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Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654 (24 June 2010)
Last Updated: 24 June 2010
FEDERAL COURT OF AUSTRALIA
Brisbane Slipways Operations Pty Ltd v
Pantaloni [2010] FCA 654
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Citation:
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Parties:
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BRISBANE SLIPWAYS OPERATIONS PTY LTD ACN 104
531 991 v YANNICK PANTALONI, SNC AREMITI and THE SHIP "AREMITI 4"
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File number(s):
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QUD 91 of 2009
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Judges:
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GREENWOOD J
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Date of judgment:
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Catchwords:
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ADMIRALTY – consideration of a
challenge to the jurisdiction of the Federal Court to hear a proceeding
commenced as an action in rem in reliance upon  ss 10  , 17 and 18
of the Admiralty Act 1988 (Cth) – consideration of the
Court’s jurisdiction in an action in personam in reliance upon
s 9 of the Admiralty Act 1988 (Cth) – consideration of whether
the plaintiff’s proceeding to the extent that it engages an action
in rem against the ship Aremiti 4 should be struck out
as beyond jurisdiction – consideration of whether monies paid into Court
to secure the release of the ship
by the first defendant ought to be paid out of
Court to that party – consideration of whether a remedial freezing order
ought
to be made under Order 25A of the Federal Court Rules
preventing the removal by the first defendant of monies brought into the
jurisdiction to secure release of the ship, from the jurisdiction,
in aid of the
plaintiff’s action in personam – consideration of
whether a New Caledonian corporation should be joined as a party in the
proceedings
PRACTICE AND PROCEDURE – consideration of an application for a
freezing order under Order 25A of the Federal Court Rules –
consideration of Order 6, rule 8 as to joinder of a party
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Legislation:
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Admiralty Act 1988 (Cth), ss 3 , 4 , 9 ,
10 , 12, 13 , 15 , 16 , 17 , 18 , 20 Admiralty Rules 1988 (Cth),
Rules 3, 6, 15, 16, 19 and Forms 6 and 9 Federal Court
Rules, Order 6, rule 8; Order 25A
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Cases cited:
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8 March 2010
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Place:
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Brisbane
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Division:
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GENERAL DIVISION
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Category:
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Catchwords
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Number of paragraphs:
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171
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Counsel for the Plaintiff: |
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Solicitor for the Plaintiff:
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Cranston McEachern Lawyers
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Counsel for the First and Second Defendants:
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Mr J Curran
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Solicitor for the First and Second Defendants:
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Wellners Lawyers
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IN THE FEDERAL COURT OF AUSTRALIA
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IN ADMIRALTY
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QUEENSLAND DISTRICT REGISTRY
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BRISBANE SLIPWAYS OPERATIONS PTY LTD
ACN 104 531 991Plaintiff
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AND:
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YANNICK PANTALONIFirst
Defendant
SNC AREMITI
Second Defendant
THE SHIP "AREMITI 4"
Third Defendant
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
- The
part of the proceeding comprising an action in rem against the ship
Aremiti 4 is dismissed as beyond the jurisdiction of the Court
conferred by sections 10 , 17 or 18 of the Admiralty Act 1988 (Cth)
and to the extent that the action in rem proceeds as a claim against
monies paid into Court to secure the release of the ship Aremiti 4,
the claims based upon an action in rem against the fund is
dismissed.
- The
part of the proceeding comprising an action in personam against the
first defendant, Yannick Pantaloni, is within the jurisdiction of the Court
conferred by section 9 of the Admiralty Act 1988 (Cth) and proceeds
as an action in personam in respect of a maritime claim for the
purposes of s 4 of the Admiralty Act 1988 (Cth).
- The
plaintiff’s Further Amended Statement of Claim in the proceeding filed on
22 December 2009 is struck out with leave granted
to the plaintiff to
re-plead its cause of action in personam excising from the
proceeding any aspect of the claim made as an action in rem against
the ship Aremiti 4 or the money paid into Court on 7 April 2009
and leave is granted to file and serve a Further Further Amended Statement of
Claim by
12 July 2010.
- The
plaintiff shall provide particulars of its claim as pleaded by the Further
Further Amended Statement of Claim to the extent that
the amended pleading
pleads claims reliant on the three invoices and credit adjustment note pleaded
in the Further Amended Statement
of Claim filed on 22 December 2009 and the
subject of the particulars given by the plaintiff on 23 December 2009 and
such further
particulars shall identify the particulars sought by para (e)
of the first defendant’s Request for Particulars of 15 October
2009
by providing copies of relevant invoices in respect of each item in the
schedules attached to the plaintiff’s response
of 23 December 2009
where applicable and particulars of each third party supplier to the plaintiff
together with copies of invoices
rendered by third parties to the plaintiff in
respect of the supply of work, labour or materials to the ship pursuant to the
contract
between the plaintiff and Mr Pantaloni.
- The
monies paid into Court by Mr Pantaloni on 7 April 2009 described by
Mr Pantaloni in his Notice of Payment into Court as $71,030.60
(notwithstanding that the amount of the plaintiff’s claim was $71,013.60)
to secure the release of the ship Aremiti 4 shall be paid out of
Court, together with accretions, to Wellners Lawyers, the solicitors for the
first defendant, Yannick Pantaloni,
within 21 days.
AND
UPON THE PLAINTIFF filing and serving a written undertaking within seven
days to submit to such order (if any) as the Court may consider to be just for
the payment of compensation (to be assessed by the Court or as it may direct) to
any person (whether or not a party) affected by
the operation of the order (the
“usual undertaking as to damages”):
THE COURT MAKES THE FURTHER ORDERS AT 6, 7 AND 8:
- The
monies paid out of Court pursuant to Order 5 shall be preserved by this
order in the trust account of Wellners Lawyers pending
the determination of the
proceeding or by agreement between the parties such monies may be placed on
investment in the name of both
the solicitors for the first defendant and the
solicitors for the plaintiff, Cranston McEachern, pending the determination of
the
proceeding or invested as otherwise proposed by the parties and approved by
the Court.
- Neither
the first defendant nor the solicitors for the first defendant, Wellners
Lawyers, shall cause directly or indirectly the
monies paid out of Court and to
be held, by these orders, in the trust account of the first defendant’s
solicitors subject
to agreement between the parties to place such monies on
investment in the name of both the solicitors for the first defendant and
the
solicitors for the plaintiff pending the determination of the proceeding or as
may otherwise be proposed by the parties and approved
by the Court, to be
removed from the jurisdiction and the solicitors for the first defendant,
Wellners Lawyers, shall not pending
the trial of the action cause the monies
paid from Court to the trust account of that firm to be paid out of the trust
account of
that firm other than by order of the Court except for the purpose of
establishing the investment account described in these orders
or as may
otherwise be proposed by the parties and approved by the Court.
- The
first defendant is restrained from removing or causing to be removed any part of
the sum of $71,030.60 together with accretions,
if any, from the trust account
of Wellners Lawyers or from disposing of or dealing with the said sum or any
part of it pending the
trial of the action except for the purpose of considering
and if thought fit agreeing to a joint investment account being established
in
the name of the solicitors for the first defendant and the solicitors for the
plaintiff jointly pending the determination of the
proceeding or as may
otherwise be proposed by the parties and approved by the Court or earlier order.
THE COURT FURTHER ORDERS THAT:
- The
plaintiff’s Notice of Motion for the joinder of Arc en Ciel Voyages as a
fourth defendant is dismissed.
- The
first defendant’s Notice of Motion for an order that the plaintiff’s
Further Amended Statement of Claim filed on
22 December 2009 be struck out
on the ground of the plaintiff’s failure to provide proper particulars of
para 4 of the first
defendant’s Request for Particulars served on
15 October 2009 is dismissed.
- The
costs of and incidental to the trial of the separate question of jurisdiction
are reserved for further submissions.
- The
plaintiff shall pay the costs of the first defendant of and incidental to the
plaintiff’s Notice of Motion for joinder
of Arc en Ciel Voyages as a
fourth defendant in the proceeding.
- The
plaintiff shall pay the costs of the first defendant of and incidental to the
first defendant’s Notice of Motion for dismissal
of the plaintiff’s
Further Amended Statement of Claim on the ground of non-compliance with the
order as to the provision of
particulars.
- The
costs of and incidental to the plaintiff’s Notice of Motion seeking a
freezing order under Order 25A of the Federal Court Rules, Practice
Note CM9 and the principles referred to in the applicable authorities, in
respect of the monies paid into Court by Mr Pantaloni on 7 April 2009,
are reserved for determination upon the conclusion of the
proceedings.
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first defendant shall file and serve submissions on the question of the costs of
and incidental to the determination of the separate
question of jurisdiction
within 14 days and the plaintiff shall file and serve submissions on cost
in reply within a further 14 days
and the Court will determine the question
of costs on the papers unless a party seeks to be heard on that question by so
notifying
the Court.
- The
first defendant shall deliver a Defence and Cross-Claim in response to the
Further Further Amended Statement of Claim by 30 July
2010.
- The
proceeding will be listed for directions at 9.30am on 3 August 2010.
- The
parties have liberty to apply on three days notice.
Note: Settlement and entry of orders is dealt with in Order 36 of
the Federal Court Rules.
The text of entered orders can be located using
Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
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IN ADMIRALTY
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QUEENSLAND DISTRICT REGISTRY
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GENERAL DIVISION
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QUD 91 of 2009
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BETWEEN:
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BRISBANE SLIPWAYS OPERATIONS PTY LTD
ACN 104 531
991
Plaintiff
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AND:
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YANNICK PANTALONI
First Defendant
SNC AREMITI
Second Defendant
THE SHIP "AREMITI 4"
Third Defendant
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JUDGE:
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GREENWOOD J
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DATE:
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24 JUNE 2010
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PLACE:
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BRISBANE
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REASONS FOR JUDGMENT
Background and short synopsis of the contentions
- In
this proceeding the plaintiff (“Brisbane Slipways”) seeks to
maintain the jurisdictional competency of a proceeding
it commenced as an action
in rem under ss 10 and 17 of the Admiralty Act 1988 (Cth)
(referred to in these reasons as either “the Act” or “the
Admiralty Act ”) in relation to a general maritime claim concerning the
ship “Aremiti 4” (sometimes described in the evidence as the
“Aremiti IV”) which claim is said to bear the characteristics
of a general maritime claim falling within s 4(3)(m) and s 4(3)(o) of
the Act. The plaintiff also now relies upon s 18 of the Act.
- The
first defendant, Mr Yannick Pantaloni, who is said by the plaintiff to be a
“relevant person” for the purposes of
the Act and the second
defendant, SNC Aremiti, which asserts ownership of the ship, contend that
Brisbane Slipways was not entitled
to commence a proceeding on its general
maritime claim as an action in rem against the ship as the jurisdictional
integers of ss 17 and 18 of the Act are not satisfied. Put simply,
Mr Pantaloni is said by the plaintiff to be a relevant person as he is a
person who would
be liable on the claim in an action in personam.
He was, it is said, “in possession or control of the ship” when the
cause of action arose thus satisfying s 17(a) of the Act; and, when the
proceeding was commenced on 2 April 2009, Mr Pantaloni was either
“the owner” of the ship (thus
satisfying s 17(b) of the Act) or
the “demise charterer” of the ship (thus satisfying s 18(b) of
the Act) or the agent of the owner if SNC Aremiti is shown to be the
owner of the ship: Further Amended Statement of Claim filed
22 December 2009. In submissions the plaintiff says that Mr Pantaloni
was “doing things for the benefit of the boat
... then transmutes into an
agent and ... acts as the owner”.
