in that: (a) all 17 voyages for which it applied on 21 August 2012 and was granted the licence were fictitious to its knowledge; (b) all 7 voyages for which it applied on 22 March 2013 and was granted the 2 April 2013 variation were fictitious to its knowledge; (c) at all times during which any fictitious voyage was authorised by the licence, the second respondent intended to apply, as and when the opportunity arose, and in such event did apply, for a variation of the licence so that it would authorise a genuine voyage; (d) the second respondent sought and obtained the grant under s 47 of the Act of variations of the licence to replace authorised fictitious voyages with genuine voyages, including in respect of voyage 23 in the circumstances in declaration 2, thereby denying general licence holders the benefit of their entitlements to: (i) participate in the process of the Act for the Minister to decide applications made under s 51 in accordance with s 53; (ii) apply to the Administrative Appeals Tribunal under s 107(5) of the Act for a review of any decision to grant a variation had it been made, as it ought to have been, under s 55 of the Act. THE COURT ORDERS THAT:
The respondents pay the applicant's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA IN ADMIRALTY NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1585 of 2013

AND: MINISTER FOR INFRASTRUCTURE AND TRANSPORT

JUDGE: RARES J DATE: 3 NOVEMBER 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) (the Coastal Trading Act) came into force on 1 July 2012. It created a new regulatory framework for the Australian coastal trade under which, relevantly, the Minister could issue general licences and temporary licences that authorised a vessel to engage in coastal trading. Earlier this year, the Full Court discussed the construction of some aspects of the Coastal Trading Act in CSL Australia Pty Ltd v Minister for Infrastructure and Transport (2014) 221 FCR 165. This application raises different questions. 2 The object of the Coastal Trading Act, set out in s 3(1), was to provide a regulatory framework for coastal trading that involved general and temporary licenced vessels and Australian-registered (whether on the Australian General Shipping Register (the general register) or Australian International Shipping Register (the international register) maintained under the Shipping Registration Act 1981 (Cth)) in respect of the matters set out in s 3(1)(a)-(f) as explained by Allsop CJ, with whom Mansfield J agreed, in CSL 221 FCR at 201-202 [148], 202 [152], and by myself at 249-250 [374]-[376]. 3 During the period between August 2012 and September 2013 the applicant, CSL Australia Pty Ltd, held up to four transitional general licences and four general licences in respect of eight vessels that authorised them to engage generally in coastal trading. 4 On 21 August 2012, the second respondent, Braemar Seascope Pty Ltd, which was a shipbroker, applied to the first respondent Minister for a temporary licence to undertake 17 specified voyages. Braemar's managing director, James a'Beckett, completed the application form, knowing that all of the 17 voyages that he had specified in it were fictitious. He knew that Braemar did not own or charter, and was not an agent of, any ship and also that it was not the shipper of any of the fictitious cargoes. Rather, Mr a'Beckett hoped that, over the course of the 12 month duration of the temporary licence, he would be able to fix vessels not on the general register to carry cargo and to find shippers who wished to get cargoes carried at the cheaper rates that such vessels offered in comparison to those with general licences. If Braemar could locate such business, Mr a'Beckett intended to, and in the event did, apply to the Minister to vary one or so many of the fictitious voyages authorised in its temporary licence so that then the licence would authorise the actual voyage or voyages that Braemar was seeking to arrange. 5 The central issue is whether Braemar made valid applications for both its temporary licence and each subsequent variation of it to conduct further fictitious or real voyages. CSL seeks declarations that each of, first, the decisions of a delegate of the Minister to grant the temporary licence to Braemar and to vary it on 2 April 2013 and 9 July 2013 was invalid because Braemar was not a person entitled to apply for a temporary licence or for its variation, secondly, the variation granted on 9 July 2013 was invalid because the delegate did not follow the appropriate procedure under the Act and, thirdly, Braemar used its temporary licence in a way that circumvented the purpose of the general licence provisions or the object of the Coastal Trading Act within the meaning of s 63.

