The applicant (Sea Swift) is an Australian shipping company that ships cargo throughout Northern Queensland and the Northern Territory. The Torres Straight Island Regional Council (TSIRC) operates a permit system for the use of landing facilities that involves the payment of maritime fees based on self-reporting by vessels that use the facilities. Since 2015, TSIRC purported to impose “default maritime fees” for alleged failures by vessel operators to self-report their use of landing facilities or for inaccurate self-reporting. In December 2022, TSIRC purported to impose $66 million of “default maritime fees” on Sea Swift for alleged non‑compliant self-reporting of Sea Swift’s use of the landing facilities between 2015 and 2018. The amount imposed was based on hypothetical maximum figures that exceeded by many times what TSIRC understood or knew about Sea Swift’s actual use of the landing facilities.
Sea Swift brought judicial review proceedings in the Supreme Court. It challenged the imposition of the default maritime fees on several grounds including that (1) it was beyond TSIRC’s power to impose under the Local Government Act 2009 (Qld) (Act), (2) it fell outside the scope of a Local Law made under the Act, (3) TSIRC’s Chief Executive Officer was not validly authorised to issue the invoices (4) it was retrospective and not in accordance with TSRIC’s criteria for the imposition of the fee (4) it was legally unreasonable and (5) it was in breach of an obligation on TSIRC to afford Sea Swift procedural fairness.
Applegarth J accepted Sea Swift’s argument that the default maritime fee was beyond TSIRC’s power and therefore the invoices of $66 million were invalid. His Honour also held that TSIRC’s CEO was unauthorised to impose the fee, the invoices did not apply the criteria for the imposition of the fee, the fee was legally unreasonable and that TSIRC failed to afford Sea Swift procedural fairness. His Honour granted the declaration sought by Sea Swift.
Sarah Spottiswood appeared for the applicant, led by Erin Longbottom KC and Bridget O’Brien, instructed by Herbert Smith Freehills.