- The
defendants say that what is put against them is this. The plaintiff’s
claim arising out of a contract Mr Pantaloni is
said to have made with
Brisbane Slipways giving rise to a general maritime claim under s 4(3) of
the Act may be enforced or secured by the claimant by a proceeding on the claim
as an action in rem against the ship, notwithstanding that, on the
evidence, Mr Pantaloni was not the owner of the ship when the cause of
action giving
rise to the claim arose, nor the owner of the ship when the
plaintiff commenced the proceeding on 2 April 2009 resulting in the arrest
of the ship on that date. Nor was Mr Pantaloni, they say, the demise
charterer of the ship. The defendants say that for the proceeding
to be an
action in rem within the jurisdiction conferred by s 17 of the Act,
Mr Pantaloni must have been the owner of the ship when the cause of action
arose and the owner at the date of commencement
of the proceeding on
2 April 2009, and, for the purposes of s 18(b) of the Act,
Mr Pantaloni must have been the demise charterer of the ship at the date of
commencement of the proceeding.
- The
defendants contend that since Brisbane Slipways was not entitled to commence a
proceeding on its claim against Mr Pantaloni by
an action
in rem against the ship (which was subsequently released from
arrest when Mr Pantaloni paid the amount of the claim into Court), the
action must be struck
out as beyond jurisdiction and the monies in Court
together with accretions, if any, ought to be paid out of Court to
Mr Pantaloni.
- The
plaintiff also contends that Mr Pantaloni has entered an appearance in the
proceeding as the “relevant person” thereby
submitting to the
jurisdiction and in any event Mr Pantaloni has been joined as a party in
the proceeding with the result that the
action is also constituted as an action
in personam on a maritime claim which by s 4(1) of the Act is a
reference to a “general maritime claim” within s 4(3) for the
purposes of the jurisdiction conferred on the Court by s 9 of the Admiralty
Act .
- The
plaintiff contends that if the action in rem is beyond jurisdiction, the
action in personam against Mr Pantaloni is within jurisdiction and
in the event that the in rem elements of the action are to be struck out,
the proceeding ought to continue as a proceeding on a maritime claim within
jurisdiction
against Mr Pantaloni. The plaintiff contends that in respect
of that proceeding the monies paid into court by Mr Pantaloni ought
not to
be paid out to Mr Pantaloni as those monies would be immediately removed
from the jurisdiction thus defeating the plaintiff’s
claim for monies
owing in respect of goods, materials and services supplied to the ship for its
operation or maintenance at the request
of and by agreement with
Mr Pantaloni, and monies owing in respect of the alteration, repair or
equipping of a ship undertaken at
the request of and by agreement with
Mr Pantaloni.
- The
defendants contend that since the action in rem was commenced without a
jurisdictional foundation, it must be dismissed or struck out. Further, since
the monies paid into Court
by Mr Pantaloni were paid into Court to secure
the release of a ship wrongly arrested consequent upon a proceeding commenced
beyond
jurisdiction as an action in rem, the monies ought never have been
paid into Court and, upon dismissal of the action, ought to be released to
Mr Pantaloni. The defendants
say that those monies ought not to be the
subject of any continuing protective or security order in support of the
plaintiff’s
maritime claim on the contract with Mr Pantaloni.
- In
addition, the defendants say that any claim the plaintiff may have against
Mr Pantaloni is a contract claim. That claim cannot
be regarded as an
“associated matter” with the proceeding commenced as an action in
rem and once the in rem proceeding is shown to be beyond
jurisdiction, the associated matter cannot independently stand on its own feet
and thus falls away
with the in rem proceeding.
- The
plaintiff says that the contention of the second defendant as owner of the ship
is that it should be free of the burden of the
proceedings on the contended
footing that the action in rem is jurisdictionally incompetent and,
as to the first defendant, Mr Pantaloni seeks, it is said, to dismiss the
proceeding and recover
the funds paid into Court whilst denying any liability to
pay the plaintiff any monies claimed by way of a maritime claim arising
out of
the contract Mr Pantaloni made with the plaintiff.
The further notices of motion to be determined
- There
are three further matters to be addressed.
- The
first is the plaintiff’s application for a freezing order pursuant to
Order 25A of the Federal Court Rules preventing the removal from the
jurisdiction of the funds presently within the jurisdiction (paid into Court)
should those funds be
subject to release to Mr Pantaloni as a result of
either the proceeding being dismissed or that part of the proceeding
constituting
an action in rem being dismissed. The second is the
application by Mr Pantaloni for an order that the claims of the plaintiff
made by the Further
Amended Statement of Claim filed on 22 December 2009 be
dismissed or alternatively stayed on the ground of the plaintiff’s
failure
to provide particulars of its maritime claim as required by earlier orders and
in particular an order made on 27 November
2009. Mr Pantaloni seeks a
further order that the plaintiff provide particulars in response to paras 2
and 4 of the request made
by the first defendant, within a limited time, failing
which the action be dismissed or stayed (that is, a guillotine order).
Mr
Pantaloni also contends that he has a good cross-claim against Brisbane
Slipways on the footing that he has paid monies to the plaintiff
in respect of
some services and goods not provided or supplied and, by reason of contended
overcharging and under-provision of particular
services and materials, he says
he is entitled to resist the full amount of the plaintiff’s claim and
recover by way of damages
the money value of the overpayment to the plaintiff.
The third matter is the plaintiff’s application for an order that Arc
en
Ciel Voyages be joined as a fourth defendant in the proceeding.
- The
defendants challenge as a preliminary matter the entitlement of the plaintiff to
commence and maintain the proceeding. The trial
of the question of whether the
proceeding is within jurisdiction was set down for separate or preliminary
determination in accordance
with Order 29, rule 2 of the Federal
Court Rules.
- In
order to deal with the factual matters for determination and the various
contentions, it is necessary to set out in detail the
procedural sequence of
events in the proceeding.
The procedural events in the proceeding
- The
proceeding was commenced on 2 April 2009 by Writ (Rule 19,
Admiralty Rules 1988 (Cth), Form 6) commencing “action against
The ship ‘Aremiti 4’” claiming $71,013.60 “against
the ship
being the balance of monies due and owing to the Plaintiff in respect
of materials and service that were effected to the said ship”.
Rule 15(1) of the Admiralty Rules provides that “initiating
process [writ] in a proceeding commenced as an action in rem must specify
a relevant person in relation to the maritime claim concerned as a
defendant”. Rule 15(2) provides that a relevant person may be
specified by reference to “ownership of, or other relevant relationship
with the ship
...”.
- Although
the initiating process commences an action in rem against an inanimate
res situated within the jurisdiction or authority of the Court, the
Admiralty Rules require a relevant person to be specified in relation to
the maritime claim by reference to, permissively, that person’s ownership
of or other relationship with the ship, and the writ, addressed to the
defendant, calls upon the relevant person to answer the writ
within 21 days
of service upon the ship if the claim is to be defended.
- A
“relevant person” for the purposes of the Act and the Admiralty
Rules means, in relation to a maritime claim, a person who would be liable
on the claim in a proceeding commenced as an action in personam:
s 3(1) of the Admiralty Act . That person is, of course, a person who would
be liable on the assumption or hypothesis that the maritime claim as made (that
is,
as pleaded) succeeds. The determination of whether a person is a relevant
person does not require a factual analysis of whether
that person is
actually liable on the claim made but simply whether the person would be
putatively liable on the maritime claim as framed if proved: Schwarz
& Co (Grain) Ltd v St Elefterio ex Arion (Owners) [1957] P 179 at
185 and 186; Iran Amanat v KMP Coastal Oil [1999] HCA 11; (1999) 196 CLR 130 per
Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ at [13] to [23];
Ocean Industries Pty Ltd v Owners of the Ship MV
“Steven C” [1994] 1 Qd R 69; (1991) 104
ALR 353.
- In
this case, the plaintiff did not nominate a relevant person in the writ. On
2 April 2009, the plaintiff applied for a warrant
for the arrest of the
Aremiti 4 which was in Brisbane. The ship’s Port of Registry
is Papeete in Tahiti. The affidavit in support of the application described
the
claim in the same abbreviated terms as the endorsement on the writ. The warrant
was issued and executed in accordance with the
Admiralty Rules on
2 April 2009. On 7 April 2009, Mr Pantaloni filed a Notice of
Payment into Court of $71,013.60 “to secure the release of
Aremiti 4”. The notice nominates Mr Pantaloni as the person
making the payment. It nominates the ship. It identifies
Mr
Pantaloni’s relationship with the ship as the “Person
nominated as Relevant Person”. The notice does not recite
by whom
Mr Pantaloni was nominated as the relevant person.
Mr Pantaloni’s application to the Registrar for release of the
ship
recites Mr Pantaloni as the applicant and describes his relationship with
the ship as “nominated as ‘Relevant Person’”.
The
ground on which he sought release is recited as: “the Relevant Person has
made payment of the whole of the claim”.
The application was “filed
on behalf of the defendant” and signed by the solicitor for the defendant.
The ship was released
from arrest on 7 April 2009.
- On
15 April 2009, Mr Pantaloni filed a Form 9 appearance in the
proceeding. Clause 1 of the appearance is an unconditional appearance.
Clause 2 recites Mr Pantaloni’s “relationship with the
ship” in these terms: “I have been nominated as
RELEVANT
PERSON”. Although Mr Pantaloni has not filed a conditional
appearance in accordance with the Federal Court Rules, he asserts a
continuing right to challenge the jurisdiction of the Court to entertain the
proceeding as an action in rem.
- On
13 May 2009, the plaintiff filed a Statement of Claim in the action. The
contentions were these.
- Brisbane
Slipways carries on business as a slipway operator and repairer of vessels. The
ship Aremiti 4 is a 50 metre high speed car passenger ferry of
aluminium construction. On 5 February 2009, Brisbane Slipways entered into
a contract
with Mr Pantaloni by which the plaintiff agreed to provide work
and labour and supply materials for and in respect of the ship in
Brisbane. The
plaintiff did so and rendered an invoice (No. 7158) for 15 categories
of work and labour and materials supplied for
$73,916.60. It rendered a further
invoice (No. 7174) for 10 categories of further work, labour and
materials provided and supplied
of $71,019.00 and a third invoice
(No. 7212) for six categories of further work, labour and materials of
$37,038.00 constituting
$181,973.00 in all.
- On
6 March 2009, Brisbane Slipways was paid $100,000.00 and on 27 March
2009 it issued a credit note relating to four categories
of activity of
$10,960.00 resulting in unpaid claims pursuant to the contract made with
Mr Pantaloni of $71,013.60 for work and labour
done and materials supplied
“for and in respect of the ship”.
- The
plaintiff pleaded that when the cause of action arose (which must be taken to be
the moment in time when the debts became due
and owing under the contract and
were not paid thereby constituting the breach giving rise to the claim)
Mr Pantaloni was the person
“in possession of the ship” or
alternatively the person “in control of the ship” and that on
15 April 2009
Mr Pantaloni entered an appearance as the
“relevant person” for and in respect of the ship thereby necessarily
conceding
that he would be liable in personam on the claim assuming
Brisbane Slipways succeeded in its claim.
- The
plaintiff pleaded that the ship was arrested in respect of the unpaid claims as
the ship was properly the subject matter of an
action in rem pursuant to
s 17 of the Admiralty Act . The plaintiff also pleaded the payment into
Court by Mr Pantaloni on 7 April 2009 of the full amount of the claim
to secure the
release of the ship.
Constitutional and statutory considerations
- That
claim as framed by the pleading was made against the following statutory
framework. Section 76(ii) of the Constitution confers power on the
Parliament to make laws conferring original jurisdiction on the High Court in
any matter arising under any laws
made by the Parliament and s 76(iii)
confers power in any matter of Admiralty and maritime jurisdiction which extends
to matters of the kind generally accepted by maritime
nations as falling within
a special jurisdiction sometimes called Admiralty and sometimes called maritime
jurisdiction concerned
with the resolution of controversies relating to maritime
commerce and navigation: The Owners of the Ship “Shin Kobe Maru”
v Empire Shipping Company Inc. [1994] HCA 54; (1994) 181 CLR 404 by the Court
(Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) at
424. By s 77(i) of the Constitution, the Parliament may define the
jurisdiction of the Federal Court of Australia with respect to any matter
mentioned in ss 76(ii) and (iii) and by ss 9 and 10 of the Admiralty
Act the Parliament conferred jurisdiction on the Federal Court in controversies
relating to Admiralty and maritime commerce and navigation.
