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[2005] WASCA 111
Court of Appeal (WA)
2005-06-15
Smith JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : RE MARTIN; EX PARTE DIPANE [2005] WASCA 111
MATTER : An application for a Writ of Certiorari against MR GREG MARTIN, Chief Executive Officer of the Department for Planning and Infrastructure, Government of Western Australia
Administrative law - Return of order nisi for writ of certiorari - Collision at sea - Fatality and injuries - Applicant charged with criminal offences of manslaughter and causing grievous bodily harm - Criminal prosecution pending - Chief Executive Officer giving notice of intention to suspend or cancel marine certificates of competency - Whether decision should have been deferred pending resolution of criminal proceedings
Administrative law - Return of order nisi for writ of certiorari - Cancellation of certificates of competency under reg 15 of WA (Certificates of Competency and Safety Manning) Regulations 1983 - Obligation to give reasons - Whether reasons sufficient - Whether denial of natural justice - Whether decision unreasonable - Whether reg 15 imposed preconditions for exercise of discretion - Whether invalidity resulted from failure to comply with condition
Amicus Curiae : Mr G T W Tannin SC & Ms J C Pritchard
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1 STEYTLER P: I have had the advantage of reading the judgment of Roberts-Smith JA. I agree with it. There is nothing I wish to add.
2 ROBERTS-SMITH JA: This is the return of an order nisi for a writ of certiorari made by Templeman J on 14 January 2005.
3 Leave was given for Mr Tannin SC and Ms Pritchard to appear for the Attorney General of Western Australia as amicus curiae.
4 The applicant's grounds were amended by leave at the hearing. Before turning to them it is helpful to give a brief outline of the background.
5 The applicant was the skipper of a commercial fishing vessel, the "Andrea", involved in a collision at sea incident off Dunsborough on 1 May 2004. The collision was between the "Andrea" and a recreational vessel off Eagle Bay. At the time of the collision the applicant was the Master of the Andrea and was at its wheel.
6 On 30 June 2004 the Director of Public Prosecutions charged the applicant with one count of causing grievous bodily harm and one count of manslaughter, arising out of the collision.
7 At the time of the incident the applicant was the holder of three certificates of competency issued under Pt 2 of the WA Marine (Certificates of Competency and Safety Manning) Regulations 1983 ("the regulations") they being a Certificate of Competency (Skipper Grade 111), a Master Class 5 Fish Restricted Certificate and a Certificate as Coxswain of a Fishing Vessel.
8 On 26 August 2004 Mr Martin, Chief Executive Officer ("CEO") of the Department for Planning and Infrastructure ("DPI") gave notice of his intention to consider the suspension of the certificates as a result of the incident. On 17 November 2004 he gave further notice of that intention ("the suspension notice") and on 22 November 2004 gave notice of his intention to consider cancellation of the certificates ("the cancellation notice").
9 On 23 December 2004 the respondent cancelled the applicant's Certificates of Competency pursuant to reg 15 of the Regulations.
10 The criminal charges are to be heard in the District Court of Western Australia in October 2005. The applicant has entered pleas of not guilty.
"1 The Decision to cancel the applicant's Certificates before the completion of the criminal proceedings that have been brought against the applicant denied, in practice, the applicant natural justice.
2 In making the Decision, Mr Martin denied the applicant nature justice by:
2.1 Failing to provide proper reasons for the decision; and
2.2 Taking into account irrelevant matter (sic) and not taking into account relevant matters.
3 The Decision was ultra vires by reason of the failure to follow the mandatory procedure set down in regulation 15(2) of the Western Australian (Certificates of Competency and Safety Manning Regulations) 1983.
4 The Decision to cancel the applicant's Certificates before the completion of the criminal proceedings that have been brought against the applicant was unreasonable.
5 The Deicison [sic] to cancel the applicant's Certificates before the completion of the criminal proceedings that have been brought against the applicant was unfair in that it contravened the provisions of Regulation 15(2)."
12 The applicant's submissions were directed to three broad areas. The first was with respect to the refusal to consider deferment of the suspension or cancellation decision in the face of the pending criminal proceedings. That was said to have implications at a number of levels including procedural fairness, failure to take into account relevant considerations and error of law on the face of the record.
13 The second broad area relates to the failure to comply with the procedural aspects of reg 15 itself. The third broad area relates to the record itself and what the applicant submits amount to inadequacies in those reasons as showing the decision-maker failed to understand the legal requirements of reg 15(1), misconstrued it and failed to ask himself the right questions in regard to the invocation of the cancellation.
14 By s 91 of the Western Australian Marine Act 1982 ("the Marine Act") the Chief Executive Officer of the Department of Planning and Infrastructure is empowered, following examination, to issue certificates of competency to masters, mates, marine engineers, marine engine drivers and coxswains.
15 By s 10(g), regulations may be made regarding, inter alia, the suspension and cancellation of certificates of competency.
16 Regulation 15 provides for the cancellation and suspension of certificates of competency in the following terms:
"15. Cancellation and suspension of certificates
(1) The chief executive officer may cancel, or suspend for a period, any certificate of competency or certificate of satisfactory service (in so far as its validity within the limits of jurisdiction of the chief executive officer is concerned) held by a person who, in the opinion of the chief executive officer, is incapable of discharging his duties by reason of incompetency or misconduct, or has been seriously negligent in the discharge of his duties, or is unfit by reason of some physical or mental defect or infirmity, or is for any other reason not a fit and proper person to hold the certificate of competency or certificate of satisfactory service as the case may be.
(2) Before a decision to cancel or suspend a certificate of competency or certificate of satisfactory service is taken there shall be an obligation on the chief executive officer to -
(a) give notice in writing to the person of the intention to consider the cancellation or suspension of the certificate and of -
(i) the findings of an investigation into the material questions of fact;
(ii) the reason why it appears to the chief executive officer that the certificate should be cancelled or suspended_;_ and
(iii) the period during which he may make written or oral representations to the chief executive officer;
(b) advise the issuing marine authority and other marine authorities within whose jurisdiction the certificate is normally accepted for manning purposes of the general details and circumstances attached to the cancellation, suspension, etc. in order that they may then take appropriate parallel action.
(3) Where the chief executive officer decides to cancel or suspend a certificate of competency or a certificate of satisfactory service, the chief executive officer shall give notice in writing to the holder of the certificate of -
(a) the decision to cancel or suspend, as the case may be;
(b) the date from which cancellation or suspension is to take effect_;_ and
(c) the right to apply to the State Administrative Tribunal for a review of the decision."
17 On 26 August 2004 Mr Martin wrote to the applicant advising that pursuant to reg 15(1) it was his intention to consider the suspension of the applicant's certificates as a result of the incident. He wrote that:
"The evidence indicates that you have been seriously negligent in the discharge of your duties as Master during the incident. It is for this reason that I am considering suspending your certificate until such time as the Coroner presents his findings and the Department for Planning and Infrastructure can complete its investigations into this matter.
You are provided with the opportunity to make written representations as to any reason or reasons why I should not take this action. If you decide to take up this opportunity, please ensure that you write to me no later than 28 days from the date of this letter. I will take into consideration any written response that you provide in making my decision in this matter.
If you do not write to me, as invited, I will proceed to make my decision without further reference to you."
18 The applicant's solicitors, Phillips Fox, replied to that by letter dated 24 September 2004. They asked Mr Martin to inform them what evidence he had reviewed, including the findings of the Department's investigation into the material questions of fact, and asked for copies of those in order to enable a proper response. The letter then continued:
"... my client is being prosecuted for manslaughter and grievous bodily harm. I have been advised by Tom Percy QC that it is entirely inappropriate for a regulatory authority, such as the DPI, to proceed with any inquiry which might involve an examination or determination of issues that are before a superior court. We refer your [sic] to the case of Carlos Albert de Castro Martins, Mark Desmond Kemp, Denis Nikola Borovica v the Racing Penalties Tribunal of Western Australia and other [sic] (SC WA Full Court; 20 August 1997)."
19 The solicitors requested Mr Martin make no decision until he had provided the information requested and allowed the applicant a proper opportunity to respond at a time when the criminal proceedings against him had been resolved.
20 There was some further correspondence between the applicant's solicitors and Mr Martin, including a letter from the latter dated 25 October 2004 advising, amongst other things, that he was seeking advice in relation to the authority referred to by the applicant's solicitors.
