Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] HCATrans 353 (29 June 2006)

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Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] HCATrans 353 (29 June 2006)

Last Updated: 7 July 2006

[2006] HCATrans 353

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S213 of 2006

B e t w e e n -

COMANDATE MARINE CORP

Applicant

and

PAN AUSTRALIA SHIPPING PTY LTD

Respondent

Summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 29 JUNE 2006, AT 9.31 AM

Copyright in the High Court of Australia

MR A.W. STREET, SC: May it please the Court, I appear for the applicant with my learned friends, MR D.A. McLURE and MR J.P. LO SCHIAVO. (instructed by Norton White)

MR A.S. BELL: If it please the Court, I appear for the respondent on the motion, Pan Australia Shipping Pty Limited, which has now entered an appearance, with my learned friends, MR S.E. GRAY and MR J.S. EMMETT. (instructed by Ebsworth & Ebsworth)

HIS HONOUR: Mr Street, you are moving on the summons filed 28 June 2006?

MR STREET: I am, your Honour.

HIS HONOUR: You rely on an affidavit of Robert Reginald Wilson sworn on 28 June?

MR STREET: I do, your Honour.

HIS HONOUR: Do you have any objections to that affidavit?

MR BELL: Yes, your Honour. Your Honour, in paragraph 4, I object to the final sentence of that.

HIS HONOUR: On formal grounds?

MR BELL: On the ground of form.

HIS HONOUR: Is it not covered later?

MR BELL: The assertion is repeated later, but the characterisation of whatever demands there have been is not necessarily common ground and if my friend wants to put some written demands in, he can.

HIS HONOUR: Does it matter?

MR BELL: Well, with the nature of this application, I am not sure, it might, and for that reason I am taking a cautious approach.

HIS HONOUR: Why do we not leave your objection with liberty to renew it if circumstances make it necessary?

MR BELL: If it please the Court.

HIS HONOUR: Are there any other objections?

MR BELL: Your Honour, on the same basis and subject to the same ruling, the first eight words of the next paragraph and, your Honour, again on the same basis, paragraph 11.

HIS HONOUR: Yes.

MR BELL: Then finally, your Honour, paragraph 23 on the grounds of relevance and on the basis that that is no more than a submission.

MR STREET: I only read it as a submission, your Honour.

HIS HONOUR: I will admit paragraph 23 as a submission. I think it is appropriate to mark as exhibit RRW-1 the bundle of documents which are so described in the affidavit.

EXHIBIT RRW-1: Bundle of Documents

HIS HONOUR: Mr Bell, do you have any objections to RRW-1?

MR BELL: No, your Honour.

HIS HONOUR: Thank you. Do you have any evidence?

MR BELL: Your Honour, I have two affidavits which have not been served due to the urgency. They have just come to hand.

HIS HONOUR: Mr Street and I can read them together.

MR BELL: Yes, your Honour. The first affidavit I seek leave to file and read is an affidavit, I think sworn this morning, of Mr Paull Andre Van Oost. Your Honour, he lives in Melbourne and I only have a faxed copy with an undertaking to file the original. I would seek leave to file that.

MR STREET: No objection.

HIS HONOUR: Does Mr Street have a copy?

MR BELL: He does now.

HIS HONOUR: Well, leave is granted to file that in Court. Mr Street, have you been able to read that?

MR STREET: I have, your Honour, and I have an objection simply to the last sentence in paragraph 8.

HIS HONOUR: It sounds like a bit of a submission.

MR BELL: Well, it is a little more than that, your Honour. This is from the managing director who, in a very short space of time – obviously it is not conclusive as to causation, but it is to be read in the context of the apprehension of continuing damage these proceedings are doing or possibly doing.

HIS HONOUR: Is that relevant to the question of a stay?

MR BELL: It may go to the balance of convenience.

HIS HONOUR: The proceedings may or may not be an unfortunate event, but you are not applying to stop them in their tracks.

MR BELL: It may depend, your Honour, on two things. It may depend upon whether my friend proffers an undertaking as to damages as a condition for the grant of a stay. If he is not so instructed, it is highly relevant. It also goes to, or may go to, the second aspect of his summons. As I understand it, he intends to – I withdraw that – the paragraph 3 of his summons. As I understand it, he seeks to move today for the re-arrest of the vessel. That will be opposed, but my first submission will be that that need not be dealt with today.

HIS HONOUR: If the stay is extended, then 3 would not arise, would it?

MR BELL: Yes.

HIS HONOUR: The orders of the Full Court on Tuesday, if they came into effect, might make paragraph 3 of the summons a necessary order at some stage, but if the stay is continued, the orders of the Full Court will be as they are, namely, not in effect.

MR STREET: They released the vessel.

MR BELL: But, your Honour, one of the orders of the Full Court which was not stayed was to release the vessel from arrest. The vessel has been released from arrest. The writ has not been set aside. The rationale for that, your Honour, was this. I gave an undertaking on behalf of my client that the ship would continue to trade at the Australian coast unless and until it gave 14 days notice in writing to my friend’s solicitors. In other words, while that undertaking is in place and it remains in place – it is an undertaking given to the Federal Court – it will only cease to be an undertaking once the notice is given. That remains in force.

So it is open to my learned friend to apply, as he must do under section 21 of the Admiralty Act, to re-arrest within that 14-day period if notice is given. In other words, there is no urgency about the application for re-arrest because there is an undertaking to the Federal Court of Australia that the ship will – so the ship will remain in the waters - - -

HIS HONOUR: One of your points is that paragraph 3 of the summons is not something that has to be dealt with as a matter of life and death this morning?

MR BELL: No, but if my friend presses it and your Honour is inclined to entertain that application, your Honour, there will be two issues under section 21 of the Admiralty Act. Does your Honour have a copy of the Admiralty Act?

HIS HONOUR: No.

MR BELL: I can provide your Honour with - - -

HIS HONOUR: I have copies of some sections of it.

MR BELL: Yes.

HIS HONOUR: But I think, Mr Bell, we are looking further down the track than we need to.

MR BELL: I accept that, your Honour. The simple point I was going to make, there will be two questions, one jurisdiction and then discretion. I would press the final paragraph the subject of the objection would also go to the discretion there, the discretion to re-arrest – the final sentence of the final paragraph.

HIS HONOUR: I think, Mr Street, what I will do is reject that sentence now, but give you leave to re-tender it in the event that the course of proceedings makes it appropriate, in your judgment, to do so. I am sorry, “you” is Mr Bell. If you think it appropriate to do so, you can tender it later.