The legislative scheme 6 Relevantly, s 3(2) of the Coastal Trading Act provided: (2) This Act aims to achieve its object by the following means: (a) ensuring that a vessel that is used to engage in coastal trading under a general licence has unrestricted access to Australian waters; (b) ensuring that a vessel that is used to engage in coastal trading has access to Australian waters under a temporary licence that is limited in time and to voyages authorised by the licence; … (emphasis added) 7 Division 2 of Pt 4 of the Coastal Trading Act dealt with temporary licences by providing a detailed process for applications and for grants of such licences (in Subdiv A), conditions that applied or could be imposed on them (in Subdiv B), variations of matters authorised by such licences (in Subdiv C) and variations of temporary licences to include new matters (in Subdiv D). The pivotal provision for these proceedings was s 28, which provided: 28 Application for temporary licence (1) A person may apply to the Minister for a temporary licence to enable a vessel to be used to engage in coastal trading over a 12 month period if the person is: (a) the owner, charterer, master or agent of a vessel; or (b) a shipper. (2) The application must be in writing and specify the following: (a) the number of voyages, which must be 5 or more, to be authorised by the licence; (b) the expected loading dates; (c) the number of passengers expected to be carried (if any); (d) the kinds and volume of cargo expected to be carried (if any); (e) the type and size, or type and capacity, of the vessel to be used to carry the passengers or cargo (if known); (ea) the name of the vessel (if known); (f) the ports at which the passengers or cargo are expected to be taken on board; (g) the ports at which the passengers are expected to disembark or the cargo is expected to be unloaded; (h) such other information as is prescribed by the regulations. Note: The Minister may ask the applicant to provide further information, see section 77. (3) The application must be accompanied by the application fee prescribed by the regulations. (emphasis added) 8 The definitions of the words "master", "owner" and "voyage" in s 6(1) were as follows: master of a vessel means a person who has command or charge of the vessel, but does not include a pilot of the vessel. owner of a vessel means one or more of the following: (a) a person who has a legal or beneficial interest in the vessel, other than as a mortgagee; (b) a person with overall general control and management of the vessel; (c) a person who has assumed responsibility for the vessel from a person referred to in paragraph (a) or (b). For the purposes of paragraphs (b) and (c), a person is not taken to have overall general control and management of a vessel, or to have assumed responsibility for a vessel, merely because he or she is the master or pilot of the vessel. voyage means the movement of a vessel from one port to another port in a way that would satisfy paragraph 7(1)(a), (b) or (c). The requirements of s 7(1) related to the use of the vessel, for or in connection with a commercial activity, by taking on board passengers or cargo at an Australian port then carrying and unloading at another Australian port. The provisions in Pt 4 applied both to carriage of passengers and cargo but, for simplicity, I will only refer in these reasons to those provisions that relate to cargo, since the facts here are to do with cargo. 9 The making of an application under s 28 (unless it was withdrawn under s 29) set in train a process that provided for prompt decision-making by the Minister in determining whether to grant the temporary licence: CSL 221 FCR at 182-183 [65] per Allsop CJ; see too at 250-251 [379] per myself. Within two business days after receiving an application under s 28, the Minister had, first, to cause a copy of the application (but with redactions of any information that the Minister was satisfied was commercial in confidence or consisted of personal details of an individual) to be published on the Department's website and, secondly, to give notice of the application to every holder of a general licence (which included CSL, as the holder of a transitional general licence by force of item 16(a) of Sch 2 to the Coastal Shipping (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012 (Cth)) and any body or organisation that itself, or whose members, the Minister considered would be directly affected if the application were granted (s 30). 10 A general licence holder could give the Minister under s 31 a notice in response within two business days of any publication of an application under s 30. The notice in response had to state that, first, all, or all of a particular kind of, cargo specified in the application could be carried under the general licence or, secondly, which of one or more of the voyages specified in the application could be undertaken under the general licence. 11 Next, s 32 provided that, if the Minister received a notice in response, he had to give the applicant a copy of each such notice as soon as practicable after the end of the two day period in s 31. Then, within a further two days after it received a notice, the applicant, first, had to undertake negotiations with each general licence holder who had given a notice in respect of whether, and to what extent, the holder's vessel was equipped to carry the cargo specified in the application, and whether the cargo could be carried in a timely manner. Secondly, the applicant had to notify the Minister of the outcome of those negotiations within that two day period. And, s 32(4) provided: (4) If an application relates to the carriage of cargo, negotiations under subsection (3) in relation to the application must have regard to the requirements of the shipper of the cargo. 12 Third parties who would be directly affected if an application were, or were not, granted also had two business days, from the day of its publication under s 30, to make written comments to the Minister (s 33). The Minister then had to decide to grant or refuse an application under s 34, ordinarily, within 15 business days after the application had been made (s 34(4)) (although that time could be extended under s 34(5), which is not presently relevant). In making his decision, the Minister, first, could have regard to a range of considerations referred to in s 34(2) and, secondly, had to have regard to the mandatory considerations prescribed in s 34(3), namely: (2) In deciding an application, the Minister may have regard to the following (whether or not the Minister receives a notice in response in relation to the application): (a) whether the applicant has previously held, or applied for, a temporary licence; (b) whether the applicant has previously held a licence that was cancelled; (ba) if the application relates to cargo and a vessel registered in the Australian International Shipping Register - both: (i) whether the applicant owns the cargo and the vessel; and (ii) whether the cargo is to be carried on the vessel; (c) whether the applicant has been issued with an infringement notice under this Act; (d) any written comments received by the Minister in relation to the application; (e) any report given to the Department by the applicant under section 62; (f) the object of this Act; (g) any other matters the Minister thinks relevant. (3) If the Minister receives one or more notices in response in relation to an application, the Minister must have regard to the following in deciding the application: (a) the outcome of negotiations, as notified by the applicant under paragraph 32(2)(b); (b) 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; (c) whether those passengers or cargo can be carried on the expected loading dates or within 5 days before or after the relevant date; (d) if the application relates to the carriage of cargo - the reasonable requirements of a shipper of the kind of cargo specified in the application. (emphasis added) 13 The Minister had to determine the number of voyages authorised by any temporary licence he granted and the licence was valid for 12 months (s 35(1)). Next, s 35(2) provided that, if the Minister granted an application for a temporary licence, he had to cause specific information to be published on the Department's website as to the temporary licence number, the day the licence commenced and the matters that were also specified in s 37(2)(f), (i), (k), (l), (m), (n), (o) and (p) namely, the date that the licence commenced, the loading dates, the kinds and volume of cargo authorised to be carried under the licence, the authorised ports of loading and discharge, that the licence was subject to the conditions set out in s 40, and any additional conditions imposed under s 41, together with any other matters prescribed in the regulations. 14 If the Minister did not make a decision within the time period provided in s 34(4) and (5), then s 36 deemed the Minister to have granted the application for a temporary licence and to have "determined that the matters specified in the application are authorised by the licence". As soon as practical after an application was actually, or deemed to have been, granted, the Minister had to give the applicant a temporary licence (s 37(1)) and, relevantly, the licence had to specify the date that the licence commenced, the expected loading dates, the kinds and volume of cargo authorised to be carried under the licence, all of which are "subject to acceptable tolerance limits", the authorised ports of loading and discharge, that the licence was subject to the conditions set out in s 40 and any additional conditions imposed under s 41 and any matters prescribed in the regulations (s 37(2)(e)-(p)). 15 The definition of the expression "acceptable tolerance limits" in s 6(1) provided that the expression meant, in respect of a "loading date" (itself defined as meaning "the date passengers or cargo are expected to be loaded on board a vessel"), "5 days before or after the loading date" and in respect of cargo authorised to be carried on a vessel under a temporary licence, "not more than 20% more, or less, of the volume of cargo authorised to be carried under the licence". 16 A temporary licence was subject to a number of conditions imposed by s 40, including that any vessel used to undertake a voyage authorised by it had to be registered either in the international register or under the law of a foreign country (s 40(a)). The Minister, by force of s 41, could impose and vary additional conditions that were not inconsistent with s 40. And s 37(3) provided that, if the Minister granted a temporary licence, he had to give written notice of the decision to each general licence holder who had given a notice in response under s 31 as soon as practicable. 17 A person could apply, under Subdiv C of Div 2 of Pt 4, for the variation of existing matters authorised by a temporary licence (ss 43-49), or under Subdiv D for a temporary licence to be varied to include new matters that were not already authorised by the licence (ss 50-58). Those two subdivisions prescribed different processes for dealing with the respective basis on which a variation could be sought. 18 Importantly, an application under Subdiv C had to comply with s 43 that, relevantly, provided: 43 Application to vary matters authorised by temporary licence (1) A person may apply to the Minister for a variation of a matter authorised by a temporary licence other than a matter authorising a voyage that the Secretary has been notified is not going to be undertaken. (2) The application must: (a) be in writing; and (b) specify: (i) the matter authorised by the temporary licence that the applicant wishes to vary; and (ii) how the applicant wishes to vary that matter; (emphasis added) 19 Ordinarily, s 43(3)(b) provided that such an application could be made at any time before the temporary licence holder had to comply with the requirement of s 61 that it give the Minister written notice of particular matters at least two business days before the actual loading date. As soon as the Minister received a variation application under s 43, he had to notify it to every general licence holder and the other persons referred to in [9] above (s 45(1)). 20 A general licence holder had to notify the Minister within 24 hours if the proposed variation "could be accommodated by a voyage to be undertaken" under that holder's licence (s 45(2) and (3)). The Minister had to have regard to that fact in deciding whether to grant or refuse the variation (s 46(3)) and could also have regard to a number of other matters under s 46(2), including whether the applicant had previously applied for a variation of a temporary licence under Subdiv C or D, as well as the object of the Act (s 46(2)(b), (f)). The Minister had to decide a variation application made under Subdiv C within two business days after it was made (s 46(4)). If the Minister granted a variation, he had to cause details of it to be published on the Department's website (s 47) and issue a varied licence that set out the matters prescribed in s 37(2) (s 48). 21 In contrast to Subdiv C, Subdiv D operated differently, and commenced with ss 50 and 51 that relevantly provided: 50 Application of Subdivision This Subdivision applies if a holder of a temporary licence proposes to vary the licence to include a matter not already authorised by the licence. 51 Application to vary temporary licence (1) A holder of a temporary licence may apply to the Minister for a variation of the licence. (2) The application must be in writing and specify the following: (a) the number of voyages, which must be 5 or more, to be authorised by the licence; (b) the expected loading dates; (c) the number of passengers expected to be carried; (d) the kinds and volume of cargo expected to be carried (if any); (e) the type and size, or type and capacity, of the vessel to be used to carry the passengers or cargo (if known); (f) the ports at which the passengers or cargo are expected to be taken on board; (g) the ports at which the passengers are expected to disembark or the cargo is expected to be unloaded; (h) such other information as is prescribed by the regulations. (emphasis added) 22 The provisions of s 51(2) repeated word for word those of s 28(2) other than s 28(2)(ea). The applicant could withdraw the application at any time before the Minister decided it (s 52). The process prescribed by ss 30-34 applied to variation applications under s 51(1) except that s 53 also enabled the Minister to have regard to whether the applicant had previously applied for a variation under Subdivs C or D. Ordinarily, the Minister had to decide a variation application made under Subdiv D within seven days of its being made (s 54(1)) and, if he granted it, had to publish details of the variation on the Department's website as well as issuing a varied licence (ss 55, 57). 23 Next, Subdivs E and F dealt with cancellation of temporary licences and miscellaneous matters. A temporary licence holder had to give the Minister written notice at least two business days before the actual loading date for a voyage authorised by the licence of the vessel that would be used to undertake the voyage, evidence that that vessel was registered on the international register or under the law of a foreign country, the date of the voyage, the kinds and volume of cargo to be carried during the voyage and the ports of loading and discharge (s 61). The holder had to give the Department similar information not later than 10 business days after the voyage had been completed (s 62). 24 The Minister could issue a show cause notice to the holder if he believed on reasonable grounds that a condition of a temporary licence had been contravened (s 59(1)). The Minister could also act under s 63(1) which provided that the Minister may give a temporary licence holder a notice to show cause why a licence should not be cancelled if he considers that "the temporary licence is being used in a way that circumvents the purpose of the general licence provisions or the object of this Act", having regard to the number of voyages and loading dates authorised, the loading and discharging ports, any variation or number of variations of the temporary licence together with the provisions of Div 1 of Pt 4 that deal with the grant of general licences. 25 In addition, s 83 created liability for a civil penalty as follows: 83 Engaging in coastal trading without licence A person contravenes this section if: (a) the person is: (i) the owner, charterer, master or agent of a vessel; or (ii) a shipper in relation to a vessel; and (b) the vessel is used to engage in coastal trading; and (c) the vessel is not authorised by a licence to be used to engage in coastal trading; and (d) neither of the following apply: (i) the vessel is not subject to an exemption under section 11; (ii) the person is not subject to an exemption under section 11. Civil penalty: (a) for an individual - 300 penalty units; and (b) for a body corporate - 1,500 penalty units. (emphasis added) 26 A person was not liable to have a civil penalty order imposed if, at or before the time of the conduct constituting the contravention, the person considered whether or not facts existed and was under a mistaken, but reasonable, belief about those facts and, had those facts existed, the conduct would not have constituted such a contravention (s 95(1)).