- By
s 9 , relevantly, jurisdiction is conferred on the Federal Court in respect
of proceedings commenced as actions in personam on a
“maritime claim”. A reference to a maritime claim includes a
reference to a “general maritime claim”
which by s 4(3) of the
Admiralty Act comprehends a reference to:
(m) a claim in respect of goods, materials or services (including stevedoring
and lighterage services) supplied or to be supplied
to a ship for its operation
or maintenance; or
...
(o) a claim in respect of the alteration, repair or equipping of a
ship;
- By
s 10 , jurisdiction is conferred on the Federal Court in respect of
proceedings that may, under the Admiralty Act , be commenced as actions
in rem. By s 12 of the Act, the jurisdiction conferred by
ss 9 and 10 extends to jurisdiction in respect of a matter of Admiralty and
maritime jurisdiction not otherwise within its jurisdiction that
is associated
with a matter in which the jurisdiction of the Court is invoked under the
Admiralty Act and s 13 the Act declares the constitutional position that no
jurisdiction beyond the matters mentioned in s 76(ii) or (iii) of the
Constitution is conferred by the Act.
- The
right to commence a proceeding in a matter of Admiralty or maritime jurisdiction
as an action in rem against a ship is confined by s 14 of the Act to
a proceeding on a maritime lien or charge (s 15); a proceeding on a
proprietary maritime claim (s 4(2); s 16); a proceeding on a general
maritime claim on what is described in the section heading as the
“owner’s liabilities”
(s 17); a proceeding on a maritime
claim in relation to a demise charterer’s liabilities (s 18) and a
proceeding on a general maritime claim against a surrogate ship (s 20).
- Section 17
is in these terms:
17 Right to proceed in rem on owner’s
liabilities
Where, in relation to a general maritime claim concerning a ship or other
property, a relevant person:
(a) was, when the cause of action arose, the owner or charterer of, or in
possession or control of, the ship or property, and
(b) is, when the proceeding is commenced, the owner of the ship or property;
a proceeding on the claim may be commenced as an action in rem against
the ship or property
- Applying
s 17 to the claim as framed by the initial pleading, the claim will fall
within the Court’s jurisdiction in a proceeding as an action
in rem
having regard to ss 10 , 12 , 14 and 17 of the Admiralty Act if the claim
exhibits the characteristics of a claim falling within s 4(3)(m) or (o);
the claim concerns a ship; a person is identified who would be putatively liable
on the claim in personam if the claim as framed by the pleading succeeds
and such a person was when the cause of action arose (at the date of breach)
either
the owner of the ship, or a person in possession or control of the ship,
or a charterer of the ship; and such a person is on the
date of commencement of
the proceeding, the owner of the ship.
- Although
the liability comprehended by the definition of “relevant person”
refers to a hypothetical liability (Iran Amanat v KMP Coastal Oil (supra)
by the Court at [18]), paras (a) and (b) of s 17 are concerned with facts
that need to be established and found by the Court. As to limb (a) of
s 17 , was Mr Pantaloni on the date the cause or causes of action arose
a person, as pleaded, “in possession or control of the
Aremiti 4”? As to limb (b), was Mr Pantaloni on
2 April 2009 the owner of the ship? The defendants contend that
notwithstanding the distributive language of s 17(a) (that is, the
alternatives of “owner”, “charterer” or a person
“in possession or in control of”
the ship), the jurisdiction of the
Court is only enlivened in respect of a proceeding founded upon an action in
rem for the purposes of s 17 if Mr Pantaloni was both the owner of
the ship at the date the cause or causes of action arose and at the date of
commencement of
the proceeding. That question will be addressed later in these
reasons.
The remaining procedural steps
- The
remaining procedural steps in the proceeding now need to be identified.
- On
30 June 2009, Mr Pantaloni filed a defence as second defendant in
which he made these contentions. As to the contract, he denied
the contract was
made on 5 January 2009 and asserted the contract was made on 15 March
2009 when a particular document was signed
by him. He admitted that the
plaintiff had “carried out some work and supplied some materials to the
ship” but denied
the claim was reasonable or proper saying that he could
add nothing further until disclosure had occurred. As to his appearance
in the
proceeding, he admitted entering an appearance but not in the capacity of
a relevant person. He contended that he entered an appearance because he had
been named by the plaintiff as the “relevant
person”. He denied he
was a relevant person for the purposes of the Admiralty Act .
- Mr Pantaloni
denied that he was a person “in control of the ship” when the cause
of action arose although he did not
plead to the plaintiff’s contention
that he was alternatively “in possession” of the ship at the
relevant date.
As to the integers of s 17 of the Act more broadly,
Mr Pantaloni pleaded a matter not directly raised by the plaintiff, namely,
that Mr Pantaloni ceased to
be a charterer of the ship on
8 January 2009 upon the termination of a Charter Party Agreement with the
owner of the ship.
- On
29 July 2009, the plaintiff filed a reply in which it asserted that
Mr Pantaloni was the owner of the ship at the date of commencement
of the
proceeding on 2 April 2009 and in the alternative, Mr Pantaloni was
the demise [charterer] of the ship on that date: para
5(b) and (c). As to
the “relevant person” contention, the plaintiff asserted that
Mr Pantaloni was the relevant person
for the purposes of the entry of
appearance and that he was estopped from now asserting otherwise. The charges
for the work, labour
and materials were said to be fair, reasonable and proper.
- Although
Mr Pantaloni had entered an appearance in the proceeding and delivered a
defence describing himself as the second defendant,
he was not formally a party.
Dowsett J on 31 August 2009 ordered that Mr Pantaloni be joined
as a defendant in the proceeding. Dowsett
J further ordered that the
plaintiff serve a statement of claim as against Mr Pantaloni on or before
10 September 2009 with Mr Pantaloni
to file a defence and cross-claim
(if any) by 24 September 2009. In the light of a challenge to
jurisdiction, Dowsett J further
ordered that Mr Pantaloni file a
notice of motion together with supporting affidavit material seeking an order
for the return of
the monies paid into Court, on or before 10 September
2009, with material in reply by 24 September 2009.
- On
11 September 2009, the plaintiff filed and served an Amended Statement of
Claim as against Mr Pantaloni and purported to delete
any reference to the
ship Aremiti 4 as a defendant. The amended pleading sought to
change the character of the proceeding from an action in rem to an action
in personam against Mr Pantaloni. The Amended Statement of Claim
maintained each of the allegations in the earlier Statement of Claim with the
exception that the nexus with Mr Pantaloni as to the work was reframed with
greater focus. By para 3, the plaintiff contended that
the work and labour
done and materials supplied was undertaken “for and on behalf of and at
the request of the defendant [Pantaloni]”
in respect of the ship. The
plaintiff maintained that the contract was made on 5 January 2009.
- On
15 September 2009, Mr Pantaloni filed a motion seeking orders that the
writ be set aside and the monies paid into Court be paid
out to
Mr Pantaloni. That application was supported by an affidavit of
Mr Pantaloni filed 15 September 2009. Brisbane Slipways
filed an
affidavit of Mr Gary Kidd in reply on 24 September 2009. On
2 October 2009, SNC Aremiti entered an appearance in the proceeding
as
owner of the ship. On 9 October 2009, Mr Pantaloni filed an Amended
Defence in which he objected to the unilateral change in
the character of the
action from one in rem to an action in personam.
Mr Pantaloni denied that he was in possession or control of the ship when
the plaintiff’s cause of action arose and asserted
that the entity in
possession or control of the ship until 16 January 2009 was a New
Caledonian corporation called Prestige Marine
SARL (“Prestige”).
Mr Pantaloni denied liability on the claim and as to the integers of
s 17 of the Act, Mr Pantaloni contended that the plaintiff was not
entitled to bring an action in rem as Mr Pantaloni was not a
charterer or owner of the vessel when the cause of action arose and nor was he
the owner or demise charterer
of the ship at the commencement of the proceedings
on 2 April 2009. As to the agreement, Mr Pantaloni contended that he
signed a
Works Agreement with the plaintiff on 15 January 2009 and the
document was signed “for and on behalf of the then time charterer
[Prestige]”. As to the work, Mr Pantaloni contended that the
majority of the work carried out on the ship was carried out
by entities other
than the plaintiff.
- Mr Pantaloni
pleaded a further agreement between the plaintiff and another entity which had
the contended effect of limiting the
amount to be charged to Mr Pantaloni
in respect of the work and labour done and materials supplied under
Mr Pantaloni’s agreement
with the plaintiff.
- On
12 October 2009, Dowsett J ordered that SNC Aremiti be joined as a
defendant in the proceedings. The parties then became Mr Pantaloni,
SNC
Aremiti and the ship Aremiti 4. Mr Pantaloni was ordered to
file and serve a defence and cross-claim on or before 19 October 2009 and
SNC Aremiti was ordered to
file a defence and cross-claim on or before
26 October 2009. Consequential directions orders were made. On
27 November 2009, Mr
Pantaloni filed a motion seeking an order that
the plaintiff provide further and better particulars of its claims the subject
of
an earlier request. Mr Wellner, the solicitor for Mr Pantaloni,
filed an affidavit on 27 November 2009 exhibiting a request for
particulars
(undated – although apparently the request was served on 15 October
2009). By that affidavit, Mr Wellner deposed
to 19 categories of activity
which would be the subject of a proposed cross-claim on the footing that the
plaintiff had “unjustly
inflated its claim by $132,536.00” resulting
in an amount payable to the plaintiff of $49,437.00 for the work and labour done
and materials supplied. Taking account of the amount paid by Mr Pantaloni
of $100,000.00, he contended that he had a claim for “overpayment
[of]
$50,563.00”. Mr Pantaloni pressed for the provision of particulars
from the plaintiff of the three invoices by reference
to eight matters recited
at para 4 of the request.
- Trial
dates had been allocated for the matter. Those dates were vacated by
Collier J on 27 November 2009. Collier J ordered that
the
plaintiff file and serve a Further Amended Statement of Claim (including
the particulars to be furnished pursuant to the defendant’s request served
on 15 October 2009) before 4.00pm on 21 December
2009.
Mr Pantaloni was ordered to file and serve an Amended Defence and
Cross-Claim, if any, on or before 5 February 2010. Other
directions orders
were made.
- On
14 December 2009, the matter was listed for directions. In view of the
challenge by the defendants to the jurisdictional competency
of the in rem
proceeding, the parties agreed at the directions hearing that the challenge
to jurisdiction ought to be determined before any other
question. Accordingly,
an order was made that there be a preliminary hearing on the separate question
of jurisdiction on 8 March
2009 pursuant to Order 29, rule 2 of
the Federal Court Rules. A trial of the jurisdiction question took place
on 8 March 2009. The defendants had previously filed affidavits upon which
they
proposed to rely on the jurisdiction question. The plaintiff was ordered
to deliver any affidavits on which it proposed to rely
by 19 February 2010
and the defendants were ordered to deliver any material in response by
1 March 2010. The parties were ordered
to exchange written submissions by
5 March 2010. The remaining orders made by Collier J on
27 November 2009 were suspended pending
the trial and determination of the
separate question.
- On
22 December 2009, the plaintiff filed a Further Amended Statement of
Claim. By that pleading, the plaintiff contended that Mr Pantaloni was the
person in possession or control
of the ship when its cause of action arose;
Mr Pantaloni was the owner of the ship when the proceedings were commenced;
if not the
owner at that date, Mr Pantaloni was the demise charterer of the
ship at that date; alternatively, Mr Pantaloni “contracted
as agent
for the second defendant, [SNC Aremiti], who is therefore bound by the
obligations arising from the contract”; and
on 2 October 2009,
Mr Pantaloni appeared in the proceeding and “thereby asserted that it
was the demise charterer or owner
of the ship”.