21 By letter dated 17 November 2004, Mr Martin advised that he had received the advice he had been seeking. In light of that, it was his understanding that the Martins case does not establish a general legal rule that it is "entirely inappropriate" for statutory disciplinary bodies to proceed when an examination or determination of those issues is before a superior court. He said that rather, the case is an application of the ordinary legal principles relating to disciplinary tribunals and criminal proceedings. He referred to s 9(2) of the Marine Act and to reg 15 and then added:
"A decision that I may take under Regulation 15 is different from the Martins case and other cases involving disciplinary tribunals. The requirement of a certificate of competency is primarily a matter of public safety. The certificate is required so that only persons with sufficient experience and qualifications be entitled to have command of a vessel. The discretion the Regulations provide me to suspend or cancel certificates of competency is to enable the Department to protect the public from persons who are 'unfit to discharge' the duties which the master of a vessel must be able to comply with."
22 He wrote that a key consideration where disciplinary proceedings are suspended pending the resolution of criminal proceedings, is the privilege against self-incrimination, and referred to other legal authorities. He then wrote:
"Any decision that I may take to suspend Mr Dipane's certificate of competency does not necessarily involve proving the same facts as that in the criminal proceedings for manslaughter and grievous bodily harm. The risk of self-incrimination must be real and there must not be merely notional danger of injustice in the criminal proceedings. Therefore the decision that I may make under the Regulations would not, in my view provide Mr Dipane a real risk of self-incrimination. Another relevant consideration is the public interest, namely the public interest in making a possible decision under the Regulations. In this case any decision to cancel or suspend Mr Dipane's certificate of competency concerns an ongoing and potentially very significant risk to the public. If in light of Mr Dipane's conduct, I consider that he is incapable of discharging his duties under the certificate, it is obviously in the public interest that his certificate be cancelled or suspended. The public interest in my decision as to whether the certificate of competency should be suspended outweighs any potential prejudice to Mr Dipane in his pending criminal trial. Therefore I advise that I shall proceed with the steps in considering making a decision under the Regulations." (Emphasis in original)
23 Finally, Mr Martin wrote that his letter of 26 August 2004 may not have properly followed the procedural requirements in reg 15(2) and he had therefore written to the applicant again advising of his intention under the regulations and he enclosed a copy of that with his letter to the solicitors. He had allowed 21 further days to make submissions.
24 The letter to the applicant dated 17 November 2004 notified him of Mr Martin's intention to continue the consideration of the suspension of his Certificates of Competency.
25 In relation to the facts, the letter noted that on 1 May 2004 while the Andrea was under the applicant's control and command, it collided with a recreational vessel at Bunker Bay. According to the DPI investigation, the weather conditions at the time were good with a small swell and visibility and lighting were good. The vessel Andrea was in good repair and condition, with no mechanical fault. The findings of the investigation were that the fact that the applicant failed to observe the recreational vessel in good weather conditions was evidence that a proper look-out was not being maintained at the time. It recommended that action should be considered for breach of the rules of the Prevention of the Collision at Sea Regulations. Mr Martin then wrote:
"A collision occurred, where the prevailing conditions were fine and there was no mechanical fault with the Andrea. In my opinion having regard to all the evidence, it appears that your actions amounted to misconduct, or that your action suggests to me that you were seriously negligent in the discharge of your duties as Master of a vessel. Therefore in the circumstances it appears to me that it would be appropriate to suspend your certificates of competency".
26 Mr Martin then listed the documents which he had reviewed and considered. He concluded by advising the applicant that he had the opportunity to make written or oral representations within 21 days.
27 There were some further exchanges between Mr Martin and the applicant's solicitors, but the next significant document was a letter from Mr Martin to the applicant dated 22 November 2004 in which the former referred to his letter of 17 November and advised that in addition to considering suspension, he would also consider the option of cancellation of the applicant's certificates of competency "... on the same basis".
28 By letter dated 24 November 2004 Phillips Fox wrote to Mr Martin advising, inter alia, that they had received further advice from senior counsel and their instructions were that the applicant would not be making any oral or written submissions to the DPI until the conclusion of the criminal proceedings in the District Court. They wrote that they were of the view that in the interests of justice the applicant's criminal proceedings should be completed before Mr Martin made any further enquiries into whether the applicant's Certificate of Competency should be suspended or cancelled.
29 They argued that the applicant's livelihood and ability to defend himself in the criminal proceedings would be adversely affected if a determination were made by Mr Martin prior to then; that if his certificate were suspended or cancelled, the applicant's ability to earn a livelihood would be prejudiced; and that the applicant had a right to silence pending the completion of the trial, which right would be compromised if he were to make any oral or written submissions to the DPI concerning the events on the day of the accident. Accordingly, they argued that the Department should wait until the completion of the criminal proceedings before making a decision with regard to his certificates and that to make such a decision before then would be premature.
30 The solicitors reiterated the history of the communications between them, the applicant and the Department, and added that:
"You say in your letter that, 'If in light of Mr Dipane's conduct, I consider he is incapable of discharging his duties under the Certificate, it is obviously in the public interest that his certificate be cancelled or suspended'. Mr Dipane has been fishing for over 45 years and has been a Master for nearly 40 years. The incident which led to charges being laid against him was the first time that he has been involved in an incident at sea. We are of the view that there is no foundation for finding that he is incapable of discharging his duties under his certificate based on such a record. The incident that led to the charges being brought against Mr Dipane was an accident and in no way reflects Mr Dipane's abilities as a Master ..."
31 The solicitors concluded by foreshadowing that if the DPI continued with its investigations prior to the resolution of the criminal proceedings they would apply to this Court for a stay order.
32 The next pertinent correspondence was a letter from Mr Martin to Phillips Fox dated 20 December 2004 advising that he had now received senior counsel's opinion and he was able to respond to the matters which had been raised by the solicitors. He wrote that he noted that the applicant would not be making any oral or written submissions. He maintained the position stated in the suspension notice that it was entirely appropriate to proceed under the regulations and did not agree with the assertions or authorities to the contrary. He remained of the view that continuing with the administrative proceedings under the legislation would not result in substantial prejudice to the applicant. He maintained that there was clearly a public interest in a decision being taken in respect of the applicant's certificates. He enclosed with that letter a copy of a letter of the same date to the applicant notifying him of Mr Martin's decision to cancel the applicant's certificates.
"I refer to my previous letters to you dated 17 November and 22 November 2004. I also refer to the letter from Phillips Fox dated 24 November 2004, and note that you will not be making any oral or written submissions as to why I should not proceed to cancel or suspend your certificates.
As Chief Executive Officer of the Department for Planning and Infrastructure, I assist the Minister in administering the Western Australian Marine Act 1982 and Regulations. My functions relate to marine safety matters including approving examinations for certificates, and the issue, renewal, and where appropriate the cancellation or suspension of Certificates of Competency. Regulation 15 of the Western Australian [sic] (Certificates of Competency and Safety Manning) Regulations 1983 set [sic] out my discretionary powers to cancel or suspend certificates of competency issued in this jurisdiction. Regulation 15(1) provides that I may seek to cancel or suspend for a period certificates of competency, if in my opinion the holder of the certificate '... is incapable of discharging his duties by reason of incompetency or misconduct, or has been seriously negligent in the discharge of his duties...'." (Emphasis in original)
34 Mr Martin advised that his decision was that the applicant's certificates be cancelled effective from the date of service of the letter and he then went on to set out the reasons for his decision under that heading, as follows:
" Reasons for Decision
The Facts
On the morning of 1 May 2004, you were the master of the vessel the Andrea. After you and your crew, Stephen Dipane and Troy Myers had finished setting cray pots, you were heading back to Quindalup. Myers and Stephen Dipane were busy cleaning. You were skippering the vessel. In your statement you advise that you were in the wheelhouse, and that you set the course of the vessel and activated the autopilot, and were proceeding at a speed of around 20 knots. You state that you remained in the wheelhouse facing the forward windows, and were keeping a lookout, until approximately 500 metres from the shore the Andrea collided into a recreational vessel which had 4 persons on board. The collision resulted in the fatality of a person on that vessel and injury to the skipper, Mr Britza.
The conditions were sunny and warm, visibility was good with the possibility of some haze on the shoreline. The wind was easterly about 10 - 15 knots, and the swell was low to moderate. The condition of the Andrea was good.
The persons on board the recreational vessel were fishing while the boat drifted and appeared to have been engrossed catching a fish. They did not see your vessel until the last moment.
