Maritime New Zealand declined leave to appeal 

The Director of Maritime New Zealand has been declined leave to appeal to New Zealand's highest court in relation to the reinstatement of a Safe Ship Management Company. 

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Background facts

In New Zealand, owners of vessels are primarily responsible for the safety of those vessels.  However, commercial vessels must also be registered with a Safe Ship Management (SSM) Company which is to periodically inspect and survey the ship and monitor the adequacy of, and compliance with, safety systems.

Survey Nelson Limited (SNL) was an SSM company, having over 700 ships on its books.  In 1998, it was issued certificates of approval and a delegation of the Director's powers by the Director of Maritime New Zealand.  Following an audit process from 2004-2007, the Director became concerned about SNL's performance as an SSM company.  The Director engaged a panel to oversee and monitor SNL.  On 20 November 2009, after receiving several reports, the Director advised SNL of her decision to withdraw SNL's approval.

SNL applied for, and obtained, interim orders restraining the Director from implementing her decision.  It applied for judicial review of that decision.

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High Court Judgment

The High Court held that the Director had made an error of law in treating SNL's approval as if it were a "maritime document" and so followed the incorrect statutory process.  It held that SNL was prejudiced as a result.  However, relief was refused.

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Court of Appeal

The Director appealed to the Court of Appeal on the basis that she had not made an error of law.  SNL appealed against the decision not to grant relief.

The Court of Appeal agreed with the High Court finding that there had been an error of law.  It noted that unless there were extremely strong reasons for refusal, relief was to be granted.  It quashed the Director's decision and made a declaration that SNL be reinstated as an SSM company according to the original terms of its approval. 

After that judgment, the Director issued SNL with an SSM certificate which expired after just three months.  SNL applied to the High Court for an interpretation of the Court of Appeal's order for reinstatement of SNL's certificate.  The parties ultimately agreed between themselves that a further certificate of approval be granted with no expiry date. 

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Application for leave to appeal to the Supreme Court

The Director sought leave to appeal to the Supreme Court on two issues:

(a) Whether the Court of Appeal had erroneously reinstated an approval which had, by the time of the Court of Appeal judgment, lapsed by expiry of time; and

(b) Whether the Court of Appeal had erroneously exercised its discretion to grant relief.

The Supreme Court declined leave in relation to both questions.  Since the dispute between the parties had arisen, a new regulatory regime had been adopted.  This meant that the question of whether the approval had expired had no current significance, other than in relation to the proposed appeal.  The Court also stated that the Court of Appeal's decision to grant relief seemed orthodox in light of the fact that it was common ground that the Director had followed the wrong process in a way that prejudiced SNL.

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