- The
plaintiff contended that the ship was properly the subject matter of an action
in rem pursuant to s 17 of the Admiralty Act . The plaintiff
also contended that the proceeding was properly brought as an action in
rem pursuant to s 18 of the Act. The plaintiff asserted that its claim
for work and labour done and materials supplied “for and on behalf of and
at the request of” Mr Pantaloni in respect of the ship was made
pursuant to a contract entered into between the plaintiff and
Mr Pantaloni
on or about 15 January 2009. The written contract was said to consist of
emails between the plaintiff and Mr Pantaloni
from 23 December 2008 to
8 January 2009; a price estimate dated 5 January 2009; and a
slipway/repair form signed by Mr Pantaloni
and Mr Shaw on behalf of
the plaintiff dated 15 January 2009 which included two pages of contractual
terms following the signed page.
- Section 18
of the Admiralty Act is in these terms:
18 Right to proceed in rem on demise charterer’s
liabilities
Where, in relation to a maritime claim concerning a ship, a relevant
person:
(a) was, when the cause of action arose, the owner or charterer, or in
possession or control, of the ship; and
(b) is, when the proceeding is commenced, a demise charterer of the ship;
a proceeding on the claim may be commenced as an action in rem against
the ship
- The
plaintiff by its Further Amended Statement of Claim reasserted its original
formulation of the claim by reference to the three
invoices and the credit note.
On 8 March 2010, Mr Pantaloni filed a Notice to Admit Facts and
Authenticity of Documents addressed
to the defendant which was served on
8 December 2009. The notice called upon the plaintiff to admit the
following facts:
- That
SNC Aremiti is a registered corporation having its head office in Taunoa
Papeete, Tahiti, French Polynesia.
- That
Prestige Marine SARL is a limited liability company of Noumea, New Caledonia and
is registered as such.
- That
Arc en Ciel Voyages SARL is a limited liability company registered in Noumea,
New Caledonia.
- That
SNC Aremiti was the owner of the ship “Aremiti IV” (“the
ship”) as of 25 June 2008 to 28 June 2009.
- That
SNC Aremiti chartered the ship to Prestige Marine SARL by time charter agreement
dated 28 June 2008 and such charter was from
28 June 2008 to
8 October 2008.
- That
the above time charter was by Agreement dated 8 October 2008 extended to
8 January 2009.
- That
the ship arrived in Brisbane, Queensland on 15 January 2009.
- That
the ship was lifted out of the water by Brisbane Shiplifts of 29 Wyuna
Court, Hemmant on 15 January 2009 and placed on hardstand
at the premises
of Brisbane Marine Industry Park on that day.
- The
notice also called upon the plaintiff to admit the authenticity of the following
documents: the registration of the ship; the
Time Charter Agreement between SNC
Aremiti and Prestige dated 28 June 2008 and its translation; and the
Extension Agreement of the
Time Charter Agreement dated 8 October 2008 and
its translation.
- On
22 December 2009, the plaintiff filed a Notice of Dispute by which it
denied the facts specified in the first defendant’s
notice of
8 December 2009 although the response does not address the authenticity of
the documents recited in Mr Pantaloni’s
notice.
- On
23 December 2009, the plaintiff filed and served Further and Better
Particulars in response to the request and in purported compliance
with the
order of Collier J.
- On
19 February 2010, the plaintiff filed a Notice of Motion returnable on the
hearing of the question of jurisdiction on 8 March
2009 by which it sought
a freezing order pursuant to Order 25A of the Federal Court Rules in
respect of the monies paid into Court by Mr Pantaloni until further order.
That application was supported by two affidavits of
Mr McEachern, the
solicitor for the plaintiff. The plaintiff filed a further motion on
19 February 2010 returnable on the hearing
of the jurisdiction question on
8 March 2010 for an order that Arc en Ciel Voyages be joined as a fourth
defendant in the proceeding.
On 2 March 2010, Mr Pantaloni filed a
motion returnable on 8 March 2010 by which he sought orders for the
dismissal of the Further
Amended Statement of Claim filed on 22 December
2009 or, in the alternative, an order that the plaintiff comply with the order
of
Collier J of 27 November 2009 for the provision of particulars
requested in paras 2 and 4 of the request served on 15 October 2009.
Mr Pantaloni sought a further order that the monies paid into Court be paid
to him with accretions which, in any event, was the
order Mr Pantaloni
sought upon the determination of the separate question of jurisdiction.
- On
2 March 2010, Mr Wellner filed a further affidavit in support of the
order in relation to the dismissal of the Statement of Claim
on the ground of a
failure by the plaintiff to provide proper particulars. The affidavit sets out
the exchanges on that issue between
the parties.
- Mr Pantaloni
has not filed an Amended Defence and Cross-Claim in response to the Further
Amended Statement of Claim as he contends
that he cannot formulate the document
in the absence of proper particulars which he contends are not embodied within
the Further
Amended Statement of Claim as required by the order of
Collier J of 27 November 2009 and the Further and Better Particulars
filed
on 23 December 2009 are an inadequate response to para 4 of the
request.
Further material read on the hearing
- Finally,
on the hearing of the question of jurisdiction on 8 March 2010, counsel for
Mr Pantaloni sought leave to read and file a
further affidavit of
Mr Pantaloni sworn 8 March 2010 explaining the reason for his election
to enter an appearance in the proceeding
and a faxed copy of an affidavit of
Mr Eugene Degage sworn 19 February 2010 at Papeete on the question of
the ownership of the ship.
No objection was taken to the reading of the
affidavit of Mr Degage although objection was taken to leave being granted
to read
and file the affidavit of Mr Pantaloni on the ground that the
affidavit was served on the plaintiff at approximately 5.00pm on Friday,
5 March 2010 prior to the hearing on Monday, 8 March 2010
notwithstanding that the orders required any further affidavits relied
upon by
Mr Pantaloni to be served by 19 February 2010. Leave was given to
read both affidavits although the weight to be attributed
to the second
affidavit of Mr Pantaloni will be considered in these reasons. Counsel for
the plaintiff chose not to cross-examine
Mr Pantaloni who was in Court.
The affidavits of Mr Kidd, relied upon by the plaintiff, were read on the
hearing but Mr Kidd was
not made available for cross-examination.
The controversy on the pleadings
- Therefore,
the controversy on the pleadings comes down to this. The plaintiff says
that on 15 January 2009 it entered into a contract with Mr Pantaloni
arising out of email
exchanges and a quote of 5 January 2009 resulting in a
signed slipway repair document of 15 January 2009 incorporating written
terms
pursuant to which the plaintiff provided work and labour and supplied
materials giving rise to a general maritime claim under s 4(3) of the
Admiralty Act . It claims to be owed $71,013.60. That work and labour and those
materials were provided and supplied for and on behalf of and
at the request of
Mr Pantaloni in respect of the ship who, should the claim succeed, would be
liable on the claim to the plaintiff
and is thus a relevant person under the
Act. When the cause of action crystallised upon the failure to pay the maritime
claim due
to the plaintiff, Mr Pantaloni was in possession or control of
the ship thus satisfying aa1988115 /s17.html" class="autolink_findacts">s 17(a) and s 18(a) of the Act. When the
proceeding was commenced, Mr Pantaloni was either the owner or demise
charterer of the ship thus satisfying,
it is said, either s 17(b) or
s 18(b) of the Act. The plaintiff says that if Mr Pantaloni was
neither of those things, he was nevertheless the agent of the owner in making
the contract and thus stood in the shoes of the owner binding the principal to
the general maritime claim and, as a matter of statutory
construction, either
SNC Aremiti was brought within s 17(b) (and inferentially s 17(a) of
the Admiralty Act ) or Mr Pantaloni is to be treated as the owner for the
purposes of s 17. The plaintiff contends that it is not necessary to
demonstrate that Mr Pantaloni was the owner at the date the cause of action
arose.
- As
to the agency point, the plaintiff’s real point so far as s 17 of the
Act is concerned seems to be that Mr Pantaloni as the “relevant
person” for the purposes of the Act is to be constructively
treated as the
owner of the ship at the commencement of the proceeding because he was standing
in the shoes of the owner at that
date and was acting as the owner and
“doing things for the benefit of the boat”: Submissions of
counsel for the plaintiff. It is not contended that SNC Aremiti is a
“relevant person”. As to s 18(b) , the plaintiff contends in
the alternative that Mr Pantaloni is to be treated as the demise charterer
of the ship.
- Mr Pantaloni
pleads that he made a contract on 15 January 2009 with the
plaintiff. He did so as agent for Prestige, that is, “for and on behalf
of the time charterer [Prestige]”. Work was done of the kind claimed
although it was only worth $49,437.00 in all. There
is a good cross-claim of at
least $50,563.00. When the contended cause of action arose on the maritime debt
claim, Mr Pantaloni
was not “in possession” or
“control” of the ship. The entity in possession or control of the
ship until
16 January 2009 was Prestige. Mr Pantaloni was not the
owner or charterer of the ship on 2 April 2009. It therefore follows, it
is said, that neither s 17 nor s 18 is satisfied so as to confer
jurisdiction on the Court in the proceeding with the result that the action must
be struck out and the
monies brought into the jurisdiction so as to secure
release of the ship arrested in an action in rem beyond jurisdiction
must, as a matter of law, be returned to Mr Pantaloni.
- Mr Pantaloni
now contends that the Time Charter Agreement by which Prestige was in possession
or control of the ship came to an end
on 8 January 2009.
- Before
examining the evidence relevant to the pleaded controversy on jurisdiction, the
following principles should be noted.
Framework principles
- Where
on the trial of the question of jurisdiction, that matter depends on
particular facts or a particular state of affairs, a challenge to jurisdiction
can only be resisted by establishing the facts upon which it is said to rest.
Those facts must be established on the balance of
probabilities in the light of
all the evidence adduced at the trial of that question and the onus lies with
the plaintiff: Owners of the “Shin Kobe Maru” v Empire Shipping
Co. Inc. [1994] HCA 54; (1994) 181 CLR 404 per Mason CJ, Brennan, Deane, Dawson,
Toohey, Gaudron and McHugh JJ at 426. In Ocean Industries Pty Ltd v
Owners of the Ship MV “Steven C” [1994] 1 Qd R 69
at 74; (1991) 104 ALR 353 at 357 McPherson ACJ (Thomas and
Byrne JJ agreeing) (Ocean Industries v MV
“Steven C”) observed that the expression “person who
would be liable” in the definition of “relevant person” in
s 3(1) in the context of s 17 of the Act is to identify someone having
a “sufficient connection” with the ship as to render him or her
personally,
and in consequence the ship, responsible for goods, materials or
services supplied for its operation or maintenance (and, as in this
case, in
respect of alteration, repair or equipping of the ship) and the question is
whether it can be predicted that “the
necessary relation exists between
the defendant in rem as owner or otherwise and the ship in question
... The “Rena K” (1979) QB 377 at 406”
(emphasis added).
- The
first defendant relies upon an explanatory construction of the conjunction of
“relevant person” in s 3(1) and s 17 contained in the
judgment of McPherson ACJ in Ocean Industries v MV
“Steven C” (1991) 104 ALR 353 at 355 and 356 in these
terms:
Reading those two provisions together is not an altogether easy task. However,
I think their combined effect, briefly stated, is
that, for a proceeding on a
claim like this to be commenced by action in rem [that is, a proceeding in
reliance upon s 17], there must be a person who, both when the cause
of action arose was and also when the proceeding in rem is
commenced is, the owner etc of the ship, and who would be liable
on the claim in a proceeding commenced as an action in personam. The function
of the requirement
that there be a person who is both the owner and liable in an
action in personam is to preserve “the general rule of Admiralty
... that
an action in rem cannot be maintained when there is no liability in the
owners”: see Shell Oil Co. v The Ship Lastrigoni [1974] HCA 27; (1974) 131
CLR 1 at 5, citing Rosenfeld Hillas & Co. Pty Ltd v The Fort Laramie
[1922] HCA 24; (1922) 31 CLR 56 at 63; see also Dalgety & Co. Ltd v Aitchison;
“The Rose Pearl” (1957) 2 FLR 219.