You state that you saw a white object, and to avoid a collision you immediately pulled back with both hands on both the throttle and gear control to stop the vessel as quickly as possible. There was no time to steer around the object to avoid the collision.
Conclusions from the facts
Section 79 of the Western Australian Marine Act 1982 ('WAMA') requires regulations giving effect to the Convention on International Regulations for Preventing Collisions at Sea 1972 ('Prevention of Collisions [sic] ('Prevention of Collisions Convention') to be observed. Pursuant to Rule 2 of the Prevention of Collisions at Sea Regulations 1983, a master, officer or person in charge of the navigation of a vessel has a duty to comply with the Rules. Rule 5 of these Regulations requires that:
'Every vessel shall at all times maintain a proper lookout by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.'
Rule 6 of the Prevention of Collisions at Sea Regulations provides that every vessel is to proceed at a safe speed so that it may take proper and effective action to avoid a collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.
There was no mechanical fault with the Andrea or its engine or associated equipment that could have caused or contributed to the collision. Given that the prevailing conditions at the time were fine, on a balance of probabilities you failed to keep a proper lookout in the circumstances. Furthermore you were not travelling at a safe speed in the circumstances to enable you the opportunity to avoid the collision. Such conduct, in my opinion amounts to incompetence or misconduct, and constitutes serious negligence in the discharge of your duties as skipper of the Andrea. Furthermore the facts indicate that you are not a fit and proper person to hold your certificates of competency."
35 In the course of notifying the applicant of his decision by that letter, Mr Martin informed him that his right to appeal pursuant to reg 16 of the regulations had been to the Western Australian Certificates of Competency Appeal Authority but that pursuant to the State Administrative Tribunal Act 2004 it would now be to the State Administrative Tribunal.
36 The solicitors wrote on 20 December 2004 pointing out that as of that date the relevant sections of the State Administrative Tribunal Act had not come into operation and contending that the notice was therefore defective. Accordingly, Mr Martin sent a further notice dated 23 December 2004 ("the cancellation letter") in exactly the same terms as that of 20 December, except for the reference to the State Administrative Tribunal, which was omitted.
37 As I apprehend it, no point was ultimately taken by the applicant about the reference to the Tribunal.
Pending criminal proceedings - Grounds 1 and 4
38 Senior counsel for the applicant relies upon what he described as the "basic deferment principle" that, when criminal proceedings are pending, disciplinary proceedings which traverse essentially the same underlying facts should not be brought on for hearing. He submits the basis for the principle is to be found in the primacy of the criminal justice system and the abhorrence which the rule of law has for interference with the due and proper administration of criminal justice.
39 Senior counsel for the Attorney, however, submits there is no general rule of law that it is inappropriate for statutory or disciplinary tribunals or bodies to proceed with an investigation (by which I understood him to include the determination of such an investigation), when criminal proceedings arising from the same facts are pending. It is submitted, rather that the general principle is that there must be a weighing-up of the public interest in the investigation by the tribunal or authority, and any potential for some compromise of the criminal proceedings. The question must be whether there is a real and not merely notional danger of injustice in the criminal proceedings.
40 In support of his argument as to the primacy of the criminal law, Mr Martin QC cites Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15. However, the case points up a fundamental consideration, which is that the balancing exercise may involve weighing different public interests against the public interest in protecting the administration of criminal justice, specifically with regard to maintaining the integrity of a criminal prosecution. In Hinch the countervailing public interest was that of freedom of discussion. The context was the law of contempt, which is concerned to reconcile the public interest in freedom of discussion and of the provision of information which the public has a legitimate interest in knowing, with the public interest in the integrity of the administration of justice, including the need to protect the fair trial of both civil and criminal proceedings (per Mason CJ at 22, ibid). Different considerations may apply, depending on the nature of the countervailing interest, although in Hinch itself, Mason CJ observed (at 25, ibid) that there are examples even of circumstances in which on a balancing approach, the public interest in the administration of justice would necessarily give way to the public interest in freedom of discussion of an important topic. In the present case, the relevant countervailing interest was public safety at sea. That immediately distinguishes it from cases involving purely disciplinary proceedings (as in Edelsten v Richmond (1987) 11 NSWLR 51; Bannister v Director-General Department of Corrective Services [2002] QSC 469; Lee v Naismith [1990] VicRp 22; [1990] VR 235) or cases involving unique statutory provisions concerning employment situations (Baker v Commissioner of the Australian Federal Police [2000] FCA 1339; (2000) 104 FCR 359; Re Matthews; Ex parte Harrison [2001] WASC 61). In this case, Mr Martin was required to balance the need to preserve the integrity of the criminal proceedings against the public interest in safety at sea.
41 As the contempt cases show, the principle which accords primacy to a fair trial where that is in conflict with another public interest, is not grounded solely in an accused's right to silence, although interference with that right is a relevant (and may be a decisive) factor in determining that disciplinary or other administrative proceedings ought not to be concluded pending the outcome of relevant criminal proceedings.
42 In Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, the respondent had been charged with a number of criminal offences in respect of the affairs of a company. Those charges were pending when the liquidator obtained an order under the Companies (NSW) Code requiring the respondent to attend and be examined before the Supreme Court. Section 541(12) of that Code required a person to answer questions notwithstanding the answers might tend to incriminate him, but the answers were not admissible in criminal proceedings against him if the privilege against self-incrimination was claimed before an answer was given. Objection was taken to questions going to the subject matter of the pending charges.
43 The Deputy Registrar ruled against the objection. McLelland J dismissed an application by Oades to review the Deputy Registrar's decision. The Court of Appeal allowed an appeal against the judgment of McLelland J and ordered that during the pendency of the charges the respondent was not to be compelled to answer any questions which might tend to incriminate him in respect of any of the criminal charges. The High Court held s 541(12) abrogated the common law privilege against self-incrimination, and the majority (Mason CJ, Dawson and Toohey JJ) held that the decision of McLelland J should stand.
44 Mason CJ noted (at 496) that the legislature had resolved the competition between public and private interest by providing for compulsory examination and giving specific protection in relation to answers which might directly incriminate, but not otherwise, except insofar as the Judge might see fit in the exercise of the wide statutory discretion given in s 541(5) to make directions as to the matters to be inquired into. In exercising that statutory discretion, the Judge would have to balance the competing private and public interests. The discretion given would enable the court to give directions and restrain questions where the examination was being conducted for an improper purpose or constituted an abuse of process (ibid, 498). His Honour also held the court retained its inherent powers and duty to ensure the proper administration of justice, which may require that orders be made of types other than those which would restore the privilege against self-incrimination or which would serve to defeat the purposes of the section.
45 The privilege against self-incrimination does not ordinarily protect a person against disclosure of his defence to a criminal charge: except for the right to silence there is no such right, either at common law or (in that case) by statute (ibid, 499).
46 Senior counsel for the applicant relies on the following passage from the (dissenting) joint judgment of Deane and Gaudron JJ (at 502 - 503):
"The public examination on oath or affirmation of a person charged with an indictable offence on matters with which the charge is concerned will ordinarily be viewed as seriously and unfairly burdensome, prejudicial or damaging if for no reason other than that it will ordinarily be viewed as constituting a real risk to the fairness and integrity of the trial of that charge. That is so whether or not the examination involves questions the answers to which have a tendency to incriminate."
47 Their Honours went on to say immediately thereafter:
"If the answers have a tendency to incriminate, an even greater risk is constituted by the public claiming of the privilege against self-incrimination. That claim must be made to ensure that an answer given in a s 541 examination is not used in criminal proceedings other than those specified in sub-s (5). Public adherence to the procedure of claiming privilege followed by the equally public giving of answers thus acknowledged as tending to incriminate may involve an additional and greater unfairness to the examinee, notwithstanding that the answers given may not be used in the trial of the pending charge. For example, quite apart from the danger of the creation of an atmosphere of pre-trial prejudice, there is the possibility that the answer may involve the disclosure of a defence or lead to the discovery of other evidence, these being consequences against which a person charged with a criminal offence is usually entitled to be protected: see Rank Film Ltd v Video Information Centre [1982] AC 380, at p 443; Sorby (1982) 152 CLR, at pp 293-294."
48 Their Honours held that the statutory discretion was wide enough to sustain the order effectively made to adjourn so much of the respondent's examination as would go to the pending charges, until the criminal proceedings were resolved. On that point, the salient point as they saw it was that it was implicit in the decision of the Court of Appeal that the examination, insofar as it would compel the respondent to give answers tending to incriminate him in the offences charged, would constitute a serious and unfair burden, prejudice or damage to him during their pendency.