The general evidentiary background 27 Mr a'Beckett said in his affidavit that he worked actively as a shipbroker himself, as well as managing Braemar's business and 36 staff. He said that he had attended a seminar in Melbourne in June 2012 with other shipbrokers, agents, charters and shipowners as well as an officer of the Department, Pauline Sullivan. 28 During the seminar, someone asked Ms Sullivan about the position if a person had only two or three coastal voyages to perform when the new requirement, that would come into force under the Coastal Trading Act commenced on 1 July 2012, was that a temporary licence had to be for no less than five voyages. Mr a'Beckett said that Ms Sullivan had responded that the person would have to "find a shipbroker". He said that he understood her to have meant that shipbrokers would have a temporary licence and shippers with two or three coastal cargoes would be able to use it. Mr a'Beckett said that the Government delegates also told the seminar participants that they should refer to the wording of the Coastal Trading Act and that he subsequently did so. 29 Mr a'Beckett said that, once the Coastal Trading Act commenced, he received enquiries from clients "on the cargo side" who were confused about how the legislation operated and concerned that they did not know their exact cargo requirements for the forthcoming year. He said that the clients were concerned that they might somehow be penalised or refused a temporary licence in the future, or that if they lost such a licence, they would not be able to load or discharge cargoes. He also said that clients raised concerns whether a general licensee's vessel, if available, might not be suitable to carry their cargo due to her age or the condition of her hold or that she may not be accepted by a port. Mr a'Beckett said that he also had received enquiries from foreign companies, including shipowners, who were concerned about the new legislative regime and its potential impact on their businesses, especially the requirement of a minimum of five voyages for a temporary licence which he said was unique to Australia. He said that he caused Braemar to apply on 21 August 2012 for the temporary licence to assist its clients.

Braemer applies for a temporary licence 30 On 21 August 2012, Mr a'Beckett sent an email to the Department attaching a completed form that the Department had prepared headed "Application for Temporary Licence or Variation to Temporary Licence" (the application form). Significantly, and given the provisions of s 28(1) of the Coastal Trading Act, inexplicably, the printed application form did not contain any requirement that an applicant identify the capacity in which it sought a temporary licence, i.e. whether it was the owner, charterer, master or agent of a vessel or a shipper. However, it did require the applicant to supply or apply for a client reference number or CRN. 31 Only when the Minister filed his written submissions on 17 April 2014, shortly before the hearing, did he or Braemar reveal that Braemar had also applied on 21 August 2012 for, and received, a client registration number (a CRN application form). The Department's form for that application had five boxes for the various operator types under s 28(1) requiring the applicant to identify, by ticking each that applied to it, whether it was a vessel operator, vessel charterer, vessel master, "agent of the vessel" or shipper. However, the CRN application form did not provide for or require the applicant to identify any vessel by name in respect of which the application was made. Mr a'Beckett signed Braemar's CRN application, ticking the box "agent of the vessel". That CRN form contained a declaration by the applicant that "I undertake to ensure that the information provided in this form is true and correct". 32 Braemar's counsel conceded at the hearing that, at the time that Mr a'Beckett signed and lodged the CRN application form, Braemar had no principal for which it was then acting. It was common ground that neither the CRN application form nor the information in it as to the capacity in which Braemar had applied was before any of the delegates who made the decisions complained of. CSL tendered Braemar's CRN application form at the hearing as evidence in support of its claim for a declaration that Braemar had used the temporary licence in a way that circumvented the purpose of the general licence provisions or the object of the Coastal Trading Act within the meaning of s 63(1). I admitted the document but limited its use under s 136 of the Evidence Act 1995 (Cth) to the issue for which CSL had tendered it. 33 Braemar's application form for the temporary licence of 21 August 2012 had no detail in the client reference number box. The form listed 17 proposed voyages, each of which was for dry bulk cargoes variously described as grains, concentrates and "other" for various volumes ranging between 5,000 metric tonnes and 30,000 metric tonnes. The form nominated individual Australian loading and discharge ports for each of those 17 voyages on expected loading dates between 10 November 2012 and 25 August 2013. Columns 9, 10 and 11 on the application form required the applicant to provide details, if known, of the vessel's name, type and gross tonnes capacity or size. Mr a'Beckett filled in those details for each voyage with the abbreviation "TBN", meaning "to be notified". He completed the form including the declaration by the applicant that stated, among other matters: I declare that I am authorised to apply for a licence for the vessel to engage in coastal trading and submit this application for the licence. I undertake to ensure that the information provided in this form is true and correct. … I undertake to ensure that all requirements of the relevant Act and associated Regulations will be complied with. (emphasis added) 34 The application form also informed applicants that they had to comply "with all disclosures as set out in the [Coastal Trading] Act". An officer of the Department inserted Braemar's client reference number into the blank box on the form that Mr a'Beckett had submitted. 35 On 24 August 2012, the Department notified general licensees, including CSL, of Braemar's application, stating that it had been received on the same day, and provided the details directly from the form of the 17 proposed voyages relating to the descriptions of the cargoes tonnages, ports of loading and discharge and loading dates. 36 On 28 August 2012, the Maritime Union of Australia emailed the Department, making a submission under s 34(2) of the Coastal Trading Act that the application notified not be granted in respect of each of the 17 voyages because there were sufficient ships operated by general licensees (including those with transitional general licences) to carry the cargoes. 37 Officers of the Department filled in details in an internal checklist relating to Braemar's application that noted all steps in the check list had been completed, including that Braemar had a client reference number. Then, on 3 September 2012, a delegate of the Minister completed a decision record form granting Braemar's application for a temporary licence in full. That form contained a note from a supervisor that Braemar's application met legislative requirements. On 4 September 2012, the Department notified Braemar that its application had been granted. 38 The licence commenced on 3 September 2012 and remained in force until 2 September 2012. It authorised each of the 17 voyages nominated by Braemar, giving each a number between 1208041001 and 1208041017. (I will refer to the voyages in the various documents, where relevant, by number but omitting the prefatory details of the Departmental number indicative of the year (12), month (08) and client reference number (041)). Each of the 17 voyages in the licence was for the respective fictitious cargo description, loading and discharge ports, volume and loading dates for which Braemar had applied. 39 Mr a'Beckett said that he had made himself familiar with the provisions and object of the Coastal Trading Act and that he knew that a general licence holder had the right to seek to carry out any voyage or voyages sought to be included in a temporary licence. He accepted that, at the time he made the original application, there was no one with whom the general licensee could negotiate for any of the voyages. He agreed that none of the voyages, at the time of the original application, was a genuine or real one but asserted that "they were my best guess based on my knowledge of the industry". 40 For example, voyages 5 and 6 proposed the transport of two cargoes of 25,000 metric tonnes each of grains respectively from Esperance on 10 January 2013 and from Albany on 15 January 2013 to Melbourne, even though Mr a'Beckett knew that there was no bulk discharge facility at the Port of Melbourne at which such a cargo could be unloaded. He accepted that the discharge of two cargoes of 25,000 metric tonnes of grain into hoppers and trucks would have involved over 2,000 movements of trucks with a carrying capacity of 20 to 30 tonnes each. 41 Mr a'Beckett asserted in his affidavit that his original similar description of voyage 23 in the 22 March 2013 application, to which I will come in more detail below, was justified from his knowledge that a need arises for grain cargoes when a drought or flood occurred on the East coast of Australia and crops cannot be harvested there. He said that in such cases, the cargo was usually shipped from Western Australia. He said that the need for a grain cargo was expected and it was reasonable, to his mind, to include that voyage description. He said that he had seen grain discharged in Melbourne on several occasions. 42 While I accept that Mr a'Beckett had seen previous discharges of grain at Melbourne, I reject his evidence as an explanation of submitting fictitious details for voyage 23 in the variation application of 22 March 2013 or the earlier fictitious details for voyages 5 and 6 in the 21 August 2012 application. He knew that those details were not true or correct when submitting them. 43 Significantly, Mr a'Beckett also admitted that not one of the 17 voyages for which Braemar applied and was granted in the temporary licence was ever performed. He had intended to seek a variation of the temporary licence as and when he found a carrier or shipper which was or became a client of Braemer and had, or needed, a ship or cargo that could utilise a voyage provided under the temporary licence if it were varied to conform with the by then proposed actual voyage. And that is what Braemer did over the currency of the temporary licence by applying to the Department to convert the fictitious voyages into real ones with actual vessels and different but real voyages, cargoes, tonnages, ports of loading and discharge and loading dates.

