Doyle v NSW Maritime [2011] NSWADT 113

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Doyle v NSW Maritime [2011] NSWADT 113 Hearing dates: 8 November 2010 Decision date: 24 May 2011 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The Tribunal has no jurisdiction to hear and determine the Applicant's application for review. Catchwords: Reviewable decision - whether agency made a decision that was reviewable - whether applicant was an interested person Legislation Cited: Administrative Decisions Tribunal Act 1997 Commercial Vessels Act 1979 Marine Safety Act 1998 Marine Safety (Commercial Vessels) Regulation 2010 Marine Safety (General) Regulation 2009 Water Traffic Regulation-NSW Category: Interlocutory applications Parties: Dr David Doyle (Applicant) NSW Maritime (Respondent) Representation: Self (Applicant) D Gailbraith (Respondent) File Number(s): 103118

REasons for decision 1The applicant, Dr Doyle, is the registered holder of a non-voting Unit in the Unique Boat Share Trust-Fishmarkets. As the holder of a non-voting Unit in the Trust, Dr Doyle has an entitlement to make bookings and use, through Blue Sky Boating, a vessel, the 2007 Sea Ray 310 Sundancer Sport Cruiser, owned by Blue Sky Boating. Dr Doyle contends that, by reason of his holding of a Unit in the Trust, he is also an 'owner' of the vessel. 2On 15 February 2010, Dr Doyle wrote to the respondent, NSW Maritime, seeking information about specified boats (including the 2007 Sea Ray 310 Sundancer Sport Cruiser) owned by 'Blue Sky Boating/Unique Boat Share Trust'. In particular, Dr Doyle requested the following: (a) whether the respondent had 'determined at any time that circumstances existed which justify the [Boat-share Guidelines] being departed from in regard to these vessels'; (b) whether or not an application had been received from Blue Sky Boating for recognition of 'boat share' status pursuant to the Boat- share Guidelines. A copy of the request and the determination thereof was also requested; and (c) the respondent 'exercise its powers to compel an audit of compliance' by the owners of the vessel [i.e. the Sundancer Sport Cruiser] as it was contended that the Unit Trust, of which Dr Doyle was a registered holder, did not comply with specified provisions of the Boat-share Guidelines. 3The Boat-share Guidelines are a publication of the respondent in which it sets out the circumstances in which vessel, the subject of a 'boat-share' arrangement, will be regarded as a vessel that is used for recreational purposes and not commercial purposes. Up until 31 December 2010, a vessel used for commercial purposes was required to comply with the provisions of the Commercial Vessels Act 1979 (the CV Act) . That Act (now repealed), made provision for the issue of permits to commercial vessels operating in State waters and also contained other provisions in regard to the operation of commercial vessels. However, on its repeal, the Act was replaced with the Marine Safety (Commercial Vessels) Regulation 2010 (MS (CV) Act) . These regulations I note contain transition and savings provisions in regard to commercial vessels falling under the repealed CV Act . 4The respondent replied to Dr Doyle in a letter dated 5 March 2010. In that letter the respondent confirmed that it had not formally allowed the specified boats owned by Blue Sky Boating to depart from its published boat-share guidelines. The respondent went on to say the following: 'With regard to your enquiry about the boat share status of Blue Sky boating, please note that NSW Maritime does not have a formal recognition process. However, we have received correspondence from some boat share businesses seeking our appraisal of their conformance to the guidelines. In such instances, we send them our considered response following a review of the documentation provided, or after seeking further information. We are currently in the process of such an appraisal with respect to a recent letter from Blue Sky Boating.' 5Dr Doyle wrote two responses to this letter on 1 April 2010. In one letter he made a request, pursuant to section 53 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), for an internal review in regard to the respondent's comment that it did not have a formal recognition process. Dr Doyle asserted that this comment inferred that the respondent had '... affectively decided not to apply the Boat Share Guidelines' in regard to the Blue Sky boats and that it had instead decided to: 'impose a different limited number of unidentified conditions and/or limitations and/or restriction on the registration of the vessel known as "2007 Model, Sea Ray 335 Sundancer Sport Cruiser, 33.5 FT", registration number 57957 (the " Vessel ") (the " Decision ").' 6On 19 May 2010, the respondent replied to Dr Doyle's request for internal review. In that reply the respondent contended that the 'decision' for which Dr Doyle had sought review was not a reviewable decision by the Tribunal and that as a consequence he was not entitled to apply for an internal review. Being dissatisfied with this response, Dr Doyle lodged an application with the Tribunal for external review. The respondent continued to assert that the 'decision', for which Dr Doyle had sought review was not a decision that was reviewable by the Tribunal. The respondent also contended that even if its letter of response were found to contain a decision that was reviewable, Dr Doyle did not have any standing to seek review. 7By consent, these preliminary issues were heard on 8 November 2010. At the conclusion of the hearing I made directions for the respondent to file and serve a copy of any registration papers or permits for the 2007 Sea Ray 310 Sundancer Sport Cruiser. This material and a short explanation of the material was filed and served by the respondent. Subsequently, on 6 December 2010 and 7 February 2011, Dr Doyle wrote to the Tribunal requesting that the matter be relisted for hearing. It was his contention that further evidence needed to be obtained on issues of jurisdictional fact. The respondent did not agree with this request and submitted that the additional matters raised by Dr Doyle were of no relevance to the jurisdictional issues that had been raised and which, by consent, had been agreed to be dealt with as a preliminary matter. 8I agree with the contentions of the respondent. In this application, the issues in regard to jurisdiction are relatively straight forward in that the only questions are: (a) whether the letter of the respondent, dated 5 March 2010, evidenced a decision of the respondent that was a reviewable decision, and (b) if it was such a decision, whether Dr Doyle has standing to make this application. In this regard, the document Dr Doyle attached to his letter of 3 February 2011does not in my view assist in determining these issues. The document would appear to be more relevant to Dr Doyle's wider concerns about the regulation (or lack thereof) of vessels that are used in boat share schemes. 9Accordingly, these are my reasons for decision in regard to the preliminary issues raised by the respondent.