MR BELL: I accept that. Your Honour, I read that affidavit. There is one further affidavit which I would seek leave to file and read, an affidavit of Danella Wilmshurst, my instructing solicitor, sworn this morning.

HIS HONOUR: Leave is granted to file that in Court. What does it go to?

MR BELL: This goes again to questions of discretion and balance of convenience on the stay application. The relevance is, your Honour, that under the recent terrorism legislation one of the consequences was that arrest documentation, effectively, and notification of arrest needs to be transmitted from the Admiralty Marshal of the Federal Court to the Department of Transport and Regional Services. That in turn ties in with one of the matters Mr Van Oost refers to that these proceedings quickly come to official notice and official attention. There is some other evidence in relation to ability to comply with the schedule, et cetera. There are ramifications, in short, for adverse publicity of my client flowing from the maintenance of these proceedings. So it goes to the balance of convenience.

HIS HONOUR: Any objection, Mr Street?

MR STREET: Your Honour, I do object to it. I say it is irrelevant, your Honour. The department could not possibly interfere with the process of this Court and, to that extent, I cannot see any basis on which it would go to convenience or the arguments before your Honour.

HIS HONOUR: I must confess, I find it irrelevant, I regret to say, Mr Bell. So I will reject that affidavit, but obviously my grip on the issues is not what it may be in a little while. If you wish to re-tender it later, you are at liberty to do so.

MR BELL: If it please the Court.

HIS HONOUR: Can I ask you this, Mr Street? Do you offer an undertaking as to damages?

MR STREET: In relation to the stay, your Honour, in respect of the writ, your Honour, my position is this. My instructing solicitor has sought overnight to try and get me instructions from the club. The Greek owners could not be contacted this morning. They have been trying. I will not have those instructions, even though I anticipate them, probably, your Honour, until about 8 o’clock this evening. So that the application in that regard is one where I do anticipate having instructions to proffer the undertaking as to damages in respect of a stay, I do not have them at this point.

HIS HONOUR: Yes. Well, if that becomes crucial - - -

MR STREET: I understand that, your Honour.

HIS HONOUR: I mean, the stay continues until midnight, so the events may mesh in together.

MR STREET: The two may be able to coincide. Your Honour, my learned friend raises with me that he also is seeking security as to costs. I am in a position to indicate to your Honour that there is an undertaking to provide security for costs.

HIS HONOUR: Security for the costs of the application in this Court?

MR STREET: Yes.

HIS HONOUR: Yes, thank you.

MR STREET: Could I hand up to your Honour, if convenient, a copy of the time charter, although I think it is annexed, just a blown-up copy, at least of the bareboat charter.

HIS HONOUR: Thank you.

MR STREET: Could I, just before taking your Honour to the substance of the argument, just identify for your Honour, in this bareboat charter your Honour will see it permits world-wide travel of the vessel in box 20, that there is no dispute that it is a demise charter, but relevantly, there is a provision to which I would seek to draw your Honour’s attention in clause 22.

HIS HONOUR: That is on the first page “Charter hire”?

MR STREET: No. If your Honour would turn to page 15.

HIS HONOUR: Yes.

MR STREET: Could I take your Honour to clause 22(a) which restrains the charterers from assigning the sub-charter that is creating a bareboat charter, but materially 22(b):

The Owners shall not sell the Vessel during the currency of this Charter except with the prior written consent of the Charterers, which shall not be unreasonably withheld –

In other words, a charter party creates a restraint on alienation of property.

Your Honour, can I come to the substance of the argument. Your Honour, we say this is the third of a trilogy of cases in the Federal Court that effectively strangles the breadth and reach of the admiralty jurisdiction under the Admiralty Act 1988 by adopting, in essence, English statutory concepts as to the meaning of “owner”. The effect of the Full Court reasoning is, in the circumstances of this case, to take a position in relation to surrogate arrest where there would, in reality, be no owner.

The practical impact of the Full Court reasoning in this case is that the utility of surrogate ship arrest can be entirely defeated by one of two means. Either an enterprise can determine that it will operate simply demised chartered vessels. By operating demised chartered vessels only, despite the common identity of the enterprise, it would entirely defeat the surrogate ship arrest intended by section 19 and the reach of our Admiralty Act.

The second matter in relation to which this construction by the Full Court would defeat the utility of surrogate ship arrest would be by the very simple mechanism of the enterprise, in essence, creating separate subsidiaries to own each separate ship. On the basis of the reasoning of the High Court in this case, that would give rise to no effective breadth and reach of section 19.

HIS HONOUR: The reasoning of the Federal Court in this case?

MR STREET: Yes, the Full Federal Court. Your Honour, in the plaintiff’s respectful submission, the Full Federal Court decided in the Maria Luisa that, in essence, one could not have beneficial ownership through merely a holding of shares in subsidiaries. To that extent, what it did was recognise that if there was a separate corporate structure, there would of itself be no beneficial interest in respect of an enterprise that has created subsidiaries to hold ships.

The next decision in the trilogy, your Honour, was the Tisand or Cape Moreton. In that case the Full Federal Court constrained the undefined meaning of “owner” in the Admiralty Act in a way to read in a limitation that it does not embrace registered owner. A registered owner might, it said, be the owner for the Admiralty Act, but by reason of registration, despite registration arising under an international convention in respect of ship registration, despite that international convention or ship registration arising under the Law of the Sea Convention, despite the Australian legislation giving effect to a shipping registration, registration of the vessel is not of itself, in accordance with Tisand, within the meaning of “owner”. The Lloyd’s register of searches available in the international maritime market, to the extent it identifies the registered owner, does not identify an owner for the purpose of our jurisdiction being effective if that registered owner is in fact not the beneficial owner, according to the Cape Moreton.

What this decision does, as the third in the trilogy, is to read down the concept of “owner” by importing English authority dealing with a different statutory regime to require, it appears, an ability to control the vessel and to alienate the shares in the vessel. That meaning of “owner”, if it is to be so adopted, gives rise to the consequence in this case where there is no owner. Clause 22(b) that I took your Honour to in the demise charter party restrains alienation by the owner to the demise charterer. More than that, the bareboat charter itself gives control and possession of the vessel to the demise charterer. What then is the criteria or character which it is said can be given effect to to identify who the owner is for the purpose of section 19?