49 Dawson J held the apprehension of the Court of Appeal that answers given by the respondent would tend to incriminate him as to the pending charges, was an insufficient basis for the order, having regard to the provisions of s 541. He said (at 508) that this was so whether the answer tended to incriminate directly by way of admission or indirectly by providing information from which guilt may be established. Like Mason CJ, he recognised (at 508) that the protection afforded by the section (which, as I have said, provided that answers were not to be admissible in criminal proceedings when the privilege against self-incrimination was claimed before an answer was given) went only to incrimination of a direct rather than a derivative kind. Toohey J was of a similar view.
50 The applicant also relies upon the following passage from the judgment of McHugh JA in Herron v McGregor (1986) 6 NSWLR 246, a case involving disciplinary proceedings against a doctor, at 266:
"No doubt it is only proper that, while criminal proceedings are pending, disciplinary proceedings should not be brought on for hearing. But this does not dispense with the obligation of the complainant, in the interests of a fair hearing and the public interest, to lodge his complaint."
51 But that passage has to be read in the context of the larger passage of which it is part. McHugh JA was rejecting the complainant's explanation that the delay in lodging his complaint was attributable to the possibility of criminal proceedings against the doctor. Having then said what appears in the passage last quoted above, his Honour continued:
"In a proper case it may also be desirable to lodge a complaint with the Board so as to initiate a fitness inquiry under s 30. I see nothing to prevent the Medical Board in an appropriate case from temporarily suspending a practitioner while criminal proceedings are pending if, after hearing him, it thinks that he is not fit to practise. The hearing need not be a full hearing. The rules of natural justice are flexible enough to deal with this situation: Heatley v Tasmanian Racing & Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 514-516."
52 His Honour then concluded that the unjustifiable delay, and its consequences, made the institution of proceedings an abuse of process of the disciplinary tribunal.
53 McHugh JA was clearly recognising that there may well be circumstances where administrative inquiries into matters going to an important public interest may properly be pursued notwithstanding related pending criminal proceedings. The statement of the general principle does not assist in its application to the particular case.
54 Considerable reliance was placed by the applicant on the decision of the Full Court of Western Australia in Martins v Racing Penalties Appeal Tribunal of Western Australia, unreported; FCt SCt of WA; Library No 970519; 10 October 1997, notwithstanding that case was noted as turning on its own facts.
55 Steytler J (with whom Kennedy J agreed; Wallwork J dissenting) dismissed an appeal against a decision of the Racing Penalties Appeal Tribunal.
56 The stewards had imposed a five year disqualification on the respondent for breach of a rule that a person must not allow a greyhound, for the purposes of training, to pursue or attack any live bird or animal. He had released live chickens which were pursued and attacked by his dogs at a place in the bush. At the inquiry, the respondent said he had obtained legal advice which was that he should not answer questions there until it was known whether or not he would be charged with criminal offences. He sought that the proceedings be adjourned until then. The stewards directed him to the rules which required him to answer questions at an inquiry, but he maintained his position and the stewards accordingly proceeded to make their findings and imposed a penalty.
57 The Tribunal upheld the respondent's appeal on the ground he had been denied natural justice as he had no real opportunity to present his case.
58 Significantly, as Steytler J pointed out (ibid 8) it was not disputed that the advice which had been given to the respondent was reasonable or that he had acted reasonably in following it; nor was it disputed that the respondent faced a real prospect of criminal prosecution. Such a prosecution had to be instituted within 12 months of the alleged offence. Steytler J referred to Edelsten v Richmond and quoted the passage set out above from the passage of Deane and Gaudron JJ in Hamilton v Oades at 502 - 503, stating the same considerations applied in the case before him, in which the evidence before the stewards was not on oath or affirmation, but in which access to the transcript could readily be obtained by the prosecuting authority.
59 Refering to Edelsten, Steytler J observed there was "a good deal" of authority of similar effect to the point made by Hope JA that even where the applicant was able to decline to answer questions put to him by the tribunal, it might be considered unjust to put him in the dilemma of not being able to answer the complaint because of the prejudice he might suffer in the criminal proceedings.
60 Once again, whether or not such injustice arises will obviously depend upon the facts of the individual case, and particularly, the extent to which the risk of prejudice in the criminal prosecution is a real one.
61 A number of other cases in which it has been held that disciplinary or other administrative proceedings should be held over pending the outcome of criminal proceedings are explicable on the basis the misconduct alleged is itself the commission of the criminal offence. In that circumstance there are obvious reasons why disciplinary proceedings should await the outcome of the criminal prosecution. That was the point made in Re a Solicitor (1938) 55 WN (NSW) 110 and In Re Levy; Ex parte Incorporated Law Institute of New South Wales (1887) 8 LR (NSW) 347, per Darley CJ at 351, from both of which passages were quoted by Steytler J in Martins (at 11 - 12). Of course, in such cases (as in Martins) there is ordinarily no strong countervailing public interest militating in favour of the prompt disposition of the disciplinary proceedings, notwithstanding the pendency of the criminal proceedings.
62 His Honour also referred to Hammond v Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188. The plaintiff had been charged and committed for trial on a charge of conspiracy in relation to meat exports. He was being questioned by a Royal Commission which had been appointed to inquire into the meat export industry. The questions were directed to the same conspiracy. Although the Royal Commissioner was sitting in closed session, the police officers who investigated the criminal charge were allowed to be present. The High Court held that, on the assumption that under the Royal Commissions Act 1902 (Cth) and the Evidence Act 1958 (Vic), a witness who refused to answer a question relevant to a Royal Commission inquiry was guilty of an offence and was not entitled to refuse to answer on the ground the answer might incriminate him, continuation of the plaintiff's examination before the Royal Commission would interfere with the administration of justice, even though his answer would not have been admissible in evidence against him.
63 Gibbs CJ (with whom Mason and Murphy JJ agreed on this point) said (at 198):
"Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence."
64 The Chief Justice went on to point out that the Royal Commission inquiry was not simply into allegations against the plaintiff, but into alleged malpractices in the beef export industry, and it would be neither necessary nor right to adjourn it because the prosecution had been commenced against the plaintiff. The public interest could be met, and the interests of justice at the same time safeguarded, if the inquiry were to proceed to its conclusion without further examination of the plaintiff.
65 The deficiency in Martins which led the majority to allow the appeal was the failure of the stewards to undertake the exercise of balancing the competing public interests. As Steytler J explained (at 13, supra):
"They made no attempt to balance the public interest in the investigation of the possible breach of the Rules (which, on the face of it, presented no ongoing risk to the public) with that in the observance of the right to silence. Had they done so, as they plainly should have, it seems to me that they would, in the circumstances of this case, inevitably have acceded to the second respondent's request for an adjournment.
The position in that respect is not, in my opinion, altered by the fact that, under the Rules by which the second respondent was bound, he was obliged to give evidence at any inquiry held under those Rules when requested to do so by the Stewards. The point, as it seems to me, is that the Stewards should not have requested him to give evidence, and should not have proceeded with the inquiry, while there remained the prospect that he would be criminally prosecuted, without first embarking upon the balancing exercise to which I have referred." (Emphasis added)
66 The first question here therefore, is whether Mr Martin undertook the necessary balancing exercise. This being judicial review and not an appeal on the merits, this Court cannot be concerned with the merits. That is to say, we cannot simply substitute our view of the appropriate outcome of the balancing exercise (should it be a different one) for that of the decision-maker, absent some error of a kind which entitles us to do so.
67 Mr Martin made it clear from the outset he was acting pursuant to his obligations as CEO under reg 15. The decision in Martins was brought to his attention by the applicant's solicitors in their letter dated 24 September 2004, when they specifically requested the applicant be given an opportunity to respond to the departmental investigation after the criminal proceedings had been resolved. In his letter dated 17 November 2004 acknowledging the general principle but rejecting the assertion that it dictated holding the reg 15 investigation in abeyance in the circumstances of this case, Mr Martin expressly drew attention to a number of considerations he saw as bearing on this.
68 First, he noted his investigation was not a disciplinary inquiry, but, rather involved a certificate of competency, which is primarily a matter of public safety. He wrote that the certificate is required so that only persons with sufficient experience and qualifications are entitled to have command of a vessel and that the discretion given to him by the regulations to suspend or cancel certificates is to enable the Department to protect the public from persons who are "unfit to discharge" the duties with which the master of a vessel must be able to comply.
