The alleged procedural unfairness
27 Yamba Shipping contends it should have been provided with the following documents - a report prepared after the inspection of the vessel undertaken on 28 June 2022 by two AMSA- appointed inspectors (Darra Report), and "several documents and reports relevant to the vessel held by AMSA" which were listed in a decision paper prepared by the Delegate (Darra EAPP07-5766 Decision Paper) following receipt of the Darra Report (Historical Documents). Yamba Shipping did not contend it should have been provided with the Darra Decision Paper.
28 Yamba Shipping accepted the Historical Documents were known to it. They included documents relating to the condition of the MV Darra in the period up to 2021, including Improvement Notices and AMSA Directions. Yamba Shipping submitted these documents were relied upon by the Delegate as showing the vessel had a problematic history in terms of its compliance with the National Law. In those circumstances, Yamba Shipping submitted it lost the practical opportunity to make submissions that the documents were irrelevant and that they in fact showed its history of compliance with AMSA directives and the responsible operation of the vessel.
29 Against this background, and within the statutory context, it must be observed that the application for an exemption was Yamba Shipping's third in 10 months. It is somewhat artificial for Yamba Shipping to contend that it was not, or could not be, aware of the material that would be relied upon by a decision-maker in these circumstances: Alphaone [at 31]. Yamba Shipping concedes it was aware of the content of the Historical Documents, and by implication the safety compliance issues which would be of concern to AMSA. It is difficult to accept that Yamba Shipping lost the practical opportunity to make submissions as to the history of its compliance with AMSA directives or to address concerns about the vessel's maintenance. Yamba Shipping must be taken to have been on notice, not merely from its own knowledge of the Historical Documents, but especially from the previous decision of the National Regulator, made by a different Delegate, to refuse an exemption. The October 2021 Decision expressly noted "a negative compliance history as documented by National Law notices" and "numerous outstanding items that have been referenced by attending AMSA surveyors which are yet to be rectified at an out of water slipping". In this context, Yamba Shipping cannot have been ignorant of, nor taken by surprise that such issues would be relevant to any consideration of a subsequent application for exemption. It had the opportunity to address those issues proactively in its current application. It did not do so.
30 Further, in the context of an application for an exemption, the extent to which a decision-maker is obliged to provide an applicant with an opportunity to comment on documents relating to the safety of the vessel is informed by the statutory framework. That framework casts the obligation for being satisfied of the safety of the vessel firmly on the National Regulator. The Application Form for Temporary Operations Domestic Commercial Vessels requires an applicant to "explain how you will ensure the safety of the operation you intend to undertake". An applicant may attach relevant supporting documents. Once an application for exemption is made, the National Regulator must satisfy itself as to matters of safety. It may do so by making enquiries of any person in relation to the information provided in the application, and by requiring further information or documents from the applicant, to which Yamba Shipping expressly consented. It can also require the vessel to be made available to it for inspection. Yamba Shipping did so.
31 In all the circumstances, no practical injustice has been established in relation to the Historical Documents.
32 As to the Darra Report, Yamba Shipping contends it should have been provided with an opportunity to respond to its contents and the fact that two representatives of Yamba Shipping, one of whom was the Master, accompanied the inspectors during the inspection of the MV Darra cannot cure any procedural unfairness. In written submissions, Yamba Shipping contended that, in fact, the document which should have been relied on by the Delegate was the body-worn camera footage generated during the inspection. That contention was not pleaded as a separate ground of review, nor was it addressed in oral submissions.
33 The question is whether the negative considerations outlined in the Darra Report, and which formed the basis of the Darra Decision Paper, applying the touchstone of fairness, were an "obvious or natural evaluation of the material which need not be the subject of particular attention being drawn": Degning v Minister for Home Affairs [2019] FCAFC 67; 270 FCR 451 at [13] per Allsop CJ.
34 For the reasons already given in respect of the Historical Documents, the statutory context informs the enquiry as to "fairness". It is noteworthy that, within that statutory context, s 15(1)(c) of AMSA EX07 provides that the person who conducts the in-water components of the renewal survey is to give the written report of the survey, in this case the Darra Report, to the National Regulator. There is no requirement to give such a report to an applicant.
