Denmeade t/as Coast Training v Maritime Safety Queensland [2024] QCAT 222

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Denmeade t/as Coast Training v Maritime Safety Queensland [2024] QCAT 222 PARTIES: PHILIP DENMEADE T/AS COAST TRAINING (applicant) v MARITIME SAFETY QUEENSLAND (respondent) APPLICATION NO/S: GAR169-24 MATTER TYPE: General administrative review matters DELIVERED ON: 28 May 2024 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: A/Member Lumb ORDERS: 1. The Application to stay a decision filed on 12 March 2024 is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – General administrative review – Respondent made decision to suspend, for a period of 12 months, Applicant’s BoatSafe Training Provider Authority issued under the Transport Operation (Marine Safety) Regulation 2016 (Qld) – where Applicant has applied to review decision – where Applicant applies to stay decision under s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether stay of decision should be ordered Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22 Transport Operations (Marine Safety) Act 1994 (Qld), s 3 King v Queensland Law Society Incorporated [2012] QCAT 489 McCormick v Queensland Law Society Incorporated [2019] QCAT 380 Willmott v Carless [2021] QCATA 132 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 1 of 6 -- 2 Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION Introduction [1] The decision the subject of this proceeding was made by the Respondent on 5 March 2024 (the GAR169 Decision). By the GAR619 Decision, the Respondent suspended for a period of 12 months, the Applicant’s BoatSafe Training Provider Authority (‘the Authority’) issued under the Transport Operation (Marine Safety) Regulation 2016 (Qld). The Applicant operates a business called ‘Coast Training’, which appears to provide training courses and assessment in relation to the operation of boats and watercraft from Cannonvale in the State of Queensland. [2] By the GAR169 Decision (being an internal review decision), the Respondent imposed the suspension in lieu of a previous decision of the Respondent cancelling the Authority.1 The suspension operates for a period of 12 calendar months commencing on 31 January 2024 and ceasing at midnight on 31 January 2025. Although the Authority will expire on 14 June 2024, the Authority may be renewed during the term of the suspension, but the suspension will continue until it expires. [3] On 12 March 2024, the Applicant filed an Application to review the GAR169 Decision (‘the Review Application’). [4] Also on 12 March 2024, the Applicant filed an Application to stay a decision, being the GAR619 Decision (‘the Stay Application’). The applicable statutory provision re a stay [5] Section 22 of the QCAT Act deals with the effect of an application to review a reviewable decision and provides the power to grant a stay of such a decision. Section 22 provides, relevantly for present purposes: (1) The start of a proceeding for the review of a reviewable decision under this Act does not affect the operation of the decision or prevent the implementation of the decision. (2) However, subsection (1) does not apply— (a) if an enabling Act that is an Act provides otherwise; or (b) to the extent the operation of all or part of the reviewable decision is stayed by an order of the tribunal under this section that is still in effect. (3) The tribunal may, on application of a party or on its own initiative, make an order staying the operation of all or part of a reviewable decision if a proceeding for the review of the decision has started under this Act. (4) The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following— 1 The earlier decision is also the subject of an application to review filed by the Applicant in proceeding GAR110-24. -- 2 of 6 -- 3 (a) the interests of any person whose interests may be affected by the making of the order or the order not being made; (b) any submission made to the tribunal by the decision-maker for the reviewable decision; (c) the public interest. (5) Subsection (4)(a) does not require the tribunal to give a person whose interests may be affected by the making of the order, or the order not being made, an opportunity to make submissions for the tribunal’s consideration if it is satisfied it is not practicable because of the urgency of the case or for another reason. (6) In making an order under subsection (3), the tribunal— (a) may require an undertaking, including an undertaking as to costs or damages, it considers appropriate; or (b) may impose conditions on the order it considers appropriate; or (c) may provide for the lifting of the order if stated circumstances occur. … The relevant principles [6] The Tribunal may make an order for a stay if it considers that the order is desirable having regard to the matters set out in subsections 22(4)(a), (b) and (c) of