69 Secondly, he pointed out that a key consideration in cases such as Martins is the privilege against self-incrimination, and he specifically referred to the need to balance the competing public interests of the risk of prejudice to the criminal trial, against that in proceeding with an administrative inquiry. He noted that any decision he might take to suspend the applicant's certificate of competency would not necessarily involve proving the same facts as those to be proved in the criminal prosecution for offences of manslaughter and causing grievous bodily harm. He observed that the risk of self-incrimination must be real and there must not be merely notional danger of injustice in the criminal proceedings. He considered the decision that he might make under reg 15 would not, in his view, provide a "real" risk of self-incrimination to the applicant.
70 Mr Martin then turned to the public interest in a decision made under reg 15, which concerned "an ongoing and potentially very significant risk to the public". He wrote that if, in light of the applicant's conduct, he were to consider the applicant incapable of discharging his duties under the certificate, it would obviously be in the public interest that the certificate be cancelled or suspended. He specifically concluded that:
"The public interest in my decision as to whether the certificate of competency should be suspended outweighs any potential prejudice to [the applicant] in his pending criminal trial."
71 In his letter to the applicant of the same date, Mr Martin listed the documents that he had reviewed and considered. The first of those was the applicant's statement dated 7 May 2004.
72 That was a statement made to police six days after the collision. It is included in the prosecution brief for committal in the Court of Petty Sessions on the pending criminal charges. In it, the applicant recounts in detail what he did and the events from the evening of Friday 30 April 2004, to and including the circumstances of the collision.
73 Senior counsel for the applicant contends (as I understand it) that it was neither fair nor adequate for Mr Martin to take this statement, made to the police for the purpose of their investigation, into account as the applicant's response for the purposes of the DPI investigation. He says that is because the statement to police did not involve the applicant directing his mind to those issues which might bear upon the suspension or cancellation of his certificates, which is the "process of engagement" envisaged and required by reg 15.
74 I do not accept this submission. It unnecessarily confines what was before Mr Martin and the process in which he was engaged. The statement was a full and detailed account by the applicant of the events leading up to and surrounding the incident. It was not the product of questioning by police but was a detailed and comprehensive account, prepared by the applicant's lawyers, clearly for the purpose of presenting his position in the most exculpatory way possible. True it is that it did not invite expression of the applicant's previous uneventful years of experience, or his personal circumstances or other matters which might have been advanced in response to a suggestion that his certificates might be cancelled or suspended, but he was given that opportunity by Mr Martin. Indeed, his solicitors did advance matters of that kind in their letter to Mr Martin dated 24 November 2004. Perhaps more to the point though, those were matters which could have been advanced by the applicant without involving any real risk of damaging his position in the criminal proceedings.
75 In Norilya Minerals Pty Ltd v Ireland (1991) 5 WAR 411 White AJ quoted (at 415 - 417) with apparent approval a statement of guidelines enunciated by Wootten J in McMahon v Gould (1982) 7 ACLR 202, 206 - 207, in the context of an application to stay civil proceedings by reason of pending related criminal proceedings. Those guidelines may be accepted as generally apt but are of course not to be taken as definitive nor exhaustive. Pertinently to the present case, Wootten J referred to the consideration whether there is a real and not merely notional danger of injustice in the criminal proceedings (Norilya, at 416) and listed a number of factors which may be relevant to that. It is apparent Mr Martin did have regard to the question whether there was a real and not merely notional danger of injustice in or prejudice to the pending criminal proceedings. His conclusion was that there was no such real danger. That assessment was for him to make, and so long as it was one open to him, it cannot be gainsaid by this Court.
76 However, for the applicant, it was also submitted that no reasonable decision-maker, faced with the applicant's pending criminal trial, could have come to any conclusion other than to defer the reg 15 inquiry until the criminal proceedings were completed. He relied, in this context, upon so-called "Wednesbury unreasonableness", that terminology coming from the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. It is no easy matter for an applicant to make good a ground of that kind: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 (where Brennan J, at 36 - 37, described the limitation of reasonableness as "extremely confined" and said that it left the merits of the decision unaffected unless it was such as to amount to an abuse of power); Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (especially at 626 [40]) and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; (2003) 198 ALR 59.
77 I have said that in this case the applicant had already made a full statement about the incident to the police. Any further information the applicant might have provided to the DPI could only have been supplementary. It was reasonable for Mr Martin to take the view (as he obviously did) that such information was unlikely to bear upon the conduct of the criminal proceedings. Anything which the applicant might have put before Mr Martin for the purpose of seeking to persuade him not to cancel or suspend the applicant's certificates, would almost certainly not have been incriminatory of him if, indeed it was admissible in criminal proceedings against him: as to which see McDermott v The King (1948) 76 CLR 501, per Dixon J at 512; Cornelius v The King [1936] HCA 25; (1936) 55 CLR 235, 245; Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559; and Foster v The Queen [1993] HCA 80; (1993) 113 ALR 1. Moreover, the reg 15 inquiry did not involve the taking of evidence on oath or affirmation; nor did the process involve examination or cross-examination. In all the circumstances, and given the public interest in holding a prompt inquiry, it cannot properly be said a reasonable decision-maker could have come to no other conclusion but that the reg 15 inquiry should be held in abeyance pending the conclusion of the criminal proceedings. Rather, the decision was one which in my opinion, was open to him.
78 It follows from the above that the applicant was not thereby denied natural justice by being precluded from responding to the reg 15 inquiry because of any apprehended prejudice to his criminal trial. Grounds 1 and 4 have not been made out.
79 Then it is said for the applicant that Mr Martin denied him natural justice by failing to provide proper reasons and taking into account irrelevant matters and failing to take relevant matters into account.
80 On the requirement to give adequate reasons, the applicant relies on Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at [26] - [29] in which the Court said:
"The starting-point ... is that the giving of reasons is a normal (albeit not universal) incident of the judicial process. That is because 'the duty is a function of due process, and therefore of justice'. Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment. The requirement also furthers judicial accountability.
Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.
Reasons need not be lengthy and elaborate; nor do they need to refer to all the evidence led in the proceedings. However, relevant evidence should be referred to (albeit not necessarily in detail) and, where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another, the trial judge should set out findings sufficient to explain why. Similarly, where a dispute involves a form of 'intellectual exchange, with reasons and analysis advanced on either side', the judge 'must enter into the issues canvassed before him and explain why he or she prefers one case over the other'.
Inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice. Nor does an appealable error arising from inadequate reasons necessarily result in a new trial. The appeal court is entitled to consider the matter and, if it can do so (where, for example, only one conclusion is reasonably open on the available evidence), it may itself decide the matter." (Citations omitted)
81 The Full Court in Mount Lawley was dealing with an appeal from the decision of a single Judge. The Court was discussing the requirement of a judicial officer to give reasons for decision, from the perspective and for the purpose of the judicial appellate process. That case, and the authorities there relied upon by the Court, was not concerned with the existence or content of an obligation upon administrative decision-makers to give reasons.
82 In the realm of judicial review of administrative decisions, much will depend upon the relevant statute and the nature of the tribunal or authority. Thus, authorities on the giving of reasons by the Administrative Appeals Tribunal were predicated on s 20 of the Administrative Appeals Tribunal Act 1975 (Cth) which enabled a person entitled to appeal from a decision of the Tribunal to obtain:
"A statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision."
83 Section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) is a similar provision. There is no such provision in the Marine Act itself nor in the regulations. There is however, a provision to similar effect in the State Administrative Tribunal Act 2004 ("the SAT Act"), but that works in a different way.
84 Senior counsel for the Attorney submits that reg 15(3) does not expressly require that the CEO set out reasons for his decision, but requires only that he "give notice in writing" of three matters, namely the decision to cancel or suspend, the date on which the cancellation or suspension becomes effective and the appeal rights available to the holder of the certificate. He submits that the language of reg 15(3) stands in marked contrast to the specific references in reg 15(2) to the content of the notice which is to be given to the holder of a certificate when suspension or cancellation of it is under consideration by the CEO. It is further submitted that consideration of the nature and substance of the appeal rights available to the holder of a certificate which is cancelled or suspended, also supports the conclusion that reg 15(3) should not be construed as containing a requirement for the CEO to provide reasons for decision. Prior to 1 January 2005 (which was the date of commencement of most of the provisions of the SAT Act), certificate holders who were the subject of a decision under reg 15(1) were entitled to appeal to the "appeal authority". That was the Western Australia Certificates of Competency Appeal Authority (see reg 16 (now repealed), as it was prior to the amendments effected by the WA Marine (Certificates of Competency and Safety Manning) Amendment Regulations (No 3) 2004 and s 11(1) of the Marine Act.