The 2 April 2013 variation 44 On 22 March 2013, Mr a'Beckett completed an application form seeking to add a further seven voyages to its temporary licence. He provided fictitious details in the application form for each of those voyages stating that they were for dry bulk cargoes of grains, concentrates or "other", between identified loading and discharge ports for volumes ranging between 1,200 to 20,000 metric tonnes with loading dates between 10 June 2013 and 20 August 2013. Mr a'Beckett again filled in "TBN" in respect of the columns for the vessel's name, type and gross tonnage. 45 In cross-examination, he explained that the information that he had provided in the original and variation applications was true and correct because it was "my best guess at the time of what we expected to happen". For example, he, on behalf of Braemar, had said that the sixth new voyage, which became voyage 23 on the varied licence, was for carriage of a cargo of 20,000 metric tonnes of grains from Albany to Melbourne with an expected loading date of 15 August 2013. Once again those details were fictitious. 46 On 25 March 2013, the Department gave notice of the variation application with details of the seven new voyages to persons under s 30 of the Coastal Trading Act. The Union again objected to the grant of the variation in its email of 27 March 2013. It expressed its concern that the temporary licence holder, which it believed to be identified by a licence number that, in fact, was Braemar's, had been using variations under Subdiv C instead of Subdiv D to change significant aspects of its licence at short notice. The Union noted that it had raised those concerns with the Minister on 23 November 2012 and the Department on 21 February 2013. The Union again stated that general licence holders' ships could perform the proposed voyages. In fact, this particular application had been made under Subdiv D. 47 On 2 April 2013, the delegate granted, and the Department sent, Braemar its varied temporary licence that included the seven new voyages for which it had applied. The delegate's decision record for that grant noted "no contentious issues", despite the Union's email. 48 The varied licence recorded that, by then, each of voyages 1, 2, 4, 5, 8, 9, 10, 11 and 14 had been varied in respect of authorised matters to reflect real voyages in respect of cargoes ranging between 145 and 45,000 tonnes. Voyages 12, 13, 15, 16 and 17 had not then been varied, but the first of those had a specified loading date of 25 April 2013. The remaining voyages (3, 6 and 7) appear to have been abandoned. Instead of the cargo of bulk grain from Esperance to Melbourne, the actual voyage 5 had involved a cargo of 2,000 tonnes of iron ore carried from Whyalla to Bell Bay in combination with a cargo of 22,000 tonnes of coke breeze and nut coke loaded on 12 October 2012 on the same ship under voyage 1.

The 9 July 2013 variation 49 On 5 July 2013, Braemar lodged an application for variation of its temporary licence under Subdiv C in respect of authorised matters for voyage 23. That application sought to vary the fictitious authorised voyage to carry 20,000 tonnes of grains from Albany to Melbourne loading on 15 August 2013, to a voyage carrying 45,000 tonnes of coal from Port Kembla to Whyalla with an expected loading date of 2 August 2013. 50 A delegate granted that variation application on 9 July 2013. The temporary licence, as varied on 9 July 2013, authorised 21 voyages, four of which, including voyage 23, were yet to be performed. 51 Mr a'Beckett said in his affidavit that the amendment in the variation application of 5 July 2013 that he made to the cargo description from grain to coal for voyage 23, like all the variations he made, "was done purely to manage the paperwork internally and with the government, and in order for Braemar to monitor how many voyages it had left on the temporary licence and whether it needed to apply for more, or inform the government if any of the voyages had expired". He explained that Braemar had received a request from OneSteel Manufacturing Pty Ltd to vary one of the voyages in the temporary licence to suit carriage of a cargo of 43,000 tonnes of coal from Port Kembla to Whyalla. He said that OneSteel had offered that cargo to CSL but that it did not have a vessel available to suit the laycan that OneSteel required. After Braemar obtained the 9 July 2013 variation, he said that it had assisted OneSteel to charter Pacific Honour to lift the cargo. 52 None of the performed voyages referred to in the varied temporary licence granted on 9 July 2013 resembled those for which Braemar had originally applied and been granted the respective temporary licence or variation. For example, voyages 21 and 22 were originally granted respectively for 1,500 and 1,400 tonnes of "other" cargo from Fremantle to Darwin loading on 30 July 2013 and 10 August 2013. However, the 9 July 2013 version of the temporary licence recorded voyage 21 as being for the carriage of 50 tonnes of machinery from Dampier to Darwin loading on 8 July 2013 and voyage 22 as being for the carriage of 48,000 tonnes of coal from Gladstone to Whyalla loading on 19 July 2013. 53 In the event, voyage 23 did not proceed. Shortly after the 9 July 2013 variation was granted, CSL commenced separate proceedings in this Court against the Minister and OneSteel. On 19 July 2013, I granted CSL leave to join Braemar as a defendant to those proceedings and made interlocutory orders restraining the Minister from making or continuing any publication of the variation of Braemar's temporary licence that included the amended voyage 23 and restraining OneSteel and Braemar from undertaking that voyage. 54 On 22 July 2013, One Steel informed the Court that it did not intend to proceed with voyage 23. I ordered the Minister to pay CSL's costs of those proceedings.