We respectfully submit that the concept of owner was one in respect of which there was a clear intended purpose by the Parliament to permit that phrase or that term to remain undefined, undefined so that it could take into account the scope to which in international maritime law a person may be identified as an owner. In that regard, we would say, your Honour, that an owner is a person who exercises possession and control of the ship in a way which may affect third parties’ rights against that person and against the ship. That is a demise charterer. That is, in our respectful submission, within section 19(b). The absence of definition of “owner”, in our respectful submission, carries with it an intention of breadth of operation that the decision of the Federal Court in this case gives no effect to.

Your Honour, can I turn to section 19 itself?

HIS HONOUR: Yes, certainly.

MR STREET: Can I hand up a copy of....., your Honour, which will provide a copy of the Act.

HIS HONOUR: Yes.

MR STREET: The Australian admiralty law proceeds on a procedural theory in respect of the right of arrest. What section 19 does is it provides two limbs to be satisfied for the purpose of the jurisdictional link. The first link which is identified in section 19(a) is plainly intended to have broad content and scope in identifying the person liable on the cause of action, a matter touched on in Laemthong in this Court. To that extent, it is seeking to address an identification and link in respect of the cause of action and the ship.

The second limb is seeking to satisfy, again, an identity of person with sufficient stake or interest in the ship to accord with justifying the arrest in international maritime law. The demise charterer is a person who has sufficient stake or link. The demise charterer is a person in respect of whom, if, at the time of commencement of the arrest, they are the demise charterer, they are in fact the person best placed to pass on the consequences, if there are consequences, from the work done by section 19 in respect of surrogate arrest.

The plaintiff respectfully submits that Australian, English, American authorities are all one way as to a demise charterer being an owner pro hac vice and being treated as having property in the vessel, before I come to the decisions in this Court. The only line of country to the contrary flows from statutes in jurisdictions where the words “beneficial owner” or “ownership of all shares in the ship” form part of the admiralty legislation.

The Full Federal Court in this case has sought to draw upon those English cases, and the like, dealing with an entirely different language in respect of the meaning of “owner” in the work done by the admiralty jurisdiction in those countries. The Full Court, in essence, sought to identify some support in that regard in the discussion that was found in the Australian Law Reform Commission report dealing with those English cases. The Australian Law Reform Commission report preferred the meaning of “beneficial owner” as embracing a construction that excluded in that statutory context a demise charterer, but that, your Honour, is not the language found in our statute. That, your Honour, is not what arises in this case.

The Full Court also took into account the 1952 Arrest Convention in the construction that they preferred – Justice Allsop did. To that extent, the 1952 Arrest Convention used a concept in respect of arrest of referring to holding all the shares in the ship, statutory language not in our Act. Nowhere did the Law Reform Commission of Australia discuss the consequences of the absence of the definition of “owner” in the work that it was intended to do in the statute that has been enacted. Nowhere in the Law Reform Commission report was there any discussion of the recognition in this Court in a different context, namely, the Merchant Shipping Act legislation, where this Court in McIlwraith McEacharn held that “owner” embraced demise charterer.

His Honour Justice Emmett sought to identify that that limitation legislation was one which, for reasons of it constraining rights and conferring a benefit of an entitlement to limit, might be given a construction that would facilitate “owner” in that statutory context of embracing a demise charterer. Your Honour, we say in the context of a jurisdictional provision, with the liberal and broad interpretation that must flow as a result of Shin Kobe Maru, it is one in respect of which there should be no failure to follow the High Court’s decision in McIlwraith McEacharn which has already addressed the matter of “owner” embracing demise charterer for the purpose of this jurisdictional provision.

More than that, your Honour, if one is to say that the owner for the purpose of the Admiralty Act must have a species of property which is capable of being characterised as property in the ship, a demise charterer, we respectfully submit, has such a species of proprietary interest, and that was a matter which was discussed in the Australian Shipping Council Case in this Court in its acquisition of property case to which we have referred in our written submissions. The decision by Chief Justice Latham in that case plainly conveys an equivalence of demise charterer with property. In our respectful submission, that equivalence in terms of species of property is such that the demise charterer, in essence, satisfies the content of the term “owner” in section 19(b).

Your Honour, in summary, the issue is one of construction. I have sought to identify the thrust of the arguments, but the consequences of the Full Court’s decision in this case is to significantly contract and restrain the admiralty jurisdiction in its operation. In a practical content what it means is that the owner apparently is someone who can alienate shares, even if they are not able to alienate those shares for a period of time of the demise charter and even if they do not have possession and control, a meaning that does not sit with the definition or identification of ownership that was given in the Tisand Case, a meaning, in our respectful submission, which, in essence, is a constraining of the concept of ownership which is just contrary to the clear purpose of breadth intended by the absence of definition.

Your Honour, it is for those reasons, we respectfully submit, that there is a sufficiently strong prospect of a grant of special leave to warrant entertaining the stay in this application and to warrant entertaining the application to preserve the status quo which is the re-issue of the arrest warrant which was, in respect of the vessel being released by the Full Court, on Tuesday night. In terms of importance, if I can also add, plainly the Full Court convened as a matter of some urgency to deal with what is a very important, in our respectful submission, jurisdictional issue in respect of the Admiralty Act.

Your Honour, so far as the question of the balance of convenience is concerned, unless - - -

HIS HONOUR: What we might do is this, Mr Street, assume everything in your favour, except the question of whether there is a substantial prospect of success, and hear Mr Bell on that question. So you need not trouble me for the moment with those other matters. Mr Bell, what do you say to Mr Street’s arguments so far?

MR BELL: Your Honour, we say there is no substantial prospect of success and, indeed, the prospects of success, we go so far as to say, are insubstantial. Your Honour, that requirement of substantial prospect of success is, of course, closely associated with Sir Gerard Brennan’s judgment in the Burgundy Royale Case. Other cases seem to have treated that requirement, and, in my submission, correctly, as a threshold inquiry, that is to say the first consideration the Court takes into account rather than one of many considerations, a threshold to be passed before one gets to the other matters Sir Gerard adverted to in Burgundy Royale, namely, whether steps have been taken below to obtain a stay and balance of convenience factors.

Your Honour, in support of that submission that this is truly a threshold question, could I refer your Honour to two decisions, one of Justice Dawson in Duke and one of Justice Gummow in Marsden. The reference to Duke – and I have provided your Honour with copies - - -

HIS HONOUR: I have Duke, but I do not have Marsden.

MR BELL: I have provided your Honour with a copy of Marsden and Duke is reported in [1994] HCA 3; (1994) 68 ALJR 196. Can I take your Honour first to the Duke decision. His Honour Justice Dawson in the second column on page 197, in the second-last paragraph, refers to, with reference to Burgundy Royale, the need for:

the applicant [to] establish a substantial prospect that special leave to appeal will be granted.