85 Since 1 January 2005 the applicant has had the right to have the CEO's decision reviewed by the State Administrative Tribunal (see reg 15(3)(c) as amended by the Marine Amendment Regulations).
86 The requirement in reg 15(3)(c) reflects the notification requirements in s 20 of the SAT Act. That Act draws a distinction between notice of a decision and a written statement of the reasons for decision. By s 21(1) of the SAT Act the applicant has a right to request the CEO provide him with a written statement of the reasons for decision. There is nothing in the material before the Court to suggest the applicant has sought to exercise that right. However, the submission is that the existence of this right under the SAT Act, to seek reasons for a decision of the CEO, supports the conclusion that the words "notice in writing ... of the decision" in reg 15(3) should not be construed as a requirement to provide reasons for such a decision.
87 I would accept these submissions. Although the SAT Act amendments did not apply at the relevant time, they reflect the legislature's understanding of the legislative provisions concerned. The statutory scheme now does not include any requirement that reasons be given for a decision under reg 15 other than in response to a request under s 21(1) of the SAT Act. The legislation itself draws a distinction between the giving of a "notice in writing" under reg 15(2) which is to contain specified information, and a "notice in writing ... of the decision", the date from which it is to take effect and the right to apply to the SAT for a review of it. That requirement was met.
88 Even were I to be of the view that reg 15(3) encompasses a requirement to give reasons for a decision made under reg 15(1), I would not conclude the reasons given here were so inadequate as to constitute an error of law.
89 Even where there is an express or implicit statutory requirement for an administrative authority to give reasons for a decision, the extent of that obligation will depend upon the nature of the authority and the statutory context. One important consideration will be the purpose for which the reasons are required.
90 The obligation may not be extensive where there is no, or a limited, right of appeal or review. Where there is a right of appeal or review, the reasons must be sufficient to give effect to it. It seems a matter of common-sense to expect that the reasons given must reveal the basis for the decision made, but the statement of that proposition does not say anything about the extent of the reasons required.
91 The decision-maker here is the CEO of a government department, relevantly vested with responsibility for the administration of a licensing or certification scheme directed to the maintenance of safety at sea. There is no warrant for a view that would require reasons of a standard apt for a judicial or quasi-judicial determination of rights. The qualifications and other responsibilities of the decision-maker, the nature of the decision and of the public interest involved, suggest that (if reasons are required) reasons which show the CEO has directed his mind to the statutory considerations, weighed them and reached a conclusion open to him on the strength of facts identified by him, will be sufficient (see Re Croser; Ex parte Rutherford [2001] WASCA 422; (2001) 25 WAR 170 per Olsson AUJ, with whom Steytler J agreed, at 184).
92 In this regard, senior counsel for the applicant canvassed a number of matters which it was submitted were inadequacies in the reasons given by Mr Martin. However, individually and collectively, these tended to amount in effect to no more than an attack on the merits.
93 There was a degree of overlap between the applicant's grounds as argued. Thus, in relation to claimed inadequacy of reasons, it was put that Mr Martin was "plainly incorrect" in stating in the cancellation letter, that the applicant would not be making any oral or written submissions why Mr Martin should not proceed to cancel or suspend his certificates. This is said to be incorrect in light of the extensive submissions made by the applicant's solicitors that no decision should be made until after resolution of the criminal proceedings. The fact is though, that statement reflecting Mr Martin's understanding was not incorrect. The applicant, through his solicitors, had made it clear no submission would be made by him or on his behalf until the conclusion of the criminal proceedings. Mr Martin in turn had made it clear since his letter dated 17 November 2004 that he intended to proceed and would take into account any submissions the applicant wished to put before him. The applicant's solicitors' response was that the applicant was maintaining his position. Under these circumstances, Mr Martin was right to understand that the applicant had chosen not to make any oral or written submissions and would not do so.
94 The broad submission advanced in support of the claim the reasons were inadequate, is that the basis for the decision is not apparent, so that the applicant is unable to determine, on the face of the record, whether a mistake of law or fact has been made. As the oral argument was developed, it seemed to me the complaint really underlying this was that the applicant was unable to identify a mistake of law or fact. The other submissions advanced may be encapsulated in the propositions that all the evidence was not referred to; there was no explanation of what evidence was considered or why the evidence of one person was preferred to that of another; the statement of facts was not sufficient to support a conclusion that the applicant failed to keep a proper lookout; no reasoning process was revealed; there was no consideration of what was a safe speed in the circumstances and there was no explanation given of terms such as "incompetence", "misconduct", "serious negligence" and "not a fit and proper person".
95 Senior counsel for the applicant agreed that in his recitation of the facts Mr Martin appears to have accepted the narrative of the incident as recounted by the applicant in his police statement. His argument is that having done so, Mr Martin simply concluded the applicant failed to keep a proper lookout and was not travelling at a safe speed in the circumstances to enable him to avoid the collision, without pointing to and explaining the evidence which led him to those conclusions.
96 The essential factual findings apparent from the letter were that:
(1) the applicant was master of the Andrea and was in the wheelhouse;
(2) the applicant set the course and activated the auto-pilot;
(3) the Andrea was travelling at approximately 20 knots;
(4) conditions were sunny and warm, visibility was good, with some possibility of haze on the shoreline. The wind was easterly about 10 to 15 knots. There was a low to moderate swell;
(5) the Andrea was in good condition. There was no mechanical fault that could have caused or contributed to the collision;
(6) the recreational vessel was drifting while its four occupants fished. They were engrossed catching a fish and did not see the Andrea until the last moment;
(7) approximately 500 metres from the shore the Andrea collided with the recreational vessel.
97 Mr Martin expressly prefaced his reference to the applicant's account that he remained in the wheelhouse facing the forward windows and was keeping a lookout until the collision, and that he saw a white object and immediately took action to avoid the impact but there was no time to do so, with the words "you state". Given the above findings of fact, in the context of the duties of a certificate holder in charge of a vessel, Mr Martin concluded the applicant failed to keep a proper lookout in the circumstances and that he was not travelling at a safe speed which would have enabled him an opportunity to avoid the collision.
98 Senior counsel for the applicant contended these conclusions were "no more than a res ipsa loquitur suggestion". That maxim (the thing speaks for itself) applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant, that it may be found without further evidence that it was so caused (Scott v London & St Katherine's Docks Co [1865] EngR 220; (1865) 3 H & C 596, 601), or as it is put in Fleming "The Law of Torts", 9th ed at 353, in some circumstances, the mere fact that an accident has occurred raises an inference of negligence against the defendant. The maxim is resorted to when, although it is impossible to establish the exact cause of an accident, in the absence of some other explanation, the fact of the accident itself is sufficient to justify the conclusion it was caused by the negligence of the defendant. Even then, it is no more than an example of "... inferring one or more facts in issue from circumstances proved in evidence" (per Evatt J in Davis v Bunn [1936] HCA 44; (1936) 56 CLR 246, 268; and see Anchor Products Ltd v Hedges [1966] HCA 70; (1966) 115 CLR 493, 495 - 496).
99 The reference to this Latin maxim however, is a distraction in this case. Mr Martin was not purporting to apply the maxim or any particular evidentiary principle. The process of his reasoning revealed in the cancellation letter is that given the findings of fact adumbrated above, it was more probable than not that the applicant was not keeping a proper lookout and the Andrea was travelling at a speed which was unsafe in the circumstances. That process discloses no reviewable error.
100 On the basis of those findings, Mr Martin then concluded the applicant's conduct amounted to incompetence or misconduct, constituted serious negligence in the discharge of his duties as skipper of the Andrea and that the facts indicated he was not a fit and proper person to hold his certificates of competency. The applicant contends that, in expressing these conclusions, Mr Martin demonstrated a failure to comply with reg 15(1).
