Cayless v Gold Coast Waterways Authority [2016] QCAT 16

CITATION: Cayless v Gold Coast Waterways Authority [2016] QCAT 16 PARTIES: Timothy John Cayless (Applicant) v Gold Coast Waterways Authority (Respondent) APPLICATION NUMBER: GAR128-15 MATTER TYPE: General administrative review matters HEARING DATE: 15 October 2015 HEARD AT: Brisbane DECISION OF: Member J Allen DELIVERED ON: 14 January 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed. CATCHWORDS: APPLICATION TO DISMISS – whether Tribunal has jurisdiction to review decisions of the Gold Coast Waterways Authority in regard to buoy mooring authorities – where applicant not authority holder Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Cayless was self-represented RESPONDENT: Mr Day, solicitor of MacDonnells Law represented the Gold Coast Waterways Authority REASONS FOR DECISION [1] Mr Cayless was gifted a houseboat known as the “Golden Wanderer” upon the death of Mr Eric Beyers in 2013. Mr Beyers held a buoy mooring authority, SM180, which enabled the Golden Wanderer to be moored in a -- 1 of 6 -- 2 waterway now controlled by the Gold Coast Waterways Authority. Mr Cayless attempted to have the mooring authority transferred to himself to enable him to continue mooring the boat at buoy mooring SM180. The Gold Coast Waterways Authority advised him that as he was not the authority holder they could not deal with his application and this was confirmed by letter from the authority dated 12 May 2015. Mr Cayless has made an application to the Tribunal to review the decision of the Authority. [2] The Authority consider that Mr Cayless’s application is misconceived or lacking in substance and has made an interlocutory application to have the review application dismissed1. The parties were directed to make submissions and the application to dismiss was determined after an oral hearing. [3] The grounds for the application to dismiss are that either the Authority has not made any decision under an Act, which could be subject to review or in the alternative that there is no right of review to the Tribunal. [4] The first question, which the Tribunal must consider, is whether the Tribunal has jurisdiction to hear an application to review a decision of the Authority in respect of buoy mooring authorities. Where the Tribunal does not have such jurisdiction that is grounds for dismissing an application due to it lacking substance in accordance with the decision in Izard v Cairns Regional Council [2010] QCAT 410. [5] The Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act2 to review a decision, a reviewable decision, made or taken to have been made by another entity, the decision-maker, under that Act3. The Tribunal may exercise its review jurisdiction if a person has applied to the Tribunal to exercise its review jurisdiction for a reviewable decision4. [6] The Authority is established under the Gold Coast Waterways Authority Act 2012 (Qld) (‘GCWA Act’)5 and amongst other things performs functions conferred on it under the Transport Operations (Marine Safety) Act 1994 (Qld) (‘TOMSA’)6, which includes approving the establishment of buoy moorings. The Authority also ensures the effective and efficient management of water traffic and public marine facilities and the use of the Gold Coast waterways by exercising the powers under Part 5 of the GCWA Act.7 [7] The powers under Part 5 of the GCWA Act enable the Authority to display or publish waterways notices to control activities or conduct in Gold Coast waters for purposes including moving or mooring watercraft, or controlling 1 s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). 2 Ibid, s 6(2). 3 Ibid, s 17. 4 Ibid, s 18. 5 s8 of the Gold Coast Waterways Authority Act 2012 (Qld) (‘GCWA Act’). 6 Ibid, s 10(2)(c)(iii). 7 Ibid, s10(2)(b). -- 2 of 6 -- 3 activities on or by watercraft, in Gold Coast waters8. The Authority also has power to deal with contravening and abandoned property in or on Gold Coast Waters9. [8] There is provision for the review of the Authority’s decisions, which refers to an original decision as being a decision made under this Part (Part 5)10 . A person whose interests are adversely affected by an original decision may ask the Authority to review the decision, an internal review11, a decision made under s34 is defined as a reviewed decision12. [9] If the reviewed decision is not that sought by the applicant then the Authority must give the applicant a QCAT information notice for the reviewed decision and the applicant may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), to QCAT for a review of the reviewed decision13. A decision made under part 5 of the GCWA Act therefore triggers a right of review under s17 of the QCAT Act and the Tribunal would then have jurisdiction to hear the application to review. [10] The Authority submitted that the decision of 12 May 2015 related to the Authoritie’s jurisdiction under the TOMSA and its regulations and not part 5 of the GCWA Act and so there was no review jurisdiction enlivened under s34 of the GCWA Act. In his response to the applications to dismiss, Mr Cayless indicated that his