Mentink v Registrar of the Australian Register of Ships [2014] FCA 1138

FEDERAL COURT OF AUSTRALIA

Mentink v Registrar of the Australian Register of Ships [2014] FCA 1138 Citation: Mentink v Registrar of the Australian Register of Ships [2014] FCA 1138

Appeal from: Application for extension of time to appeal from: Mentink v Registrar of the Australian Register of Ships [2012] QSC 380 and Mentink v Registrar of the Australian Register of Ships (No 2) [2013] QSC 151

Parties: WILFRED JAN REINIER MENTINK v REGISTRAR OF THE AUSTRALIAN REGISTER OF SHIPS

File number: QUD 599 of 2014

Judge: GREENWOOD J

Date of judgment: 24 October 2014

Catchwords: ADMIRALTY – consideration of an application for an extension of time to file an appeal from two judgments of the Supreme Court of Queensland by which that Court made a declaration that the Registrar appointed to exercise powers and functions under the Shipping Registration Act 1981 (Cth) (the "Act") was not authorised by the Act to make an entry in the Register of Ships under the Act resulting in closure of the registration of a ship called the Larus II – consideration of the Supreme Court's refusal to order rectification of the Register – consideration of the Supreme Court's excess of power declaration and the refusal to grant other declarations sought by the applicant ADMIRALTY – consideration of the rights attaching to registration in the Register under the Shipping Registration Act 1981 (Cth) (the "Act") – consideration of the authorities in relation to the nature of the Register and the powers of the Registrar – consideration particularly of ss 45, 59, 66 and 77 of the Act ADMIRALTY – consideration of the legal characterisation of the step taken by the Registrar to make an entry in the Register resulting in closure of the registration of the ship – consideration of whether it is necessary or helpful in terms of the authorities to describe the erroneous administrative step of the Registrar as "void", "voidable", "invalid", "vitiated" or as a "nullity" – consideration of the proposition that the Registrar's erroneous administrative step, beyond power, and thus not authorised by the Shipping Registration Act 1981 (Cth) is a step regarded in law "as no decision at all" in accordance with the authorities discussed at [107] to [124] of the reasons for judgment ADMIRALTY – consideration of whether the discretionary factors relevant to the determination of whether a declaration ought to be made or refused are factors which apply to the exercise of the statutory rectification power under s 59 of the Shipping Registration Act 1981 (Cth) whether exercised by the Supreme Court of a State under that section or by the Federal Court of Australia by operation of s 39B(1A)(c) of the Judiciary Act 1903 (Cth) PRACTICE AND PROCEDURE – consideration of an application for an extension of time to appeal from judgments of the Supreme Court of Queensland concerning a declaration that an administrative officer had exceeded that officer's statutory power in making an entry in the Register of Ships administered under the Shipping Registration Act 1981 (Cth) resulting in closure of the registration of a ship, and otherwise dismissed a rectification application and otherwise refused particular declarations sought by the applicant – consideration of the principles to be applied in such an application