|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Constitutional Law - whether proprietary maritime claims as defined in paras. 4 (2) (a), (b) of the Admiralty Act 1988 might found proceedings in rem comprising a matter of Admiralty and maritime jurisdiction within the meaning of the Constitution s. 76 (iii) - interpretation of s. 76 (iii).Shipping and Navigation - claims in rem - creation of fresh maritime claims without new maritime liens - procedural rights in respect of subsisting causes of action - s. 6 of the Admiralty Act 1988 - when proprietary maritime claim will "relate to" possession or title to or ownership of a ship - claim between "co-owners" - whether in either case equitable interests sufficient - whether claim for delivery of possession to a third party is a proprietary maritime claim.
Practice and Procedure - applications to set aside originating process on a proprietary maritime claim - whether plaintiff has to satisfy the Court of a strong argument that the Court has jurisdiction - whether plaintiff has to satisfy the Court that the Court has jurisdiction, on same balance of probabilities as would apply at a trial.
Australia Acts 1986
Seas and Submerged Lands Act 1973
International Arbitration Act 1974
Federal Court of Australia Act 1976
Shipping Registration Act 1981
Admiralty Rules
Admiralty Court Act 1840 (3 and 4 Vict., c. 65) (Imp)
Admiralty Court Act 1861 (24 Vict., c. 10) (Imp)
Vice-Admiralty Courts Act 1863 (26 Vict., c. 24) (Imp)
The Vice-Admiralty Courts Amendment Act 1867 (30 and 31 Vict., c. 45) (Imp)
Colonial Courts of Admiralty Act 1890 (Imp)
Merchant Shipping Act 1894 (Imp)
Statute of Westminster 1931 (Imp)
Administration of Justice Act 1956 (U.K.)
Supreme Court Act 1981 (U.K.)
Federal Court Act 1970 (Can.)
The Queen v Bull [1974] HCA 23; (1974) 131 CLR 203
The State of New South Wales v The Commonwealth of Australia [1975] HCA 58; (1975) 135 CLR 337
I Congreso del Partido (1978) QB 500
The "Aventicum" (1978) 1 Ll R 184
"The St. Elefterio" (1957) P 179
Antares Shipping Corporation v The Ship "Capricorn" (1979) 111 DLR (3d) 289
Fencott v Muller (1983) 152 CLR 570
Philip Morris Incorporated v Adam P. Brown Male Fashions Proprietary Limited [1981] HCA 7; (1981) 148 CLR 457
Voth v Manildra Flour Mills Proprietary Limited [1990] HCA 55; (1990) 171 CLR 538
Contender 1 Ltd v Lep International Pty Ltd [1988] HCA 60; (1988) 63 ALJR 26
Vitkovice Horni a Hutni Tezirstvo v Korner (1951) AC 869
The Queen v The Judges of the Federal Court of Australia;
Ex parte The Western Australian National Football League (Incorporated) [1979] HCA 6; (1979) 143 CLR 190
Richardson v The Forestry Commission [1988] HCA 10; (1988) 164 CLR 261
O'Toole v Charles David Proprietary Limited [1991] HCA 14; (1990) 171 CLR 232
The Halcyon Isle (1981) AC 221
The Monica S (1968) P 741
The Owners of the S.S. "Kalibia" v Wilson [1910] HCA 77; (1910) 11 CLR 689
Kirmani v Captain Cook Cruises Proprietary Limited (No. 1) [1985] HCA 8; (1985) 159 CLR 351
The King v Turner; Ex parte The Marine Board of Hobart [1927] HCA 15; (1927) 39 CLR 411
F. Kanematsu and Company Limited v The Ship "Shahzada" [1956] HCA 57; (1956) 96 CLR 477
Rosenfeld Hillas and Company Proprietary Limited v The Ship Fort Laramie [1923] HCA 7; (1923) 32 CLR 25
Huddart Parker Ltd v The Ship "Mill Hill" and her Cargo [1950] HCA 43; (1950) 81 CLR 502
Musgrave v The Commonwealth [1936] HCA 80; (1937) 57 CLR 514
The Yuri Maru (1927) AC 906
McIlwraith McEacharn Limited v The Shell Company of Australia Limited [1945] HCA 11; (1945) 70 CLR 175
China Ocean Shipping Co. v The State of South Australia [1979] HCA 57; (1979) 145 CLR 172
Lansell v Lansell [1964] HCA 42; (1964) 110 CLR 353
Allonah v The Ship "Amanda N" (1989) 21 FCR 60
Foong Tai and Co. v Buchheister and Co. (1908) AC 458
Shell Oil Company v The Ship "Lastrigoni" [1974] HCA 27; (1974) 131 CLR 1
Kali Boat Building and Repair Pty Ltd v The Motor Fishing Vessel "Bosna" (1977) 19 SASR 112
The Conoco Brittania (1972) 2 QB 543
Beswick v Beswick [1967] UKHL 2; (1968) AC 58
J.C. Williamson Limited v Lukey and Mulholland [1931] HCA 15; (1931) 45 CLR 282
Chang v The Registrar of Titles [1976] HCA 1; (1975-1976) 137 CLR 177
Gatoil International Inc. v Arkwright-Boston Manufacturers Mutual Insurance Co. [1984] UKHL 8; (1985) AC 255
Petrofina SA v AOT Ltd (1991) 3 All ER 161
The Jade (1976) 1 All ER 920
The "Bineta" (1966) 3 All ER 1007
Richard Bertram v Yacht "Wanda" (1971) AMC 1841
Everett A. Sisson v Burton B. Ruby [1990] USSC 121; 111 L Ed 2d 292 (1990)
United Dominions Corporation Limited v Brian Proprietary Limited [1985] HCA 49; (1985) 157 CLR 1
Canny Gabriel Castle Jackson Advertising Pty Limited v Volume Sales (Finance) Pty Limited [1974] HCA 22; (1974) 131 CLR 321
Tasker v Small (1837) 3 My and Cr 63, 40 ER 848
Thomson v Richardson (1928) 29 SR (NSW) 221
Hohler v Aston (1920) 2 Ch 420
Crouch v Commissioner for Railways (Queensland) [1985] HCA 69; (1985) 159 CLR 22
The Tojo Maru (1972) AC 242
Polyukhovich v The Commonwealth [1991] HCA 32; (1991) 65 ALJR 521
De Lovio v Boit 7 Fed Cas 418 (1815)
John Sharp and Sons Ltd v The Ship Katherine Mackall [1924] HCA 37; (1924) 34 CLR 420
The "Victoria" (1859) Swab. 408, 166 ER 1188
The Bonnie Kate (1887) 7 Aspinall 149
The Colorado (1923) P 102
Commissioner of Stamp Duties (Queensland) v Hugh Duncan Livingston [1964] UKPC 2; (1965) AC 694
Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360
The Commonwealth of Australia v The State of Queensland [1975] HCA 43; (1975) 134 CLR 298
Australian National Airways Proprietary Limited v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29
Russell v Russell [1976] HCA 23; (1976) 134 CLR 495
Attorney-General for the State of Victoria (at the relation of Black) v The Commonwealth of Australia [1981] HCA 2; (1981) 146 CLR 559
Waring v Clarke 45-47 US 456 (1846)
Morewood v Enequist 62-64 US 677 (1859)
The Transportation Company v Fitzhugh 65-67 US 615 (1861)
The Queen v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351
The Queen v The Judge of the City of London Court (1892) 1 QB 273
"The Apollo" (1824) 1 Hagg. 306[1824] EngR 895; , 166 ER 109
Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518
The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1
The Queen v Coldham; Ex parte Australian Social Welfare Union [1983] HCA 19; (1983) 153 CLR 297
The Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 309
HEARING
SYDNEYCounsel and solicitors Mr A.W. Street and (on 10, 11 October 1991) Mr for the plaintiff: G.J. Nell instructed by Messrs Norton Smith and Co.
Counsel and solicitors Mr C.S.C. Sheller QC and Mr P.E. King
for the defendant: instructed by Messrs Westgarth Middletons.
Counsel and solicitors Mr S.J. Gageler instructed by the Australianfor the Attorney-General Government Solicitor.
ORDER
The defendant's motion filed 12 October 1989 be dismissed. The defendant pay the plaintiff's costs of the motion and of the Case Stated
to the Full Court.
NOTE: Settlement and entry of order is dealt with by Order 36 of the Federal
Court Rules.
DECISION
By Notice of Motion filed 12 October 1989, the defendant moves the Court for orders that the originating process in this proceeding be set aside or, in the alternative, that service thereof on the defendant be set aside. The plaintiff invokes the Admiralty jurisdiction of the Court. The defendant denies that this jurisdiction has been attracted.2. This motion has not been treated by the parties as if it were a motion to strike out a statement of claim in a proceeding which is within jurisdiction but where the pleading is said to fail to disclose a reasonable cause of action. On such an application, in accordance with well known authorities, it is assumed that the allegations of fact made in the statement of claim could be made out at a trial, and the orders sought will not be made unless it appears that the cause of action propounded is manifestly untenable.
3. On the hearing of the present motion there was some dispute as to factual matters. Some of those issues also would be crucial at the trial. The plaintiff contends that whilst it will be necessary in disposing of the defendant's motion to deal with some issues of fact, a lesser standard is appropriate in dealing with a challenge to jurisdiction than the standard which the plaintiff would have to meet at a trial. The defendant disputed that submission.
4. Issues also arise on the motion as to the proper construction and the validity of certain provisions of the Admiralty Act 1988 ("the Act"). To that end the necessary notices were given under the provisions of s. 78B of the Judiciary Act 1903 ("the Judiciary Act"). In response to such a notice, the Attorney-General for the Commonwealth appeared by counsel to support validity.
5. In that regard, I should emphasise at the outset that in this case no issue arises as to the criminal jurisdiction formerly exercised in Admiralty, a subject dealt with in The Queen v Bull [1974] HCA 23; (1974) 131 CLR 203 at 226-235, 247-249, 260-263, 268-269, 276-280; see also The State of New South Wales v The Commonwealth of Australia [1975] HCA 58; (1975) 135 CLR 337 at 490-492. Nor did the intervener seek to support the validity of those provisions of the Act which were attacked, other than by reliance upon s. 76 (iii) of the Constitution.
6. The plaintiff, Empire Shipping Company Inc. ("Empire"), is a company incorporated in Panama. Yamashita Shinnihon Steamship Company Limited ("YSL"), is a company incorporated in Japan. On 1 June 1989, YSL changed its name to Navix Line Limited. The proceedings were commenced as an action in rem by Writ filed 2 May 1989. The particulars of the ship are given as the MV "Shin Kobe Maru", registered in a port in Japan ("the Ship"). YSL is the present registered owner. Pursuant to Rule 15 of the Admiralty Rules, it is specified as the defendant. Empire says (and YSL denies) it has a proprietary maritime claim concerning the Ship and that the present proceeding was rightly instituted as an action in rem. A Statement of Claim, since amended, was filed on 16 March 1990. Efforts to seek resolution, by Case Stated to the Full Court, of the issues raised by the defendant's motion proved abortive.
7. In or about August 1989, the Ship was in the Australian territorial sea, and entered or was about to enter an Australian port, namely Port Hedland in the State of Western Australia. The Writ had been filed, as I have indicated, on 2 May 1989. Empire agreed not to arrest the Ship pending determination by this Court of its claim, upon two conditions. First, YSL's solicitors agreed to accept service of the Writ (as provided in Rule 37 of the Admiralty Rules), such service to stand in place of service on the Ship within Australia and to be deemed to place YSL in the same position as if service of the Writ had been effected on the Ship within Australia, but without prejudice to any rights and/or defences which YSL might have (including but not limited to reliance upon certain arbitration provisions to which I refer later in these reasons). The second condition was that YSL agreed to provide security in an amount acceptable to Empire. The Ship has since continued to trade to Australian ports with some regularity.
8. The Ship is not registered under the provisions of the Shipping
Registration Act 1981. It follows that the Ship is a "foreign ship" within
the definition of that term in sub-s. 3 (1) of the Act. The Act commenced on
1 January 1989. A proceeding on a proprietary maritime claim may be commenced
as an action in rem: s. 16. A reference in the Act to a "maritime claim" is a
reference to a "proprietary maritime claim" or a "general maritime claim":
sub-s. 4 (1). Sub-section
4 (2) provides that a reference to a "proprietary
maritime claim" is a reference, inter alia, to:
"(a) a claim relating to:The plaintiff, Empire, claims that the present proceedings fall within para. (a) (i) and (ii), and para. (b) and thus within the Admiralty jurisdiction of this Court. That jurisdiction, as regards actions in rem, is conferred by ss. 10 and 13 of the Act.