The respondents' submissions 55 Both the Minister and Braemar contended that CSL was not entitled to any relief. The Minister's arguments were based solely on the construction of the Coastal Trading Act advanced by CSL. Braemar adopted the Minister's submissions and also contended that, on the facts, CSL's claims ought to fail. 56 The Minister argued that the status of the applicant for a temporary licence as falling within one of the categories in s 28(1) of the Coastal Trading Act was not a jurisdictional fact. He submitted that the grant of each of the temporary licence and the 2 April 2013 variation was valid notwithstanding the fact that Braemar did not have any status under s 28(1) qualifying it to make either of the applications for those grants. He contended that nothing in s 28(1) precluded a shipping agent making an application on behalf of any of the persons to whom the subsection referred. 57 The Minister argued that the scheme of the Act did not suggest that satisfaction of a criterion in s 28(1) was a jurisdictional fact having regard to the tight time frames in the legislation, the requirements for publication of the grant of a temporary licence, the object of the Act, the interests of third parties and the supply chain serviced by coastal trading and the consequence that if a temporary licence holder were not a person within the status in s 28(1) when making the application the actual owner, charterer, master, agent of the vessel and shipper would become liable to a civil penalty under s 83. He argued that that liability was strict unless the person could establish the defence of mistake of fact provided by s 95. 58 The Minister also contended that the statuses referred to in s 28(1) were questions of fact and degree. Indeed, the Minister went so far as to suggest that the Hamburg Rules (being the United Nations Convention on the Carriage of Goods by Sea, that was Annex 1 of the Final Act of the United Nations Conference on the Carriage of Goods by Sea done at Hamburg on 31 March 1978 and set out as Sch 2 to the Carriage of Goods by Sea Act 1991 (Cth) (COGSA) when enacted) assisted in demonstrating the difficulty that the Minister would have in ascertaining if a person was a shipper within the meaning of s 28(1)(b). He also drew attention to cases such as The Ship "Gem of Safaga" v Euroceanica (UK) Ltd (2010) 182 FCR 27, where the issue of whether a person was an owner of a ship was a jurisdictional fact under s 19 of the Admiralty Act 1988 (Cth). The Minister contended that CSL's argument involved an implication that the Minister be satisfied that the applicant had a status within s 28(1) and that if such an implication were made, it less likely that the satisfaction of the Minister was intended by the Parliament to be a jurisdictional fact. 59 Next, the Minister argued that the 9 July 2013 variation had been made validly under Subdiv C because changes to the cargo to be carried, ports of loading and discharge, tonnage and expected loading dates related to matters authorised by a temporary licence within the meaning of s 43(1) and not amount to the inclusion of new matters not already authorised by it within the meaning of s 50. He contended that the only circumstance in which details of a voyage already authorised could not be varied under Subdiv C was for a voyage that the Secretary had been advised under s 40(ca) was not going to be undertaken. He pointed to the absence of a time limit for a notification to be made under s 40(ca) as indicative of the wide scope for a variation before any such notification in respect of any uncommenced voyage. 60 The Minister argued that s 37(2)(d) required the temporary licence to specify the number of voyages that it authorised. He contended that the number of voyages was distinct from other matters referred to in s 37(2) that the temporary licence had to specify, such as the ports between which those voyages occurred the kinds and volumes of cargoes and the dates of loading and unloading (s 37(2)(e)-(l)). He submitted that the application process involved the applicant seeking permission for a number of future matters that were expected to occur but were not necessarily certain. Thus, the argument ran, when the Minister granted a temporary licence it could be expected that some of the matters that it specified over its 12 month course might change as the dates for performance of the voyages approached. Hence, he contended, Subdiv C facilitated changing the matters specified pursuant to s 37(2)(e)-(l) but not the number of voyages specified under s 37(2)(d). 61 The Minister submitted that every variation of a matter previously authorised necessarily would be of a change to the nature of the voyage and that a narrow interpretation of what Subdiv C permitted to be varied would leave the subdivision with no work to do. He also argued that, conversely, an expansive interpretation of a matter not already authorised by the licence in s 50 would also render Subdiv C otiose. He relied on the Explanatory Memorandum for the Bill that became the Coastal Trading Act as supporting the construction for which he contended, namely that Subdiv D was intended to deal with applications to add to the number of voyages authorised by the temporary licence. The passages in the Revised Explanatory Memorandum to which the Minister referred stated that the Bill provided for: - variation of matters already authorised by the temporary licence which is in force - for example, a temporary licence is authorised to undertake 8 voyages, 5 voyages have been undertaken but there will be changes in the port routes for the last two; - variation of a temporary licence in force for matters not yet authorised - in the example above, if the holder of the temporary licence needs to increase the number of voyages, he or she applies for a variation for matters not yet authorised. 62 The Supplementary Explanatory Memorandum stated that what became s 40(ca) relieved a temporary licence holder from having to seek a variation "if a voyage authorised was not undertaken and the licence holder has informed the Secretary (or delegate) of that fact and reasons". 63 Last, the Minister contended that the variation of voyage 23 authorised by the 9 July 2013 variation did not invalidate the temporary licence. He submitted that the only matter that s 28(2) required to be specified with certainty in an application was the number of voyages to be undertaken as s 28(2)(a) provided. He contrasted this with the descriptions of matters in s 28(2)(b), (c), (d), (f) and (g) as being "expected" and in s 28(2)(e) and (ea) as concerning the vessel "(if known)". He argued that the "expected" matters and any unknown ones at the time of the application for the temporary licence were the very matters that s 43(1) contemplated would be capable of variation under Subdiv C, rather than Subdiv D. 64 The Minister submitted that issues as to the genuineness of the expectations referred to in s 28(2) did not go to validity. Rather, he submitted, ss 34(2), 46(2)(b) and 63 suggested that this was a factor that the Minister was entitled to have regard to in deciding whether or not to grant a temporary licence, or a variation to it or to issue a show cause notice. 65 Braemar argued, in addition, that even if CSL had established a jurisdictional error, it should not be granted relief because there was no utility in doing so. It contended that all voyages authorised by the temporary licence had occurred and the form of declaration sought by CSL based on s 63 was defective. It submitted that it had been entitled to act as it had in making the applications complained of. Braemar argued that Mr a'Beckett had a genuine belief in his best guesses that he had used on behalf of Braemar in making those applications and that such a belief was sufficient to support them as valid.