I emphasise his Honour’s use of the word “must” in that particular sentence.

HIS HONOUR: You emphasise the words “in addition” at the start of the next paragraph?

MR BELL: Yes, your Honour. Then that is reinforced by his Honour’s discussion at page 198. In the first column of 198 he effectively assumes all the other discretionary matters in the applicant’s favour, in that first paragraph, as your Honour has done for the time being in relation to my friend’s application, but that leaves the question of the applicant’s prospects of success and he comes to the conclusion that there are no prospects of success, or no substantial prospects of success. In other words, he treats it, as he indicated on the previous page, as a necessary step. Now, just while your Honour has page 198 open, your Honour will see in the right-hand column at about C:

The applicants are unable to point to any authority in their favour. The decision of Drummond J . . . is indeed against them. The decision of the Court of Appeal of New South Wales in Kelly v Murphy is to be explained . . .

In the end, I am not satisfied that the applicants have discharged the onus upon them of demonstrating that the application –

So, again, language which is consistent with that notion of threshold. Your Honour, in the decision of his Honour Justice Gummow in Marsden v Amalgamated Television Services [1996] HCA 13; (1996) 70 ALJR 535, the first point to note – and there is some similarity between that case and this in that when one goes to page 537, the right-hand column, the first full paragraph, his Honour indicates that what the motion before the Court was “not a stay of orders already made but the making of fresh orders injunctive in nature”. That has some resonance with my friend’s prayer 3 of the summons today. His Honour nonetheless adopts a Burgundy Royale style approach to the matter before him. Then on page 540 in the right-hand column in the paragraph beginning:

In all the circumstances, I have concluded that, in respect of each motion for interlocutory injunctive relief in aid of a pending special leave application, there is a failure at the threshold point referred to in the passage quoted earlier in these reasons from Elliott v Seymour.

The Elliott v Seymour passage is the passage at 537, an extract from her Honour Justice Gaudron’s judgment in that case. Then, your Honour, in that passage at the foot of 537:

Thus, whether the matter is approached on the basis of a not insubstantial prospect or a substantial prospect (assuming there is a shade of difference between the two), the present applications must pass the threshold point which involves some consideration of the prospects of final success.

So his Honour Justice Gummow picks up her Honour’s use of the word “threshold”. So the starting proposition is that this inquiry which I am now engaged on is a threshold inquiry.

Your Honour, there are now five decisions of judges of the Federal Court of Australia on the proper interpretation of section 19 in the context of the very point my friend seeks to agitate. Those decisions are, firstly, a decision of Justice Lee in a decision referred to by his Honour Justice Allsop in his reasons for judgment. Justice Lee’s decision is Translink Pacific, an unreported decision. It was a decision which appears to have been delivered extempore, but his Honour clearly came down against the contention for which Mr Street contends.

HIS HONOUR: Do you have a copy of that?

MR BELL: I do, your Honour. Fortunately I did not unpack my trolley. Your Honour, the relevant passage is on page 3 of this print, page 3 of 5. Your Honour sees at about point 6 of the page?

HIS HONOUR: “Section 19 of the Act”?

MR BELL: Yes, that paragraph.

HIS HONOUR: Yes, I see. The last sentence really, yes.

MR BELL: Yes. Whilst that decision appears to have been delivered, as is often the case in these urgent applications, extempore, Justice Beaumont’s decision in SS “Maria Luisa”(No 1) [2002] FCA 1207; 130 FCR 1 was a reserved decision. What was put to his Honour was that an unreported decision of Justice Slicer of the Supreme Court of Tasmania was contrary to the propositions for which I contend and those which Mr Street advanced before the Full Court in this case. Justice Beaumont referred to section 19 at page 4 of the reasons for judgment as being the first issue. Your Honour, he returned to that issue at page 7.

Your Honour will see in paragraph 29 he makes reference to Justice Slicer’s decision in that case, having immediately prior to that referred to the decision of the Chief Justice in Sandeman v Scurr, which is one of the cases my friend relies on for the line of authority in different statutory contexts to the Admiralty Act 1998 (Cth) where it has been said for some purposes, in some contexts “owner” can include a demise charterer. But his Honour Justice Beaumont considered fully the reasoning of Justice Slicer in paragraphs 29 and following of his judgment.

His Honour then in paragraph 32, and in particular in the final bullet point, referred to the decision of Justice Robert Goff, as he then was, in the “I Congreso del Partido”, which interpreted an analogous provision of the English legislation, and his Honour Justice Goff took a different approach to Justice Brandon in a case called The “Andrea Ursula”. But his Honour Justice Beaumont expressly found, in the final bullet point:

A person is not a “beneficial owner” merely by being in possession as operator and manager, or under a demise charter.

He picked up that decision and he noted that Justice Goff had distinguished the observations of Chief Justice Cockburn in Sandeman v Scurr, and he sets out that passage. He then at paragraph 36 described the correct position as having been summarised by Mr Allsop, SC, as his Honour then was, in a paper and his Honour sets out an extract of that paper noting that the decision of Justice Goff in the “I Congreso del Partido”, that is to say the decision which declined to follow the approach Justice Brandon had taken in the English legislation, had been favoured. In other words, Justice Goff’s analysis had been picked up in a number of other jurisdictions, including Malaysia, Singapore, Hong Kong and New Zealand. To that we can now add Canada, as the Full Court noted in the present case. So his Honour Justice Beaumont concluded the section 19 point.

One then has, your Honour, the decisions of the three justices in the present case. Does your Honour – we have provided a copy of the written reasons.

HIS HONOUR: I took the liberty of, because of my eagerness to read it, contacting Justice Allsop who was good enough to send a copy down as soon as it was prepared. You probably got one at the same time. So I have a copy.

MR BELL: Yes. Has your Honour had a chance to read it?

HIS HONOUR: I have, yes.

MR BELL: Yes. The first thing to note, your Honour, is that quite contrary to one of my learned friend’s principal points the Full Court did not decide this matter by reference to a line of English authority on a different statute. That submission is incorrect and inconsistent on the face of the document, in particular, Justice Emmett’s judgment. Can I take your Honour first to that – the first of the judgments.

HIS HONOUR: Yes, and Justice Siopis agreed with Justice Emmett.

MR BELL: That is right.

HIS HONOUR: So there is sort of potentially a ratio of two there.