[emphasis added other than the authorities]
- The
first defendant says that the decision in Ocean Industries v MV
“Steven C” is a decision of an intermediate Court of Appeal
which establishes that in order to properly enliven the jurisdiction under
s 17 of the Admiralty Act , the plaintiff must establish that
Mr Pantaloni was the owner of the ship both at the date the cause of action
arose and at the date
of commencement of the proceeding. The first defendant
says that Mr Pantaloni was not the owner on either date.
- In
the reasons in Ocean Industries v MV “Steven C”,
McPherson ACJ makes reference to a predicted relationship between the ship
and the defendant in rem as owner “or otherwise” which
seems to contemplate a broader possible relationship and in the quote above his
Honour makes
reference to “the owner etc”. The formulation adopted
by McPherson ACJ upon which the first defendant relies, if properly
requiring that the person be “an owner” at both dates is a departure
from the express language of s 17 of the Act and the expression of the
integers recognised by the Full Court of the Federal Court in respect of
ss 17 and 19 of the Act in Opal Marine Agencies Pty Ltd v Proceeds of
Sale of Vessel MV “Skulptor Konenkov” (2000) 98 FCR 519;
(2000) 172 ALR 481; [2000] FCA 507 per Black CJ, Cooper and
Finkelstein JJ at [27] to [57].
- The
principle can be stated in these terms. For a proceeding to be commenced as an
action in rem within the jurisdiction conferred by s 17 of the
Act, there must be a person who would be putatively liable on a general maritime
claim concerning a ship in a proceeding commenced
as an action
in personam and who was, when the cause of action arose, either the
owner of the ship or the charterer of the ship or a person in possession or
control of the ship and that person must be a person who, when the proceeding is
commenced as an action in rem, is the owner of the ship.
The meaning of the term “owner”
- The
term “owner” is not defined in the Admiralty Act . However, the
notion of “ownership” for the purposes of s 19 of the Act was
considered by Tamberlin and Hely JJ in Kent v SS “Maria
Luisa” (No. 2) [2003] FCAFC 93; (2003) 130 FCR 12 (“The Maria
Luisa”). Section 19(b) concerning proceedings in rem
against a surrogate ship requires the relevant person to be an
“owner” of the surrogate ship at the date of commencement
of the
proceeding. In that case the ship Maria Luisa had been arrested. The
registered owner of the ship was Everdene Pty Ltd which was the trustee of the
Maria Luisa Unit Trust. The
ship was an asset of the trust. The sole
shareholder in the trustee entity was a company called Australian Fishing
Enterprises Pty
Ltd (“AFE”). AFE enjoyed the power to cause
Everdene to terminate the trust and cause the assets of the trust including
the
ship to be transferred to it. AFE had not exercised the power. AFE’s
interest in the ship remained a contingent defeasible
interest under the trust
deed. The question was whether that interest elevated AFE to an
“owner” for the purposes of
s 19 of the Act. At [74],
Tamberlin and Hely JJ said this:
- The
circumstance that AFE may be said in general terms to enjoy “a bundle of
rights” which may enable it by a series of
discrete actions to obtain
ultimately possession of the ship, control its activities, and entitle it to
alienate the ship, does not
equate to present ownership at a particular point in
time. Rather, it indicates the potential to become the owner. The bundling
of
a series of discrete entitlements which if exercised could lead to ownership
does not satisfy the requirements of s 19.
- In
considering the meaning of the word “owner”, Tamberlin and
Hely JJ said this at [61], [62] and [66]:
- The
word “owner” cannot be given any general description. But
ordinarily the incidents of ownership of a chattel include
the right to make
physical use of the chattel, the right to the income from it, the power of
management, and the right of alienation
... In the “Iron
Shortland” (at 544) Sheppard J quoted from the decision of the
Singapore Court of Appeal in The “Ohm Mariana”; Ex
“Peony” [1993] 2 SLR 698 that the term “owner”
means any person who is vested with such ownership as to have the right to sell,
dispose of or alienate the ship, and that a beneficial owner of the ship comes
within that term. See also to similar effect The “Permina 3001”
[1979] 1 Lloyd’s Rep 327 at 329.
- The
notion of “ownership” carries a connotation of dominance, ultimate
control and of ultimate title against the whole
world [authorities quoted].
...
- Ownership,
whether legal or equitable, therefore involves something greater than beneficial
interest. Equitable ownership of property
is commensurate with the right to
relief in a court of equity [authorities quoted]. If a person has contractual
rights in relation
to a ship which, if performed will result in the person
becoming the owner of the ship, then the person will be regarded as the
equitable
owner of the ship provided that specific performance of the contract
would be decreed: KLDE Pty Ltd v Commissioner of Stamp Duties (Qld)
(1984) [1984] HCA 63; 155 CLR 288. Thus entitlement to a vesting order or equivalent
relief would be necessary before AFE could be regarded as the equitable owner
of
the ship as at the relevant date: Stern v McArthur [1988] HCA 51; (1988) 165
CLR 489; Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242. But that
does not mean that AFE does not have an interest in the trust property,
including a ship, which equity would protect regardless
of whether AFE could be
called the equitable owner.
- These
general principles were further addressed in Tisand Pty Ltd v The Owners of
the Ship MV Cape Moreton [2005] FCAFC 68; (2005) 143 FCR 43 at 73 and 74 at [118] to
[122] where Ryan and Allsop JJ said this:
- What
seems to us is that the context of the enactment of the Act and the ordinary
meaning of the words used by ss 17, 18 and 19 lead to the conclusion that
the phrase “the owner” was used in a proprietary sense, reflecting
the clear purpose of the
Act to require the property to be arrested to belong to
the relevant person.
- As
is clear from Yanner v Eaton (1999) 201 CLR 351 and The Maria
Luisa, notions of “property” and “ownership” are not
amenable to crisp, comprehensive definition in the abstract.
The context, here
is the possession and enjoyment of, dominion over and power or right to dispose
of, a chattel of a kind that is
usually engaged in commercial enterprise. In
that context, the word “ownership” or “owner” connotes
the
right or power to have and dispose of dominion, possession and enjoyment of
the ship, subject, of course, to intervening interests:
Yanner v Eaton
at [25]; The Maria Luisa at [61] – [66]; The Ohm Mariana (ex
Peony) at 711; The Permina 3001 at 329; The Andres Bonifacio
[1993] 3 SLR 521; and The St Merriel [1963] p 247 at 258.
- This
kind of dominion, exemplified or epitomised by the lawful power or right to
dispose of the ship, may arise from the legal effect
of dealings between parties
with the ship, under general law of statute.
- Precisely
what will amount to ownership in any given case may be a matter for debate. In
The Maria Luisa, a majority of the Full Court decided that in a context
where a trust instrument regulated the equitable entitlements of interested
parties the relevant person did not have equitable ownership of the vessel in
question under the constituent documents of the trust.
This was so, it was
held, because, although the relevant person had unilateral power to bring about
circumstances under which it
could terminate the trust and dispose of the ship,
it had not exercised such power to put it in that position: see the reasoning
of the majority at [67]-[74]. The majority’s views about the application
of the principles expressed at [61] to [66] to the
facts have been criticised as
too narrowly framed: Wiley, N “Is the sole unit holder in a unit trust
the ‘owner’
of trust assets?” (2005) 34 AT Rev 29. No
occasion arises for us to consider the particular application of the principles
set out by the Full Court to the facts of that
case. (We note that special
leave to appeal was refused.)
- Although,
as we have said, we prefer to approach the question here as concerned with the
phrase “the owner”, it is unnecessary
to consider the significance,
if any, of the definite article “the” in the phrase “the
owner”, and whether
there may be circumstances in which ownership may be
in more than one entity, each deriving its respective entitlements from
different
sources, factual and legal. In a different context compare
Baumwoll Manufactur von Carl Scheibler v Furness [1893] AC 8 at
17.
- In
the Cape Moreton, proceedings had been commenced against the ship.
Both at the time the cause of action arose and when the proceeding was
commenced,
Freya Navigation Shipholding Limited (“Freya”) was the
registered owner of the ship on the Liberian Register. After
the cause of
action arose but before the proceeding was commenced, Freya sold and delivered
the ship to Alico Marine Ltd (“Alico”).
At [186], Ryan and
Allsop JJ found that Freya was not, at the time the proceeding was
commenced, “the owner” of the
ship because:
- ...
Freya had no rights of dominion, enjoyment or control over the ship arising from
its dealing with Alico or from its relationship
with the ship. It had, by the
law of the flag (on the hypothesis of the relevance of the Shipping
Registration Act 1981 (Cth) by the presumption) a power to dispose of the
ship, but the power is incapable of lawful or honest exercise, without the
consent
of Alico. So understood, the power does not amount to a right of
ownership.
- It
follows that in order to be an owner of the ship at the date of commencement of
the proceeding, the relevant person must enjoy
“present ownership”
(The Maria Luisa at [74]) which includes the right of physical use, a
power of management and a right of alienation (The Maria Luisa at [61])
and the notion of ownership connotes dominance, ultimate control and ultimate
title against the world. Ownership involves
something greater than a beneficial
interest in the ship. A right to a remedial order to perfect the equitable
interest must also
be present (whether an entitlement to a vesting order or an
order for specific performance of a relevant contract). Since the term
“owner” is used in the Admiralty Act in a “proprietary
sense” (The Cape Moreton at 118), ownership means actual ownership
which extends to a beneficial interest capable of perfection by remedial order.
- Considerations
going to the meaning of “demise charterer” are addressed later in
these reasons in the context of the
Time Charter Agreement.
The evidence
- Although
the dispositive onus falls to the defendant to establish on the balance of
probabilities the facts upon which jurisdiction
depends, the defendants have
adduced evidence in support of the challenge to jurisdiction. In his affidavit
filed on 15 September
2009 Mr Pantaloni gives this evidence.
- He
says that he is the Managing Director of Prestige, a limited liability company
registered in Noumea, New Caledonia. By an agreement
dated 25 June 2008,
Prestige chartered the ship Aremiti 4 from its owner SNC Aremiti. The
agreement was made in Papeete for a term of three months and 13 days. The
original of the “Charter
Contract” is written in French. It is in
evidence together with an English translation exhibited to
Mr Pantaloni’s affidavit.
On 8 October 2008, the Charter
Contract was extended for a further three months. A copy of the original French
agreement together
with an English translation is also exhibited to
Mr Pantaloni’s affidavit. Mr Pantaloni says that he is
“competent in
English and in French” and having perused the
translation he says it is a true translation.
- The
Charter Contract of 25 June 2008 records that Mr Degage is the Manager
of SNC Aremiti and that Prestige Marine Sarl is the lessee
or charterer. The
ship was leased from 26 June 2008 until 6 October 2008 inclusive. The
ship however was scheduled for re-delivery
to the owner at Papeete by midnight
on 8 October 2008. The contract provided for a refundable deposit upon
return of the ship in
“perfect working condition” after sea trials
and appraisal by a surveyor. Article 5 provided for a penalty for late
payment of rent and a penalty in the event of non-delivery by midnight on
8 October 2008. Article 7 casts an obligation upon Prestige
to ensure
the upgrading of the ship in accordance with the laws applicable in the
maritime area of New Caledonia. Article 7.1 provides that during the
rental
period Prestige will “control the vessel [and] will be fully
responsible for, including the occurrence of, an accident or other
adverse
event” and that Prestige “will maintain the [ship] perfectly
seaworthy; will take good care [of the ship]”
and assumed a commitment to
“maintain machinery, engines, equipment and spare parts in perfect working
order as ‘a very
good father’”. Although the phrase “a
very good father” is an odd expression, it plainly conveys a commitment
on
the part of Prestige to exercise care, supervision and control of a particular
character. Article 7.2 casts an obligation upon
Prestige to maintain
particular insurances during the period of the “hire” and that any
repair costs and expenses not
covered by insurance would be met by Prestige.
- Article 7.4
is in these terms:
[Prestige] provides pay master, chief engineer and crew to it and subordinates,
and this throughout the rental period. It will be
solely responsible for their
actions. However, the choice of the captain and chief engineer must be approved
by [SNC Aremiti] which
in no case could be liable for their actions and
behaviours.