(i) possession of a ship;
(ii) title to, or ownership of, a ship or a share in
a ship;
(iii) a mortgage of a ship or of a share in a ship; or
(iv) a mortgage of a ship's freight;
(b) a claim between co-owners of a ship relating to the
possession, ownership, operation or earnings of the ship;
. . ."
9. In my view, it is no objection that a claim brought under one head in sub-s. 4 (2) of the Act also falls under another head. That interpretation is confirmed by s. 146 of the Law Reform Commission Report No. 33, "Civil Admiralty Jurisdiction", published in 1986 ("the LRC Report"). Section 4 of the Act follows the terms of the draft Admiralty Bill which was an appendix to the LRC Report. The LRC Report is thus material which may be considered in accordance with sub-s. 15AB (1) of the Acts Interpretation Act 1901 ("the Interpretation Act") in the interpretation of provisions of the Act; see para. 15AB (2) (b).
10. I turn to consider the criteria by which the defendant's motion is to be
disposed of.
What has to be established on the motion
11. There has been division of opinion in England as to the correct approach to be taken in Admiralty where an application is brought to set aside the writ and other subsequent proceedings on the ground that the court has no jurisdiction in the matter.
12. I Congreso del Partido (1978) QB 500 at 535-537 is authority that in England the question of ownership of the res, if in issue, has to be decided on the motion to set aside the writ in an action in rem, and should not be left to be tried as an issue in the action. The "Aventicum" (1978) 1 Ll R 184 is to like effect. In that case, Slynn J. ordered that the writ and all subsequent proceedings be set aside and that the ship in question be released from arrest and custody of the court. His Lordship observed (at 186) that very difficult questions of fact were involved and that they were not easily resolved on affidavit evidence, particularly where the matter arose as a matter of urgency. Nevertheless, after referring to other authorities, his Lordship rejected the submission for the plaintiffs that it was only necessary that they show they had a good arguable case as to the existence of jurisdiction. Slynn J. went on to hold (at 190) that the plaintiffs had not satisfied him by their evidence on the balance of probabilities that the person who was the owner of the ship at the time the cause of action arose was the person who, at the time the proceedings were commenced, beneficially owned all the shares in the vessel. This was the crucial question, for jurisdiction which was sought to be rested upon sub-s. 3 (4) of the Administration of Justice Act 1956 (U.K.) ("the 1956 Act"). It may be noted that that provision in terms speaks of beneficial ownership.
13. On the other hand, Slynn J. does not appear to have been referred to the
earlier decision of Willmer J. in "The St. Elefterio"
(1957) P 179. The
defendants there moved unsuccessfully for an order setting aside the writ of
summons and warrant of arrest of their ship on
the grounds that the Admiralty
Court had no jurisdiction under ss. 1 or 3 of the 1956 Act, and that the
plaintiffs were not entitled
to institute proceedings in rem against their
vessel. Title to the vessel was not in issue. His Lordship accepted the
submission
of counsel for the plaintiffs that a hearing to decide whether
there is a right to proceed in rem must not develop into a trial of
the
action. It had not been suggested that the proceedings were frivolous or
vexatious so as to call for the exercise of the inherent
jurisdiction of the
court to halt the proceedings in limine. Willmer J. pointed out that:
"(T)he simple remedy for the defendants, if they want their ship14. A challenge to jurisdiction was considered, yet again somewhat differently, in Antares Shipping Corporation v The Ship "Capricorn" (1979) 111 DLR (3d) 289. The Supreme Court of Canada proceeded on the footing that where the sole issue related to the Admiralty jurisdiction of the Federal Court of Canada, it should be assumed that the allegations of fact in the plaintiff's pleading were correct. On that basis, the Supreme Court held that the Statement of Claim had wrongly been struck out, and that the Federal Court did have jurisdiction to entertain the claim of the plaintiff. Jurisdiction was conferred by para. 22 (2) (a) of the Federal Court Act 1970 (Can.) to entertain claims with respect to "any claim as to title, possession or ownership of a ship".
released, is to put in bail. The action will then be tried, and at
the appropriate time - when all the facts have been ascertained -
due consideration will be given to the arguments on law which the
defendants desire to advance."
15. As regards this Court, s. 13 of the Act reminds us that in conformity with Chapter III of the Constitution, jurisdiction is conferred in respect of "matters". It is of the essence of the exercise of the judicial power of the Commonwealth in respect of "matters" that there is presented for determination a controversy, which may comprise one or more causes of action and claims to relief. And, as was pointed out by Mason, Murphy, Brennan and Deane JJ. in Fencott v Muller (1983) 152 CLR 570 at 610, questions which arise as to the existence of federal jurisdiction should hopefully be amenable to summary disposition. In Fencott v Muller itself, this was done by an analysis of the statement of claim and Gibbs C.J. observed (at 580) that at that stage the concern of the Court was not with the merits of any of the claims as a matter of law, but only with the question of jurisdiction; see also per Mason, Murphy, Brennan and Deane JJ. at 594. Likewise, Philip Morris Incorporated v Adam P. Brown Male Fashions Proprietary Limited [1981] HCA 7; (1981) 148 CLR 457, was decided upon the pleadings.
16. Similar, though not identical, questions arise in Australia in courts not exercising federal jurisdiction where applications are made to set aside service effected outside the jurisdiction or for a stay on the ground that the court is an inappropriate forum. In the former case, the issue is whether the court should assume jurisdiction, and in the other it is whether the court should decline it, the result being that the onus of proof differs. But, in Voth v Manildra Flour Mills Proprietary Limited [1990] HCA 55; (1990) 171 CLR 538 at 565, Mason C.J., Deane, Dawson and Gaudron JJ. plainly favoured a procedure whereby both types of application were dealt with in summary fashion.
17. Earlier, in Contender 1 Ltd v Lep International Pty Ltd [1988] HCA 60; (1988) 63 ALJR
26, an appeal concerned with an unsuccessful application to have set aside
service outside Australia of proceedings commenced in the
Supreme Court of New
South Wales, Wilson, Dawson, Toohey and Gaudron JJ. said, supra at 28:
"The issues arising before Clarke J, notwithstanding theClarke J. had dismissed the application on the footing that on consideration of all admissible material there remained a strong argument for the opinion that the qualifying conditions for service outside the jurisdiction were indeed satisfied. In so doing his Honour followed what had been said by Lord Radcliffe in Vitkovice Horni a Hutni Tezirstvo v Korner (1951) AC 869 at 883. On the appeal to the High Court, there was no challenge to the use by Clarke J. of a criterion expressed in this way.
interlocutory character of the proceedings, were issues which were
fundamental to the ultimate determination of the action. It is
clear that at the trial the outcome of a case is likely to be
determined by the decision of the trial judge on the question
whether the appellant was a party to the bill of lading or,
alternatively, on the question whether the master's possession of
the cargo rendered the appellant liable as a bailee for failing to
render up the cargo in good condition. At the trial evidence may be
tendered touching those questions additional to that placed before
Clarke J on the preliminary application. If the ultimate
determination of those questions favours the appellant, then the
action against it will be dismissed and the appellant will be
compensated for the erroneous joinder by an order for costs."
18. In the present case, the Amended Statement of Claim upon which Empire relies is still, despite amendments, not without its infelicities. The particulars of the claims made by Empire were supplemented on the hearing of the present motion by affidavit and documentary evidence which, though by no means insubstantial, would still fall short of what might be expected at a trial.
19. Counsel for Empire indicated a readiness to shoulder a burden expressed in terms drawn from the speech of Lord Radcliffe, that is to say a burden of showing that on consideration of the material before the Court on the motion, there was a strong argument for the opinion that the Court had jurisdiction. Counsel by YSL submitted, in effect, that on this motion it was for Empire to satisfy the Court that, on the same balance of probabilities which would apply at a trial, the issues which now arose should be decided in favour of Empire. This submission reflects what was said by Slynn J. in The "Aventicum" supra. Nevertheless, in the light of what has been said in the High Court as to the appropriate method of dealing with motions challenging jurisdiction, both as regards the existence of federal jurisdiction (of which this case, after all, is one) and as to the existence of "long arm" or "exorbitant" jurisdiction, I should accept the submission for Empire. I put to one side, at this stage, any special considerations that may arise from any of the jurisdictional facts also being constitutional facts: see The Queen v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League (Incorporated) [1979] HCA 6; (1979) 143 CLR 190 at 214-215 per Gibbs J., 226-231 per Mason J.; Richardson v The Forestry Commission (1988) 164 CLR 261 at 294, per Mason C.J., Brennan J.; O'Toole v Charles David Proprietary Limited [1991] HCA 14; (1990) 171 CLR 232 at 251-252, per Mason C.J.
20. I now come to further provisions of the legislation.
The Legislation
21. Section 5 of the Act states:
"5. (1) Subject to the succeeding provisions of this section,The result is that a foreign ship may be subject to Admiralty jurisdiction, even where the cause of action arose in respect of the use or intended use of the ship on inland waters.
this Act applies in relation to:
(a) all ships, irrespective of the places of
residence or domicile of their owners; and
(b) all maritime claims, wherever arising.
(2) This Act does not apply in relation to a proceeding
commenced before the commencement of this Act.
(3) This Act does not apply in relation to a cause of
action that arose:
(a) in respect of an inland waterways vessel; or
(b) in respect of the use or intended use of a ship
on inland waters.
(4) Paragraph (3) (b) does not have effect in relation to
a cause of action if, at the time when the cause of
action arose, the ship concerned was a foreign ship."
22. Section 14 stipulates that in "a matter of Admiralty or maritime
jurisdiction" a proceeding shall not be commenced as an action
in rem against
a ship except as provided by the Act. Sections 15, 16, 10 and 22 provide for
the commencement of an action in rem
and thus provide the subject matter with
which s. 14 is concerned. It will be necessary later to refer further to s.
15. Section
16 states:
"16. A proceeding on a proprietary maritime claim concerning a shipSection 10 states:
or other property may be commenced as an action in rem against
the ship or property."
"10. Jurisdiction is conferred on the Federal Court and on theSection 22 deals with service and arrest. It provides, so far as is relevant:
Supreme Courts of the Territories, and the Supreme Courts of
the States are invested with federal jurisdiction, in respect
of proceedings that may, under this Act, be commenced as
actions in rem."
"22. (1) Subject to subsection (4):The Seas and Submerged Lands Act 1973, sub-s. 7 (1) provides for the declaration by Proclamation of the limits of the whole or of any part of the territorial sea.
(a) initiating process in a proceeding commenced as
an action in rem in the Federal Court may be
served on a ship or other property; and
(b) a ship or other property may be arrested in such
a proceeding;
at any place within Australia, including a place
within the limits of the territorial sea of Australia.
. . .
(4) Where the arrest of a foreign ship, or of cargo on
board a foreign ship, would be inconsistent with a
right of innocent passage that is being exercised by
the ship, this Act does not authorise the service of
process on the ship or the arrest of the ship or cargo.
(5) In this section:
'innocent passage' has the meaning it has under the
Convention on the Territorial Sea and the Contiguous
Zone done at Geneva on 29 April 1958, a copy of the
English text of which is set out in Schedule 1 to the
Seas and Submerged Lands Act 1973."
23. Section 33 of the Act is a special provision dealing with co-ownership
disputes. It states:
"33. In a proceeding on a maritime claim between co-owners of aSection 13 of the Act is of importance. I have already referred to it. This section provides:
ship relating to the possession, ownership, operation or
earnings of the ship, the orders that the Court may make
include:
(a) orders for the settlement of accounts outstanding and
unsettled; and
(b) an order directing that the ship, or a share in the
ship, be sold."
"13. This Act does not confer jurisdiction on a court, or invest aParagraph 77 (i) of the Constitution empowers the Parliament, with respect to any of the matters mentioned in ss. 75 and 76 of the Constitution, to make laws defining the jurisdiction of any federal court other than the High Court. Section 76 is in the following terms:
court with jurisdiction, in a matter that is not of a kind
mentioned in paragraph 76 (ii) or (iii) of the Constitution."
"76. The Parliament may make laws conferring original24. Section 6 is an important provision. It states that the provisions of the Act (other than s. 34 dealing with damages for unjustified arrest, with which the present proceedings are not concerned) do not have effect to create:
jurisdiction on the High Court in any matter -
(i) Arising under this Constitution, or involving
its interpretation:
(ii) Arising under any laws made by the Parliament:
(iii) Of Admiralty and maritime jurisdiction:
(iv) Relating to the same subject-matter claimed
under the laws of different States."