the QCAT Act. Other matters to be considered will include the Applicant’s prospects of success in the review proceeding, the effect of any stay on the proceeding, and whether irremediable harm might be suffered by the Applicant if a stay is not granted.2 [7] As to the approach to be adopted by the Tribunal in a stay application, in Willmott v Carless,3 Judicial Member DJ McGill SC said:4 … On an application for a stay, the applicant carries the onus, and to obtain a stay must show that, taking into account all relevant considerations, overall it is desirable that a stay be granted. That involves a positive finding in favour of a stay. Once one or more relevant factors which support the refusal of a stay have been identified, there must be one or more factors in favour of a stay which together outweigh the factors pointing the other way. Once it is recognised that a factor opposed to a stay deserves some weight, the factors favouring a stay must be deserving of more weight to produce satisfaction with the test, that the stay is desirable. “Cogent” simply means convincing or persuasive; in this context, sufficient to overcome the combined weight of the factors pointing the other way. [8] As to the question of prospects of success, in Willmott, Judicial Member DJ McGill SC said:5 2 King v Queensland Law Society Incorporated [2012] QCAT 489, [12] (Justice Alan Wilson, President); McCormick v Queensland Law Society Incorporated [2019] QCAT 380, [5] (Justice Daubney, President). 3 [2021] QCATA 132, [27]. 4 At [27]. 5 At [14]. See also [6], [37]. -- 3 of 6 -- 4 Given the decision in Kennedy (supra), it would be wrong to say that an applicant for a stay does not need to show an arguable case on the review, but when considering the application of this requirement, it is important to bear in mind that the applicant has a right to a review by the Tribunal of the decision of the first respondent, and on that review the first respondent has the onus, and there is no presumption that the decision under review is correct … (underlining added) [9] I consider that if the Tribunal forms the view that an applicant for a stay has no arguable case, it follows that it would not be ‘desirable’ to grant a stay of the relevant decision. If the Tribunal concludes that there is an arguable case, then the Tribunal weighs up the balance of the relevant considerations, and to the extent that the material permits the Tribunal to form a view about the strength of the case, that may be taken into account in determining whether it is desirable to grant the stay. Is an order for a stay desirable? The grounds for GAR169 Decision [10] The basis of the Decision was the Respondent’s conclusion that the Applicant had contravened Condition 5 of the Authority in three respects concerning 13 students that undertook BoatSafe training with the Applicant on 2 September 2023, namely: (a) that the Applicant had provided training for 3 hours 30 minutes, which the Respondent found was a failure to meet the mandated minimum training time of 4 hours 25 minutes to deliver theory units 1 to 4 of the BoatSafe RMDL Competency Standard; (b) that the prescribed minimum timeframes to deliver practical training and assessment, set out in Section 14.11 of the BoatSafe Business Rules, that are dependent upon and increase with the number of students in the ship, was not met for each of the boat runs; (c) the desktop audit of student records found the following: incorrect answers to the theory assessment have been marked as correct; in some cases no answer was provided or multiple answers were given and the student was assessed as competent; the Theory and Practical Assessment Statements were not signed by the Applicant or the student; the Applicant failed to check or mark the students’ “Boat Licence Notes” completed during the theory training; all of which was found by the Respondent to have established that the Applicant was in breach of sections 11, 13 and 14 of the BoatSafe Business Rules. [11] I will now address the relevant considerations. Arguable case? [12] On the basis of the Applicant’s current material and submissions, it is difficult to determine the substance of the Applicant’s case. I apprehend that the Applicant’s overarching contention is that clause 20 of the BoatSafe Business Rules provides that an authority holder is entitled to apply a Recognition of Prior Learning (‘RPL’), that the Applicant was entitled to consider relevant evidence provided by a candidate (student), and that the Applicant could consider waiving the requirement to conduct the practical assessment, if the Applicant was of the opinion that the candidate was -- 4 of 6 -- 5 able to provide evidence that showed that they met or exceeded the BoatSafe practical assessment requirements. [13] The Applicant also sought to address the specific matters raised by the Respondent in the GAR169 