MR BELL: That is right, I accept that. But Justice Emmett regarded, as he said, in his opening sentence – and the sequence of delivery of these judgments was that Justice Emmett presiding asked Justice Allsop to deliver the first judgment. Justice Emmett emphasised in the second sentence of his decision that the question is one of pure statutory interpretation. Your Honour will not find in his Honour’s judgment any reliance upon the line of English cases, not that reference to those English cases was irrelevant in Justice Allsop’s judgment by any means, but simply to reject the submission put by my learned friend that the Full Court’s decision is flawed somehow by – the second point to note - - -

HIS HONOUR: Let us just have a look at Justice Allsop from this particular point of view. He does discuss Mr Justice Brandon in paragraph 22 and Mr Justice Goff in paragraph 23 and then the New Zealand and Hong Kong and so on in paragraph 25.

MR BELL: Yes. He did so, in my respectful submission, in the context of adopting an entirely orthodox, classical approach to statutory construction. The context in which this Act came into being and the surrogate ship provisions were introduced was following the Law Reform Commission report for which Professor Crawford had principal responsibility. That report does identify the clash in the English authorities, the “I Congreso del Partido”/“Andrea Ursula” debate, and expresses the view in paragraph 130 of that report, in footnote 103, that the better view was that of Mr Justice Goff.

HIS HONOUR: I must say, with all due respect to the Australian Law Reform Commission and Professor Crawford, I think it is really a question of the words of the Act. This is useful background.

MR BELL: I accept that.

HIS HONOUR: But I think with Justice Kirby 12,000 miles away, I can say that reference to Law Reform Committee reports is just an aid, nothing more.

MR BELL: I accept that, your Honour, but Justice Allsop is authorised, and on one view required, by authorities such as the Newcastle City Council Case and section 15AB to have regard to such reports and the simple point was that those decisions had been picked up. But more significantly, and I will come to it in a moment, the very question of whether section 19 should extend to a demise charterer in subparagraph (b) was, in another paragraph of the report, 207, expressly adverted to and rejected.

Paragraph 207 is in the context of a chapter on surrogate ship arrest. The whole of the paragraph is relevant, but particularly from about seven lines from the bottom of page 158, the passage beginning, “It can be argued that”.

HIS HONOUR: Just going back to the point you were making earlier, in paragraph 37 Justice Allsop says that you refer to the background to the drafting of the Act and the direct attention by the Commission to the cases but that you did not seek impermissibly to apply cases from other jurisdictions to a different form of words.

MR BELL: No, that is correct, and your Honour will see that from - - -

HIS HONOUR: I mean, you rely on that to support that penultimate point you were making?

MR BELL: Yes, certainly. We went to the other cases, given two things really. One, as has been said on a number of occasions, including by the Full Court of the Federal Court in the Braverus Maritime Case, but has been said by this Court as well in other decisions, that where the subject matter is of an international character it is particularly relevant to look at other jurisdictions, but also in the context of the introduction for the first time in Australia of a jurisdiction for surrogate ship arrest particularly relevant to look at the Law Reform Commission report and especially so, your Honour, where that report is expressly referred to in the explanatory memorandum to the Act. I can provide your Honour with a copy of that as I provided the Full Court.

The legislation, I should say to your Honour, almost, I think without exception, adopted the draft bill and then on page 13 of this print clause 19 is referred to at the bottom right-hand - - -

HIS HONOUR: Page 14 “Reference: Report”.

MR BELL: Well, there is the reference, but the discussion begins at the foot of page 13 and then in terms of the explanatory memorandum it is very interesting and we emphasised the words:

A surrogate ship may be the subject of an action in rem if the relevant person had –

and then the author of the explanatory memorandum says –

one of the defined links to the ship in respect of which the cl arose (cl 19(a)) and if the surrogate ship is owned by the relevant person when the action is commenced (cl 19(b)).

HIS HONOUR: I do not want to be depressing about this, but this is typical of explanatory memoranda. What they do is simply summarise the words of the Act. Sometimes it is word for word; sometimes, as here, slightly differently.

MR BELL: Yes, this is not word for word, but, in any event, your Honour is right and, as Justice Allsop said, I was not nor would I have made the submission that it was a question of following Justice Goff. The point about paragraph 207 of the Law Reform Commission report was that it showed that the very concept of being able to arrest a ship under demise charter at the time of the commencement of proceedings, that is to say the limb (b), paragraph (b), was expressly considered and rejected. That discussion in paragraph 207 is a discussion as a matter of policy; it is not a discussion which depends on the English cases. The Law Reform Commission, and I will not harp on the Law Reform Commission, was perfectly well aware that the English legislation was in a slightly different form.

HIS HONOUR: Sir Thomas Bingham in The Nazym Khikmet discussed the United Kingdom legislation. Now, was the legislation he was discussing similar to that which the Commission recommended and which has not been enacted? Is this not the history: there was Mr Justice Brandon and there was Mr Justice Goff and then there was an amendment to the United Kingdom legislation in - - -

MR BELL: 1981.

HIS HONOUR: - - - to the intent of whether Mr Justice Goff had been right before or not, to the intent, so Sir Thomas Bingham said, of adopting his opinion. So that Professor Crawford had before him the 1981 English legislation?

MR BELL: That is right.

HIS HONOUR: But he did not have Sir Thomas Bingham obviously.

MR BELL: No.

HIS HONOUR: What is the difference between 19(b) and the English section - - -

MR BELL: The difference is, the English legislation uses – does your Honour have the written submissions I have made available to the Court?

HIS HONOUR: Yes.

MR BELL: In paragraph 26 of the submissions which were before the Full Court, your Honour, there is an extract from - - -

HIS HONOUR: Are those the actual words that are on page 11?

MR BELL: Yes, the indented passage, so on page 11 of my document the words:

the relevant person is the beneficial owner as respects all the shares in it.

So the difference between our legislation and the English legislation is that the English legislation uses the word “beneficial” and it also uses the phrase “as respects all the shares in it”. We accept that is a difference, but the point of going to the secondary material, and I am doing this in a sequence – the proper sequence, of course, is to go to the statute first and I will come back to that, but as we are into this. The Law Reform Commission was perfectly aware of the difference in language but in paragraph 207 this was the point – and this was the point of referring also to the English cases – it addressed the concept thrown up by the Brandon/Goff debate, well aware of the difference in language and not adopting that language, but it was addressing it as a matter of policy and concept. This is one of those areas, your Honour, where there is a convergence.