- Article 7.4
bears the heading “Pay captain, chief engineer and crew”. The
document in French at Article 7.4 uses the
phrase “assure la
rémunération du capitaine” which, consistent with the
heading both in French and English,
plainly enough, suggests that Prestige
assumed under the Charter Contract the obligation to pay the captain (rather
than a pay master),
chief engineer and crew.
- Article 9
is expressed in language which is not clear in the translation. The article is
included in the contract so as to “prevent
harm to [SNC Aremiti] because
of the inability to provide daily connections between TAHITI-MOOREA for over a
week”. It seems
that although the ship was chartered until midnight on
8 October 2008, the vessel would be required for the provision of services
each day between Tahiti and Moorea from 30 September 2008 and in the event
of failure of the ship for more than seven days due to
hull problems or
inability to use “one of the four propulsion system[s]” Prestige
“undertakes to repatriate [the
ship] in Papeete within three days ...
following a written request of [SNC Aremiti] sent by facsimile”.
- The
amendment to the Charter Contract provides for an extension of the contract for
three months on the same terms and conditions
as the Charter Contract. The
extension took effect from 7 October 2008 until 8 January 2009 with
the parties agreeing that the ship
would be “back in Papeete in charge of
[Prestige] on January, the 8th 2009 at midnight at the
latest”.
- Mr Pantaloni
gives evidence that in December 2008 he commenced negotiations for the purchase
of the ship on behalf of Prestige and
Prestige retained possession of the ship
after 8 January 2009. Mr Pantaloni does not expressly explain the
reasons for the retention
of the ship after 8 January 2009 although,
presumably, the ship was retained in the expectation that a purchase agreement
would be
reached. Mr Pantaloni says that the ship was brought to Brisbane
in early January with a view to carrying out a re-fit. He says
that part of the
negotiations, which I infer were the negotiations for the purchase of the ship,
were that the cost of the re-fit
would be deducted from the purchase price. He
says that by 16 January 2009 the negotiations for the purchase had broken
down and
“the owner had resumed possession of the ship”.
Mr Pantaloni says that the owner instructed its solicitors to write
to the
plaintiff advising that the Charter Contract had expired on 8 January 2009.
- On
16 January 2009, Brian White & Associates wrote to the plaintiff and
said this:
We act on behalf of SNC Aremiti, the owners of the vessel Aremiti IV. We are
instructed that this vessel is due to undergo repairs
at Brisbane Slipways
Engineering Group.
Please be advised that there is currently a dispute between our client and the
Charterers of the vessel, Sarl Prestige Marine, regarding
the right to
possession of Aremiti IV, and we ask that any repairs that are currently being
undertaken be halted immediately until further notice.
Under the charter agreement the vessel was due to be delivered back to our
client at Pepeete, French Polynesia, before midnight on
8 January 2009, the
date on which the charter agreement came to an end. However, the redelivery did
not occur and we are instructed
that the Charterers ordered the vessel to sail
from its position at Noumea, New Caledonia, to your facility at Brisbane on
13 January
2009. This was done without our client’s permission.
As the charter agreement came to an end on 8 January 2009 the Charterers
now have no rights in relation to the vessel. Their decision
to order the
vessel to Brisbane after the charterparty had expired was not authorised by our
client.
The vessel is present at Brisbane Slipways Engineering against our
client’s will. Accordingly, we wish to emphasis that our
client will
not be responsible for the cost of any repairs that may already
have been undertaken or for any other costs incurred while the vessel
is at your
facility. ...
Should any repair work be attempted or continued from today’s date our
clients will be forced to take further action.
[original emphasis]
- That
letter was said to have been sent on 16 January 2009 by facsimile, email
and express post to the plaintiff.
- Mr Pantaloni
concludes his evidence by asserting that it is therefore clear that he was not
the charterer of the vessel when the
plaintiff commenced its action on
2 April 2009 and “nor was Prestige”. In his further affidavit
filed by leave on 8
March 2010, Mr Pantaloni says that on 7 April
2009 he made a payment into Court of the full amount of the plaintiff’s
claim.
He did so to secure the release of the ship from arrest. He says that
he paid the money “because the ship was arrested for
an alleged debt that
I had allegedly incurred”. Mr Pantaloni says that prior to making
the payment he was advised by his solicitor
that notwithstanding that the writ
failed to nominate a “relevant person”, the solicitor for the
plaintiff had asserted
in an email dated 3 April 2009 that
Mr Pantaloni was a relevant person for the purposes of the Admiralty Act as
he was the person who had signed the plaintiff’s “slipway/repair
form”.
- Mr Pantaloni
says that on 15 April 2009 he entered an appearance in the proceeding even
though he was not a party to the proceeding
in order to seek return of the money
paid into Court. He says that 15 January 2009 was the day on which the
ship arrived into the
Port of Brisbane. He says that on that day he signed the
plaintiff’s slipway repair form but did so “for and on behalf
of
[Prestige]”.
- The
defendants also rely upon the evidence of Mr Degage. In his affidavit
sworn 19 February 2010 he says that he is a Director of
SNC Aremiti which
is the “owner of the ship ‘Aremiti 4’”. SNC
Aremiti became the owner of the ship in December 2005 and remained the owner at
the date of Mr Degage’s
affidavit. Mr Degage says that the
owner chartered the ship to Prestige for a period of three months and
13 days ending 6 October
2008 and then extended the time charter for a
further three months ending on 8 January 2009. Mr Degage also
exhibits a copy of the
original French Charter Contract and an English language
translation in the same terms as the documents exhibited to
Mr Pantaloni’s
affidavit. Mr Degage says that in January 2009
Prestige took the ship to Brisbane “without the owner’s consent or
permission”
causing the owner to instruct Brian White & Associates,
its lawyers, to write to the plaintiff in the terms of the letter quoted
at [77]
of these reasons. Mr Degage says that the owner engaged a contractor to
carry out a re-fit to the ship which was completed
in October 2009 and the ship
returned to Noumea on 18 November 2009.
- Although
Mr Degage deposes to the expiration of the time charter agreement on
8 January 2009, Prestige’s conduct of taking
the ship to Brisbane in
January 2009 and the letter from the solicitors to the plaintiff of
16 January 2009, Mr Degage does not depose
to the events (or the date)
by which the owner resumed possession or control of the ship. There is no
explanation of the events
between 8 January 2009 and October 2009 but for
the letter of 16 January 2009. There is no explanation of what role
Mr Pantaloni
was playing in relation to the ship from either 8 January
2009 or 15 January 2009. Similarly, Mr Pantaloni explains the arrival
of the vessel in Brisbane on 15 January 2009 and the contract he made with
the plaintiff on that day (in a contended particular capacity)
but no greater
explanation is given of the events between 15 January 2009 and whatever
date upon which the ship was returned to the
possession or control of the owner.
Mr Pantaloni’s point in his evidence is that since the time charter
agreement expired at
midnight on 8 January 2009 neither he nor Prestige
could have been the “charterer of the vessel” and therefore
inferentially
the “demise charterer” of the vessel for the purposes
of s 18 of the Admiralty Act at 2 April 2009.
- The
principal affidavit relied upon by the plaintiff in discharging its onus is an
affidavit of Mr Gary Kidd filed on 24 September
2009.
- In
that affidavit, Mr Kidd gives this evidence.
- On
15 January 2009, the plaintiff entered into a contract with
Mr Pantaloni to repair the ship Aremiti 4. Mr Kidd
exhibits a copy of the plaintiff’s slipway/repair form signed by
Mr Pantaloni. The form recites that Mr Pantaloni
is the
“customer” and recites his address as 59 Avenue du
Maréchal Foch. The form makes no reference to Prestige
Marine SARL. The
anticipated date for slipping the ship was 15 January 2009. The special
conditions of the contract were that a
non-refundable $10,000.00 deposit was to
be paid upon booking confirmation which would be credited against the final
account. A
weekly invoice was to be paid promptly. All cost was to be
finalised prior to undocking. The agreement contemplated that contractors
would
be used to carry out certain work and all onsite contractors would be required
to comply with onsite occupational health and
safety requirements. The contract
sum would be determined by reference to a quotation document or in accordance
with the plaintiff’s
current schedule of rates after inspection by the
contracting party. The form represented an application by Mr Pantaloni to
have
work done as described in an attached work request list.
- The
terms and conditions of contract provide, as to payment, that the
“client” (being the party requesting the works
to be carried out by
the contractor: Definitions) “shall pay upon presentation of the invoice
and before the return of the
vessel, the contract sum to the contractor
forthwith or at the contractor’s option progressively by instalments
invoiced to
the client by the contractor”. In this case, the contractor
by the slipway form provided for progressive payment by weekly
invoices which
were to be paid “promptly” which read together with the terms and
conditions means paid promptly upon
presentation of the invoice and before
return of the vessel.
- On
16 January 2009, the plaintiff received from Brian White & Associates,
the letter quoted at [77] of these reasons. On receipt
of the letter,
Mr Kidd caused all work on the ship to cease. The ship was secured in a
safe and professional manner at a site at
Hemmant in Brisbane. A meeting was
arranged for 4.00pm on Friday, 16 January 2009 between Mr Pantaloni,
Mr Shaw (the Shipyard Manager
for the plaintiff), Mr Parer (the
plaintiff’s yard owner) and Mr Kidd. At that meeting,
Mr Pantaloni was shown the solicitor’s
letter of 16 January 2009
and was asked to explain the position. Mr Pantaloni “gave us the
past history of the agreement and
said that it [the letter] was a
misunderstanding and that he had an agreement to purchase the
‘Aremiti IV’ and the owner
and he were bargaining over the
price”. Mr Kidd said that Mr Pantaloni would nevertheless need
to provide sufficient funds
to cover the cost of work and services done to that
date including “ongoing hard stand costs before work was able to be
recommenced”.
Mr Pantaloni said that he would be able to quickly
resolve all issues with the owner. He said that he would give the plaintiff
a
cheque on Monday, 19 January 2009 before going to Sydney.
- Mr Pantaloni
did not give the plaintiff a cheque on Monday, 19 January 2009.
- On
9 February 2009, Mr Kidd received an email from Mr Pantaloni in
these terms:
Dear Gary,
I do understand your impatience regarding the bank transfer so you can start
working on the boat.
The bank will transfer the money for the whole amount of the work expenses as
soon as they receive a signed agreement from the owner
of the boat. The owner
and I finally agreed on the price of the boat from AU$9,820,000 to a definite
selling price of AU$11,400,000.
I will pay for the work in [and] will get 6
months rental in return. We agree that if we don’t buy the boat at the
end of
the 6 month period, the entire work expense will benefit to the owner.
However, if we buy the boat, the owner is asking us to pay for an additional
rental price of AU$1,052,000 which we refused.
The discussions are in process and this question should be settled by the end of
the day.
I do know that this matter is not your priority, but I think that I owe you some
information about the present matter.
I will get back to you this afternoon.
Best regards,
Yannick PANTALONI
ARC EN CIEL
59 Avenue du Maréchal Foch
BP1244
98845 NOUMEA CEDEX
NOUVELLE CALEDONIE
- On
19 February 2009, Mr Kidd received from Mr Pantaloni a copy of an
email sent to Mr Parer, in these terms:
The meeting with the bank and our client “Valeinco” went very
well.
Our client has accepted to give us the cash advance on future invoices they owe
to us. We are gathering all the necessary documents
they need as fast as
possible. In a first time, our client is sending Mr Oliver Rousseau
(Valeinco Maritime Department Chief) in
order to meet with you. I’ll be
with him and we will arrive in Brisbane this coming Saturday or Sunday,
depending on flights
availability. As soon as I know the date of our arrival, I
will let you know in order to organise a meeting with you Sunday morning
or
Monday.
...