101 The first submission is that Mr Martin expressly founded his decision on a finding of "incompetence or misconduct", but cancellation or suspension on that basis was not open under reg 15(1) unless there was also a finding that, by reason of such incompetence or misconduct, the applicant was incapable of discharging his duties - and no finding was made about that. That submission does reflect a correct construction of that part of reg 15(1). The regulation empowers the CEO to cancel or suspend a certificate where the CEO forms the opinion that:
(a) (i) the certificate holder is incapable of discharging his duties,
(b) the holder has been seriously negligent in the discharge of his duties; or
(c) is unfit, by reason of some physical defect or infirmity; or
(d) is, for any other reason, not a fit and proper person to hold the certificate.
102 The letter dated 23 December 2004 does suggest some confusion about which of these Mr Martin considered himself to be applying. A finding of incompetence or misconduct, without a finding that by reason of such incompetence or misconduct the applicant was incapable of discharging his duties, would not be capable of sustaining a cancellation or suspension. But that was not the only finding made by Mr Martin. The finding that the applicant was seriously negligent in the discharge of his duties is a sufficient foundation under the Act for cancellation or suspension, as is a finding the applicant was not a fit and proper person to hold the certificates. Each would be sufficient by itself. Both findings were made.
103 Senior counsel for the applicant submits the decision-maker's error (that is, his apparent misunderstanding) in respect of the "incompetence or misconduct" limb of reg 15(1), shows he did not apply his mind correctly to the requirements of the regulation, and so asked himself the wrong question, which is jurisdictional error, and that infected the whole decision. He submits that without further elaboration the other findings reflecting the words of reg 15(1) are merely recitation of a statutory "mantra". I do not accept these submissions.
104 Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, referred to in support of these submissions, does not assist the applicant. That case concerned an application for certiorari to quash the decision of a District Court Judge ordering a stay of a criminal prosecution. The Full Court of the Supreme Court of South Australia granted the order absolute on the ground the Judge had committed a jurisdictional error as a result of his misunderstanding of the reasons of the majority of the High Court in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. The High Court held that in contrast to a tribunal, demonstrable mistake by an inferior court in identifying relevant issues and questions of fact or evidence, will commonly involve an error of law which may found an order setting aside the decision, but such a mistake would not normally constitute jurisdictional error. However, speaking of administrative tribunals, the Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) said (at 179):
"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
(See also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323).
105 If the only finding made here had been that the applicant's conduct amounted to incompetence or misconduct, then a decision cancelling or suspending his certificates would have been beyond jurisdiction. But it was not the only finding and the other findings were within the jurisdiction of the decision-maker.
106 In the second paragraph of his letter Mr Martin correctly quotes from reg 15(1) that the opinion he is required to form is that the holder of the certificate "... is incapable of discharging his duties by reason of incompetency or misconduct ...". Senior counsel for the Attorney submits his subsequent finding that the applicant's conduct amounted to incompetence or misconduct is to be read in conjunction with the former reference to reg 15(1) and when that is done it is plain Mr Martin had the legislative formula in mind. But even allowing that the decision-maker's letter is not to be read as the judgment of a court or the document of a lawyer, a finding that the applicant was incapable of discharging his duties cannot be inferred from the record and that failure puts a decision to cancel the certificates, on that ground, beyond jurisdiction.
107 Mr Martin's apparent misunderstanding of the first limb of reg 15(1) does not indicate he did not ask himself the right questions in respect of the other two limbs on which he made findings.
108 It is next submitted on behalf of the applicant that the conclusion that he was not a "fit and proper person ..." was not open on the facts. He submits the word "or" is disjunctive (Victims Compensation Fund Corp v Brown [2003] HCA 54; (2003) 201 ALR 260) and in this context means that a finding that a person is not a fit and proper person must be based on reasons other than those which ground the CEO's opinion that a person is incapable of discharging his duties by reason of incompetency or misconduct, or has been seriously negligent in the discharge of his duties, or is unfit by reason of some physical or mental defect or infirmity.
109 Brown turned on a statutory provision which stipulated compensation to be payable only if the symptoms and disability persisted for more than six weeks. The two respondents each had symptoms which persisted for more than six weeks, but neither had a disability. The High Court held the word "and" was ordinarily conjunctive and there was no textual reason to construe it otherwise. The provision therefore meant both the symptoms and the disability had to persist. The ordinary meaning of the word "or" is disjunctive; it is used to connect words, phrases or clauses representing alternatives. There is no textual reason here for it to be construed otherwise. But that does not compel the acceptance of the applicant's submission, which is predicated on an assumption that the various alternatives in reg 15(1) are necessarily mutually exclusive. What does do so, is the use of the words "... for any other reason". They can only mean, any reason other than those previously specified and which I have listed as (a), (b) and (c) above. It is also the sensible construction, because a finding on (d) is necessary only in circumstances in which none of the other findings is possible.
110 Mr Martin distinguished between "the conduct" of the applicant which in his opinion amounted to incompetence or misconduct, and constituted serious negligence in the discharge of his duties as skipper, on the one hand, and "the facts" which indicate he was not a fit and proper person to hold his certificates. Given that he did not advert to what those facts were, the conclusion seems inescapable that Mr Martin formed his opinion that the applicant was not a "fit and proper person" on the basis of the same reasons he had formed his opinion on the other limbs of reg 15(1). But this conclusion is not enough to establish the applicant's case on review, because the finding of serious negligence was sufficient in itself to ground the cancellation.
111 It is submitted for the applicant that it was not open to Mr Martin to make that last finding "in the absence of a full factual inquiry" and "a proper testing of the facts". I do not accept that submission. The statutory process does not envisage that there should necessarily be a hearing, the taking of evidence on oath or the cross-examination of witnesses. The applicant was given the opportunity to put before the decision-maker any material he wished. He chose not to provide anything more than Mr Martin already had. In the latter's opinion, the imperative of public safety at sea required a decision to be made; and there is nothing in the legislative framework to suggest that it might not be made on material of the kind before Mr Martin.
112 The applicant's submission that the finding was not open to Mr Martin "in the absence of any consideration by him of what, beyond civil negligence, would constitute serious negligence" in the discharge of "[the applicant's] duties", must be rejected. The power to cancel or suspend in reg 15 is exercisable on the CEO forming the relevant opinion. The expression "seriously negligent" is not a term of art. The CEO has the day to day departmental responsibility for marine safety under the Act and regulations. The legislature has left it to the CEO to form an opinion whether particular conduct shows a certificate holder to be seriously negligent, not just generally, but in the discharge of his duties. There is no legislative nor other imperative requiring the CEO to define or articulate his understanding of what the words "seriously negligent" mean.
113 The decision is sufficiently grounded in law on the finding of serious negligence. Ground 2.1 fails.
114 Matters raised by the applicant in support of ground 2.2 and not already dealt with above, were that the decision-maker failed to give any, or any proper, consideration to the fact there was evidence the applicant had indeed taken some evasive action; that he failed to consider the finding of Mr Mac Clayden, the DPI investigator, that Mr Britza, the skipper of the other boat involved in the incident, failed to keep a proper lookout; that he failed to give any, or any proper, consideration to the fact that in 45 years as a commercial fisherman the applicant had never been involved in any accident previously; and that he failed to consider or identify what additional action the applicant could have undertaken to avoid the incident.
115 However, Mr Martin set out in his letter dated 17 November 2004, a list of all the documents he had reviewed and considered. That included both the statement of Mr Britza and the report by Mr Clayden. It cannot be said that he "failed to consider" the latter's finding that Mr Britza failed to keep a proper lookout. In any event, the obligation to keep a proper lookout is on each skipper, and whether Mr Britza did or did not do so says nothing about whether or not the applicant did.
116 The reference to the evidence that the applicant took some evasive action, I take to be, at its highest, the applicant's own evidence that he saw a white object and to avoid a collision immediately pulled back on both the throttle and gear control to stop the Andrea as quickly as possible, but there was no time to steer around the object to avoid a collision. This does not tend to show the applicant was not seriously negligent - indeed it tends to support the inferences that he was not maintaining a proper lookout and was not travelling at a safe speed which would have afforded him an opportunity to avoid the collision. Again, it cannot properly be said Mr Martin failed to consider this material - and anything beyond that would be to descend into a review on the merits, which this Court may not undertake.
117 That the applicant had not been involved in an accident in the previous 45 years does not, of course, go to the circumstances of the incident itself. But in any event, that assertion had been put to Mr Martin by the applicant's solicitors in their letter dated 24 November 2004 and it cannot be assumed he did not take it into consideration.
