25 November, 2012

 

Legal News & Analysis – Asia Pacific – Australia – Dispute Resolution

 

CSL Australia v Minister For Infrastructure and Transport & Rio Tinto Shipping

 

In brief

 

  • The recent case of CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 3) [2012] FCA 1261 contains important guidance as to the interpretation of the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth).
  • In particular, it provides direction in relation to the interpretation of the Act, having regard to its objects; the factors that are relevant to the exercise of the Minister’s discretion in granting variations to temporary licences; and the appropriate avenues for the review of any exercise of the Minister’s discretion in relation to the granting or varying of temporary licences.

 

On 16 November 2012, Justice Robertson of the Federal Court of Australia handed down the judgment in CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 3) [2012] FCA 1261.

 

The application by CSL Australia (“CSL“) sought judicial review of a decision by the delegate of the Minister to vary the temporary licence granted earlier to Rio Tinto Shipping Pty Ltd (“Rio Tinto Shipping“) under the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) (“Coastal Trading Act“), in relation to shipments being performed for Pacific Aluminium (the “shipper”). The variation permitted Rio Tinto Shipping to undertake four additional voyages under their temporary licence. One of the voyages the subject of the variation is now past (11 October 2012) and the remaining three voyages are scheduled for 4 December 2012, 4 January 2013 and 1 February 2013.

 

CSL Australia had previously sought an interlocutory injunction preventing Rio Tinto Shipping from completing these voyages, pending the outcome of the judicial review application. Robertson J rejected the application on the basis that CSL failed to show sufficient likelihood of success of its application to warrant interlocutory relief. While CSL argued 10 grounds of review, CSL was successful on only one. Robertson J accepted that CSL had been denied procedural fairness because CSL’s detailed response to the shipper’s particular safety concerns had not been provided to the Australian Maritime Safety Authority (“AMSA”) by the Minister’s delegate in the course of seeking AMSA’s advice on those safety concerns.

 

Interestingly, Robertson J noted the absence of any distinction between Australian shipping and other shipping in the definition of “coastal trading” within the Act.

 

His Honour also concluded that the Minister’s delegate had not acted inconsistently with the objects of the Coastal Trading Act when taking into account the economic interests, profitability and costs of the shipper of the cargo in question. Robertson J stated that “[p]romoting a viable Australian shipping industry is not the only or dominant object of the Act so as to make any other considerations legally impermissible”.

 

Further, the judgment contains some important guidance in relation to:

 

  • the interpretation of the Coastal Trading Act, particularly having regard to its objects;
  • the factors that are relevant to the exercise of the Minister’s discretion in granting variations to temporary licences; and
  • the appropriate avenues for the review of any exercise of the Minister’s discretion in relation to the granting of temporary licences.

 

As such, this judgment is significant as it will no doubt assist with informing the Department’s policy on applications for temporary licences under the Coastal Trading Act.

For further information, please contact:

 

Paul Newman, Partner, Ashurst

paul.newman@ashurst.com

 

Shane Bosma, Ashurst

shane.bosma@ashurst.com

 

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