application to the Tribunal was made under s203C of the TOMSA. [11] The Authorities power in regard to mooring authorities is contained in the TOMSA and Transport Operations (Marine Safety) Regulation 2004 (Qld) (‘TOMSR’) and when making decisions in regard to them it is not exercising any power under Part 5 of the GCWA Act. I accept the Authorities submissions in that regard and note that they are not denied by Mr Cayless Therefore the review jurisdiction contained in s34 of the GCWA Act is not enlivened in regard to decisions by the Authority made in respect of mooring authorities. [12] A QCAT Act mooring authority is granted under r209 of the TOMSR and where the proposed mooring is in waters controlled by the Authority it is the Authority14 or an entity appointed by the Authority15 that has the power to grant the mooring authority. Mooring Authorities are granted for specific periods16 and the mooring authority in question was granted to the late Mr Beyers on 23 November 2012 and was due to expire on 31 December 2013 unless it was renewed. 8 Ibid, s 22. 9 Ibid, ss27 to 32. 10 Ibid, s 33. 11 Ibid, s 34. 12 Ibid, s 33. 13 Ibid, s 34. 14 rr147 and 148(1)(j) of the Transport Operations (Marine Safety) Regulation 2004 (Qld) (‘TOMSR’). 15 Ibid, r 207(3). 16 Ibid, r 152. -- 3 of 6 -- 4 [13] There is provision in the TOMSR for applications to be made for new buoy mooring authorities17 and then for the renewal18 and amendment19 of them. The person who may make the later applications is the authority holder. The authority holder is defined in the regulations as the person to whom the authority is granted. [14] Where an application is refused written notice must be given to the applicant which states the reasons for the refusal and the prescribed review information for the decision20. The prescribed review information is defined in the dictionary to mean that the applicant may apply under s203B of TOMSA for the decision to be reviewed by the general manager and under the Transport and Planning Coordination Act 1994 (Qld) apply to QCAT for the decision to be stayed. Then under s203C of the TOMSA ask for the general manager’s decision to be reviewed by QCAT. [15] Section 203B of TOMSA refers to a person whose interests are affected by an original decision. An original decision is defined in s203 of TOMSA as a decision made under this Act by the chief executive, the general manager, a delegate of the chief executive or general manager, a harbour master or a shipping inspector, other than a reviewed decision. A reviewed decision in accordance with s203 means a decision of the chief executive or general manager made or taken to have been made, on a review under s203B. Where a reviewed decision is not the decision sought by the applicant then s203C of the Act gives the applicant a right to apply to QCAT for a review of the reviewed decision. [16] The Authority submits that if there was a decision made under the Act then it was not an original decision, as it was not one made by any of the listed persons. It was made by the Authority under the power given to it under the Act. There was then no right for Mr Cayless to apply for a review of the decision either to the Authority or to the Tribunal. While the Authority has been corresponding with Mr Cayless it has been on the basis of informing him that he was not a proper applicant to make an application to amend an authority and that he had no review rights in respect of that decision. [17] Mr Cayless submits that the Authority may delegate its functions under an Act to a member, the chief executive officer or any other qualified person21. He says therefore it is irrelevant who made the decision on behalf of the GCWA in relation to the renewal or transfer of the buoy mooring authority it is still subject to s203C of the Act. Mr Cayless also considers that s215 of the TOMSR makes it clear that the Tribunal has jurisdiction to review the decision of the Authority. That relates to a statement made by the Authority in the letter of 12 May 2015 that as the buoy mooring authority has expired the Authority can direct Mr Beyer’s executor to remove the buoy and its apparatus. 17 Ibid, r 149. 18 Ibid, r 156. 19 Ibid, r 158. 20 Ibid, r 154. 21 s14 of the GCWA Act. -- 4 of 6 -- 5 [18] Section 215 sets out that if the authority has been cancelled then the buoy is to be removed having regard to the time period for a QCAT review or within 14 days of the confirmation of the decision. Mr Cayless states that this section of the Act empowers QCAT to review the decision made by the Authority. [19] The Authority submits that any decision of the Authority does not fall within the definition of original decision and notes that the chief executive is not the chief executive officer as defined in the GCWA Act; the general manager is the general manager under the Maritime Safety Queensland Act 2002. That any decision of the Authority was not made by delegation but in its own right pursuant to the statutory power given to it. In the same way it was not a decision of a harbour master or shipping inspector. Further, that s215 of the TOMSR does not provide