The proper construction, in my submission, is supported by five Federal Court judges, the background material and, to the extent it is relevant, international practice as reflected in both legislation and decisions. The Law Reform Commission also had before it the New Zealand legislation which refers to “owner or demise charterer”. In other words, the New Zealand legislation - - -

HIS HONOUR: Adopted Mr Street’s preferred construction explicitly.

MR BELL: But expressly.

HIS HONOUR: Yes, I was aware of that.

MR BELL: Could I return, your Honour, to perhaps where I should have begun and that is the question of construction. The great heresy in the approach taken by my learned friend, and rightfully rejected by the Full Court, was this. He goes solely to section 19(b); he fixes on the word “owner”; he then, without looking at subparagraph (a), without staying to analyse 17 and 18, without staying to analyse the fact that, as Justice Emmett correctly pointed out, this jurisdiction is not confined to a ship but to property, without going to any of those matters, he jumps immediately to a string of decisions of respectable antiquity to be sure but from different statutory contexts.

The heresy of that is, as this Court has pointed out in cases like Project Blue Sky and many other cases, that one starts with the words of the statute and the whole of the statute and must read the statute as a whole to make sense of it, and that is what Justice Emmett did and that is what Justice Allsop did as well. It is not what my friend does. The point, your Honour, in section 19 is this, or starting with section 19, paragraph (a) refers to a string of relationships: owner, charterer, someone in possession or control. As Justice Siopis said in argument – he simply agreed, as your Honour knows, but as he said in argument, what that indicates is a gradation.

One starts with the purest form of title: full ownership, unconstrained ownership. One then comes to charterer. Where it is a demise charter, a powerful right, no doubt, but something different from ownership, and we know from this Court’s decision in the Laemthong Pride the charterer there can also include a voyage charterer, a different type of charter, or time charter. Then one gets a lesser estate, somebody in possession or control, but something less than. So that gradation is there quite deliberately and is not there in (b).

Then, your Honour, before I go to what I wanted to say next, when one goes to paragraphs 17 and 18, which are the cognate provisions, not for sister ship arrest but for arrest, your Honour sees the draftsman draws a distinction in terms between an owner’s liabilities in section 17 and a demise charterer’s liabilities in section 18. Further textual support for the submission I am putting.

Then, your Honour – I have already alluded to the point – one sees in paragraphs 17 and 18 – and relevantly in 17 reference is made to “a ship or other property”. As Justice Emmett pointed out, whilst the authorities my learned friend relies on in relation to demise charterer, as the old authorities from different contexts refer to a demise charterer in some contexts as being an owner, one does not speak of a lessor of a chattel as an owner and one has to have a consistent approach to the meaning of “owner”, as this Court has said in Laemthong Pride and other cases, in section 17, 18 and 19.

Your Honour, in aid of that textual analysis which, in my submission, as Justice Emmett said, is the beginning and end of the matter, there is also well established authority in relation to statutory construction which supports that view.

HIS HONOUR: I have read what you said in your written submissions about those cases. I follow.

MR BELL: Yes, but they were not, no doubt because of the urgency of delivering reasons, or perhaps because it was thought not necessary to pick them up – but that line of country plainly supports the approach to construction, as does what this Court said in Project Blue Sky, giving it full effect. So the final point I wanted to make in relation to the – and so one has the five decisions. The decision of Justice Slicer – was your Honour provided with a copy of that by my learned friend?

HIS HONOUR: No, of course, I have read what was quoted from it in Justice Beaumont’s judgment.

MR BELL: Yes. In that case it is not clear whether it is a section 19 case at all. His Honour refers not to section 19 but to section 18. Secondly, the matter appears to have arisen because of a misdescription on the writ where the writ described the relevant person as the owner, but the person was, in fact, the demise charterer, and there was an argument whether the writ could be saved, as it were, on the theory that owner was the demise charterer. But there is a strong line of high authority by experienced admiralty judges, in my submission, in this country in support of the construction for which I contend.

Your Honour, the final point I wish to make is by reference to this. Mr Street’s favourite case is the Shin Kobe Maru and the statement by the Court in that case about adopting a broad construction to jurisdiction or provisions.

HIS HONOUR: Yes.

MR BELL: Your Honour, that statement has to be read in proper context. The proper context first emerges from the case cited in support of that proposition which is Knight v FP Special Assets (1992) 174 CLR 178 at 205. Your Honour, of course, that is the case about third party costs orders and the Court’s jurisdiction to make that. Now, what her Honour said in that case, and this is the footnoted reference in the Shin Kobe Maru, is that:

a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary.

In other words, Shin Kobe does not stand for such a bald proposition that all jurisdiction – conferral of jurisdiction is to be construed as broadly as possible, come what may, irrespective of the context, her Honour said, “unless there is something to indicate to the contrary”. We have in this Act on the face of the Act numerous contraindications. The same point is made, your Honour, by Justice Gaudron in a later decision postdating Shin Kobe, the decision in CDJ v VAJ (1998) 197 CLR 172 at 185 and 186 where her Honour said:

It is also well settled that, where a power is granted to a court, it is not to be confined by reference to matters which are not required by the terms of the statutory provision by which it is conferred or the context in which it appears.

Now, it is a simplistic and fallacious argument, in my submission, to say Shin Kobe says construe this broadly. There are authorities on the meaning of “owner” in different statutory contexts which are consistent with my argument, end of story. That is not the mature and appropriate approach to statutory construction this Court requires.

HIS HONOUR: You have said “finally” twice.

MR BELL: Yes.

HIS HONOUR: If you say it again, I will hold you to it.

MR BELL: Another point and the last point, your Honour, is this. My friend sought to erect a straw man, a forensic technique, but it is a technique which has no relevance or does not make this case a suitable vehicle in considering the prospects of a grant of special leave. The straw man was, we will look at clause 22 of this particular charter party; the consequence of this decision is that an owner could, by entering into such a clause, on one view of the matter, escape the consequence of a sister ship arrest. We do not accept that as a correct submission to start with, because it relates to something which was said in the Cape Moreton and the “Maria Luisa”, not the point which was decided by this Court. But it is not this case. There is no suggestion – my client is not the owner. The vessel was arrested on the express basis that my client was the demise charterer.

The point my friend raises would require a suitable vehicle and the suitable vehicle would be where a surrogate ship arrest is effected on a ship owned by a particular party but that party seeks release of the vessel from arrest by going to court and saying, “True it is I am the owner, but the nature of my ownership is constrained by a clause such as clause 22 in the charter party, I therefore have a constraint on my right to alienate for the time being, I therefore am not an owner within the meaning of section 19(b) of the Admiralty Act”.

