No Ship Action Group Inc and Minister for Sustainability, Environment, Water, Population and Communities and State of New South Wales (Joined Party) [2010] AATA 789 (12 October 2010)

Last Updated: 15 October 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 789

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/1149

GENERAL ADMINISTRATIVE DIVISION )

Re No Ship Action Group Inc.

Applicant

And Minister for Sustainability, Environment, Water, Population and Communities

Respondent

And State of New South Wales

Joined Party

DECISION

Tribunal Justice Downes, President

Date 12 October 2010

Date of Written Reasons 15 October 2010

Place Sydney

Decision Application dismissed.

....................[sgd]..........................
Garry Downes
President

CATCHWORDS

PRACTICE AND PROCEDURE – ‘slip rule’ – whether inconsistency between the reasons for decision and the orders - where one order may be read as an enabling condition only – whether effect of the order was confined in its operation to the ship surfaces other than the aluminium superstructure – objective test – no inconsistency - no obvious error on the face of the decision – application dismissed

RELEVANT ACT/S:

Administrative Appeals Tribunal Act 1975 (Cth)

CITATIONS

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

REASONS FOR DECISION

15 October 2010

Justice Downes, President

1. The Tribunal has already made its decision in this matter and published its reasons. The State of New South Wales now seeks to have the decision varied. It says that the part of the decision that required canvas and insulation to be removed from HMAS Adelaide should be confined to canvas and insulation which may cover red lead paint.
2. Section 43AA of the Administrative Appeals Tribunal Act 1975 (Cth) is a section of the kind generally described as a slip rule, which is calculated to permit an order or decision of a court or tribunal to be corrected when there is some error in the form of the order, in the sense that it does not correctly represent the reasoning on which it is based. An obvious example of such an error is a mathematical error in calculation. There have been many occasions when orders of courts have been corrected in such circumstances. The tribunal is, subject to the somewhat uncertain effect of the decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, effectively functus officio in this matter. It is because this matter has been finally decided that the present application has been made under section 43AA and that the application can be heard by me sitting alone. It is not open to me, or, for that matter, for the tribunal as originally constituted, to re-consider the merits of the matter.
3. The State relies on the reasoning of the tribunal which appears in paras 71 to 76 in which the most considered statement of the tribunal relating to the subject matter of this application appears.
4. However, those paragraphs are only a few paragraphs in the reasons for decision, which cover much ground. In particular, para 66 of the decision relates expressly to the question of canvas and insulation, and concerns itself with the question of whether the canvas and insulation on the ship may, in the future, create a “debris field.” It seems to me that that part of the tribunal’s reasons cannot be ignored when considering whether the formal decision is in error.
5. It has been urged upon me that the parties did not raise any specific issue relating to the risk of canvas and insulation creating a debris field.. However, the tribunal demonstrated on a number of occasions during the hearing of the matter, and in its reasons for decision, that it was proceeding on the basis that its task was to come to the preferable decision, and not to feel confined, strictly, to issues raised by the parties in arriving at that result. It seems to me, therefore, that it is not absolutely clear by any means, from looking at the reasons, that it can be said that the Tribunal would necessarily have meant to confine any order relating to canvas and insulation to canvas and insulation which is covering red lead paint.
6. It is also true to say that the precise decision of the tribunal is very clear in terms. Its meaning is not something that a tribunal member, looking over the form of the decision on a final basis immediately prior to publication, would be likely to misunderstand. It very clearly distinguishes the cleaning of canvas and insulation from the cleaning of exfoliating and/or exfoliated red lead paint. It very clearly does not limit the requirement for cleaning of canvas and insulation in any way at all.
7. When I take all these matters into account, it does not seem to me that this is a matter which falls within s 43AA of the Act.
8. Although it is entirely irrelevant to my determination of the issue before me this morning, I do propose to say something about the merits. I think that the reasons for decision of the tribunal can easily be read on the basis that what the tribunal decided was that once it was necessary to remove canvas and insulation to enable the red lead paint to be exposed, for the reasons that appear in para 66 the preferable decision was that all canvas and insulation should be removed from the ship.
9. That may not have been a matter that was agitated by the parties, but it might well have been a matter which the tribunal members thought appropriate. There was some evidence of a risk associated with debris, and a sensible decision, indeed, the preferable decision in those circumstances may well have seemed to the tribunal to be that all the canvas and insulation should be removed. Perhaps something should have been said more clearly about this matter in the reasons, but this is precisely the reasoning that I had in mind when I joined in this decision.
10. Frankly, it would have been very unlikely that the formal reasons for decision would have passed by my eyes, without my noticing the obvious error that is suggested to be there, if error it was, prior to the decision being given. If there really was an error of the kind that is now suggested to exist, I am absolutely sure I would have noticed it before the reasons were published.
11. Although neither Member Wulf nor Member Hyman are present with me this morning, they have been kept fully informed of the developments in this matter in the last few days, including being furnished with a copy of the written submissions on behalf of the State, yesterday afternoon.
12. I have spoken to them this morning about the matter and they indicated to me that if, after hearing the parties on the matter, I thought that the appropriate result today was the result I have foreshadowed, that they, subject, of course, to their not having heard the arguments this morning, would support me in that approach. I should add that although they have not been here this morning, the reality is that, in the way that the case has been put by the State, the argument this morning has really been confined to what is in the written submissions which were furnished yesterday. So Mr Wulf and Mr Hyman really had the advantage of all of the information that I have had this morning.
13. In all the circumstances, I think I need do no more than decline to make any order, or to give any direction, or to, in any way, alter the decision, pursuant to s 43AA of the Act. The application will be dismissed.

I certify that the thirteen (13) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President

Signed: ..............[sgd]............................................................

Alison Connor, Associate

Date/s of Hearing: 12 October 2010

Date of Decision: 12 October 2010

Date of Written Reasons: 15 October 2010

Solicitor for the Applicant: Environmental Defender’s Officer NSW

Counsel for the Applicant: Mr Nigel Cotman SC with Ms Fleur Ramsay

Solicitor for the Respondent: Australian Government Solicitor

Counsel for the Respondent: Mr Andras Markus

Solicitor for the Joined Party: NSW Crown Solicitor’s Office

Counsel for the Joined Party: Ms Jane Needham SC with Mr Adam Gerard