Mr Cayless with a right of review to the Tribunal. [20] In regard to s215 clearly that section when referring to reviews is referring to them in terms of time periods within which a buoy mooring must be removed where the approval has been cancelled and does not itself give any right of review. In this case the approval has not been cancelled it has expired due to effluxion of time and so any review rights in relation to cancellation are not applicable. [21] It is clear that a decision made to refuse an application to amend a mooring authority which is made by an entity other than the Authority is subject to review. It appears anomalous but the requirement that for a decision to be subject to review it must be made by one of the parties listed in s203 means that there is no right to review a decision of the Authority either under s203B by internal review or s203C to the Tribunal. [22] Mr Cayless is now the sole registered owner of the Golden Wanderer and wants to continue using buoy mooring, SM180 which was the buoy mooring used previously. He was never registered as the authority holder for the mooring authority and in accordance with the TOMSR the Authority cannot act on his application and he does not have a right to review the decision. [23] Mr Cayless had originally applied to transfer the buoy mooring authority and was informed that was not possible. There is no provision in the TOMSR for the transfer of buoy mooring authorities. He had paid for the renewal of the authority and later asked that the authority be amended so that it appeared in his name. That was refused because TOMSR required that the application for amendment be made by the authority holder and Mr Cayless was not the authority holder. He also made application for a new authority and paid the requisite fee. In his last correspondence, he made it clear that if he was not going to be able to retain the use of SM 180 he did not wish to continue with the application and asked for his money to be refunded. The refund request was accepted in the Authority’s letter of 12 May 2015. [24] Mr Cayless considered that a precedent had been created when the death of the original owner of the Golden Wanderer, Mr Gary Beyers occurred and the houseboat was transferred to his father, Mr Eric Beyers. This occurred -- 5 of 6 -- 6 before the creation of the GCWA and while the use of SM180 may have moved from one party to another it is clear that the TOMSR would not have allowed it by way of transfer. There is apparently provision in departmental guidelines for a surrender and grant of a new authority where one party transfers a vessel to another and the authority in question was held prior to 2006. In this case, though the late Eric Beyers did not become the authority holder until 2009. Those guidelines again require that the surrender be by the authority holder. The Authority makes the point that it cannot be bound by what has previously occurred if it is not permissible under the Act to which I concur. [25] The TOMSR requires any dealings with a mooring authority to be on the instructions of the authority holder and where they are deceased that is not possible. The Authority made the point that a mooring authority is not property which passes to an executor to be dealt with under the deceased holders will. As the mooring authority expires at the end of the period unless it is renewed by the authority holder then that would appear to be the case. [26] Mr Cayless submitted that if s215 could require the executor or beneficiary to remove the buoy mooring apparatus then he should be able to request an amendment. The Authority submits that these relate to the Authority’s power to enforce removal of a mooring buoy and do not provide the Authority with power to transfer a mooring authority. The question ultimately is who is an authority holder and the TOMSR defines it as the person to whom it is granted. Mr Cayless is not the person to whom SM180 was granted and it is not property and so did not vest in his executor. [27] If the Tribunal had jurisdiction to hear reviews of the Authority’s decisions in regard to mooring authorities then the fact that Mr Cayless was not a person who was eligible to make an application in regard to them would mean that the application to the Tribunal lacked substance and the application would have been dismissed. Clearly though there is no jurisdiction to review the Authority’s decisions so that question does not arise. [28] The Authority at the hearing made it clear that it appreciated Mr Cayless’s frustration but was required to act in accordance with its powers. Similarly the Tribunal must act in accordance with its powers. [29] The Tribunal may review a decision where an enabling Act gives a right of review to a disappointed party. In this case the TOMSR does not give a right of review where a decision in regard to a mooring authority is made by the Authority and so the Tribunal does not have the jurisdiction to hear Mr Cayless’s application. This is a ground for dismissal as the application lacks substance and the application is dismissed under s47 of the QCAT Act. -- 6 of 6 --