Now, that is quite an interesting argument, on one view, but it is not an argument which arises in this case and it is the straw man which my friend sets up to try and justify the grant of special leave is irrelevant.

HIS HONOUR: Thank you, Mr Bell. Yes, Mr Street.

MR STREET: Your Honour, I will respond first of all to the last submission in relation to the straw man. Where did the tin man identify what the meaning of “owner” is? Where did your Honour hear what the content of “owner” is for the purpose of section 19? Where did your Honour hear the answer to the proposition that was developed that this would render essentially sterile the surrogate jurisdiction that was conferred on this by the Admiralty Act in respect of section 19?

Your Honour, my learned friend then referred to my favourite case, it is one against the Queensland Bar Association, but to the extent relevant, your Honour, in relation to Shin Kobe Maru 181 CLR 404, at page 421 what their Honours said is:

It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.

The flaw manifest in the reasoning that starts with the summary of the cases identified in Justice Beaumont’s discussion about the English debate of “Andrea Ursula” and “I Congreso del Partido” through to Justice Allsop’s article, as it then was, is they were discussing the words “beneficial owner”. That is a limitation or restriction that, in essence, the Full Court has read in or assumed in its approach to the construction of the Admiralty Act. One cannot shy away from the effect of what the Full Court has said, Justice Allsop referring to accepted jurisprudence. That accepted jurisprudence is on a different statute. That accepted jurisprudence is on statutes which have language that our Act does not have. That accepted jurisprudence, in our respectful submission, does not discuss or deal with a statute such as we have where there is no definition of “owner”.

The only other matter his Honour Justice Allsop referred to in support of his construction was the 1952 Arrest Convention. It had different language. It had language which referred to holding all shares in the ship. No similar language in our statute.

Your Honour, to the extent that one was taken back by my learned friend to section 19 and section 18, it is of considerable importance in looking at the structure. What section 18 does in relation to a wrongdoing ship is identify a very much different subject matter to section 17. It refers in that regard to a maritime claim. If your Honour has the Act in front of you, your Honour will, by reference to section 4(1), see that the work done by “maritime claim” is to pick up “a proprietary claim or a general maritime claim”. In other words, the very content of ownership incorporated through proprietary maritime claim is part of what has been recognised in section 18, if it were relevant, in the work it does in terms of the reference to “demise charterer”.

So that, your Honour, there is no implication that can be extracted from the structure of section 17 and 18 to read down the term “owner” when one comes to section 19. We accept the meaning is the same. What we respectfully submit is that the Full Federal Court should have followed
the High Court in McIlwraith McEacharn, which was not the subject of discussion in the Law Reform Commission report, which has in a different statutory context but in a context much more similar to the Admiralty Act held “owner” to mean a demise charterer.

The similarity was this, your Honour. In the Merchant Shipping Act there was no definition. In the Admiralty Act there is no definition. Contrast that to the jurisprudence relied upon by my learned friend in the Full Court, there there is language speaking of beneficial owner, speaking of holding all shares in the ship, a completely different context.

Your Honour, so far as concerns the structure of section 19 and the work it was intended to do, the submission we sought to identify is that the link for the purpose of exercising acceptable admiralty jurisdiction in the international context of such jurisdiction was identifying adequate links. The work being done by paragraph (a) should not be read in a way to read down the meaning of “owner” as it appears either in section 19 or elsewhere. What paragraph (a) was doing was providing a broad link in respect of liability. Paragraph (b), in our respectful submission, was identifying a sufficient stake in the vessel for the purpose of acceptability of arrest or commencement of proceedings. In our respectful submission, there is no warrant to read down “owner” as not embracing demise charterer in the context of that reference.

Your Honour, to the extent that my learned friend sought to pray in aid the Law Reform Commission discussion as to the meaning to be adopted for the purpose of “owner” in the Act, there is no discussion by the Law Reform Commission about the significance of the omission of the term “owner” being defined. It did discuss at length defining “ship” and it so defined a ship, but in the context of this case there was no discussion at all in the context of the meaning of “owner” and “demise charterer” of a decision of this Court. There was no discussion of the concept of what property it may be – or species of property that will suffice to satisfy the meaning of “owner”.

These are matters, in our respectful submission, of considerable importance squarely thrown up by this case and it is both an appropriate vehicle and one which would meet a sufficiency test, in our respectful submission, and a strong sufficiency test, for the purpose of granting special leave at that threshold issue. If your Honour pleases.

HIS HONOUR: Thank you, Mr Street.

By a summons filed on 28 June 2006 the applicant seeks various orders in relation to the arrest of a vessel Boomerang I. The primary order is a stay of orders of the Full Court of the Federal Court of Australia made on 27 June 2006 pending determination of the applicant’s application for special leave to appeal against those orders. Another order sought is that the hearing of the application for special leave be expedited.

Let me interrupt. Mr Street, I am prepared to make that order. The next available date is 4 August 2006 and it would be possible to fit it in. Are you content with that, as it were, in any event?

MR STREET: Yes, your Honour.

HIS HONOUR: That order will be made and the hearing will be fixed for 4 August 2006 in Sydney.

The background circumstances are set out in an affidavit of Robert Reginald Wilson sworn on 28 June 2006. On 19 April 2006 the applicant chartered a ship called the Comandate to the respondent. On 22 April 2006 it was delivered to the respondent. On 28 May 2006 the Department of Immigration and Multicultural and Indigenous Affairs declared that the crew did not hold current visas and were unlawful non-citizens. The applicant has been contending that Pan, the respondent, is thereby in breach of the charter.

In Federal Court proceedings NSD1130 of 2006 the present respondent obtained a warrant for the arrest of the Comandate. On 13 June 2006 the applicant provided security to Pan for its claims and on the 14th the Comandate was released from arrest. The present applicant then commenced a second set of Federal Court proceedings, NSD1223 of 2006. On 23 June 2006 a writ was issued seeking arrest of the Boomerang I and claiming damages for breach of the time charter in respect of the ship Comandate. The breaches alleged are that Pan failed to obtain valid visas for the crew, wrongfully terminated the charter and failed to make hire payments due under the charter.

The Court’s jurisdiction is said to arise under section 19 of the Admiralty Act 1988 (Cth). That section provides:

A proceeding on a general maritime claim concerning a ship may be commenced as an action in rem against some other ship if:

(a) a relevant person in relation to the claim was, when the cause of action arose, the owner or charterer of, or in possession or control of, the first-mentioned ship; and

(b) that person is, when the proceeding is commenced, the owner of the second-mentioned ship.