Decision. In his submissions in support of the Stay Application, the Applicant submitted, amongst other matters: (a) in relation to the alleged short period of training: ‘ITS [SIC] AN RPL/TRAINING PROCESS SO THESE THEORETICAL TIMINGS ARE VOID’; (b) in relation to the alleged incorrect answers or questions not fully answered: ‘THE AUDITOR CONFUSED THEIR INCORRECT ANSWERING OF WRITTEN QUESTIONS ON THE RPL DOCUMENTS WHICH IS NOT MANDATORY WITH COMPLETION OF ANSWERS ON THE MANDATED DOCUMENTS’; (c) in relation to the alleged failure of some of the students to identify if they required literacy, language, or numeracy assistance: ‘AS STATED ABOVE THEIR LACK OF REQUEST FOR LLN ASSISTANCE DOES NOT MEAN THAT THEY WERE NOT ASSESSED, THEY WERE ALL ASSESSED BECAUSE IT WAS FACE TO FACE TRAINING/RPL’; (d) in relation to the alleged failure to meet minimum assessment in relation to the boat runs: ‘THIS TWISTS THE MANDATED *TRAINING & ASSESSMENT” TIMES TO BE CALLED ASSESSMENT TIME WHICH IS NOT THE DEPARTMENTS [sic] WORDING IN THEIR REQUIREMENTS’; (e) the Auditor had a lack of understanding of the Respondent’s own RPL requirements under the BoatSafe Business Rules. [14] In my view, the generality of these contentions precludes an assessment of the strength of same. Further material and more detailed submissions may elucidate each of those matters. [15] However, on the Respondent’s case: (a) the Authority expressly provided that the Applicant ‘must’ provide competency- based training and assessment ‘only’ in accordance with the various specified documents (as amended from time to time) including the BoatSafe Business Rules, RMDL Competency Standard, and RMDL Practical Assessment Statement; (b) accepting that there is an RPL, there are still specific requirements contained in clauses 13 and 20 of the BoatSafe Business Rules to be satisfied. [16] Further, on my assessment of the material, the Applicant has not demonstrated how, on his case, the relevant students satisfied the necessary RPL having regard to the matters identified by the Respondent. [17] Whilst I am not in a position to find that the Applicant does not have an arguable case, I consider that, on the present material, the Applicant’s case appears to be far from strong. -- 5 of 6 -- 6 The interests of affected persons/public interest [18] I am prepared to infer that the suspension of the Authority would have some impact on the business operations of the Applicant. However, the Applicant has not provided any evidence as to the extent of that impact, including any likelihood that it may result in the cessation of the business carried on by the Applicant. The Applicant’s submission in this respect is: ‘CANCEL THE AUTHORITY ENDS THE BOAT LICENCE TRAINING HENCE ZERO INCOME’. The Respondent submits that the Authority is unaffected and other employed trainers could continue to work and sustain the business. However, whether this is economically feasible is, in my view, speculative. [19] In my view, the impact of the loss of an occupational licence on the ability to earn an income will be a relevant factor in deciding a stay application, but it should not generally be considered to be the overriding or determinative factor in cases where it intersects with the consideration of public interest. [20] Marine safety is one of the principal objectives of the Transport Operations (Marine Safety) Act 1994 (Qld).6 In my view, the imposition of training standards for persons operating marine craft, and the power of suspension (and cancellation) of authorities, are matters which plainly further the purpose of marine safety. [21] I am satisfied that the basis on which the suspension was imposed raises a consideration of marine safety, and that this is material to the issue of whether or not a stay should be granted. Effect of a stay order on the proceeding [22] In my view, there is no basis for a finding that the grant of a stay would adversely affect the review proceeding. Irremediable harm if a stay is not granted? [23] As noted above, there is no evidence concerning the anticipated financial impact of the suspension. In my view, the material does not permit a finding that the suspension will, more probably than not, result in closure of the business, if the stay is not granted (or that some other irremediable harm will be suffered by the Applicant). Conclusion [24] Having regard to all of the circumstances addressed above (particularly the marine safety aspect, the lack of apparent strength of the Applicant’s case (on the present state of the material), and that there is no demonstrated irremediable financial harm if a stay is not granted, I consider that it is not desirable to order a stay of the GAR169 Decision. Order [25] For the reasons set out above, the Application to stay a decision filed on 12 March 2024 is dismissed. 6 See, s 3(1), s 3(2) and s 3(3) of the Act. -- 6 of 6 --