"(a) a new maritime lien or other charge; or25. A proceeding on a maritime lien may be commenced as an action in rem. The plaintiff in the present proceeding asserts proprietary maritime claims but not a maritime lien. There was a time when jurisdiction to entertain an action in rem and the maritime lien went hand in hand, so that a lien existed in every case in which the Court of Admiralty had jurisdiction to entertain an action in rem. However, this ceased to be true in English law as legislation, beginning in 1840, extended jurisdiction in rem in respect of maritime claims but without the creation of fresh maritime liens: The Halcyon Isle (1981) AC 221 at 232-233. The Act follows this pattern by dealing extensively with actions in rem, by listing in sub-s. 15 (2) the four significant categories of lien (salvage, damage, wages and master's disbursements), and by making in s. 6 the statement to which I have referred as to new liens. See also the LRC Report sections 14-15, sections 119-123.
(b) a cause of action that would not have existed if this Act had
not been passed."
26. It has been said that a maritime lien has proprietary characteristics (The Halcyon Isle, supra at 234) and to create new liens would be to change the substantive law. But to extend by statute jurisdiction in rem for maritime claims is to create procedural rights in respect of subsisting causes of action, rather than new substantive rights: The Monica S (1968) P 741 at 768-769, per Brandon J., the LRC Report, s. 126. The extended categories of maritime claims which may found an action in rem under the Act are consistent with the provision in s. 6 that the Act does not operate to create new causes of action.
27. It therefore is apparent from a reading of s. 6 of the Act that, putting to one side the effect of s. 34, the Parliament has respected the view of three members of the High Court in The Owners of the S.S. "Kalibia" v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 699 per Griffith C.J., 703-704 per Barton J., 715 per Isaacs J. This was that s. 76 (iii) of the Constitution does not imply a power in the Parliament to legislate substantively as to admiralty and maritime law generally. However, it may be observed that Barton J. rested his decision on the ground that, unlike the United States, Australia was not then a "separated nation of independent sovereignty in its relation to the United Kingdom" and that Griffith C.J. merely said the contrary argument was "quite untenable". That Barton J.'s reasoning no longer represented the modern constitutional position was made apparent, even before the coming of the Australia Acts 1986, by the decision in Kirmani v Captain Cook Cruises Proprietary Limited (No. 1) [1985] HCA 8; (1985) 159 CLR 351. Further, in The King v Turner; Ex parte The Marine Board of Hobart [1927] HCA 15; (1927) 39 CLR 411 at 447-448, Higgins J. treated as having been expressed obiter the views of Griffith C.J., Barton J. and Isaacs J., that s. 76 (iii) did not authorise the Parliament to make laws over a greater area of waters than it could make by virtue of the commerce power.
28. The substantial body of law applicable to the claims comprising the present matter will be supplied by other applicable federal law (cf. F. Kanematsu and Company Limited v The Ship "Shahzada" [1956] HCA 57; (1956) 96 CLR 477) including State law and common law "picked up" by ss. 79, 80 of the Judiciary Act (cf. Rosenfeld Hillas and Company Proprietary Limited v The Ship Fort Laramie [1923] HCA 7; (1923) 32 CLR 25 at 34; Huddart Parker Ltd v The Ship "Mill Hill" and her Cargo [1950] HCA 43; (1950) 81 CLR 502 at 507-508). The law applicable to the matter by these means includes the rules of private international law: Musgrave v The Commonwealth [1936] HCA 80; (1937) 57 CLR 514.
29. Part VI of the Act deals with repeals and amendments of Imperial legislation. In particular, s. 45 repeals a number of English and Imperial statutes that might apply in Australia including the statutes of 13 Richard II, st. I, c. 5, (1389), and 15 Richard II, c. 3, (1391), which had been designed to restrict the Admiralty jurisdiction in England and which had generated much controversy over the centuries. Further, the effect of s. 44 is to repeal the Colonial Courts of Admiralty Act 1890 (Imp) ("the 1890 Act"), as amended at 1 January 1989, and insofar as it was part of the law of the Commonwealth or of an external Territory on 1 January 1989.
30. In its application to Australia, the 1890 Act had had some serious
deficiencies. Upon its creation, the High Court was itself
a colonial court
of admiralty. The content of the jurisdiction with which the courts of this
country were invested was that of the
English High Court at the time of the
passing of the 1890 Act, not the English High Court jurisdiction as it later
was extended from
time to time: The Yuri Maru (1927) AC 906. Further, at
least until the delayed adoption in Australia of the Statute of Westminster
1931 (Imp) there was an inhibition upon
the Parliament of the Commonwealth
legislating in a manner repugnant to the Imperial statute: McIlwraith
McEacharn Limited v The
Shell Company of Australia Limited [1945] HCA 11; (1945) 70 CLR 175
at 210; China Ocean Shipping Co. v The State of South Australia [1979] HCA 57; (1979) 145 CLR
172 at 203-204, 224-231, 241-242. The effect of the repeal of the 1890 Act is
that s. 76 (iii) of the Constitution no longer is to be read against the
background of concurrently applicable Imperial law. In this sense, the
denotation of the terms
in which s. 76 (iii) of the Constitution is expressed
has changed and they are to be considered in this new light: Lansell v Lansell
[1964] HCA 42; (1964) 110 CLR 353 at 362-363, 369, 370; Kirmani v Captain Cook Cruises
Proprietary Limited (No. 1), supra at 379.
The Dispute between the Parties
31. I now return to consider the nature of the dispute between the parties. The relief sought in the writ is put in the alternative as (i) damages estimated at US$13,453,926 together with interest and costs, or (ii) an order for sale of the Ship and for remission to the plaintiff of 50% of the sale proceeds, or (iii) an order that all of the shares in the Ship and the property and ownership in the Ship be transferred to Seven Seas Transport Incorporated ("Seven Seas") (a company incorporated under the laws of Liberia) or to some other company nominated by the plaintiff. It will be apparent that Seven Seas is not a party to this proceeding. The relief sought in the statement of claim is somewhat differently expressed and it will be necessary later to return to this.
32. The particulars of the claim given in the Writ are as follows:
"Damages for breach of a joint venture agreement dated 18th33. On 16 July 1974, by what they called their "Basic Agreement", Empire and YSL agreed that Empire would sell and YSL purchase one half of the issued shares in United Transport Investment Inc. ("UTI"), a Liberian company, "for the purpose of owning vessels jointly". There was a recital that Empire and YSL had "agreed it would be in their interest to enter into and jointly carry on the business of shipping".
September, 1975 as subsequently amended on 8th February, 1984 made
between the Plaintiff and (YSL) relating to the ship 'Seven Seas
Conqueror' now named 'Shin Kobe Maru', arising out of YSL's refusal
to transfer the ownership of the ship in accordance with the
provisions of the amended joint venture agreement."
34. On 18 September 1975, Empire and YSL entered into a written agreement headed "Joint Venture Agreement" ("the JVA"). The JVA recites that Empire and YSL "have agreed to enter into and to jointly carry on the business of shipping", that they are the shareholders of UTI which itself "established" another Liberian company, Seven Seas. (In fact, Seven Seas had been incorporated on 28 June 1973, and UTI on 5 June 1974.) It is further recited that by agreement with Seven Seas dated 1 April 1974, Manufacturers Hanover Trust Company ("Hanover") undertook to make up to US$23m. available to Seven Seas, and that on 14 August 1973, Seven Seas entered into a ship building agreement with Mitsui Shipbuilding and Engineering Co. Limited ("the Builder") relating to the construction and purchase of one ore carrier of about 116,000 tons. Then it is said that Empire and YSL are willing to execute the JVA "for the purpose of jointly own (sic)" the Ship.
35. Paragraph 3A of the Amended Statement of Claim reads as follows:
"3A. The (Plaintiff) says that the Defendant is estopped from36. Article 16 of the JVA provides that the "validity, interpretation, construction and performance" of the JVA "shall be governed by the laws of England". On the present motion, there was no evidence of any foreign law. Article 6 of the JVA states that YSL shall time charter the Ship from Seven Seas for 15 years from the time of delivery by the Builder at the port of Tamano. Tamano is on the island of Honshu in Japan.
denying the facts asserted in the recitals to the said JVA and
in particular that the purpose of the Joint Venture Agreement
was for the joint ownership of the 'Shin Kobe Maru' and
further that by reason of the nature of the JVA this
Honourable Court is entitled to lift any corporate veil as
between the (Plaintiff) and the Defendant to recognise the
true joint beneficial ownership of the 'Shin Kobe Maru'."
37. Article 4 deals with sale of the Ship and is of particular importance. For the first 15 years after delivery, neither Empire nor YSL "shall have the privilege to cause" Seven Seas to sell the Ship "at its own discretion". During that period, "each party" (which means Empire and YSL) shall give the other "the priviledge (sic) of first refusal". After the expiry of 15 years, YSL "has the priviledge (sic) to cause" Seven Seas to sell the Ship "at its own discretion" and any amount obtained from this sale "shall be shared equally between both parties". If the Ship is lost or becomes a constructive total loss, "both parties shall cause" Seven Seas to liquidate and pay the outstanding loan amount "equally among both parties" and any surplus fund shall be divided equally between the parties.
38. Article 6 of the JVA obliges YSL to time charter the Ship from Seven Seas for 15 years at a rate comprising bareboat charterage, operation cost and insurance premium. In addition, "merely for banking purposes", as the parties put it, there was a bareboat charter between YSL and Seven Seas under which YSL was obliged to make monthly payments. The time charter was to "be used as actual charter party" between YSL and Seven Seas.
39. On 15 June 1976, a time charter from Seven Seas to YSL was entered into in Tokyo, for a period of 15 years "with three months more or less at YSL's option". Over the years that followed, there were 24 addenda to this document. The last was agreed between YSL and Seven Seas on 26 April 1984. The Ship was registered under the Liberian flag on 30 July 1976, with the name "Seven Seas Conqueror". YSL appointed a Bermudan company, United Shipping Co. (Bermuda) Ltd ("US Bermuda"), to act as general agents for the Ship. This agreement was dated 16 December 1975. US Bermuda appointed United Navigation Company Inc. (incorporated in Liberia) as sub-agent, and it, in turn, appointed as sub-agent for the Ship, Van Shipping Co. Ltd ("Van"). Van conducts its operations from Hong Kong and was the medium for communications between YSL and Empire.
40. Article 17 of the JVA states that any dispute between the parties "shall be finally settled by arbitration in London under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by three Arbitrators appointed in accordance with the Rules". On the present motion no point arises as to the applicability of the provisions of the International Arbitration Act 1974; cf. Allonah v The Ship "Amanda N" (1989) 21 FCR 60.
41. On 8 February 1984, YSL and Van entered into an agreement ("the 1984 Agreement") and Empire alleges (in para. 7 of the Amended Statement of Claim) that Van did so on its behalf and by way of amendment of the JVA. For the purposes only of the present motion, YSL accepts that Van acted as Empire's agent in this respect. On the present motion affidavit evidence as to the events leading up to the 1984 Agreement was received from Mr David Lieu. He lives in Hong Kong and is the Managing Director and majority shareholder of Van, a director and majority shareholder of Empire, President of both Seven Seas and UTI, and majority shareholder of US Bermuda. There was no cross-examination. It is sufficient now to note that in the period before 1984, the Ship had been on a regular service between Japanese and Australian ports, and YSL and the sub-charterers Kobe Steel Corporation had been anxious to change the flag of the Ship because they feared an outbreak of boycotting of the Ship under the Liberian flag and other "flags of convenience", by trade unions in this country. The 1984 Agreement does not contain an express choice of governing law. It was drafted by YSL. Following upon this agreement, the Ship was transferred in 1984 by Seven Seas from the Liberian to the Japanese flag, and registered in the name of YSL. Also, the name of the Ship was changed to "Shin Kobe Maru".
42. These changes were effected by various steps. By agreement on 5 March 1984 between Seven Seas and YSL, the Ship was sold to YSL for US$13.20m. The Bill of Sale is dated 28 March 1984. Delivery took place in Japan on 24 April 1984 and since 7 May 1984 the Ship has been registered on the Tokyo Registry as owned by YSL. A mortgage to Bank of America National Trust and Saving Association ("BOA") was discharged on 24 July 1987. By this time the financing of the Ship by Hanover had been taken over by BOA, pursuant to a loan agreement dated 28 January 1983 between BOA and Seven Seas, guaranteed by Mr David Lieu. Since July 1987, other securities over the Ship have been registered. The securities are in favour of Japanese banks.
