DISTRICT COURT OF QUEENSLAND
CITATION:
Angus Mitchell, General Manager, Maritime Safety Queensland v Milner [2021] QDC 299
PARTIES:
ANGUS MITCHELL, GENERAL MANAGER, MARITIME SAFETY QUEENSLAND
(applicant)
v
ANDREW MILNER
(respondent)
FILE NO/S:
2141 of 2021
DIVISION:
Civil
PROCEEDING:
Application under section 183B of the Transport Operations (Marine Safety) Act 1994
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
26 November 2021, ex tempore
DELIVERED AT:
Brisbane
HEARING DATE:
26 November 2021
JUDGE:
Judge Loury QC
ORDER:
1. Pursuant to sections 183C, 183E and 183GA of the Transport Operations (Marine Safety) Act 1994:
a. The applicant is authorised to cause the 13-metre ferro-cement Hartley single mast sailing ship, displaying registration details XS823Q located aground adjacent to Thompson Esplanade, Victoria Point, Brisbane to be:
i. Removed from Queensland waters; and
ii. Broken up and disposed of as the applicant sees fit; and
iii. Sold or disposed of (in part or entirely) as the applicant sees fit.
b. If the applicant takes any action pursuant to paragraph 1(a) of this Order, the applicant is authorised to retain possession of the Ship or any part of the Ship until the respondent pays to the applicant the costs incurred on behalf of the applicant for removal or disposal of the Ship and any debris from it, and any costs of storing the Ship.
c. If the respondent does not pay to the applicant the costs incurred by the applicant described in paragraph 1 of this Order within 60 days of the applicant making a demand for those costs:
i. The Ship or any remaining part of the Ship is forfeited to the State of Queensland, for sale or disposal as the applicant sees fit; and
ii. Any money realised from such sale or disposal is to be first applied against the expenses of the sale or disposal and the costs described in paragraph 2 of this Order, and any remaining money is to be given to the respondent.
2. The respondent pay the applicant’s costs of and incidental to this application.
COUNSEL:
A Rae for the applicant
No appearance by the respondent
SOLICITORS:
Corporate Counsel, Department of Transport and Main Roads for the applicant
No appearance by the respondent
The respondent owns a 13 metre, ferro-cement, Hartley single-mast sailing ship. It has an expired registration and has been aground at Thompson Esplanade, Victoria Point since October 2020.
On 11 November 2020 a marine officer, Mr Justin Welsh, from Maritime Safety Queensland affixed a Shipping Inspectors Declaration pursuant to section 172AA of the Transport Operations (Marine Safety) Act 1994 to the ship requiring it to be removed from Queensland waters by 8 December 2020. The declaration was sent to the respondent. Mr Welsh had numerous conversations with the respondent wherein he has indicated that he owns the ship and that he would move the ship or repair the ship.
The respondent however did not comply with the declaration. As at the time of the declaration being affixed to the ship it was aground on a drying bank on its starboard side; the propulsion system was in disrepair and not functional; the mast was damaged and not able to sail; the hull was damaged and was taking in water; the ship was exposed to water inundation and required water to be pumped out from below the decks on a regular basis; the electrical system was in disrepair and not functional; and the ship had no viable power.
On 5 October 2021 Kent QC DCJ made enforcement orders pursuant to sections 183C and 183E of the Transport Operations (Marine Safety) Act 1994. Those orders required the respondent to, within 14 days of the order, submit to Maritime Safety Queensland for approval by the Port of Brisbane Harbour Master a written towing and slipping plan for the ship; to remove the ship from Queensland waters in accordance with that plan within 14 days of its approval and to give the State of Queensland a security bond in the amount of $40 000 within 28 days of the order in the form of a bank guarantee to be effective for a period of 12 months from the date the order was made or until 7 days after the vessel was removed.
The respondent did not appear at the hearing for the making of the enforcement orders. Those orders were however sent to him via email on 14 October 2021. The email indicated that the towing and slipping plan for the ship was to be provided by 29 October 2021 with a further extension being offered until 1 November 2021 (the 29th being a public holiday). Material filed indicates that on 27 and 28 October 2021 the respondent made enquiries of the Brisbane Regional Harbour Master requesting assistance with a towing and slipping plan. He was provided the details of five marine salvage companies operating in the Port of Brisbane area. As at 23 November 2021 the respondent has not provided a towing and slipping plan in accordance with the enforcement notice. He has not removed or repaired the ship and has not paid the security bond.
I am satisfied that the enforcement order has been contravened by the respondent. One month has passed since the respondent took any steps at all to comply with the enforcement order. He has not appeared today although he has been served with the application by email on 14 October 2021.