Yannick PANTALONI
ARC EN CIEL (etc as at [89] above)
- On
20 February 2009, Mr Kidd received (by cc) another email from
Mr Pantaloni which advised Mr Parer that Mr Pantaloni and
Mr Rousseau
would fly to Brisbane on Wednesday, 25 February 2009 to
meet with Mr Parer or Mr Kidd to advance matters between
Mr Pantaloni and
Mr Rousseau.
- On
24 February 2009, the plaintiff caused its lawyers to write to
Mr Pantaloni about unpaid outstanding invoices. They were
Invoice
7158 in an amount of $73,916.60 for work and labour done and
materials supplied up to 23 January 2009 under the contract and
Invoice
7174 for work, labour and materials supplied and provided up to
28 February 2009 in an amount of $71,019.00. Although the letter
is dated
24 February 2009, I infer that Invoice 7174 related to work to be done
up to 28 February 2009. In that letter, the solicitor
said
this:
Mr Yannick Pantaloni
Arc En Ciel
(etc as at [89] above)
We are the Brisbane lawyers for BSE [the plaintiff]
...
...
Despite your numerous assurances made orally to our client’s
representatives and by emails as recently as 29 January, 9 and
17 February 2009 that all charges would be paid by immediate bank transfer
to [the plaintiff’s] account, we are instructed
that no payment has been
received. In particular, during your phone call with Gary Kidd of BSE [the
plaintiff] on 9 February 2009,
you clearly stated that the funds were now
available to pay the charges owing to BSE; the payment would be transferred to
BSE’s
bank account by tomorrow (ie 10 February 2009); and you would
be in Brisbane on Wednesday 11 February to resolve any further issues
in
respect of the ongoing work required to be conducted by BSE on the vessel.
Similar assurances were repeated in your email communications
with BSE dated
12 February 2009 (re-sent to BSE on 17 February).
Despite your clear assurances, none of these events have taken place and no
payment has been received. BSE requires the immediate
resolution of the present
situation and demands clear evidence as to the present ownership of, and
responsibility for, the vessel.
Our client has also been instructed by the owner of the vessel, SNC Aremiti ...
not to undertake any further work in respect of the
vessel. You have also
informed BSE’s representatives that the issues between you and the owner
had been resolved. ...
- The
plaintiff told Mr Pantaloni that no further work would be undertaken until
all charges had been paid.
- On
24 February 2009, Mr Pantaloni telephoned Mr Kidd and protested
about engaging lawyers on the issue. Mr Kidd says that Mr Pantaloni
said he understood that slipping charges would accrue although Mr Pantaloni
could not understand some of the other costs. Mr Pantaloni
said that he
would pay the account and take the vessel to another repairer to finish the
work. On 25 February 2009, Mr Kidd attempted
to contact
Mr Pantaloni and eventually discussed the outstanding accounts with him.
Mr Kidd says that Mr Pantaloni acknowledged
in the telephone
conversation that all items had been properly claimed but said that he would pay
the outstanding accounts and take
the vessel elsewhere to finish the repair work
to the ship. Mr Pantaloni sought to explain all of his efforts to arrange
finance
through the ANZ Bank and the other difficulties of his negotiations and
that further negotiations were taking place with Valeinco.
Mr Pantaloni
said that he had taken steps to arrange a meeting in Brisbane on 26 February
2009 and the ship’s captain would
be representing him. Mr Pantaloni
said he would be arriving in Brisbane on 28 February 2009.
- On
27 February 2009, Mr Kidd received a further email from
Mr Pantaloni explaining the position arising out of the meeting on
26
February 2009 and particularly Mr Pantaloni’s engagement in
the process. The email is in these terms:
Dear Gary,
... Valeinco is fully aware of the situation.
Mr Rousseau’s visit to Brisbane was planned to secure the payments
necessary for the boat work. Following Valeinco’s
intervention, the bank
Société Générale confirmed to Valeinco that they
will pay the cash directly to
Prestige Marine to the condition that I accept
that the bank takes a mortgage on my personal properties. I have accepted.
All the documents were given to the bank Wednesday. Our solicitor confirmed
that everything could be ready within 48 hours. The
money was supposed to be on
the account today. But I am still waiting. That is the reason why I
can’t be in Brisbane Sunday
evening. I hope to sign all the paperwork on
Monday, and fly to Brisbane Tuesday.
Yannick PANTALONI
ARC EN CIEL SERVICE
(etc as at [89] above)
- On
20 March 2009, Mr Kidd sent an email to Mr Pantaloni noting that
he was taking steps to arrange for other people to complete the
work on the
ship. On 20 March 2009, Mr Pantaloni responded and said that for the
last two months the boat had been stationed in
Brisbane and he had made
enquiries of 15 people/companies to take up offers of service to do work on the
ship. Mr Pantaloni said
that he would be flying to Brisbane; would like to
discuss some “interventions that we find very expensive” but hoped
to strike an arrangement with the plaintiff.
- On
24 March 2009, the plaintiff’s representatives held a meeting with
Mr Pantaloni. Mr Kidd was present. Mr Pantaloni made
an offer
to pay an amount of money to secure cancellation of the contract to re-fit the
ship. He would then take the ship elsewhere
for work to be done. On
30 March 2009, Mr Kidd visited the site where the ship was located and
observed a large number of workers
repairing the vessel with
Mr Pantaloni’s staff (captain and crew members) issuing instructions.
- Mr Kidd
says that on 2 April 2009, the plaintiff took steps to issue proceedings
and arrest the ship. He also says that after the
plaintiff received the letter
from SNC Aremiti’s lawyers on 16 January 2009 Mr Pantaloni said
that “he was the charterer
of the vessel”.
- The
point of all these exchanges referred to in the affidavit of Mr Kidd is to
provide foundation facts upon which Mr Kidd ultimately
swears in his
affidavit that he was in no doubt that Mr Pantaloni by his actions was at
all material times in control of the ship
Aremiti 4. By his
conduct, Mr Kidd understood that at all times Mr Pantaloni acted as
the person exercising control and dominion over the
vessel. Mr Kidd
contends that Mr Pantaloni said that “he was the charterer of the
vessel at the time that the action was commenced”
although the affidavit
does not make at all clear to whom Mr Pantaloni said those words or when.
- Mr Pantaloni
has filed two pleadings in the proceeding. In his first defence filed on
30 June 2009 he denied entering into a contract
with the plaintiff on
5 January 2009 and said that he entered into a contract with the plaintiff
on 15 January 2009 as evidenced
by the form he signed on that date. He did
not contend that he did so for and on behalf of anybody other than himself. In
his Amended
Defence filed on 9 October 2009 he asserted that he entered
into the contract on behalf of the time charterer, Prestige. He deposes
to that
assertion at para 5 of his second affidavit sworn and filed by leave on
8 March 2010. No foundation facts are deposed to
by Mr Pantaloni as
to the basis of an express agency or those facts which would support the
asserted conclusion that Mr Pantaloni
was acting for and on behalf of
Prestige at all material times. The slipway form was signed by
Mr Pantaloni as customer with no
other notation or endorsement of any other
capacity or any contended principal. Mr Pantaloni does not swear that at
the time of
signing the slipway form or discussing the engagement of the
plaintiff with officers of the plaintiff on 15 January 2009 that he
said
that he was acting for and on behalf of Prestige Marine SARL or Arc En Ciel.
- It
may be, of course, that Mr Pantaloni was on 15 January 2009 in
contracting with the plaintiff, acting as an agent for an undisclosed
principal.
If so, the undisclosed principal may sue and be sued on the contract made by the
agent on his behalf acting within the
scope of his actual authority. In
entering into the contract, the agent must intend to act on the
principal’s behalf. The
agent of an undisclosed principal may also sue
and be sued on the contract. The contract itself, or the circumstances
surrounding the contract, may show that the agent is the true and only
principal: Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199
at 207 [D] per Lord Lloyd of Berwick on behalf of their Lordships constituting
the Privy Council.
Findings
- I
find for the purposes of the jurisdiction question that Mr Pantaloni
entered into a contract with the plaintiff on or about 15
January 2009 by
which the plaintiff agreed to provide work and labour and supply materials to
the ship Aremiti 4 to re-fit the ship and the claim arising out of
the provision of that work and labour and the supply of those materials falls
within
s 4(3)(m) or (o) of the Admiralty Act . I find that
Mr Pantaloni did not disclose on or about 15 January 2009 that he was
acting for or on behalf of any other person or
entity. I find that
Mr Pantaloni is a person who may be sued by the plaintiff on the contract
in respect of a general maritime claim
and that Mr Pantaloni would be
liable to the plaintiff in an action in personam on the contract
claim on the assumption or hypothesis that the plaintiff establishes the pleaded
facts upon which the claim rests.
I find that Mr Pantaloni is a
“relevant person” within the definition of that term in aa1988115 /s3.html" class="autolink_findacts">s 3(1)
of the Act. It is not necessary for the purposes of determining the issue of
jurisdiction to find whether Mr Pantaloni was acting
for an undisclosed
principal. That matter will be relevant to the plaintiff’s claim against
an undisclosed principal should
it be made or against Arc en Ciel should it be
joined. I find however that no principal was disclosed by Mr Pantaloni on
entering
into the contract.
- The
cause of action upon which the claim rests is an action for monies due and owing
pursuant to the terms and conditions of the
contract for work and labour done
and materials supplied to the ship. The cause of action crystallises upon
breach. I find, having
regard to Mr Kidd’s evidence and the letter
from his lawyers to Mr Pantaloni, that by 2 April 2009 at the latest,
the cause
of action had crystallised or arisen for the purposes of s 17(a)
of the Act. I find having regard to Mr Pantaloni’s engagement of the
plaintiff to undertake a re-fit of the ship; his apparent
decision-making role
concerning work to be done to the ship and the nature of that work; his
extensive commercial dealings in relation
to the ship concerning finance
arrangements and negotiations for purchase; and steps taken to arrange
inspection of the ship by Mr
Rousseau and others that Mr Pantaloni was
asserting control over the ship. That assertion of control subsisted from at
least 15
January 2009 until at least 2 April 2009. I also find that
Mr Pantaloni was either “in possession” of the ship or in
control of the determination or selection of which person or entity was in
possession of the ship throughout the same period. I
find that
Mr Pantaloni was a relevant person in possession or control of the ship
when the cause of action arose. Consistent with
that earlier control was
Mr Pantaloni’s payment of the amount of the claim into Court to
secure the ship’s release on
7 April 2009.
- The
cause of action as pleaded is either meritorious or not. It is to be subject to
a cross-claim yet to be pleaded by Mr Pantaloni.
It is not necessary to
find, in determining whether Mr Pantaloni was when the cause of action
arose a relevant person in possession
or control of a ship, to find that the
plaintiff’s cause of action is meritorious. It is sufficient that the
contended facts
give rise to a recognised cause of action sounding in a general
maritime claim within s 4(3) of the Act albeit subject to a cross-claim or
potentially an equitable set-off by way of defence when pleaded. A question
might
arise as to whether a cause of action subsists in the plaintiff at all for
the purposes of s 17(a) if a defence answering the claim is shown to be
meritorious. At that point, a claimant does not have an unmeritorious or
unsuccessful
cause of action, but no cause of action at law at all. Whilst a
finding of putative liability rather than actual liability is required
by
s 3(1) in determining whether a person is a “relevant person”,
the first limb of s 17 might be thought to require a finding that an actual
cause of action exists before a finding can be made that the relevant person
was
in control of the ship at the moment in time when the cause of action arose.
However, that question was not argued in this case.
In any event, it seems to
me that the section addresses a contended cause of action having regard to the
intersection between the
definition of relevant person in s 3(1) and
s 17(a) of the Act.
- It
is however necessary to find that when the contended cause of action arose,
Mr Pantaloni was in possession or control of a ship.
I find for the
reasons indicated earlier that s 17(a) of the Act is satisfied by reason of
Mr Pantaloni’s control of the ship during the period from at least
15 January 2009 to
at least 2 April 2009 during which period the cause
of action arose.
- Section 17(b)
of the Act, however, is not satisfied.