118 As to the complaint that Mr Martin failed to consider or identify what additional action the applicant could have taken to avoid the incident, it is implicit in his findings that he considered the applicant could have avoided the incident by travelling at a safe speed and keeping a proper lookout. Once the collision became imminent as a result of his failure to do those things, whether there was anything else the applicant may have been able to do to try to avoid it, and if so, what, was not to the point.
Regulation 15(2) - Grounds 3 and 5
120 I come to the applicant's submissions in respect of reg 15(2).
121 The submission advanced on ground 3 is that reg 15(2) prescribes pre-conditions to jurisdiction and they were not met here. It is contended the letter dated 17 November 2004 failed to give the applicant notice of Mr Martin's intention to consider cancellation of the certificates, nor did it set out the findings of any investigation into the material questions of fact, nor the reason why it appeared to him the certificates should be cancelled or suspended.
122 So far as compliance with reg 15(2)(ii) is concerned, in the 17 November 2004 letter Mr Martin referred to the DPI investigation into the incident and then summarised the facts and material findings of that investigation. It is not necessary to repeat them. He then said that on the basis of those facts and findings, he considered the applicant's actions amounted to misconduct, or that his actions suggested he was seriously negligent and that in the (ie those) circumstances it would be appropriate to suspend the applicant's certificates. That Mr Martin could have said more is not to the point. The question is whether what he said was sufficient in law. In my opinion it was sufficient to comply with reg 15(2)(a)(ii). The final paragraph of the letter informed the applicant he had 21 days to make written or oral representations. That complied with reg 15(2)(a)(iii).
123 Next it is submitted for the applicant, that even if there was sufficient compliance with reg 15(2) in respect of suspension, there was not with respect to cancellation of the certificates.
124 It is true the 17 November letter referred only to an intention to consider suspension of the certificates. However, by his letter dated 22 November 2004 Mr Martin advised that in addition to considering suspension, he also intended to consider the option of cancellation "on the same basis" as that set out in his 17 November letter. That was sufficient notice of the intention to consider cancellation, for the purposes of the first part of reg 15(2)(a).
125 Senior counsel for the applicant argues that the regulation contemplates a dichotomy of suspension and cancellation, but one is a more serious consequence than the other, and that it is fatal to the decision made that Mr Martin gave no reason why the facts and findings on which he was first considering suspension, were now thought to call for a consideration of cancellation.
126 There is no reason in principle nor logic why particular facts may not give rise to a consideration of the possibility of suspension or cancellation. The findings of the investigation into the material questions of fact may go to both possibilities. Regulation 15(2)(a)(i) neither requires them to be recited twice, nor does it require different findings to be related either to suspension or cancellation. There is nothing in reg 15(2)(a)(ii) which requires separate (or different) reasons to be given for a consideration of cancellation as distinct from suspension. What reg 15(2)(a)(ii) requires, is a statement of the reason(s) why it appears to the CEO that the certificates should be cancelled or suspended. Those reasons appear from the letters dated 17 and 22 November 2004.
127 Regulation 15(2)(b) requires a CEO to advise the issuing marine authority and other marine authorities within whose jurisdictions the certificate of competency would normally be accepted, of the general details attached to the cancellation or suspension, in order that they may take appropriate parallel action. The factual point was addressed in an affidavit filed the day before the hearing. Counsel for the Attorney took no objection to it. The affidavit was of the applicant's solicitor, Jonathan Eric Wyatt, sworn 14 March 2005. He deposes that on 10 March 2005 he requested from the department, copies of correspondence sent by Mr Martin pursuant to reg 15(2)(b). He annexes a copy of a letter in reply advising that the CEO had not as yet notified other marine authorities of the cancellation of the applicant's certificates, as he had been awaiting the outcome of these proceedings.
128 For the applicant it is submitted that the advice of the intention to suspend or cancel must be given before the decision is taken and that compliance with reg 15(2)(b) is a precondition to the CEO's exercise of jurisdiction to cancel.
129 Senior counsel for the Attorney submits that the nature of the obligation in reg 15(2)(b) is ambiguous. The paragraph prima facie requires that notification take place before a decision to cancel or suspend is taken, however the content of the notification required is of "the general details and circumstances attached to" the cancellation or suspension. Furthermore, the purpose of the notification is so that the marine authorities may then take appropriate parallel action. The submission is that the terms of the paragraph in each of these respects suggests that what is to be notified is the decision by the CEO to cancel or suspend and not merely an intention to consider doing so. It is submitted that for that reason, and despite the temporal condition in the opening words of reg 15(2), subreg (2)(b) should be construed as operating only after the CEO has actually made a decision to suspend or cancel.
130 There is some force in these submissions on a common-sense view, but the introductory words of reg 15(2) plainly require the actions specified in Pts (a) and (b) of that subregulation to be taken before the decision to cancel or suspend is taken. That is what the regulation says. To hold in accordance with the submission for the Attorney would be not only to deny the opening words of reg 15(2) any effect at all in respect of subreg (2)(b) but to adopt a construction contrary to them. A legislative intention that the advice is to be given before a final decision is made may be thought to be consistent with the expressed purpose of giving the advice referred to so that any other relevant authority can take appropriate parallel action. On a matter affecting public safety at sea, there could be an immediate need for such other authority to consider or initiate their own suspension or cancellation action before a decision is actually made by the CEO. The real question though, is whether Parliament intended the requirement in reg 15(2)(b) to be a pre-condition to jurisdiction, such that a failure to comply with it would result in invalidity of the decision.
131 In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ said (at 388 - 389):
"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied (Howard v Bodington (1877) 2 PD 203 at 211, per Lord Penzance); there is not even a ranking of relevant factors or categories to give guidance on the issue."
132 Their Honours went on to discuss the traditional distinction between acts done in breach of an essential preliminary to the exercise of a statutory power and those done in breach of a procedural condition for the exercise of a statutory power. They pointed out that cases within the first category are regarded as going to jurisdiction, so that compliance is regarded as mandatory and a failure to comply will result in invalidity. Their Honours noted that cases falling within the second category are traditionally regarded as directory rather than mandatory and that an act done in breach of it does not result in invalidity. However the authorities in each category produced conflicting results. Their Honours agreed with the criticisms of the New South Wales Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20 at 23 - 24 of the continued use of the directory/mandatory distinction. They went on to say (at [93]):
"They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the
beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales ... In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'."
133 In approaching the provision in question here, it is to be noted that compliance with it does not bear on the issue of procedural fairness to the certificate holder. There is no requirement that the certificate holder be notified that the relevant advice has been given to another marine authority. There is no requirement nor provision for such other authority to provide any material nor take any part in the decision-making process by the CEO under reg 15. Compliance or non-compliance with reg 15(2)(b) does not affect either the process of decision-making nor the decision made under reg 15. Given these considerations and the express legislative purpose for advising other marine authorities (so they can take appropriate parallel action) it could not have been the purpose of the regulation that a decision to suspend or cancel a certificate of competency would be invalid if the relevant advice were not given to other marine authorities before it was made. Indeed, such a conclusion would be wholly contrary to the public interest the legislative and regulatory scheme is intended to safeguard. These grounds too must fail.
134 As none of the applicant's grounds have been made out, the order nisi should be discharged, and I would so order.
135 MILLER AJA: I have had the opportunity of reading in draft the reasons for judgment of Roberts-Smith JA. I agree with those reasons and I agree that the order nisi should be discharged.
(1990) 170 CLR 1
(1995) 184 CLR 163
(1936) 56 CLR 246
(1966) 115 CLR 493
(1989) 166 CLR 486
(1986) 6 NSWLR 246
(1948) 76 CLR 501
(2001) 206 CLR 323
(2003) 198 ALR 59
(1963) 109 CLR 559
(1990) 170 CLR 321
(1984) 4 FCR 428
(1997) 151 ALR 647
(1990) 24 FCR 564
(1996) 185 CLR 259
(1996) 62 FCR 402
(1986) 159 CLR 656
(2000) 104 FCR 359
(1936) 55 CLR 235
(1992) 177 CLR 292
(1987) 11 NSWLR 51
(1993) 113 ALR 1
(1982) 152 CLR 188
(1987) 164 CLR 15
(1999) 197 CLR 611
(2004) 29 WAR 273
(1991) 5 WAR 411
(1998) 194 CLR 355
(2001) 25 WAR 170
(2003) 201 ALR 260
(1993) 43 FCR 280
(1980) 31 ALR 666
(1985) 155 CLR 422
(1977) 137 CLR 487