The applicant’s case is that when the cause of action in relation to the ship Comandate arose Pan was the charterer of that ship and when the proceeding commenced Pan was the owner of the ship Boomerang I. Pan was described in the writ as “the demise or bareboat charterer of the vessel Boomerang I”. There is evidence that that is so. The key issue is whether the word “owner” in section 19(b) includes a demise or bareboat charterer.

Late on 23 June 2006 the ship Boomerang I was arrested at Fremantle. An application was made to Justice Allsop in the Federal Court of Australia for its release on the evening of 24 June 2006. He made orders permitting the ship to sail to Sydney and deal with cargo and he stood the matter before a Full Court. On 27 June 2006 Justices Emmett, Allsop and Siopis directed that the ship be released from arrest and by order 1 that the writ be set aside. The court stayed order 1 until today. Those orders were made after the respondent gave an undertaking to the court to operate in accordance with its published schedule and not leave Australian waters without giving 14 days notice to the applicant.

In Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited [No 1] [1986] HCA 84; (1986) 161 CLR 681 at 684 Justice Brennan said:

A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted.

At page 685 he said:

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

The second of those conditions has been satisfied and argument so far has proceeded on the assumption that the third and fourth are capable of satisfaction in the applicant’s favour. Concentration has been devoted to the first of those conditions.

The respondent submitted that Justice Brennan’s analysis was to be read as treating the first of the conditions as, in effect, a threshold requirement such that if there were no satisfaction of it, it was not necessary to proceed to the others. There is support for that, particularly in the decisions of Justice Gaudron in Elliott v Seymour [1993] HCA 70; (1993) 68 ALJR 173 at 175-6 and Justice Gummow in Marsden v Amalgamated Television Services Pty Limited [1996] HCA 13; (1996) 70 ALJR 535 at 540. Support of a less explicit kind may be found in Justice Dawson’s decision in Re Duke Group Limited (in liquidation) and the Corporations Act of South Australia; Gerah Imports Pty Limited v The Duke Group Limited (in liquidation) [1994] HCA 3; (1994) 68 ALJR 196 at 197.

There is no doubt that the points which the applicant wishes to raise before the Full Court if special leave were granted are important points. In my opinion there are also some prospects of success in getting special leave in the sense that the case is arguable. However, in my judgment the prospects are not substantial within the meaning of Justice Brennan’s language.

It is neither necessary nor appropriate to examine in detail the careful and subtle submissions of the parties today or the reasoning of the Full Court. It is enough, I think, to indicate the following.

First, the approach of the Full Federal Court that “owner” in section 19(b) does not include a demise charterer is supported by two other decisions of the Federal Court: a brief extempore decision of Justice Lee (Translink Pacific Shipping Ltd v Baltic Shipping Co (6 October 1994, unreported)) and, more importantly, a decision of Justice Beaumont’s in Kent v SS “Maria Luisa” (No 1) [2002] FCA 1207; (2002) 130 FCR 1 at 8-10, [32]- [37].

Secondly, the structure of sections 17 to 19 support the Full Court’s conclusion. Although Mr Street advanced arguments to the contrary, it seems to me that where the legislative language moves from expressions such as “owner or charterer”, “in possession or control”, “demise charterer” to “owner” the Full Court’s construction has considerable force, particularly since section 19(a) itself expressly distinguishes between the owner and the charterer.

Thirdly, and perhaps less importantly, the Full Court’s construction accords with that arrived at in several modern English cases and cases in other jurisdictions in the common law tradition such as Singapore, Hong Kong, New Zealand and Canada.

Sir Thomas Bingham MR closely examined the earlier English authorities in The Nazym Khikmet [1996] 2 Lloyd’s Rep 362 and applied to the United Kingdom legislation a construction similar to that which the Full Federal Court has applied to section 19(b). The language of the United Kingdom legislation is not identical with section 19 but in my judgment it is at least sufficiently close to make the view of the Master of the Rolls a valuable guide.

A fourth point is that the Full Court’s construction is supported by writers and by the Australian Law Reform Commission.

The applicant, amongst numerous other contentions, has argued that there are decisions the other way. The applicant has pointed out that the expression “owner” is not defined and that that is a sign of a legislative intention to adopt wide meanings of ownership to be found in earlier decisions, even though they are in other contexts. The applicant also contended that since section 19 is a provision conferring jurisdiction, it should be construed broadly. On that point in general the argument would have force, but in the end the construction must rest on the language of the operative provisions and the arguments in favour of the Full Federal Court’s construction point against widening jurisdiction beyond the terms of that construction. That, at the end of the day, is the difficulty, I think, with all of the applicant’s arguments. They do not overcome the words of section 19(b).

The applicant did place considerable reliance on two decisions of this Court: McIlwraith McEacharn Limited v The Shell Company of Australia Limited [1945] HCA 11; (1945) 70 CLR 175 at 194 and 216-218 and Australasian United Steam Navigation Company Limited v The Shipping Control Board [1945] HCA 45; (1945) 71 CLR 508. It pointed out that those decisions were not considered by the Australian Law Reform Commission and this, on its submission, disabled that report from having any material force in debating the present problems.

Those two decisions of the High Court do deal with different problems in different legislation from the present. They plainly can be employed in argument in the manner in which the applicant would wish to employ them, but they do not lead to the conclusion that the applicant’s prospects of success in obtaining special leave to appeal are substantial.

Accordingly, I would make the following orders, subject to any corrections which counsel may wish to suggest:

1. The hearing of the application for special leave to appeal is expedited and fixed for 4 August 2006 in Sydney;

2. The summons is dismissed with costs.

Is there any additional order or any improvement to those orders that counsel would wish?

I should just add one thing. Mr Street informed me that he had attempted to obtain instructions to offer an undertaking as to damages and that he hoped to receive final instructions on that topic at 8.00 pm this evening. The matter is no longer of significance, but it seems as though I ought to record the applicant’s position in that respect. Yes, Mr Bell.

MR BELL: We have nothing to say about the orders, your Honour.

MR STREET: No, your Honour.

HIS HONOUR: It is not necessary, I think, to make any directions for the preparation of the special leave papers, except that time is short and obviously it should be done so that they are in the hands of the Registry within two weeks.

MR BELL: We will attempt expeditiously to prepare our response, your Honour.

HIS HONOUR: Yes. The Court will adjourn.

AT 10.58 AM THE MATTER WAS CONCLUDED