43. Articles 2, 3, 4, 5 and 6 of the 1984 Agreement were as follows:
"2. In order to register (the Ship) into Japanese, (sic) YSLThe sum of US$124,000 stipulated in article 5 represented the monthly bareboat charter rate for the Ship.
will nominally purchase (the Ship) at the price of the
outstanding loan amount . . . and YSL will hold full
ownership under the Japanese law. However even (sic) the
period of the vessel being registered in Japan and owned by
YSL, eventual ownership of (the Ship) still remains 50/50
basis (sic) between YSL and VAN and that any rights,
obligations and liabilities of both parties under the JV
Agreement also still remains (sic) as if JV Agreement deted
(sic) 18th July 1975 remains as it is (sic). (Emphasis supplied)
3. At the time of transfer of (the Ship), YSL will take over
the existing outstanding loan amount and terms of Loan
Agreement with BOA . . .
4. Around July, 1987 when the original loan amount of about
US$8,800,000 will be fully repaid, (Seven Seas) or other
(joint venture company) jointly and equally owned by YSL and
VAN will buy back (the Ship) at the price of her book value
remained (sic) in YSL at the time of transfer to (the joint
venture company).
5. Immediately after the vessel is bought back by (the joint
venture company) YSL will pay VAN or their nominee monthly
US$124,000 for a period of 30 months.
6. After (the Ship) is transferred to (joint venture company),
VAN or their nominee will fully undertake the repayment of
the outstanding loan amount with BOA . . ."
44. Mr Lieu says that it was always understood by him that the beneficial ownership of the Ship "would remain on a 50/50 basis between Y.S. Lines and my group (through Empire) and also that the JVA would simply be suspended until 1987 by when it was expected that the balance of the original loan . . . would have been repaid and (the Ship) could then be bought either by (Seven Seas) (the original joint venture vehicle) or another joint venture company if this was the desire of my group and Y.S. Lines". His view is that this is what is meant by article 4 of the 1984 Agreement, and he also says that he understood the phrase in article 2 "eventual ownership" to mean "beneficial ownership". He says that Van would never have executed the 1984 Agreement if he had been told by YSL that "my group no longer had any beneficial interest or ownership in (the Ship)".
45. Paragraphs 8A, 9, 11, 12, 13, 14 and 15 of the Amended Statement of Claim
are in the following terms:
"8A. It was a further term of that agreement that the provisions46. Counsel for YSL submitted that, in truth, these particulars could not identify loss suffered by Empire. He makes the point (as to item 2) that Empire was never manager under any management agreement, however complex the chain of sub-contracting. Nor was Empire entitled to charter hire (item 3), it never having been a charterer. The claim to 50% of the proceeds of sale of the Ship (item 4) is dependent upon Empire making out its case as to its entitlement to have such a sale made. That leaves item 1.
of the JVA were to remain in force and that the vessel would
be 50% owned by Van Shipping Co Limited for and on behalf of
the (Plaintiff) and 50% owned by the Defendant while the
vessel was flying the Japanese flag.
9. It was a further term of the Amendment Agreement that in or
about July 1987 when the original loan was repaid (Seven
Seas) or another company jointly owned by the Defendant and
Van Shipping Co Limited for and on behalf of the (Plaintiff)
would re-purchase the vessel from YSL at book value.
. . .
11. In breach of the provisions of the JVA and the Amendment
Agreement the Defendant has wrongfully refused to retransfer
the ownership of the 'Shin Kobe Maru' to (Seven Seas) or to
another joint venture company equally owned by Van Shipping
Co Limited for and on behalf of the (Plaintiff) and the
Defendant.
12. Further it was an implied term of the JVA and the
Amendment Agreement that the Defendant would retransfer the
ownership of the 'Shin Kobe Maru' to (Seven Seas) or to
another joint venture company equally owned by Van Shipping
Co Limited for and on behalf of the (Plaintiff) and the
Defendant.
13. In breach of the implied terms referred to above, the
Defendant has failed to retransfer the ownership of the
'Shin Kobe Maru' to (Seven Seas) as to another joint venture
company equally owned by Van Shipping Co Limited for and on
behalf of the (Plaintiff) and the Defendant.
PARTICULARS
(a) It was an implied term of the JVA, as amended by the
Amendment Agreement, that the Defendant would take all
reasonable steps to do all that is necessary to be done to
carry out the terms of the (sic) those agreements and to
retransfer the 'Shin Kobe Maru' to (Seven Seas) or to
another joint venture company equally owned by Van Shipping
Co Limited for and on behalf of the (Plaintiff) and the
Defendant.
(b) In breach of the JVA and the Amendment Agreement the
Defendant has wrongfully refused to retransfer the 'Shin
Kobe Maru' to (Seven Seas) or to another joint venture
company equally owned by Van Shipping Co Limited for and on
behalf of the (Plaintiff) and the Defendant.
14. The Applicant says that the claim made herein is a
proprietary maritime claim by reason of Section 4(2)(a)
and/or (b) of the Admiralty Act 1988 in respect of which
jurisdiction is conferred on this honourable Court by reason
or (sic) Section 10 and Section 16 of the said Act.
PARTICULARS
The proceedings are a claim relating to possession of ship
namely the 'Shin Kobe Maru' and/or title or ownership of a
ship or a share in the ship. Further and in the alternative
the proceedings are between co-owners of a ship relating to
the possession, ownership, operation and earnings of the
ship.
15. By reason of the Defendant's failure to retransfer the
ownership of the 'Shin Kobe Maru' in accordance with the
provisions of the Amendment Agreement, the (Plaintiff) has
suffered loss and damage.
PARTICULARS
1. Loss of bareboat hire at US$124,000.00
per month for 30 months (2/87 - 1/90)
with interest 8 1/2 p.a. to 7/93 US$5,592,604.00
2. Loss of profit on management US$25,000.00
per month for 72 months (7/87 - 7/93)
with interest 8 1/2 p.a. to July 93 US$2,354,087.00
3. Charter hire US$114,583.00 per month
(50% of charter hire of US$400,000.00
per month less monthly management fee
US$170,834.00 for 24 months (7/91 - 7/93)
with interest 8 1/2 p.a. to 7/93 US$3,007,235.00
4. The (Plaintiff)'s 50% share of the
vessel's sale proceeds US$2,500,000.00
US$13,453,926.00
Less
Excess loan at 7/87 US$6,911,623.00
Less SST/UTI (50% YSL) US$ 39,620.00
Empire US$ 31,867.00
New S/B pay US$ 910,385.00
US$5,929,751.00
Add
Interest to
17th year at 8.5% p.a.
7/87 to 7/93 = 6 years) US$3,841,479.00
Excess Loan and interest US$9,771,230.00
Total Loss US$3,682,696.00
=============="
47. I have referred to the chartering arrangements provided for in Article 6 of the JVA. Article 7 of the JVA, after the expiry of the 151st month of the time charter from Seven Seas to YSL, obliged YSL to pay moneys "to Empire through (Seven Seas)". And article 5 of the 1984 Agreement obliged YSL to pay Van "or their nominee" sums of US$124,000 per month for the period of 30 months "immediately after the vessel is bought back" as stipulated in article 4 thereof. Empire says this should have happened in July 1987 and claims that the obligation to pay then ran against YSL and in its favour because Van executed the 1984 Agreement as the agent of Empire and the rights created thereunder in the name of Van are to be treated as those of its principal. As I have said, this agency is conceded only for the purposes of the present motion. But on that footing, I would hold there was a proper basis for the claim in item 1. I accept what is put by YSL as to items 2 and 3. Item 4 is absorbed in the larger issue of the entitlement of Empire to an interest in the Ship. But even if items 1 and 4 both be allowed to Empire, the allowances which it then makes in the particulars of US$9,771,230 consumes the whole of the sums claimed under items 1 and 4.
48. The Amended Statement of Claim concludes with claims to relief that do
not coincide with the Particulars of Claim given in the
Writ. I have set out
those particulars earlier in these reasons. The claims set out in the Amended
Statement of Claim are as follows:
"1. An order for the sale of the vessel and that 50% of the sale49. As I have pointed out when dealing with the particulars to para. 15, para. 4 of the claims to relief, the claim to US$3,682,696 cannot be sustained as the case now stands. But there remain paras. 1, 2 and 3. These were to be found, somewhat differently expressed, in the Writ. They present the issue of whether Empire does indeed have any proprietary maritime claim.
proceeds be remitted to the (Plaintiff) or as the Court
otherwise directs.
2. An order that all the shares in the vessel be transferred to
(Seven Seas) or to another joint venture company equally
owned by or on behalf of the (Plaintiff) and the Defendant.
3. An order that ownership and possession of the vessel be
transferred to (Seven Seas) or to another joint venture
company equally owned by or on behalf of the (Plaintiff) and
the Defendant.
4. US$3,682,696.00.
5. Alternatively, damages.
6. Interest pursuant to section 51A of the Federal Court Act.
7. Costs.
8. Such further or other order as this Honourable Court thinks fit."
50. Paragraphs 4 (2) (a), (b) of the Act are relied upon by Empire to found jurisdiction. Sub-paragraphs (a) (i), (ii) define two species of proprietary maritime claim as a claim "relating to", "possession of a ship" (sub-para. (a) (i)) or "title to or ownership of a ship or a share in a ship" (sub-para. (a) (ii)). The registered owner of the Ship is YSL. It may then be asked whether a claim, such as that of Empire, which asserts a beneficial interest in a ship is one relating to possession of the ship, or to the title to the ship or to ownership of the ship. (Emphasis supplied). Likewise, para. 4 (2) (b) speaks of a claim between co-owners relating to, inter alia, possession or ownership of a ship.
51. Counsel for Empire referred to various cases in which courts of Admiralty had entertained questions going beyond those of the purely legal title. But some of those were concerned with a very different subject matter, namely the meaning of "owner" in s. 503 of the Merchant Shipping Act 1894 (Imp.); e.g. McIlwraith McEacharn Limited v The Shell Company of Australia Limited, supra. Others dealt with the vexed question of whether under the 1840 or 1861 Imperial Acts an action in rem might lie for necessaries supplied for a person other than the owner, in particular, for the beneficial owner: Foong Tai and Co. v Buchheister and Co. (1908) AC 458; Shell Oil Company v The Ship "Lastrigoni" [1974] HCA 27; (1974) 131 CLR 1 at 5-6; cf. Kali Boat Building and Repair Pty Ltd v The Motor Fishing Vessel "Bosna" (1977) 19 SASR 112 at 116. I do not derive particular assistance from such decisions, in construing sub-s. 4 (2) of the Act.
52. Reference also was made to The Conoco Britannia (1972) 2 QB 543. Under a contract of towage, the plaintiffs had supplied to the ship of the defendants a tug owned by a third party. The tug was sunk in a collision with that ship. The plaintiffs instituted proceedings in rem against the defendants claiming indemnity under the contract for the loss suffered by the tug owners. They also claimed "specific performance" of an obligation of the defendants to indemnify the owners, and relied in that regard upon Beswick v Beswick [1967] UKHL 2; (1968) AC 58. But it must be doubtful if what was sought was "specific performance" in the proper sense of that term: J.C. Williamson Limited v Lukey and Mulholland [1931] HCA 15; (1931) 45 CLR 282 at 297-300. A strike out application, on the ground that a claim for "specific performance" could not be brought in an action in rem, was dismissed. Brandon J. held that effect had to be given to the statutory obligation of the High Court of Justice to give in the one proceeding all legal and equitable relief available to a plaintiff (cf. Federal Court of Australia Act 1976, s. 22). The decision has been criticised (e.g. Jackson, "Enforcement of Maritime Claims", 1985, p 376) for not giving sufficient effect to the principle that equitable remedies are in personam, and should not be given in respect of property in the forum if the defendant is outside it. But a vesting order may be made against an absent vendor if the remedy of specific performance would have been available (Chang v The Registrar of Titles [1976] HCA 1; (1975-1976) 137 CLR 177) and in a specific performance suit service upon an absent defendant may be ordered under various provisions in rules of court (Halsbury's "Laws of England", 4th Ed., Vol. 44, p 292; see, for example, Order 8, Rule 1 (h) of the Rules of Court).
