FLK v Transport for NSW [2022] NSWCATAD 360

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FLK v Transport for NSW [2022] NSWCATAD 360 Hearing dates: 1 August 2022 Date of orders: 8 November 2022 Decision date: 08 November 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE REVIEW – Marine Safety Act – cancellation of PWC boat licence – danger to water users Legislation Cited: Administrative Decisions Review Act 1997 Marine Safety Act 1998 Marine Safety Regulations 2016 Category: Principal judgment Parties: FLK (Applicant) Transport for NSW (Respondent) Representation: P Senior (Agent) (Applicant) Respondent (Self Represented) File Number(s): 2022/00143704 Publication restriction: The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION 1. This is an application for administrative review of a decision made by Transport for NSW ('the Respondent') cancelling FLK's, ('the Applicant'), PWC Boat Licence pursuant to s38(1)(c) of the Marine Safety Act 1998 ('the MSA'). 2. The Applicant has been given a pseudonym FLK due to him being a minor. FLK was represented in the proceedings by his father, as his agent.

Background 1. On 24 December 2021, the Respondent issued FLK a notice to show cause in respect to whether his PWC Boat Licence should not be cancelled or suspended. The show cause notice was sent to FLK because he had committed three offences against the provisions of the marine legislation within a period of 24 months from the date of his last recorded offence. The offences giving rise to the decision to cancel FLK's PWC Boat Licence included: (i) compliance action details relating to Penalty Notice issued 2 October 2022, and NSW Police Force COPS entry; FLK was charged with not keeping a proper lookout resulting in a collision with another vessel. The COPS report includes 'About 12.50 on Saturday 2nd October 2021 vessel 1 was travelling upstream with a group of other tinnies and a jet ski. This vessel is believed to have been travelling at a speed greater than the signposted 8 knots and on the wrong side of the channel with the vessel's bow raised blocking his view. At the same time vessel 2 was travelling downstream at a speed of about 3 knots on the right hand side of the channel. At a bend in the river, the bow of vessel 1 has collided with the starboard side of vessel 2. Both the driver and passenger of vessel 1 have been thrown into the water. Vessel 2 immediately stopped and assisted both of them onto his vessel.' FLK was fined and did not challenge the infringement. (ii) compliance action details relating to penalty notice issued 29 August 2021; FLK observed operating a PWC on a waterway at a speed 15 knots plus in an 8 knot zone. FLK was fined and did not challenge the infringement. (iii) compliance action details relating to penalty notice issued 1 May 2021. FLK issued with a penalty notice concerning defect notice operating 40 horsepower Mercury with maxim 25 horsepower or less limit. FLK was also not carrying a whistle. FLK was fined and did not challenge the infringement. 1. On 18 January 2022, FLK responded to the notice to show cause. However, the reply was inadvertently not put before the review panel when FLK's PWC Boat Licence was cancelled. 2. On 18 March 2022, the Respondent wrote to FLK advising him, that his PWC Boat Licence would be cancelled effective from 11 April 2022 for a period of 6 months. 3. On 25 March 2022, the Applicant requested internal review of the 18 March 2022 decision. 4. On 4 April 2022, the Respondent replied to FLK, advising him the decision of the Respondent made on 18 March 2022 was upheld. 5. When the Respondent considers matters such as cancelling a PWC Boat Licence it refers documentation to the Marine Safety Licence Sanctions Panel ('MSLSP'). The Panel reviews the documentation, which includes the offences of the person whose licence is under review, and makes a decision which is implemented by the Respondent. It is this process that was carried out in determining to cancel FLK's PWC Boat Licence.