35 As already observed, Yamba Shipping was given the opportunity to make its case for an exemption in its application. It was also given the opportunity for two of its representatives to accompany the inspectors and to provide whatever commentary it thought relevant to its application during that inspection. It is evident from the Darra Report that a discussion in relation to at least some defects took place between the inspectors and the representatives of Yamba Shipping. The legal representative for Yamba Shipping submitted those matters were relatively minor non-compliance matters and Yamba Shipping understood that, once those matter were attended to, the vessel would be satisfactory. He conceded frankly, however, that there was no evidence before the Court to that effect.
36 The matters identified as requiring further consideration as to the vessel's seaworthiness were:
a below the waterline external survey;
targeted NDT of areas that are unable to be easily inspected and in particular where repairs have been undertaken;
a more detailed inspection of where it is evident that significant amounts of water ingress are or have been (Anchor locker void and void space 2) due to observable corrosion of structural members and hull plating; and
a detailed examination of the significant hull plate patches.
37 The Darra Decision Report outlined the negative considerations that emerged from the Darra Report. This in turn informed the Delegate's conclusion in the July 2022 Decision, on the basis of "several factors", that he could not be satisfied that the exemption will not jeopardise the safety of a vessel or a person on board a vessel. These factors were said to include, in summarised form:
(1) Hull plate patches that were visible above the water line with "no evidence of the type of repair work having been conducted on the hull that would indicate that the underlying issues that caused the doubler platers to have been fitted below the waterline have been properly rectified". The Delegate opined, "Given the outside of the hull has not been sighted for a considerable period, there is a very real likelihood that existing corrosion has deteriorated, and that new, unidentified localising pitting corrosion has commenced".
(2) Thickness test reports were not extensive and were not considered representative of the current condition of the hull, given they were conducted three to four years ago.
(3) A temporary cement box remains in the port wing void which records indicate was likely installed around 16 months ago. Although the inspectors noted it appeared to be holding, it was unclear what deterioration occurred to the hull over time in way of the original failure and how it might behave under increased hydrostatic pressure and stresses during prospective operations.
(4) Significant amounts of water ingress in way of anchor locker and Void space 2, apparently due to observable corrosion of structural members and hull plating.
38 As to the first factor referred to by the Delegate, being the multiple doubler plates attached to the hull, it is inconceivable that Yamba Shipping could be unaware of the significance of the doubler plates to the inspection given the whole point of the inspection was concerned with whether the Delegate could be satisfied as to the safety of the vessel, which necessarily included the integrity of the hull, in the absence of out-of-water survey since 2016.
39 As to the second factor, the thickness test reports, it is plain that Yamba Shipping was aware that hull thickness was a critical issue relevant to the decision of the Delegate. Yamba Shipping itself included the reports as an attachment to its application.
40 As to the third factor, the cement box, Yamba Shipping was aware the box was installed subsequent to the vessel's last out-of-water survey. It must be taken to have been aware that any temporary repair designed to deal with a breach of the hull would be an issue critical to the Delegate's decision. From the Bar table, the legal representative for Yamba Shipping argued that, whilst usually these boxes are used where there is a breach of the hull, in this case, it was placed over a pinhole leak in a weld. No evidence was led to this effect.
41 As to the final factor, the water ingress in way of the anchor locker and Void Space 2, it is again difficult to conceive that Yamba Shipping could be unaware of the significance of any water ingress to the safety of the vessel and that if any had been detected during the inspection, it may affect the decision to be made.
42 The purpose of Darra Report was not to identify defects and provide the applicant with an opportunity to comment on those findings. The purpose of the Darra Report was to provide a written report to the National Regulator of the in-water survey conducted of the vessel as required by s 15(1)(c) of AMSA EX07. Yamba Shipping must be taken to have been aware of that and, for the reasons already given, the issues or facts on which the decision was likely to turn were obvious and natural: Degning at [13].
43 In all the circumstances, no practical injustice has been established in relation to the Darra Report.
44 No procedural unfairness having been established in respect of the Historical Documents or the Darra Report, the procedural fairness ground (Orders 1(a) and (b) sought by the Application) cannot succeed.