53. Nevertheless, I gain no great assistance from this decision in construing the Act.
54. The Admiralty jurisdiction of the English High Court of Justice, now
provided for by s. 20 of the Supreme Court Act 1981 (U.K.),
confers
jurisdiction to hear and determine "any claim to the possession or ownership
of a ship or to the ownership of any share therein"
(para. 20 (2) (a)); there,
the wider expression "relating to" (used in sub-s. 4 (2) of the Australian
Act) is not used to qualify
"claim". On the other hand, para. 20 (2) (h) of
the British Act speaks of "any claim arising out of any agreement relating to
the
carriage of goods in a ship or to the use or hire of a ship" and among the
general maritime claims provided for in sub-s. 4 (3) of
the Australian
legislation is para. (f):
"a claim arising out of an agreement that relates to the carriage55. The immediate question is one of identifying the force to be given to the expression "relating to" in paras. 4 (2) (a), (b) of the Australian Act. In that regard, some guidance is to be afforded by decisions construing the expression "relating to the carriage of goods in a ship . . ." in para. 20 (2) (h) of the present British Act.
of goods or persons by a ship or to the use or hire of a ship,
whether by charterparty or otherwise;"
56. One decision in point is that of the House of Lords in Gatoil
International Inc. v Arkwright-Boston Manufacturers Mutual Insurance
Co.
[1984] UKHL 8; (1985) AC 255. It was followed recently by Phillips J. in Petrofina SA v AOT
Ltd (1991) 3 All ER 161. In Gatoil, the House of Lords decided that a
contract of insurance was not connected with the carriage of goods in a ship
in a sufficiently
direct sense to be capable of falling within the paragraph
in question. Lord Wilberforce (supra at 262) said:
"Taking the statutory words by themselves, it is obvious enough thatThe proposition for which the decision is authority appears in the following passage from the speech of Lord Keith of Kinkel, supra at 270-271:
they are, in a legal sense, ambiguous, or as I would prefer to state
it, loose textured. It is not possible to ascribe a precise or
certain meaning to words denoting relationships without an
indication what the criterion of relationship is to be. Must the
agreement be directly 'for' carriage of goods in a ship, or is it
enough that it involves directly or indirectly, or that the parties
contemplated that there would be, such carriage as a consequence of
the agreement? How close, in such a case, must the relationship be
between the agreement and the carriage? Is any connection of a
factual character between the agreement and some carriage in a ship
sufficient? If not, what is the test of relevant connection? . . .
(T)he courts are left with a choice of a broad or a narrow
interpretation."
"It is necessary to attribute due significance to the circumstance57. Earlier, in The Jade (1976) 1 All ER 920, the House of Lords held that an agreement for salvage services fell within this paragraph, as relating to the use or hire of a ship, because the performance of the primary obligation of the salvors required them to use a salvage tug; Lord Diplock said (at 926) that the words "an agreement relating to the use or hire of a ship" should be given "their ordinary wide meaning".
that the words of the relevant paragraphs speak of an agreement 'in
relation to' not 'for' the carriage of goods in a ship and the use
or hire of a ship. The meaning must be wider than would be conveyed
by the particle 'for'. It would, on the other hand, be unreasonable
to infer from the expression actually used, 'in relation to', that
it is intended to be sufficient that the agreement in issue should
be in some way connected, however remotely, with the carriage of
goods in a ship or with the use or hire of a ship. . . There must,
in my opinion, be some reasonably direct connection with such
activities. An agreement for the cancellation of a contract for the
carriage of goods in a ship or for the use or hire of a ship would,
I think, show a sufficiently direct connection. . . Each case
would require to be decided on its own facts. As regards the
contract of insurance founded on in the instant appeal, I am of
opinion that it is not connected with the carriage of goods in a
ship in a sufficiently direct sense . . ."
58. Further, there is authority which suggests that even without relying upon any additional reach provided by the words "relating to", there may be a claim to title, possession or ownership of a ship (the distinctions between these concepts are not specifically drawn on the authorities) where equitable interests are asserted against a legal owner. Two such decisions are particularly in point.
59. The first is that of Brandon J. in The "Bineta" (1966) 3 All ER 1007. His Lordship held that on the facts before him, the High Court of Justice had jurisdiction to entertain the action, under a law corresponding to what is now para. 20 (2) (a) of the Supreme Court Act 1981 (U.K.), that is to say, as a claim "to the possession or ownership of a ship . . .". The ship had been sold by the registered owner, Miss Simmonds, to Mr Garthwaite. He became registered as owner. Miss Simmonds remained in possession and, upon Mr Garthwaite's default, exercised her lien as unpaid seller by selling to Mr Dalby. But she was not then the registered owner. Mr Dalby commenced proceedings against all other persons claiming any interest in the ship, and obtained a declaration that he was the owner of it and entitled to be registered in the place of Mr Garthwaite.
60. In Antares Shipping Corporation v The Ship "Capricorn" (1979) 111 DLR (3d) 289, the Supreme Court of Canada held that the Federal Court of Canada had jurisdiction to entertain an action for the enforcement of a concluded contract for the sale of a ship by delivery and by the execution of a bill of sale thereof, on the footing that this was a claim "as to title, possession or ownership of a ship" within the meaning of the relevant legislation. The Supreme Court disagreed with the statement in the Federal Court of Appeal, 88 DLR (3d) 28 at 33-38, that Canadian law should be interpreted so as to deny jurisdiction to enforce equitable interests or to order specific performance. The LRC Report, in dealing with the content of the proposed head of jurisdiction covering claims to "title to, or ownership or possession of, a ship or a share in a ship", referred with apparent approval to the Canadian Supreme Court decision; see s. 49.
61. In construing the Australian legislation, I would not, any more than did the Supreme Court of Canada in The Ship "Capricorn" (at 295-296) in dealing with the Canadian law, limit the concept of claims to possession to those described as "petitory" suits (where, to remove a "cloud" upon it, title is litigated independently of any possession which has previously accompanied that title) and "possessory" suits (where restoration is sought of possession of which the owner has been unjustly deprived).
62. In the United States, it has been held that suits on contracts for the
sale of vessels are not suits on "maritime contracts".
But the Supreme Court
has not had to rule squarely upon the matter and the decisions in question
have been criticised as stating
a rule that is an aberration; Robertson,
"Admiralty and Federalism", 1970, pp 120-121, Gilmore and Black, "The Law of
Admiralty",
2nd Ed., 1975, p 27, Richard Bertram v Yacht "Wanda" (1971) AMC
1841. In Everett A. Sisson v Burton B. Ruby [1990] USSC 121; 111 L Ed 2d 292 at 305 (1990) (a
maritime tort case), Scalia J. observed of the "maritime contract" cases:
"The impossibility of drawing a principled line with respect to whatConclusions as to Construction
in addition to the fact that the contract relates to a vessel (which
is by nature maritime) is needed in order to make the contract
itself 'maritime' has brought ridicule upon the enterprise."
63. In my view, a claim may relate to possession of a ship or to title to or ownership of a ship (within the meaning of para. 4 (2) (a) of the Act) where the source of the entitle-ment upon which the claim rests is found in a beneficial interest in the ship which is asserted by the claimant. For example, a claim that by reason of that interest the defendant in the action should be deprived of possession or a claim that the registered title should be changed by an order for sale or for transfer to a particular transferee (whether the claimant, or, as here, a third party), may be founded upon a beneficial interest asserted by the claimant.
64. Where, as is said to be the case here, the beneficial interest in a ship is divided between two parties, one of whom is also the registered owner, then, in my view, a dispute between them also may give rise to a claim between co-owners within the meaning of para. 4 (2) (b). That is to say, I would not confine the sense in which the concept of ownership is used in this paragraph to have legal or registered title any more than I would in sub-para. 4 (2) (a) (ii). It will then be an issue, in each case, whether the claim sought to be litigated has a sufficiently direct connection with the possession, ownership, operation or earnings of the ship.
65. Against that background as to construction of the Act, I turn to consider
whether Empire has shown a strong argument for the
existence of the
jurisdiction it has invoked in this proceeding.
Has Empire shown a strong argument in its favour?
66. In sum, the position taken by YSL is that whilst there may be an action by Empire for damages for breach of contract, there is no proprietary maritime claim in respect of the Ship.
67. YSL emphasises that whilst the joint venture documents may be between YSL and Empire, and YSL is registered owner of the Ship, in the events that have happened at best YSL is obliged to Empire to sell the Ship back to Seven Seas or another joint venture company jointly and equally owned by YSL and Empire. Thus, it is said, the only claim to possession that may arise is that of Seven Seas. When so sold back, YSL submits, the Ship would be owned on terms that as between YSL and Empire, article 4 of the 1974 agreement would apply; that would mean that YSL alone had the privilege to cause the owner to sell the Ship and that if it were sold the proceeds would be shared equally by Empire and YSL. Therefore, the defendant submits, there is no claim relating to possession of the Ship within the meaning of para. 4 (2) (a) (i).
68. Nor, YSL submits, has Empire any claim relating to title to or ownership of the Ship or a share in the Ship. The Ship is presently owned by YSL, it has never been owned by Empire, and the contractual arrangements between the parties call for no more than the revesting of ownership in Seven Seas or some other joint venture company. The fact that Empire owns shares in a company which owns the shares in Seven Seas, does not give Empire any ownership in or title to the Ship. It follows that the dispute between Empire and YSL is not a claim between co-owners relating to the possession, ownership, operation or earnings of the Ship within the meaning of para. 4 (2) (b). Nor is there a claim relating to title to or ownership of the Ship, or a share in it, within the meaning of para. 4 (2) (a) (ii). That is the way the matter is put for YSL.
69. In order to appreciate the contrary submissions, it is necessary to return to the constituent documents.
70. In the Basic Agreement dated 16 July 1974, YSL and Empire recited an agreement that it would be in their interest "to enter into and jointly carry on the business of shipping". This was followed by the JVA dated 18 September 1975 which again recited an agreement by the parties to enter into and to jointly carry on the business of shipping. The recitals in the JVA stated that Empire and YSL were "willing to execute this Joint Venture Agreement for the purpose of jointly own (sic)" the Ship.
71. Accordingly, it was to be expected that counsel for Empire would describe
the relationship between Empire and YSL as governed
by an agreement for a
joint venture. The difficulty is that the expression "joint venture" has no
fixed legal meaning. The position
was explained as follows by Mason, Brennan
and Deane JJ. in United Dominions Corporation Limited v Brian Proprietary
Limited [1985] HCA 49; (1985) 157 CLR 1 at 10-11:
"The term 'joint venture' is not a technical one with a settled72. As I understand the Amended Statement of Claim and the submissions upon it of counsel for Empire, the joint venture propounded here was not in the nature of a partnership and the present proceeding, despite what was said by counsel for YSL, is not in the nature of a suit to wind up a partnership. Therefore, the case is not to be dealt with as if Empire is a partner asserting in relation to partnership assets the sui generis interest described in Canny Gabriel Castle Jackson Advertising Pty Limited v Volume Sales (Finance) Pty Limited [1974] HCA 22; (1974) 131 CLR 321 at 328.
common law meaning. As a matter of ordinary language, it connotes
an association of persons for the purposes of a particular trading,
commercial, mining or other financial undertaking or endeavour with
a view to mutual profit, with each participant usually (but not
necessarily) contributing money, property or skill. Such a joint
venture (or under Scots' law, 'adventure') will often be a
partnership. The term is, however, apposite to refer to a joint
undertaking or activity carried out through a medium other than a
partnership: such as a company, a trust, an agency or joint
ownership. The borderline between what can properly be described as
a 'joint venture' and what should more properly be seen as no more
than a simple contractual relationship may on occasion be blurred.
Thus, where one party contributes only money or other property, it
may sometimes be difficult to determine whether a relationship as a
joint venture in which both parties are entitled to a share of
profits or a simple contract of loan or a lease under which the
interest or rent payable to the party providing the money or
property is determined by reference to the profits made by the
other. One would need a more confined and precise notion of what
constitutes a 'joint venture' than that which the term bears as a
matter of ordinary language before it could be said by way of
general proposition that the relationship between joint venturers is
necessarily a fiduciary one . . . The most that can be said is that
whether or not the relationship between joint venturers is fiduciary
will depend upon the form which the particular joint venture takes
and upon the content of the obligations which the parties to it have
undertaken."
73. What is asserted for Empire is a joint activity carried out through the medium of joint beneficial ownership of an asset, the legal title to which was, pursuant to the JVA, retained in Seven Seas. The shares in that company were held by UTI, a company itself with a share capital divided equally between Empire and YSL. The further contention of Empire is that even though the Ship was transferred to the Japanese flag and YSL became the owner pursuant to the 1984 Agreement, nevertheless the joint beneficial ownership between YSL and Empire continued. The Basic Agreement, the JVA and the 1984 Agreement, even without reliance upon the evidence of Mr Lieu as to the understanding upon which he agreed to the flag transfer to YSL in 1984, provide a strong argument in support of the contentions of Empire. To reach that conclusion is not to deny the efficacy of the corporate structure the parties established in various jurisdictions. Article 4 of the JVA shows that YSL and Empire reserved to themselves the manner of disposition of that Ship by Seven Seas and proceeds of sale were for division by YSL and Empire.
