Court finds $66m bill for dock fees invalid

Invoices for more than $66 million in docking fees issued by Torres Strait Island Regional Council (TSIRC) to a shipping company have been ruled invalid by the Supreme Court.

TSIRC, which governs 15 islands in the strait, issued 253 invoices to Sea Swift in December last year for what it labelled a “default maritime fee” (DMF). The council claimed the company had not accurately self-reported its use of council landing facilities between April 2015 and June 2018.

In his decision delivered on Monday in Brisbane, Justice Applegarth granted a declaration sought by Sea Swift that the imposition of the fee was beyond the power of the council and the invoices were therefore invalid.

He held that:

  • the imposition of the fee fell outside the scope of a Local Law made under the Local Government Act 2009 (Qld);
  • TSIRC’s Chief Executive Officer was not authorised to impose the fee;
  • criteria for applying the fee had not been applied;
  • the fee was legally unreasonable; and
  • TSIRC had not afforded procedural fairness to Sea Swift.

TSIRC’s permit system required Sea Swift and other operators to report use of council facilities because the council did not have the resources to monitor the use of the facilities.

Justice Applegarth found the invoiced amount was based on estimated figures that far exceeded what TSIRC understood or knew about Sea Swift’s actual use of the boat ramps and jetties.

 “No resolution of TSIRC authorised a DMF to be calculated on such a basis,” he said.

“Neither by design nor by the process by which the invoices came to be created did the invoiced DMF reflect a methodology to estimate and charge for actual use.”

He said the fee charged to Sea Swift was imposed as a form of penalty for non-compliance with reporting conditions, and was not a charge for using facilities, and was therefore, unauthorised.

“(It) did not reflect the abundant evidence and information that was known to TSIRC and its lawyers about the actual number of stops on each island each month, the duration of each stop, the amount of cargo that was discharged, landed or trans-shipped, or the nature of the cargo,” he said.

Justice Applegarth added a postscript to his decision, urging the parties to resolve the dispute “without delay”, and stating the costs to date must be “enormous”.

He said the proceeding before him – with a court book of 9126 pages – “must have come at a great additional cost to the parties” given the pending litigation in the Federal Court between the two parties.

He said a litigation funder was “not supporting TSIRC’s litigation as an act of charity or out of love for the people of the Torres Strait”, who he noted were “among the financially poorest people in our state”.

“The remarkable and admirable citizens of these communities, like the shipping company that services their communities, can spend their finite financial resources on better things than lawyers and litigation funders,” he said.

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