The respondent sent an email to my associate at 12.37 am this morning indicating that he wanted to save his yacht, repair it and make it seaworthy. He attached a number of documents including two photos taken not long after the ship ran aground. The respondent states that he has requested legal representation. He has not indicated who that is or how he has gone about requesting legal representation. He claims that he can repair the ship himself although he needs the right tides for the ship to float in order to make the repairs. He has provided photographs of the ship as it appeared at the time when he was initially told to move it. He has not indicated that he has undertaken any repairs to the ship at all. He has also not provided any indication as to the cost of repairing the ship. The respondent also states that he is an undischarged bankrupt. He has provided copies of notices indicating that he is in receipt of the Newstart allowance and may be eligible for the disability support pension. He is requesting that the ship remain in place until 5 February 2022 or longer to allow for the tide heights to be such that he can repair his ship.
The respondent previously informed Mr Welsh in November 2020 that in order to move the ship the tide heights needed to be above those that occurred when the ship ran aground. The highest tide for October 2020 when the ship ran aground was 2.5 metres. Mr Welsh provided evidence of numerous occasions in November and December 2020 when the tide heights were above that when the ship ran aground. The respondent now estimates that the tide height needs to be above 2.84 metres for him to repair the ship. He has provided no basis for his estimation.
The respondent also states that the ship is his home. It is clearly uninhabitable and has been since it ran aground and it is certainly not the respondent’s current home.
The extent of the respondent’s contravention of the enforcement order is as I have referred. He has provided no towing or slipping plan, nor repaired the ship or even commenced to.
The applicant now applies for orders authorising it to remove the ship from Queensland Waters and for it to be broken up and disposed of as the applicant thinks fit or for any part of it to be sold or disposed of as the applicant thinks fit.
I heard some brief evidence from Mr Welsh as to the state of the ship when he viewed it yesterday afternoon. It has deteriorated significantly since October 2020 when it ran aground. It remains unseaworthy. There is a significant breach in the hull and the mast has broken away, causing a hole which has not been repaired. The ship is standing on its keel, there are two cracks below the water line and it is taking on water. In his opinion it could not be repaired in situ given the material out of which it is made would need time to dry before any repairs could be made.
In my view, even taking the respondent’s email and attached documentation at face value the respondent has not adduced sufficient evidence to satisfy me that the matter ought to be adjourned so as to allow the respondent time to make the ship seaworthy. There is no evidence that has been placed before me to support any finding that the ship can be rectified in a reasonable timeframe if the enforcement orders are amended to allow the respondent further time.
Over the past 12 months the state of the ship has deteriorated. I have viewed the photographs taken in November 2020; March 2021 and July 2021 and heard the brief evidence of Mr Welsh as to the state of the ship yesterday afternoon. That all provides clear evidence as to the continued deterioration of the ship. I am satisfied on the balance of probabilities that the continued deterioration of the ship means that it is unsafe. There is a real risk of it breaking up and causing obstruction to navigation and marine pollution. It sits in front of an aged care facility near a rock wall. If there are significant weather events, which are anticipated around this time of year, there is a real risk of it breaking up if it hits the rock wall.
It follows that it is appropriate and necessary for the orders now sought to be made. My orders are as follows:
1. Pursuant to sections 183C, 183E and 183GA of the Transport Operations (Marine Safety) Act 1994:
a.The applicant is authorised to cause the 13-metre ferro-cement Hartley single mast sailing ship, displaying registration details XS823Q located aground adjacent to Thompson Esplanade, Victoria Point, Brisbane to be:
i.Removed from Queensland waters; and
ii.Broken up and disposed of as the applicant sees fit; and
iii.Sold or disposed of (in part or entirely) as the applicant sees fit.
b.If the applicant takes any action pursuant to paragraph 1(a) of this Order, the applicant is authorised to retain possession of the Ship or any part of the Ship until the respondent pays to the applicant the costs incurred on behalf of the applicant for removal or disposal of the Ship and any debris from it, and any costs of storing the Ship.
c.If the respondent does not pay to the applicant the costs incurred by the applicant described in paragraph 1 of this Order within 60 days of the applicant making a demand for those costs:
i.The Ship or any remaining part of the Ship is forfeited to the State of Queensland, for sale or disposal as the applicant sees fit; and
ii.Any money realised from such sale or disposal is to be first applied against the expenses of the sale or disposal and the costs described in paragraph 2 of this Order, and any remaining money is to be given to the respondent.
The respondent pay the applicant’s costs of and incidental to this application.