74. The terms on which the parties held the joint beneficial ownership asserted by Empire appear from the arrangements made between it and YSL. Article 8 of the JVA prevented each of YSL and Empire from, without the prior written consent of the other, dealing with its shares in UTI, and both YSL and Empire were obliged not, without the prior written consent of the other, to cause UTI to deal with the shares of UTI in Seven Seas. Articles 5 and 6 dealt with the operation and management of the Ship and with the chartering of the Ship. As I have said, article 4 dealt with restraints upon the sale of the Ship. Neither YSL nor Empire would cause Seven Seas to sell the Ship within the first 15 years from the time of delivery of the Ship (which must have shortly preceded its registration on 30 July 1976); during that period, if either YSL or Empire wished to sell the Ship, it would give the other the right of first refusal. In that regard, article 4 ignores intervening corporate structures and speaks of "the party who wishes to sell (the Ship)", and the expression "party" plainly identifies YSL and Empire. After the expiry of the said 15 year period, YSL has the right to cause Seven Seas to sell the Ship, but any amount obtained from that sale is to be shared equally "between both parties", which again must mean between YSL and Empire. Again, article 4 provides that if the Ship is lost or becomes a constructive total loss "both parties shall cause (Seven Seas) to . . . pay outstanding loan (sic)" in respect of the Ship such that the amount will be borne equally "among both parties" and any surplus shall be divided "equally between both parties".
75. A mortgage over the Ship to BOA was discharged on 24 July 1987. In the submission of Empire, article 4 of the 1984 Agreement then came into operation. The result is said to be that YSL is obliged to have the Ship bought back by Seven Seas or another joint venture company jointly and equally owned by YSL and Empire, at a price representing the book value in the hands of YSL at the time of the transfer. YSL responds that even if this be so, the result would be that Empire would have no right to possession of the Ship or to require it to be sold. As I have indicated, this is said to be because article 4 of the JVA would apply and as between Empire and YSL (the parties to that agreement) it would be YSL alone which would have the right to cause Seven Seas to sell the Ship (subject to the proceeds then being shared equally between YSL and Empire). This may be accepted.
76. YSL then reiterated that the only relevant claim to possession was that of Seven Seas; Empire could not obtain possession for itself even on the claim it propounded. That also may be accepted. But the third claim set out in the Amended Statement of Claim (which reflects some of the relief sought in the Writ) is a claim by Empire against YSL to have Seven Seas (or another joint venture company) put into possession and ownership of the Ship (rights which would be subject to article 4 of the JVA). Upon the construction I have given sub-s. 4 (2), this claim would be a claim "relating to possession of a ship" (sub-para. 4 (2) (a) (i)), a claim relating to title to or ownership of a ship (sub-para. 4 (2) (a) (ii)), and a claim between co-owners (Empire and YSL) "relating to" the possession and ownership of their ship (para. 4 (2) (b)).
77. Seven Seas is not a party to the JVA or to the 1984 Agreement. It would not be a necessary party to an action in personam to enforce the obligations of YSL thereunder. Moreover, the rule in Tasker v Small (1837) 3 My and Cr 63, 40 ER 848, would suggest that it would not be a proper party within the meaning of Order 6 Rule 9 of the Rules of Court: Thomson v Richardson (1928) 29 SR (NSW) 221 at 222-223 per Harvey C.J. in Eq.; cf. Hohler v Aston (1920) 2 Ch 420 at 425-426; Beswick v Beswick [1967] UKHL 2; (1968) AC 58 at 82, 89, 99-100. Be that as it may, in the present matter there is a claim relating to possession of the Ship, within the meaning of the Act, notwithstanding that Seven Seas is not a plaintiff together with Empire.
78. I find that, on this basis, Empire has shown a strong argument for the existence of the jurisdiction of the Court in respect of a matter of a kind mentioned in s. 76 (iii) of the Constitution; see s. 13 of the Act. There are various other elements forming the substantial subject matter of the controversy between the parties, and as a question of jurisdiction, whatever the position on the merits, the claims against YSL in respect of those further elements would fall within the accrued or pendent jurisdiction: Crouch v Commissioner for Railways (Queensland) [1985] HCA 69; (1985) 159 CLR 22 at 37-38.
79. This brings me to issues of constitutional validity.
Section 76 (iii) of the Constitution
80. We have it on the authority of Lord Diplock that in addition to changes effected by statute, the development of English law relating to what happens on the sea did not stop with the merger of the High Court of Admiralty into the High Court of Justice in 1875; this body of law "has not remained alone immune to the gradual changes in concepts in the general law relating to consensual obligations and to man's duty towards his neighbour which have taken place in the last hundred years": The Tojo Maru (1972) AC 242 at 291. In construing the Australian head of constitutional power, one should be slow so to read it as to inhibit the application of his Lordship's remarks to the law in this country.
81. In Chapter III of the Constitution, "jurisdiction" is curial power and authority to hear and determine a "matter": Polyukhovich v The Commonwealth [1991] HCA 32; (1991) 65 ALJR 521 at 562. In his article "Colonial and Federal Admiralty Jurisdiction" (1981) 12 FL Rev 236 at 264, Mr Ying points out that among the nine heads of federal jurisdiction spelled out in ss. 75 and 76, s. 76 (iii) stands alone in that the content of the designated subject matter is identified by reference to an otherwise existing "jurisdiction". The Parliament may make laws conferring original jurisdiction in any matter of Admiralty and maritime jurisdiction.
82. Counsel for YSL submitted that:
(i) The body of law in respect of which a law made83. YSL also submitted that, in any event, the plaintiff had no equitable interest in the Ship. It follows from what I have said earlier that I do not accept that submission. (No special consideration arises from the presence of constitutional facts as well as jurisdictional facts.)
pursuant to s. 76 (iii) of the Constitution may confer
jurisdiction is the Admiralty law as ascertained in
England and Australia in 1900 from the traditional and
statute law applied by judges in Admiralty.
(ii) Sub-para. 4 (2) (a) (i) of the Act is derived from,
and limited to the use of, the action in rem by a
plaintiff, having a proprietary interest to claim
possession for itself, and no other party.
(iii) The High Court of Admiralty as it existed before the coming
of the Judicature system did not put its procedures in
motion to protect merely equitable interests.
(iv) Para. 4 (2) (b) is not concerned with claims between
two equitable co-owners one of whom also holds the
legal title.
(v) Sub-para. 4 (2) (a) (ii) is concerned only with
registered or legal title and ownership.
(vi) To the extent that upon their proper construction the
provisions identified in paras. (ii), (iv) and (v)
have an operation extending beyond that there stated,
as I have held they do have, they are invalid because
they do not observe the limitations described in
paras. (i) and (iii); however, the paragraphs may be
read down so as to avoid invalidity (Interpretation Act, s. 15A).
84. At the outset, it may be noted that in China Ocean Shipping Co. v The
State of South Australia [1979] HCA 57; (1979) 145 CLR 172 at 204, Gibbs J. said:
"Moreover, there seems to me no possible justification for confining85. Counsel for Empire submitted that the presence in s. 76 (iii) of the words "and maritime" is significant and that, consistently with what was said by Story J. in De Lovio v Boit 7 Fed Cas 418 at 444 (1815) of the United States Consti-tution, s. 76 (iii) comprehends all contracts and quasi-contracts which "relate to navigation, business or commerce of the sea", and is not restricted by "the narrow and perplexed" doctrines of the old English Admiralty law. In John Sharp and Sons Ltd v The Ship Katherine Mackall [1924] HCA 37; (1924) 34 CLR 420 at 423, a similar argument was put by counsel for the plaintiff. It did not prevail; the case was concerned principally with questions arising under the 1890 Act, not with s. 76 (iii). The argument for the Commonwealth (which intervened) was presented by Owen Dixon K.C. and was to like effect. This argument also did not then prevail. Dixon K.C. submitted (at 424) that the use of the words "Admiralty and maritime jurisdiction" in s. 76 (iii) was "intended to prevent argument that the power was restricted to the common law jurisdiction of the Courts of Admiralty" and that s. 76 (iii) gave "power to confer jurisdiction with respect to all matters which were known among English-speaking lawyers as matters pertaining to admiralty or maritime law".
the admiralty jurisdiction mentioned in s. 76 (iii) to that which
existed in England in 1900, so that, as Dixon J. said in McIlwraith
McEacharn Ltd v Shell Co. of Australia Ltd., the jurisdiction under
the Colonial Courts of Admiralty Act may not be co-extensive with
that which may be conferred under s. 76 (iii)."
86. In the present case, counsel for the Attorney-General submitted (a) there
was no warrant for confining s. 76 (iii) by reference
to the Admiralty
jurisdiction as it existed in the United Kingdom in 1900 or under the 1890
Act, or in the United States under Article
III, Section 2, cl. 1 of its
Constitution, and (b) the legislative power extends at least to confer
jurisdiction, with respect to matters which, in accordance with contemporary
usage or practice may fairly be described as within "Admiralty and maritime
jurisdiction".
The Submissions for YSL
87. In developing his submissions, counsel for YSL relied upon a passage in
the judgment of Isaacs in John Sharp and Sons Ltd v The
Ship Katherine
Mackall, supra at 428. There, after referring to the judgment of Story J. in
De Lovio v Boit, supra, his Honour said:
"It is not conceivable that, in framing the Australian Constitution,(Isaacs J. might have added references to the heads of power in paras. (vii), (viii), (x) and (xiv) of s. 51.)
the content of 'admiralty and maritime jurisdiction' was intended by
the people of Australia and the British Parliament, with reference
to a subject so imperial in character, to follow American doctrine
in direct opposition to established English precedent. But that by
no means disposes of the matter. Sec. 76 of the Constitution
recognises that 'matters of admiralty and maritime jurisdiction' are
or may be distinct from 'matters arising under this Constitution',
etc and from 'matters arising under any laws made by the Parliament'
. . . (T)he Constitution (by sec. 51 (i) and (xxxix) and sec. 98)
undoubtedly gives great scope for relevant legislation. It is not,
therefore, to be supposed the constitutional power to confer
jurisdiction on this Court in matters of admiralty and maritime law
is a power in respect of merely a stereotyped common law admiralty
jurisdiction, which at the date of the Constitution had already been
extended for more than forty years in England."
88. Counsel for YSL relied upon the first sentence in this passage as assisting the submissions that (a) the inclusion of the words "and maritime" in s. 76 (iii) added nothing to the content of the word "Admiralty" and (b) the Admiralty jurisdiction referred to in s. 76 (iii) was the body of law regarded in 1900 and in England and Australia as well defined, in particular being that derived from the 1890 Act which in turn fixed upon the inherent and statutory jurisdiction exercised by the High Court of Admiralty in 1875 at the commencement of the operation of the Judicature system.
89. Counsel for YSL referred to the balance of this passage from the judgment of Isaacs J. to emphasise the point in his favour that in the present case no attempt had been made to support the validity of the provisions of the Act relied upon by Empire to found jurisdiction, by reliance upon any other head of power of the Parliament; the plaintiff must fail unless the provisions relied upon to attract jurisdiction are to be supported under s. 76 (iii).
90. As matters of history up to 1900, certain of the submissions for YSL may be accepted.
91. At common law, in the ordinary case, at least where there was no occasion for an order in replevin or for the grant of specific equitable relief, the remedy of a plaintiff wrongfully deprived of a chattel was in damages, awarded in an action against the wrong-doer; on the other hand, where a ship was wrongfully detained, the effect of the Admiralty process in England was that the ship itself might be arrested and proceeded against and a specific decree obtained, which restored it to the owner's possession. The Court of Admiralty also interfered in cases of disagreement among the several owners of a ship, the owners being regarded not as partners but as tenants in common, each with an equal right to possession and use of the ship. Hence the statement in "Roscoe's Admiralty Practice", 5th Ed., 1931, p 37, that the Admiralty jurisdiction in regard to possession and co-ownership is exercised (a) to place claimants in possession of a ship or of the earnings of a ship to which they are entitled, (b) to enable the ship to be employed whilst protecting the interests of one or more co-owners against the others, and (c) to apportion the earnings between co-owners after an examination of accounts.