Consideration - jurisdictional fact 66 The task of statutory construction begins and ends with a consideration of the statutory text, in its context, including its legislative history and extrinsic materials. That context will be useful if it assists in arriving at the meaning of the words, but cannot displace that meaning: FCT v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ. 67 In City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148 [28], Gleeson CJ, Gummow, Kirby and Hayne JJ discussed the various ways in which a statutory criterion can be characterised as jurisdictional fact, saying: The term "jurisdictional fact" (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. 68 It is a question of statutory construction whether the decision-maker has power to decide if he, she or it thinks that the criterion exists so that he, she or it may then exercise the power or if the criterion must, in fact, exist, as Lord Atkin famously explained in Liversidge v Anderson [1942] AC 206 at 245; see Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration case) (2011) 244 CLR 144 at 194 [109] per Gummow, Hayne, Crennan and Bell JJ. 69 I reject the arguments of the Minister and Braemar that a person's status was not a jurisdictional fact for the grant of a temporary licence within the meaning of s 28(1). The question whether a person answers a criterion of having a status stipulated in s 28(1) is not one that involves, in the ordinary course, any, let alone any substantive, issues of fact and degree of the kind considered in cases such as Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, see at 301 and 306 per Dawson, Gaudron, McHugh, Gummow and Kirby JJ. Section 28(1)(a) identified four categories of person, each of whom had to be connected to an actual vessel. A person cannot be the owner of an unknown vessel. Importantly, the expressions "owner" and "master" as defined in s 6(1) of the Coastal Trading Act applied specifically in relation to a particular vessel or vessels. 70 The argument that some difficulty would exist in the Minister determining whether that a person was the owner, charterer, master or agent of a vessel is without substance. In the ordinary course, a person who sought a temporary licence because he, she or it had one of the four statuses in s 28(1)(a) could readily satisfy any enquiry about that status. Very similar criteria of status applied to an applicant for the grant of a general licence under s 13(1)(b)(i) in respect of a particular identified vessel being "the owner, charterer, master or agent of the vessel". 71 The express words of s 28(1)(a) made the identification of an actual vessel or vessels a necessary element that the applicant had to possess. A person with overall general control and management of a fleet of vessels is an "owner" of each of them within the meaning of par (b) in the definition of "owner". The purpose of the phrase "(if known)", when used in relation to a vessel in s 28(2)(e) and (ea), was to deal with the position of a shipper who applied under s 28(1)(b) and may have had a need for the temporary licence but had not then contractually committed to a fixture or fixtures. A shipper of cargo is in a very different position, in relation to the identity of a vessel or vessels, from an owner, charterer, master or agent of an identified vessel or vessels. 72 An owner of a ship ordinarily could be expected to establish the fact that he, she or it is its "owner" within the meaning of s 6(1) without difficulty. The criteria in the definition of "owner" had a purpose of specifying what relationship a person had to have with a particular vessel to be able to exercise the right to make an application for a licence under the Coastal Trading Act in the capacity of "owner". The parties did not identify any other purpose for the Parliament having chosen to define "owner". The definition was sufficiently broad and practical to allow charterers, frequently called "disponent owners" because of their control of the commercial operation of a ship (see Laemthong International Lines Co Ltd v BPS Shipping Ltd (1997) 190 CLR 181 at 198 n53 per Gaudron, Gummow and Kirby JJ) and shipping lines with fleets in which ships were owned by one ship companies, to make applications in respect of such ships as owners. The definition was a practical one that could readily be applied by a Minister responsible for, and whom the Parliament assumed would be familiar with, the day to day incidents of Australia's very large national and international maritime trade. 73 The owner, charterer, master or agent of a vessel had to apply for a temporary licence under s 28(1) to enable that vessel to be used to engage in coastal trading. The chapeau to s 28(1) used the expression "if the person is" before setting out the two classes of status in paragraphs (a) and (b). The word "is", in that conditional clause, prescribed a presently existing fact. 74 The liability for a civil penalty created by s 83(1) again distinguished in s 83(1)(a) between the two classes of statuses identified in s 28(1) by repeating in s 83(1)(a)(i) the four statuses of "the owner, character, master or agent of a vessel". In contrast, s 83(1)(a)(ii) made clear that in order to attract liability a shipper had to be "a shipper in relation to a vessel". The words just emphasised did not form part of the status in s 28(1)(b), no doubt because at the time of making an application for a temporary licence, the shipper may not have had in mind, and was not required to specify, any particular vessel. 75 The object of the Coastal Trading Act was to provide a particular regulatory framework. The Minister was the regulator. His functions under the Act included licencing persons to trade on the Australian coast by reference to, among other matters, their status to seek a licence. The natural and ordinary meaning of s 28(1), and s 13(1)(a) was that an applicant for a licence actually had to have that statutory status to be granted a licence. The Act defined the terms "owner" and "master". 76 I reject the Minister's argument that s 28(1) contains an implication that the Minister be satisfied as to an applicant's status to make the application. I am of opinion that there is no basis on which to make such an implication. The plain words of s 28(1) are that five classes of persons may make an application for a temporary licence. The section does not provide that if the Minister is satisfied about the applicant falling within one of those classes, he may grant the licence. It prescribes a mandatory qualification that an applicant must have in order to apply for a licence. 77 The definition of owner in s 6(1) did not draw on the way in which the undefined word "owner" is used in the Admiralty Act that now has a settled meaning as Allsop CJ, with whom McKerracher J agreed, and I explained in Shagang Shipping Co Ltd v Ship "BULK PEACE" as surrogate for the Ship "DONG-A ASTREA" [2014] FCAFC 48 at [19], [47]; see too Gem of Safaga 182 FCR at 32-33 [15]-[18] per Besanko J with whom Ryan and Jagot JJ agreed. The definition of "owner" in the Coastal Trading Act is wider and more commercially practical than that in the Admiralty Act. 78 Ordinarily, a copy of a charterparty or recap would satisfy an enquiry about a person's status as charterer. Likewise, the appointment of a person as a master or agent of a particular ship is readily demonstrable by a document identifying that fact. A master will be an employee who can be expected to be able readily to produce satisfactory evidence of his or her status, as will any agent. The "agent" of a vessel or a ship's agent is a well-recognised term in the maritime industry. Ordinarily, a ship's agent is a person who looks after the interests of a ship on behalf of her owner or charterer while she is in port: cf Scrutton on Charterparties and Bills of Lading (20th ed; Sweet & Maxwell, 1996) at 51, Art 23 n48 citing Cosmar Compania Naviera SA v Total Transport Corporation (The "Isabelle") [1982] 2 Lloyd's Rep 81 at 86 per Robert Goff J, whose reasons were adopted by Donaldson MR, Griffiths and Stephen Brown LJJ in dismissing the appeal: [1984] 1 Lloyd's Rep 366 at 368. The sense in which the expression "agent of a vessel" is used in s 28(1)(a) includes that class of agency as well as any other in which the person acting as agent is doing so with the authority of the owner within the meaning of "owner" in s 6(1). 79 A shipper of enough cargo to warrant the issue of a temporary licence of not less than five voyages, in 12 months could be expected to have a sufficiently established business as to evidence, without any difficulty, its status. Shippers are not likely to need the authority conferred by a temporary licence to charter a ship to engage in coastal trading to move insignificant cargoes. 80 The definition of "shipper" in the Hamburg Rules had no relevance to the meaning of that word in the Coastal Trading Act. First, a "shipper" for the purposes of s 28(1)(b) the Coastal Trading Act is a person who wishes to have cargo or cargoes carried on vessels in the coastal trade on not less than five voyages. The shipper's requirements for the carriage of his, her or its cargo are mandatory considerations for the negotiations that s 32 required an applicant shipper to have for a temporary licence a general licence holder which had given a notice in response under s 31. Secondly, the amended Hague Rules continue to have force of law in Australia and the Minister did not replace them with the Hamburg Rules under s 2A of the COGSA as originally enacted, no doubt because the Hamburg Rules did not attract international support. 81 The Minister must have regard, pursuant to s 34(3)(d), to the reasonable requirements of a shipper of the kind of cargo specified in the application for a temporary licence in deciding whether to grant it. The respondents did not explain how the Minister could perform his mandatory functions of considering the notification of the outcome of negotiations and the reasonable requirements of a shipper of the kind of cargo under s 34(3)(a) and (d), if he could not ascertain whether, in a case to which s 28(1)(b) applied, the applicant was, in fact, a shipper. Clearly enough, an applicant shipper's application for a temporary licence must be connected to cargo of a particular kind, as s 34(3)(d) required. 82 The scheme of the Coastal Trading Act did not suggest that a "shipper" who was applying under s 28(1)(b) could have no actual cargo in mind that he, she or it wished to have carried. The purpose of the notification and publication provisions and the requirement for negotiations under s 32 was to ascertain whether any existing general licence holder could carry that cargo or those cargoes, including the cargo of applicant shippers, without the need to issue a temporary licence to that shipper to do so itself. 83 Moreover, if the Minister had any difficulty in ascertaining the status of an applicant, he had power under s 77(1) of the Coastal Trading Act to give a written notice requiring, relevantly, that applicant to provide any further information that he needed to decide an application under ss 28 or 51. That power enabled the Minister to clarify the status of an applicant for the purpose of determining whether the applicant satisfied that criterion in s 28(1). 84 Ordinarily, there will be little difficulty in ascertaining whether a person who has applied for a temporary licence is a person with one of the statuses specified in s 28(1). The grant of a temporary licence creates both an authority for its holder to use a vessel or vessels on voyages in the coastal trade that would not otherwise exist and an actual or potential diminution in the rights of all general licences to use their vessels for those voyages. One means that s 3(2)(b) prescribed for the achievement of the object of the Coastal Trading Act in s 3(1) was the scheme of the Act to ensure that a temporary licence was "limited in time and to voyages authorised by the licence". 85 For the reasons above, I am of opinion that s 28(1) specified a criterion that an applicant for a licence must make the application either in respect of a specific vessel in one of the four statuses prescribed in s 28(1)(a) or as a shipper of cargo of a particular kind as specified in ss 28(1)(b), 32(4) and 34(3)(d). 86 Braemar had no such status at any relevant time. Nor was it a shipper in any wider sense than that used in s 28(1)(b). It had no cargo then at all to put on any vessel. Had the Minister or delegate turned his or her mind to the capacity in which Braemar made its application on 21 August 2012 it would have been obvious that, first, Braemar had nothing to do with a vessel and, accordingly, could not satisfy s 28(1)(a), and, secondly, it was not a shipper of any kind of cargo within the meaning of s 28(1)(b) or a shipper at all. 87 There is no substance in the Minister's argument that the consequence of a finding that the temporary licence was invalid by reason of jurisdictional error would be the exposure of others with whom the licence holder dealt to civil penalties under s 83. The Parliament contemplated the consequences of invalidly of the temporary licence as an aspect of its creation of a civil liability for a contravention of s 83. A person who obtains a licence to which he, she or it has no entitlement under the Coastal Trading Act by a false representation and then uses that licence to engage in the coastal trade, engages in similar conduct to that of a person who does so without a licence. 88 Moreover, the defence under s 95, ordinarily, would protect third parties who dealt with a holder of a licence under the Act on the faith of the licence that the Minister had granted. A third party who dealt with the holder of an invalid licence, in most conceivable situations, would have treated the licence at face value (i.e. as valid) and formed a mistaken but reasonable belief that it, or its holder, was what it purported to be, namely a valid licence or the holder of a valid licence that authorised the conduct complained of: cf CTM v The Queen (2008) 236 CLR 440 at 445-447 [3]-[8], 456 [35] per Gleeson CJ, Gummow, Crennan and Kiefel JJ; see too Ruddock v Taylor (2005) 222 CLR 612 at 621-623 [26]-[28] per Gleeson CJ, Gummow, Hayne and Heydon JJ. It is difficult to envisage how, in ordinary commercial dealings, a person who, in good faith, dealt with a holder of a licence, that the Court subsequently found was invalidly granted, would be, first, proceeded against by the Minister under s 83, or secondly, if sued would not be able to establish a defence under s 95. 89 Accordingly, there was no factual basis on which Braemar was entitled to apply for a temporary licence under s 28(1) because it was not a person who met any of the jurisdictional criteria in s 28(1). It follows that the grant of the temporary licence to Braemar on 3 September 2012 was affected by a jurisdictional error and was not a grant at all: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

