Kalymnian Shipping Pte Ltd v Rose

REASONS FOR JUDGMENT 1 I have heard together (i) an application by Kalymnian Shipping Pte Ltd and Skonis Industries Pty Ltd for an extension of time in which to make application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"); (ii) the substantive application for an order of review; and (iii) a parallel application for relief under s 39B of the Judiciary Act 1903 (Cth). The first respondent to all three applications is Trevor Rose, who for present purposes can be described as the Chief Marine Surveyor ("the CMS") of the second respondent, the Australian Maritime Safety Authority ("the AMSA"). 2 Though it appeared at one stage as if some number of decisions were to be called into question, the matters actually in issue fall within a very narrow compass. Factual Setting 3 The applicants operate a ship, the "Kalymnian Express", that is engaged in the carriage of livestock from Australia to South East Asia. They are unable lawfully to ship livestock for export from Australia unless there is in force in respect of the ship a valid Australian Certificate for the Carriage of Livestock (an "ACCL") issued by Mr Rose in accordance with Marine Orders Part 43 ("MO43"). The relevant version of MO43 in 1999 was what is described as Issue 3. It was superseded by Issue 4 (with appropriate transitional provisions) on 1 January 2000. 4 For reasons it is unnecessary to narrate, the "Kalymnian Express" lost its certification as from 29 May 1999. Nonetheless later in the year a notice of intention to load livestock was lodged with the AMSA on its behalf. There ensued negotiations the object of which was to get an ACCL for the ship. The ship at the time was affected by a number of deficiencies that would need to be rectified before a certificate would be issued but it otherwise substantially complied with MO43. In relation to one particular matter - the height of ventilators as prescribed by MO43 provision 13.5 (set out below) - there had been an outstanding issue of non-compliance for four years. 5 In August and September 1999 what were described as "temporary permits" were issued to allow the ship to load pending the issue of an ACCL. A recommendation had been made in September 1999 that an ACCL be issued in respect of the "Kalymnian Express" when several outstanding matters (including rectification of the ventilation deficiencies) were satisfied. 6 On 22 October 1999 the AMSA wrote to Mr Skonis, a director of both applicants, in the following terms: "Reference: KALYMNIAN EXPRESS - Issue of ACCL Please find one original, and two certified copies of the Australian Certificate for the Carriage of Livestock which has been issued for the above livestock vessel. A short term certificate has been issued with an expiry date of 1 January 1999. The short term certificate is issued pending remediation action in respect of the height of the ventilator coamings on the superstructure deck which are less than 2.30 metres." Insofar as presently relevant the accompanying certificate for the ship stated: "THIS IS TO CERTIFY THAT 1. the ship has been surveyed in accordance with the requirements of Marine Orders Part 43 Issue 3. 2. the survey showed that … 3. A modification of provisions has been allowed in accordance with Section 3 of Marine Orders Part 43. THIS CERTIFICATE IS VALID until the … 1st …… day of …… JANUARY …… 2000 … … subject to annual surveys being satisfactorily completed in accordance with the requirements of Marine Orders Part 43." Appended to the certificate was a document embodying the modification of provisions referred to in clause 3 of the certificate. It stated: "The following Modification of Provisions has been allowed in accordance with Section 3 of Marine Orders Part 43 Issue 3.