92. In the first half of the 19th century, the Admiralty Court asserted, cautiously, a jurisdiction to determine issues of title at least where they arose incidentally in proceedings of the above description: Edwards, "A Treatise on the Jurisdiction of the High Court of Admiralty of England", 1847, pp 41-44. The learned author also (at 31-32) gives examples of the exercise by the Admiralty Court of jurisdiction in respect of equitable rights and obligations.
93. The Admiralty Court Act 1840 (3 and 4 Vict., c. 65) (Imp) was designed to
revivify the Admiralty jurisdiction, in various respects,
including questions
of title. Section 4 provided:
"4. And be it enacted, That the said Court of Admiralty shall haveIn the period between 1840 and the coming into force of the Judicature system in 1875, there was some uncertainty as to the extent to which the jurisdiction extended to questions going to equitable, as distinct from legal, title, particularly in disputes between co-owners: The "Victoria" (1859) Swab. 408, 166 ER 1188. The Admiralty Court Act 1861 (24 Vict., c. 10) (Imp) by s. 8 invested the High Court of Admiralty with jurisdiction "to decide all Questions arising between the Co-owners, or any of them, touching the Ownership, Possession, Employment, and Earnings of any Ship registered at any Port in England or Wales, or any Share thereof . . .". In The Bonnie Kate (1887) 7 Aspinall 149, it was left open whether s. 8 gave jurisdiction to decide questions between co-owners not being registered co-owners.
Jurisdiction to decide all Questions as to the Title to or
Ownership of any Ship or Vessel, or the Proceeds thereof
remaining in the Registry, arising in any Cause of Possession,
Salvage, Damage, Wages, or Bottomry, which shall be instituted
in the said Court after the passing of this Act."
94. The result, in my view, is that YSL is correct in submitting that the action for possession as understood in 1900 in England did not extend beyond the obtaining of a specific decree restoring the ship to the possession of the party from whom it was wrongfully detained. But, contrary to the defendant's submission, as matters stood in 1900, it could not be maintained as an absolute proposition that the Admiralty Court would never put its procedure in motion to protect the interests of equitable, as distinct from legal, co-owners.
95. It also has to be borne in mind that, under the legislation of 1840 and
1861, questions of title might pose issues of foreign
law, and that the
concepts in English law of legal and equitable interests would not exhaust the
relevant universe of legal norms.
Questions would arise requiring analysis of
foreign laws so that they might then be characterised in terms of the
legislation of
the forum; see, for example, The Colorado (1923) P 102, as
explained in The Halcyon Isle (1981) AC 221 at 237-238. As Professor D.C.
Jackson has put in his work "Enforcement of Maritime Claims", 1985, p 348:
"In most cases, a maritime claim will involve a foreign element.96. It would be an unfortunate, and one might think an unlikely result if the questions of ownership in respect of which jurisdiction might be conferred by a law supported by s. 76 (iii) of the Constitution were confined to those concerned with ownership as understood at common law. It would also be a mistake to proceed on the footing that for all purposes the law always requires or assumes the existence of two different kinds of interest, the legal and the equitable: Commissioner of Stamp Duties (Queensland) v Hugh Duncan Livingston [1964] UKPC 2; (1965) AC 694 at 712.
Selection of the law to govern the issue is, therefore, a necessary
preliminary step in its resolution."
97. In the interpretation of various provisions of the Constitution, considerable assistance is to be derived from the meaning in 1900 of the language used and the subject to which it was directed, in the setting of the objectives of the movement towards Federation from which the compact of the Constitution finally emerged: Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 at 385. But, as their Honours point out in that passage, such reference cannot be for the purpose of substituting for the meaning of the words used the scope and effect which the founding fathers subjectively intended provisions of the Constitution to have.
98. And, where there was evident importance attached to an Imperial
connection, the subsequent operation of the Constitution has to accommodate
changes in the nature of Imperial relations. The point appears in the
following passage from the judgment of
Mason J. in Kirmani v Captain Cook
Cruises Proprietary Limited (No. 1) supra at 379:
"The proposition that the Commonwealth Parliament could in the99. It was decided in John Sharp and Sons Ltd v The Ship Katherine Mackall supra that the High Court was a colonial court of Admiralty within the meaning of the 1890 Act. But to modern eyes, informed by the reasoning in The Commonwealth of Australia v The State of Queensland [1975] HCA 43; (1975) 134 CLR 298 at 327-328, it may appear that the Constitution, as a later statute to the 1890 Act, was an exhaustive and plenary statement by the Imperial Parliament as to the means by which the High Court, other federal courts, and, by reason of the presence of s. 77 (iii), State courts, might be invested with jurisdiction in matters of Admiralty and maritime jurisdiction. That may have been the view of Quick and Garran: "The Annotated Constitution of the Australian Commonwealth", pp 799-800.
exercise of the power conferred by s. 51 (xxix) repeal a provision
in the Merchant Shipping Act in its application to intrastate
shipping in Australia would have excited astonishment in 1900. To
minds attuned to the legal supremacy of the United Kingdom
Parliament, the status of a colony as a dependency of the British
Empire, s. 2 of the Colonial Laws Validity Act and the doctrine of
repugnancy, and aware of the Commonwealth Parliament's lack of
legislative power with respect to intrastate shipping, it was
unthinkable that the Parliament could repeal by resort to the
external affairs power an Imperial statute expressed to apply to
Australia or to the colonies generally. However, now that these
obstacles to the exercise of the power have been outgrown or
eliminated, the question must be considered in a new light."
100. Further, before attaching decisive significance to the operation in 1900
in Australia of the 1890 Act it must be borne in mind
that in fact it was not
then in operation in either New South Wales or Victoria. The Supreme Courts of
New South Wales and Victoria
did not become colonial courts of Admiralty until
1 July 1911; see LRC Report, para. 25. Further, the Imperial Acts of 1840 and
1861 did not apply to the colonial courts of vice-admiralty. Before the 1890
Act, separate provision had been made by the Vice-Admiralty
Courts Act 1863
(26 Vict., c. 24) (Imp) and The Vice-Admiralty Courts Amendment Act 1867 (30
and 31 Vict., c. 45) (Imp). Section
10 of the 1863 statute conferred
jurisdiction upon the Vice Admiralty courts in respect, inter alia, of:
"Claims between the Owners of any Ship registered in the Possession,To a degree, the colonial courts of vice-admiralty had enjoyed a distinct history. The commissions held by judges of those courts authorised in broad terms the entertainment of maritime claims. The letters patent granted by King George III on 30 April 1787 to Robert Ross to be Judge of the Vice-Admiralty Court of New South Wales were in such terms. His authority was:
in which the Court is established, touching the Ownership,
Possession, Employment or Earnings of such Ship."
". . . in all causes civil and maritime and in complaints contractsA right of appeal was given to the High Court of Admiralty in England. Later commissions, such as those issued to Governor Stirling in Western Australia in 1831 and to Chief Justice Dowling in New South Wales in 1841 followed the pattern of the 1787 letters patent; see Bennett, "A History of the Supreme Court of New South Wales", Appendix D; Callaghan, "Acts and Ordinances of the Governor and Council of New South Wales etc.", Vol. II, pp 1426-1428; "Guide to the State Archives of New South Wales", No. 22, 1980, Vice Admiralty Court of New South Wales 1787-1911, pp 1-22; Stow, "Maritime Law and Jurisdiction in Australia", (1904-5) 2 Commonwealth Law Rev 157 at 163. It may also be noted that the terms of the 1787 letters patent closely resemble those from the American colonies as set out by Story J. in De Lovio v Boit (supra at 442).
offences or suspected offences crimes pleas debts exchanges policies
of assurances accounts charter-parties agreements bills of lading of
ships and all matters and contracts which in any manner whatsoever
relate to freight due for ships hired and let out transport money or
maritime usury (otherwise bottomry) or which do any ways concern
suits trespasses injuries extortions demands and affairs civil and
maritime whatsoever between merchants or between owners and
proprietors of ships or other vessels and merchants or other persons
whomsoever with such owners and proprietors of ships and all other
vessels whatsoever employed or used or between any other persons
howsoever had made began or contracted for any matter cause or thing
business or injury whatsoever done or to be done as well in upon or
by the sea or publick streams fresh waters ports rivers creeks and
places overflowed whatsoever within the ebbing and flowing of the
sea or high water mark as upon any of the shores or banks adjoining
to them or either of them together with all and singular their
incidents emergents dependances annexed and connexed causes
whatsoever and such causes complaints contracts and other the
premises abovesaid or any of them howsoever the same may happen to
arise be contracted had or done to hear and determine according to
the civil and maritime laws and customs of our High Court of
Admiralty of England . . ."
101. Whilst perhaps no wider than that traditionally claimed by the Admiralty judges in England under the terms of their commissions, the jurisdiction conferred by these letters patent was certainly wider than that in fact exercised in England. The explanation for the terms in which the colonial commissions were expressed may have been that the officials who drew them up in the High Court of Admiralty, out of which they issued, derived some satisfaction from asserting beyond England a jurisdiction denied to the Admiralty Court in England itself. In practice, the jurisdiction seems not to have been pushed to its limits in the Australian colonies: Stow, supra.
102. Whilst Isaacs J., speaking in 1924, appears to have assumed a continued Imperial supervision of Admiralty jurisdiction, the truth was that by then there was a reluctance to construe the 1890 Act in a way that would have the effect of introducing changes in the jurisdiction and procedure of the courts of the self-governing dominions by any process which was automatic and which did not involve a request by those self-governing dominions. It was that view to which effect was given by the Privy Council, on appeal from Canada, in The Yuri Maru (supra at 915). Of course, as previously mentioned, the consequence of that decision was to freeze the operation in relation to Australia of the 1890 Act, giving rise to various difficulties which were sought to be removed by the introduction of the Admiralty Act 1988.
103. In addition, there are three considerations tending against acceptance of the submission by YSL that the content of s. 76 (iii) is to be identified by reference to the 1890 Act and English law in the state it existed at the time of the adoption of the Constitution.
104. The first is that Isaacs J. himself pointed out, in the passage which I have set out earlier in these reasons, that at the date of the Constitution the inherent jurisdiction of the Admiralty court had been the subject of statutory extension over a long period; the process may be thought to have begun with the 1840 legislation and continued with that of 1861, whereby the former jurisdiction of the court was restored and new jurisdiction was created; see LRC Report, sections 11, 12. It would be an odd result if, under the Constitution, the power of the Parliament to legislate was limited by reference to the state of the legislation of another parliament at a particular date, thereby entrenching in the Constitution the consequences of The Yuri Maru supra in circumstances where the authority of Westminster to legislate for Australia has now been terminated. Section 76 (iii) should be construed as conferring upon the Parliament a power expressed in a general proposition "wide enough to be capable of flexible application to changing circumstances": Australian National Airways Proprietary Limited v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 81.
105. Secondly, and contrary to the submission of YSL, the phrase in s. 76 (iii) "and maritime" should be understood as words of extension rather than surplusage to the word "Admiralty". One should be slow, by reference to the state of affairs in 1900, to construe the terms in which the powers of the Parliament are expressed, in such a fashion as to deprive any of them of a particular effect; rather, each individual grant of power should by accorded a full operation according to its terms: Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 at 539. (Somewhat different considerations apply where the constitutional provision in question is framed as a restriction on the exercise of power: Attorney-General for the State of Victoria (at the relation of Black) v The Commonwealth of Australia [1981] HCA 2; (1981) 146 CLR 559 at 614-615.)
106. Thirdly, it is significant that the terms of s. 76 (iii) resemble those in which Article III s. 2 cl. 1 of the United States Constitution is expressed. This clause states that the judicial power of the United States shall extend, inter alia, "to all Cases of admiralty and maritime Jurisdiction", and in 1900 it was well known that in the course of the 19th century the Admiralty jurisdiction in the United States had developed differently from that in England; see Quick and Garran, supra at 800. The language of s. 76 (iii) is reasonably capable of bearing more than one meaning; whilst similar or identical language in the United States Constitution cannot be controlling, a consideration of that text and of its judicial interpretation, particularly that before 1900, assists in determining the meaning of s. 76 (iii) should bear: Attorney-General for the State of Victoria (at the relation of Black) v The Commonwealth of Australia, supra at 578.
107. Accordingly, I do not accept the submission of YSL as to the proper
construction of s. 76 (iii).
The United States
108. Before further discussing the submissions of the other parties, it is necessary to look further at the position in the United States.