Consideration - the 2 April 2013 variation 90 The variations made to the temporary licence on 2 April 2013 were invalid for the same reason, namely jurisdictional error, because the temporary licence was not a licence at all. Braemar did not have a valid temporary licence to vary.

Consideration - the 9 July 2013 variation 91 I reject the Minister's argument that he substituted the new voyage 23 validly under Subdiv C in place of voyage 23 as specified in the 2 April 2013 variation. The new voyage 23 bore no resemblance to the previously authorised voyage. 92 The power under s 46(1) to vary a matter specified in a temporary licence pursuant to s 37(2) was not limited to the variation of one matter. That is because s 23(b) of the Acts Interpretation Act 1901 (Cth) provided that the singular includes the plural. Thus, multiple changes could be made in an application for variation to the matters under s 37(2) that a temporary licence had previously specified. 93 The power to apply for or grant a variation under Subdiv C or D depended on what was within the scope of each subdivision. Although s 50 was expressed in general terms to apply to a variation "to include a matter not already authorised by the licence", s 51(2)(a) expressly required such an application to specify "the number of voyages, which must be 5 or more, to be authorised by the licence". Indeed, s 51(2) exactly replicated the words of s 28(2) other than s 28(2)(ea). The Parliament intended, as s 50 showed, that the application for a variation under Subdiv D would apply to include a matter or matters not already authorised by the existing temporary licence. 94 Relevantly, the holder of a general licence who gave a notice in response to an application under s 51 had a right to apply to the Administrative Appeals Tribunal under s 107(5) of the Coastal Trading Act for a review of the decision by the Minister to grant such a variation to the holder. But the holder of a general licence had no corresponding right to apply to the Tribunal for a review of a decision to grant a variation under s 47. It follows that there was a substantive difference between "a variation of a matter authorised by" a temporary licence in s 43(1) and a variation "to include a matter not already authorised by" it in s 50. 95 I am of opinion that the class of variation that Subdiv C authorised could not be of a kind that was sufficiently significant that it would adversely affect the interests of a general licence holder in being able to participate in the process provided for in s 53. That is, such a variation must be one that can be seen, in context, as procedural or routine or relatively minor so that it does not alter the substantive character of the earlier authorisation. 96 Minor changes to expected loading or discharge dates, ports of loading or discharge, and the amount of cargo for one or more voyages authorised in the matters specified in the existing licence under s 37(2) could readily be seen to be a variation of a matter authorised and not to be the inclusion of a matter not already authorised. A temporary licence had to specify, pursuant to s 37(2)(f), that the expected loading dates specified under s 37(2)(e) were "subject to acceptable tolerance limits", being five days before or after the specified "loading date". And, 37(2)(j) provided that the volume of cargo also was "subject to acceptable tolerance limits", meaning not more than 20% more or less of the volume of cargo authorised under s 37(2)(i). 97 A variation would answer the description in s 43(1) if it sought an alteration that bore a reasonable relationship to the detail of matters specified in a temporary licence under s 37(2) so that it fell within the scope of the earlier detailed public process that had resulted in the grant of the licence under s 37 (or s 55). Otherwise, the variation would be one for a matter that was not already authorised by the licence within the meaning of s 50. 98 For example, suppose a variation sought to change a voyage commencing on 1 January from Newcastle to Whyalla for carriage of 45,000 tonnes of coal to a voyage commencing on 1 July from Fremantle to Brisbane for carriage of 500 passengers. The question would arise whether that was a variation of a matter authorised by a temporary licence. In substance in that example, the former authorised cargo voyage between two industrial ports in January would be transformed into a completely different voyage in terms of its timing, route and subject matter, the cargo becoming passengers. There would be no reasonable connection between the matters originally authorised for the cargo voyage and those for which the variation to a passenger voyage was sought. A general licencee of a passenger vessel would be likely not to give a notice in response to the original cargo voyage application. But, if a variation to change that voyage to one with passengers were permissible under Subdiv C, the general licence holder would have had no opportunity to negotiate under s 32(2) and no right to seek a review in the Administrative Appeals Tribunal under s 107(5). 99 The process prescribed for obtaining a temporary licence did not alert the persons that the Parliament considered were interested to the possibility that a voyage that was radically different might be undertaken in substitution for the one originally permitted pursuant to the authorisation processes in Subdivs A and C. In reality, in the example I have given, the proposed passenger voyage would be a matter that was not already authorised by the licence and thus could only be granted if the Minister followed the procedure and exercised his discretion under Subdiv D. 100 This construction is not affected by the exception in s 43(1), that a matter authorising a voyage that the Secretary had been notified under s 40(ca) would not be undertaken, did not require an application for a variation. That is because the effect of a notification under s 40(ca) was the abandonment of the authority to undertake the particular voyage. Once the holder has abandoned a voyage, the policy evinced in s 43(1) was that the voyage could be revived. That exception to s 43(1) does not entail that every other variation or combination of variations to the matters specified in an existing licence can be varied under Subdiv C. 101 I do not think that s 51(2)(a) necessarily required that five additional or extra voyages be added to the five or more voyages in the existing temporary licence when it used the same language as s 28(2)(a). Rather, the five or more voyages referred to could include all or some in the existing temporary licence that the holder subsequently sought to change in a substantive respect but which could not be varied under Subdiv C. In a real sense, different voyages of that character are new or additional voyages outside the scope of the earlier authority in the temporary licence even though, overall, the effect of the grant of a variation under Subdiv D will mean that the holder will undertake the same total number of voyages as originally authorised, but the nature of some or all of those voyages will have changed substantively. 102 If Subdiv C permitted any variation to all matters specified in a temporary licence regardless of the substantive or qualitative effect of those changes to what had been authorised originally, there would be little point in the process of publicising the original application under Subdiv A. That process involved all general licence holders being notified of specific proposed voyages, then being able to give notices in response and negotiating about the matters that the applicant wanted to have included in a temporary licence. If those matters routinely could be changed under Subdiv C to transform the authorised voyages substantively into very different voyages, the regulatory framework that the object of the Act was to provide would be subverted. 103 That is not to preclude the Minister from exercising his discretion to grant, in particular circumstances, a prompt variation under Subdiv C that, on its own, might be substantive. For example, a vessel already in, or on her way to, Australian waters, may not be able to load, discharge or sail the authorised voyage because of some matter that is outside the temporary licence holder's control, such as a cyclone, natural disaster, strike, or insolvency of the shipper, intended consignor or consignee of cargo to be carried. In such a case, the temporary licence holder may have been able to make alternative arrangements that could be accommodated by the variation of one or more matters specified in the licence under Subdiv C, even though the new voyage may be very different from the original. But, in general, in exercising his discretion to grant variations under each of Subdivs C and D, the Minister will be mindful to ensure that the purpose of the general licence provisions or object of the Coastal Trading Act not be circumvented by use of one process when the other is more appropriate. 104 Accordingly, I am of opinion that there will be questions of fact and degree that the Minister must consider in deciding whether to deal with a variation under Subdiv C or to require that it be made and processed under Subdiv D. 105 Here, Braemar's variations were all necessary because of the need for it to move from the fiction that was authorised to the reality of its clients' real needs when, ultimately, those clients were found. None of the varied voyages was a variation of an originally authorised one. Thus, voyage 23 moved from being fictitious, for carriage of 20,000 tonnes of grain from Albany to Melbourne loading on about 15 August 2013, to a real proposed voyage for carriage of 45,000 tonnes of coal from Port Kembla to Whyalla with an expected loading date of 2 August 2013. In the two versions of voyage 23, the ports of loading were on opposite sides of the country, thousands of kilometres apart, the cargoes were of very different sizes and kinds, albeit they were still in the bulk trade, and the expected dates of loading were also outside the acceptable tolerance limits, albeit not greatly. 106 However, the radical variation that Braemar sought did not amount to it giving notice within the meaning of s 40(ca) to the Secretary that the original voyage 23 authorised by the temporary licence was not going to be undertaken. That is because the requirements of s 40(ca) were not met. Braemar gave no reasons for the variations that it sought in its 5 July 2013 application and did not, in terms, address the application to the Secretary. 107 Nonetheless, the 5 July 2013 application demonstrated that the original authorised voyage 23 was not going to be undertaken. The proposed voyage 23 bore no resemblance to the one with which Braemar sought to replace it. It involved over twice as much cargo and a wholly different route for a voyage outside the originally contemplated date range. In the circumstances, there was no basis for the delegate to treat the 5 July 2013 application as one that could be granted under s 47. On its face, it sought matters that had not already been authorised within the meaning of s 50 and had to be dealt with under Subdiv D. 108 A general licence holder may not have considered it to be economically worthwhile to have given a notice in response under s 31 and negotiated under s 32 in respect of a bulk cargo of 20,000 tonnes to be carried from Albany to Melbourne because that may have underutilised its vessel or for all manner of good commercial reasons. However, a bulk cargo of more than double that size carried on a wholly different route on different dates involved potentially very different commercial and logistic considerations for a general licence holder. 109 The process for applications and variations contemplated by Subdivs A and D is intended to enable a general licence holder to make and give effect to commercial judgments about a definite proposed voyage or voyages sought by an applicant for a temporary licence or a substantive variation to it. The process contemplated by Subdiv C is for minor variations not involving such matters. 110 For these reasons, I am of opinion that the 9 July 2013 variation was invalid.