109. Mr Justice Zelling points out in his Paper "Of Admiralty and Maritime Jurisdiction" (1982) 56 ALJ 101 at 102, that in the 1891 draft of the Constitution there appeared under Chapter III, headed "The Federal Judicature", a sub-s. 7 (3) which gave jurisdiction in relation to "cases of Admiralty and Maritime jurisdiction". There was no discussion of the import of the provision in these terms at any of the sessions of the 1897-8 Convention. However, as Mr Justice Zelling emphasises, the Founding Fathers were versed in the constitutional law of the United States and the provenance of what became para. 76 (iii) of the Constitution is obvious. The framers of Chapter III of the Constitution may be taken to have carefully considered the corresponding provisions of the United States Constitution: Philip Morris Incorporated v Adam P. Brown Male Fashions Proprietary Limited [1981] HCA 7; (1981) 148 CLR 457 at 512.
110. The course of United States judicial decision in the 19th century dealing with this subject is traced by Mr Ying in his article supra at 261-263, in the Note "From Judicial Grant to Legislative Power: The Admiralty Clause in the Nineteenth Century" (1954) 67 Harv LR 1214, and in Swisher "History of the Supreme Court of the United States" Vol. V, The Taney Period, 1836-64, pp 423-456. The Constitution of the United States had been adopted at a time when in England, under what Lord Diplock has called the harassment by common law courts (The Halcyon Isle (1981) AC 221 at 232), the fortunes of the High Court of Admiralty had reached their lowest ebb, and before the revival that came first with the long tenure of office of Lord Stowell, 1798-1827, and then with the legislation of 1840 and 1861.
111. So it was held that the provision in the United States Constitution was not limited or to be interpreted by what were cases of Admiralty jurisdiction in England when that Constitution had been adopted. The Supreme Court had particularly in mind the fluctuations in the ambit of the jurisdiction exercised from time to time in Admiralty, and the "illiberal jealousy and narrow prejudice" which was manifest in the controversies in England between the civilians and the common lawyers: Waring v Clarke 45-47 US 456 at 464 (1846)); Morewood v Enequist 62-64 US 677 at 678 (1859). In the second of these cases, the Supreme Court held, contrary to the position in England, that a United States District Court sitting in Admiralty had jurisdiction in respect of contracts of charter party and affreightment, being "maritime contracts". There were some decisions which appeared to step out of line. I have referred to the controversy, which still continues, as to whether contracts for sale of a ship are "maritime contracts".
112. The United States decisions were significant, not only for their treatment of the classes of cases which might be entertained in Admiralty, but also for their acceptance, as I have mentioned, of the proposition that the constitutional provision dealt not only with jurisdiction, but with substantive law. This meant that Congress might legislate to extend jurisdiction to internal waterways, and over cases to which the commerce power, as then understood, did not extend. Thus, in The Transportation Company v Fitzhugh 65-67 US 615 (1861) it was held, in relation to a collision on a river voyage from the port of Albany to the port of Philadelphia, that it was not essential that either vessel should be engaged in foreign commerce or in commerce between the States.
113. What is more important for present purposes is the significance given in decisions following the judgment of Story J. in De Lovio v Boit supra, to the term "maritime" in the expression "Cases of admiralty and maritime Jurisdiction", as indicating something more than the Admiralty jurisdiction as understood in England. Mr Justice Zelling, in his Papers "Of Admiralty and Maritime Jurisdiction" (supra at 104-105) and "Constitutional Problems of Admiralty Jurisdiction" (1984) 58 ALJ 8 at 11-12, has advocated acceptance of this reasoning as applicable to para. 76 (iii) of the Australian Constitution. He has not been the first to do so. Shortly after Federation, Mr Stow urged the view that the use of the term "maritime jurisdiction" was intended to embrace "the general system of maritime law, which was familiar to the lawyers and statesmen of this country when the constitution was adopted . . .": Stow, "Maritime Law And Jurisdiction in Australia", (1904-5) 2 Commonwealth Law Rev 157 at 163. I have earlier referred to the arguments of counsel in John Sharp and Sons Ltd v The Ship Katherine Mackall, supra at 423-424.
114. In De Lovio v Boit (supra), Story J. upheld as within jurisdiction an
action brought in the United States District Court upon
a policy of maritime
insurance. Story J. said (supra at 442-443):
"The clause however of the constitution not only confers admiralty115. The judgment of Story J. was referred to in England in various decisions in the course of the 19th century. This was not always with an appreciation that what his Honour had done was not so much to redefine the content of the jurisdiction of the English Admiralty Court, as to construe the United States constitutional grant so as to embrace all proper subject matter including that which Admiralty had from time to time claimed, but which the common law courts had successfully wrested from it by writs of prohibition addressed to it as a superior court of limited jurisdiction: The Queen v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 at 385.
jurisdiction, but the word 'maritime' is superadded, seemingly ex
industria, to remove every latent doubt. 'Cases of maritime
jurisdiction' must include all maritime contracts, torts and
injuries, which are in the understanding of the common law, as well
as of the admiralty, 'causae civiles et maritimae'. In this view
there is a peculiar propriety in the incorporation of the term
'maritime' into the constitution. The disputes and discussions,
respecting what the admiralty jurisdiction was, could not but be
well known to the framers of that instrument. . . . One party
sought to limit it by locality; another by the subject matter. It
was wise, therefore, to dissipate all question by giving cognizance
of all 'cases of maritime jurisdiction', or, what is precisely
equivalent, of all maritime cases. Upon any other construction, the
word 'maritime' would be mere tautology; but in this sense it has a
peculiar and appropriate force. . . .
At all events, there is no solid reason for construing the terms of
the constitution in a narrow and limited sense, or for ingrafting
upon them the restrictions of English statutes, or decisions at
common law founded on those statutes, which were sometimes dictated
by jealousy, and sometimes by misapprehension, which are often
contradictory, and rarely supported by any consistent principle.
The advantages resulting to the commerce and navigation of the
United States, from a uniformity of rules and decisions in all
maritime questions, authorise us to believe that national policy, as
well as juridical logic, require the clause of the constitution to
be so construed, as to embrace all maritime contracts, torts and
injuries, or, in other words, to embrace all those causes, which
originally and inherently belonged to the admiralty, before any
statutable restriction."
116. Thus, in The Queen v The Judge of the City of London Court (1892) 1 QB
273 at 294, Lord Esher M.R. said that it was useless to cite an American
decision with regard to the jurisdiction of the Admiralty Court
in England.
However, his Lordship did say (at 293-294):
"In England, no doubt, the Admiralty Court did assert jurisdictionThe commissions or patents of Judges in Admiralty had continued to say one thing and mean another. Thus, Lord Stowell had said that it was "universally known, that a great part of the powers given by the terms of that commission are totally inoperative, and that (the court's) active jurisdiction stands in need of the support of continued exercise and usage": "The Apollo" (1824) 1 Hagg. 306 at 312-313[1824] EngR 895; , 166 ER 109 at 111.
up to the fullest extent of that judgment (of Story J.); but it was
met by the most determined resistance on the part of the Common Law
Courts. Prohibitions were issued over and over again, in case after
case, and on point after point, and at last the Admiralty Court in
England gave way to the opposition of the Common Law Courts, and
ceased to exercise jurisdiction to the full extent of its claim -
not because the jurisdiction had become obsolete, but because the
judges of the Admiralty Court yielded, and were obliged to yield, to
the prohibitions which were granted, and which they knew would
inevitably be granted if they were to go on. They did not give up
any jurisdiction or allow it to become obsolete; they could not
maintain that they had it, nor could they exercise it, for, though
they claimed it before, they had been stopped by prohibition from
exercising it."
117. Counsel for the intervener submitted that the content of the jurisdiction referred to in s. 76 (iii) might be found by examining "contemporary usage and practice". This phase was taken from a passage in Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 at 543, where Mason C.J., Wilson and Dawson JJ. were considering what commonly had been considered appropriate for the proper discipline of a defence force. That was an inquiry of a different nature to the present one.
118. It is true that the power of Parliament to make laws with respect to "External affairs" extends to laws giving effect to the principles of customary international law, which is dynamic rather than static: The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 131, 171, 222, 258. In Richardson v The Forestry Commission [1988] HCA 10; (1988) 164 CLR 261 at 322, Dawson J. referred to these passages as deciding that a sufficient international concern is enough to attract legislative power, even though Australia has no relevant treaty obligation.
119. But the identification, at any time, of Australia's external affairs is a different matter from the identification of jurisdiction which is "Admiralty and maritime" by reference to contemporary usage and practice in other countries. To proceed in the way urged by the intervener would involve the interpretation of the grant of power to the Parliament by reference to the state of the law in other countries, as it stood from time to time. In that regard, counsel for the intervener referred to the current legislation in the United Kingdom, Canada, Hong Kong, Singapore and New Zealand, together with the terms of the International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships, done at Brussels on 10 May 1952. Counsel for YSL forcefully emphasised the indeterminate and perhaps interminable inquiries which would be involved. Further, as might be expected, even as to the particular legislation put forward from these five countries, there was some disagreement between counsel as to whether, on its proper construction, it would apply to the dispute which is the subject of the present proceeding.
120. In addition, to answer the question of what is included within the expression "Admiralty and maritime jurisdiction" by reference to the laws of other countries, requires further analysis in respect of each of those laws to determine whether it itself answers that description. For that task, it will be necessary to ascertain and apply criteria of what constitutes "Admiralty and maritime jurisdiction". Thus, to construe s. 76 (iii), as counsel for the Attorney-General would have the Court do, would be to place it upon a path which would be likely to prove circular.
121. The submission for the Attorney-General should not be accepted. There remain the submissions for Empire. These come closer to giving effect to the basic principles of constitutional interpretation as established by the High Court.
122. The basic principles were affirmed by the unanimous judgment in The
Queen v Coldham; Ex parte Australian Social Welfare Union
[1983] HCA 19; (1983) 153 CLR 297
at 314. Their Honours there approved what had been said by O'Connor J. in The
Jumbunna Coal Mine, No Liability v Victorian Coal
Miners' Association (1908) 6
CLR 309 at 367-368:
"(I)t must always be remembered that we are interpreting a123. Of that passage, Brennan J. said, in The Tasmanian Dam Case, supra at 221:
Constitution broad and general in its terms, intended to apply to
the varying conditions which the development of our community must
involve.
For that reason, where the question is whether the Constitution has
used an expression in the wider or in the narrower sense, the Court
should, in my opinion, always lean to the broader interpretation
unless there is something in the context or in the rest of the
Constitution to indicate that the narrower interpretation will best
carry out its object and purpose."
"The application of that canon of construction to the affirmative124. I accept that the use of the expression "Admiralty and maritime jurisdiction" in s. 76 (iii) obviates argument that the power of the Parliament is restricted to the jurisdiction of the High Court of Admiralty in England at any particular time. I also accept, consistently with the submissions for Empire, that this provision extends to empower the Parliament to make laws conferring jurisdiction with respect to "matters" arising out of controversies relating to or dealing with the commerce or navigation of the sea, including the means by which or with the assistance of which those activities are or may be conducted. The reasoning reflected in the submissions put nearly 70 years ago in John Sharp and Sons Ltd v The Ship Katherine Mackall, supra at 423-424, is, in my opinion, sound. On that footing, the provisions of the Act upon which Empire places reliance to found jurisdiction in the present matter are, when construed in the manner indicated earlier in these reasons, plainly within power.
grants of paramount legislative powers gives the Constitution a
dynamic force which is incompatible with a static constitutional
balance. The complexity of modern commercial, economic, social and
political activities increases the connexions between particular
aspects of those activities and the heads of Commonwealth power and
carries an expanding range of those activities into the sphere of
Commonwealth legislative competence."
125. It follows that the defendant's motion filed 12 October 1989 should be dismissed. The defendant should pay the costs of the plaintiff of that motion. The intervener does not seek costs in respect of the motion.
126. On 28 September 1990, the Case Stated, to which I have earlier referred, came before the Full Court (Davies, Sheppard, Gummow JJ.). After hearing some argument, the Full Court remitted the matter to me, and ordered that the Attorney-General for the Commonwealth have his costs of the Case Stated as against the plaintiff and the defendant. The Full Court reserved for consideration by the Judge disposing of the defendant's motion the question of costs on the Case Stated as between the plaintiff and the defendant.
127. There has now been some debate between the parties as to how the blame for the abortive proceedings in the Full Court should be borne or apportioned between the plaintiff and the defendant and reflected in a costs order. Whilst there were some shortcomings on the plaintiff's side, the most substantial factor influencing the outcome on 28 September 1990 was the significant and late shift by the defendant in the grounds upon which it sought to make good its attack upon jurisdiction. In all the circumstances, the defendant should also pay the plaintiff's costs on the Case Stated.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/1991/499.html