Consideration - circumvention 111 Mr a'Beckett said in his affidavit that he had noticed that the legislation made no mention of shipbrokers but that it did mention agents. He claimed that because Braemar always acted as an agent or broker, he understood that it would be acceptable for Braemar to apply for a temporary licence. I do not accept that evidence. 112 Mr a'Beckett knew that in applying for the temporary licence on 21 August 2012 he was not acting as anyone's agent, but rather as a principal in anticipation of finding a client or clients to which he could offer the benefit of voyages under the licence Braemar had secured. He knew, when submitting them, that the details of the 17 voyages in each of the original application and the seven voyages in the 22 March 2013 application were not for any genuine voyage and were not true or correct. 113 Mr a'Beckett explained how he and Braemar approached the use of the temporary licence, saying: If the cargo was to be carried under a temporary licence, the client gave Braemar authority and Braemar subsequently applied for a variation to its temporary licence so that the licence fitted the requirements of the actual voyage to be performed. 114 Having seen and heard Mr a'Beckett give evidence, I am satisfied that he knew that the details for each voyage in the 21 August 2012 application for the temporary licence and the variation application of 22 March 2013 were false. He saw a business opportunity and seized it, hoping that the Department would not investigate the bona fides of those applications. 115 Braemar subsequently changed the details of every one of the voyages for which it had applied and been granted a temporary licence and the 2 April 2013 variation. The Department did not enquire of what vessel Braemar was the agent as it had asserted in the CRN application form. That was probably due to the poor design of the temporary licence and variation application forms that did not seek the information that showed on what basis under s 28(1) the person was seeking the temporary licence or variation. 116 Mr a'Beckett said that Braemar told its clients to engage, or Braemar on their behalf engaged, with CSL prior to using the temporary licence. He said that Braemar did so because that was the only practical course given CSL's ability under Coastal Trading Act to challenge any variation application. He said that Braemar "held its temporary licence for the sole use of its clients". 117 I reject Mr a'Beckett's assertion that Braemar had never sought to circumvent the purpose of the general licence provisions or the object of the Coastal Trading Act and that he believed that Braemar was acting in accordance with the legislation. He said, and I accept, that he considered the words of the legislation before lodging the 21 August 2012 application form for a temporary licence. He also read the application forms, including the declarations that, first, the maker was authorised to make the application, knowing that Braemar was not authorised by any principal to do so, and secondly, that he undertook to ensure that the information provided in the form was true and correct, knowing that each and every voyage in the application of 21 August 2012 and the variation application of 22 March 2013 was fictitious and that he was not acting as agent of any vessel when he lodged the CRN application form on 21 August 2012. 118 Braemar knew through Mr a'Beckett that it was not entitled to apply for the temporary licence because it did not have any of the statuses in s 28(1). It and he knew that none of the information about the voyages in the 21 August 2012 and 22 March 2013 applications was true or correct. Braemar obtained and used its temporary licence and the 2 April 2013 variation knowing that it would seek ad hoc variations, as and when an opportunity to gain a business opportunity arose, to the actual or potential determent of general licence holders. Braemar used its temporary licence by seeking and using those ad hoc variations in a way that did not limit the access of a vessel under its temporary licence in time and to voyages authorised by the original licence or by any variation that had been granted based on fictitious matters (see s 3(2)(b)). 119 For the reasons I have given, Braemar used its temporary licence in a way that circumvented the purpose of the general licence provisions and the object of the Coastal Trading Act within the meaning of s 63(1). The Act did not contemplate that general licensees could have their rights interfered with by applications for temporary licences and variations based on fictitious voyages that sought to secure the holders of the temporary licences the ability to seek and obtain variations as and when they found a commercial opportunity. That is how Braemar acted.

Conclusion 120 CSL is entitled to declaratory relief to reflect the conclusions I have reached in these reasons. The grant of that relief is necessary because CSL should not be without a remedy in the circumstances exposed in evidence: CSL 221 FCR at 215 [237] per Allsop CJ, 237-238 [331]-[332] per myself. The Minister and Braemar must pay CSL's costs. I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Coastal Shipping (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012(Cth)

At a glance

Court

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Before

Source

Judgment (25 paragraphs)

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Legislation Cited (7)

Cases Cited (11)

Cited By (1)