- I
am not satisfied that Mr Pantaloni was the owner of the ship on
2 April 2009 notwithstanding that he was exercising control over
the ship
and purporting to engage in a range of commercial activities and negotiations
relating to the ship reflected in the evidence
of Mr Kidd.
Mr Pantaloni was not an owner in the sense of enjoying any beneficial
interest in the ship capable of perfection by
a remedial order and did not enjoy
any other proprietary interest in the ship. Mr Pantaloni was thus not an
owner of the ship in
the sense described in Kent v SS “Maria
Luisa” (No. 2) [2003] FCAFC 93; (2003) 130 FCR 12 or Tisand Pty Ltd v The
Owners of the Ship MV Cape Moreton [2005] FCAFC 68; (2005) 143 FCR 43 and the
authorities discussed in those cases in the passages referred to at [63] to [67]
of these reasons. However, I accept that
when the plaintiff commenced its
proceeding it acted on the basis that Mr Pantaloni was behaving as
if he enjoyed a proprietary interest in the ship and was taking steps to
perfect his apparent interest and establish legal ownership
of the ship. In
that sense, I accept that the plaintiff acted in good faith in commencing its
proceeding and arresting the ship.
- Mr Pantaloni’s
conduct leading up to and including 2 April 2009 might ultimately be shown
to have been conduct expressly authorised
by Prestige or conduct falling within
the actual authority of Mr Pantaloni as Managing Director of Prestige.
That conduct would
not render Mr Pantaloni constructively the owner of the
ship on 2 April 2009. It would render the conduct of Mr Pantaloni
conduct
upon which the principal, undisclosed at the date of the contract, would
be liable if a claim pleaded against Prestige’s agent
succeeds thereby
overcoming any defence or cross-claim to be filed. However, the plaintiff does
not contend that Prestige Marine
SARL is a relevant person for the purposes of
aa1988115 /s17.html" class="autolink_findacts">ss 17 or 18 of the Admiralty Act and Mr Pantaloni is not, on the
evidence, the owner of the ship for the purposes of s 17 of the Act.
- On
16 January 2009, the solicitors for SNC Aremiti wrote to the plaintiff
putting the plaintiff on notice that it was the owner of
the ship; that Prestige
was the charterer of the vessel until 8 January 2009; and that it would not
be responsible for any costs
and expenses incurred by the plaintiff in
undertaking any repairs to the ship. After 16 January 2009 the plaintiff
dealt with Mr
Pantaloni on the footing described at [107] of these reasons.
- Mr David
McEachern, the solicitor for the plaintiff, swore an affidavit filed
19 February 2010 in support of the plaintiff’s
motion to join Arc
en Ciel Voyages as the fourth defendant in the proceeding. It may
ultimately be shown that Mr Pantaloni was acting for and on behalf of Arc
en Ciel
Voyages at all material times if a claim is made on that basis. That is
a matter to be determined in the course of hearing the principal
claim on the
contract and the determination of the facts relevant to the question of whether
Mr Pantaloni was acting for Prestige
as he contends or Arc en Ciel Voyages
as the plaintiff appears to want to contend should the latter entity be joined
as a party.
Mr McEachern says in his affidavit that Mr Pantaloni is a
director of Arc en Ciel Voyages which is said to be a limited liability
company
registered in New Caledonia.
- As
to s 18 of the Act, the plaintiff’s Notice of Dispute of
22 December 2009 did not contest the authenticity of the nominated
documents
and the plaintiff by Order 18, rule 2 is taken to have
admitted the authenticity of the Time Charter Agreement between SNC Aremiti and
the plaintiff dated 28 June 2008
and the Extension Agreement of
8 October 2008 extending the time charter to midnight on 8 January
2009. It may be that Prestige
was holding over beyond the expiration of the
time charter with its agent, Mr Pantaloni, expressly in possession or
control of the
ship for particular purposes such as the re-fit or a sale or
other financing transaction in relation to the ship. It may also be
that the
terms and conditions of the holding over are those terms and conditions of the
contracts described at [70] to [76] of these
reasons. However, in circumstances
where the time charter has simply expired it seems difficult to infer that
Prestige continues
to possess, use or otherwise hold the ship as if the Time
Charter Agreement continued in operation. The plaintiff invites an inference
to
be drawn that SNC Aremiti must have agreed to Mr Pantaloni’s
continuing possession, use and control of the ship notwithstanding
that it did
not accept any liability for expense, loss or damage arising out of that
possession, use or control and that a continuing
obligation arose after
8 January 2009 to look after the ship, summarised at Article 7.1 of
the time charter, as “a very good
father”.
- The
principal difficulty is this. At no stage has Mr Pantaloni been the time
charterer of the ship. Section 18 of the Act requires the plaintiff, in a
challenge to jurisdiction, to show on the balance of probabilities that the
contended relevant
person was the “demise charterer” of the ship
when the proceeding was commenced. It may be that Prestige is properly
characterised as a “demise charterer” having regard to the terms and
conditions of the agreement. In Patrick Stevedores v Turakina (1998) 154
ALR 666 at 671, Tamberlin J
observed:
A charter by demise is one by which the owner parts [with] the whole possession
and control of the ship and gives the charterer a
power and right independent of
him and without reference to him to do what he pleases with regard to the
appointment and employment
of crew ... [a] charter by demise operates as a lease
of the ship itself to which the services of the master and crew may or may
not
be super-added.
A time charter, which is not by demise, in contrast, is an agreement between
ship owner and charterer to render services by the ship
owner’s master and
crew to carry the goods, which are put on board a ship by or on behalf of the
charterer. In these charters,
the ownership and also possession of the ship
remain with the original owner through the master and crew, who continue to be
his
servants.
- Under
the terms and conditions of the time charter, Prestige does enjoy significant
rights of control over the ship. The choice
of captain and chief engineer
however must be approved by SNC Aremiti, the ship’s registered owner.
That gives rise to the
question of whether the charterer enjoys “a power
and right independent of [the owner] and without reference to [the owner]
to do
what he pleases with regard to the appointment and employment of
crew”.
- In
any event, the question of whether Prestige is properly characterised as a
demise charterer of the ship is largely irrelevant.
Mr Pantaloni is the
nominated relevant person. He has never been a charterer or demise charterer of
the ship and even if “holding
over” gives rise to a continuing time
charter on the same terms and conditions as that which expired by 9 January
2009, the
holding over must be taken to be that of Prestige. Although there is
authority that a demise charter does not subsist after termination
of the
charter party by the owner (CMC (Australia) Pty Ltd v Ship “Socofl
Stream” [1999] FCA 1419; (1999) 95 FCR 403 at 419 [28] per Moore J, a
contrary view has been expressed by Finkelstein J in ASP Holdings v Pan
Australia Shipping [2006] FCA 1379; (2006) 235 ALR 554 at 558 [14] and [15].
- Accordingly,
Mr Pantaloni was not a demise charterer of the Aremiti 4 on
2 April 2009 or at any other time.
- It
follows that the plaintiff was not entitled to commence a proceeding on its
general maritime claim as an action in rem against the ship pursuant
to s 17 of the Admiralty Act and nor was it entitled to commence a
proceeding in respect of that claim as an action in rem pursuant to
s 18 of the Act. Since the proceeding was commenced beyond jurisdiction,
the prima facie orders to be made are that the security given
by
Mr Pantaloni to obtain the release of the ship ought to be discharged and
the writ set aside: Nautilus Australia Ltd v The Ship “Rossel
Current” [1999] QSC 39 at [18] per Ambrose J.
- In
this case, Mr Pantaloni appeared to the writ. He did not file a
conditional appearance in accordance with the Federal Court Rules
although it is clear from the steps taken in the proceeding that
Mr Pantaloni sought to agitate and thereby preserve the right to
contend
that the jurisdiction of the Court was not properly enlivened by the proceedings
commenced on 2 April 2009 as an action in rem. Whilst that is
so, it is clear that Mr Pantaloni engaged in the proceeding beyond the
question of whether the jurisdiction was
properly enlivened. He delivered a
Defence to the general maritime claim on the contract on 30 June 2009
contesting the elements
of the controversy as to the claim itself. On
31 August 2009, Dowsett J joined Mr Pantaloni as a party. On
11 September 2009, the
plaintiff filed and served an Amended Statement of
Claim as against Mr Pantaloni and on 9 October 2009, Mr Pantaloni
filed an Amended
Defence.
- The
proceeding is not properly enlivened as an action in rem. However,
the proceeding properly subsists as an action in personam by which
the plaintiff makes a claim against Mr Pantaloni in respect of a maritime
claim which includes a general maritime claim pursuant
to s 4(3)(m) or (o)
of the Act on the contract. That claim is within the jurisdiction of the Court
conferred by s 9 of the Admiralty Act . The proceeding so far as it seeks
to maintain an action in rem against the ship is to be struck out.
The proceeding so far as it seeks to maintain an action in personam
against Mr Pantaloni ought not to be struck out.
The Mareva orders or Freezing orders or Asset Preservation orders
- The
further question that arises is whether an order ought to be made constraining
the removal from the jurisdiction of the monies
paid into Court by
Mr Pantaloni consequent upon an orthodox order that those monies be paid
out of Court to Mr Pantaloni in discharge
of the security. Order 25A
of the Federal Court Rules and Practice Note CM9 which address the
principles on which the Court will make a freezing order are well known. Such
orders are
made for the purpose of preventing the frustration of the
Court’s process by seeking to meet a danger that a prospective judgment
will be wholly or partly unsatisfied. If there is such a danger, an order may
be made restraining a respondent from removing assets
from the jurisdiction or
generally disposing of, dealing with or diminishing the value of those assets.
The Court might also make
an ancillary order for the purpose of eliciting
information relating to assets or in order to determine whether a freezing order
should be made.
- The
Court must be satisfied that the applicant has a good arguable case on an
accrued cause of action justiciable in the Court and
that having regard to all
the circumstances there is a danger that the monies within the jurisdiction will
be removed from the jurisdiction
leaving a prospective judgment at least partly
unsatisfied. The circumstances relied upon by the plaintiff are these. The
claim
is a maritime claim against a person who brought a ship into the
jurisdiction for a specific purpose. Secondly, there is a serious
question to
be tried on the contract claim and in the event that the facts pleaded as to the
maritime claim under the contract are
established, there is a good arguable case
of breach of contract in the failure of Mr Pantaloni to pay debts due under
the contract
albeit that the claim is subject to a cross-claim to be pleaded.
Thirdly, SNC Aremiti and Arc en Ciel Voyages are both New Caledonian
corporations and not present within the jurisdiction. Fourthly,
Mr McEachern at paras 5, 6 and 7 of his affidavit filed
19 February
2010 says this:
- I
apprehend that if the money is released, it will be removed from Australia, or
disposed of, or dealt with, or diminished in value.
- But
for the money paid into Court, I believe there are no assets within the reach of
the jurisdiction of this Honourable Court that
could be used to satisfy
judgment.
- I
apprehend that if a freezing order is not granted and the monies held are
released, that any judgment made in this matter will be
frustrated.
- Plainly
enough, money is highly portable electronically. Once the monies paid into
Court are paid out of Court to Mr Pantaloni’s
solicitors, they will
become subject to the client’s instructions and may be readily transferred
out of the jurisdiction.
I am willing to infer from the very nature of the
asset, its susceptibility to removal out of the jurisdiction. The portability
of the funds gives rise to a danger that a prospective judgment may be at least
partly unsatisfied because of the ease of removal
from the jurisdiction.
Mr Pantaloni does not reside within the jurisdiction. His communications
reflected in the evidence before
the Court were generated from 59 Avenue du
Marechal Foch in New Caledonia. He entered the jurisdiction from time to time
only in
connection with the ship or to visit the ship with others.
Mr McEachern’s brief affidavit asserting beliefs and conclusions
does
not depose to searches conducted to determine whether Mr Pantaloni owns
land within the jurisdiction. However, having regard
to all the circumstances
in which the claim is now made arose, I am willing to infer that there is a
danger that should the monies
be released to Mr Pantaloni pending the
determination of the plaintiff’s good arguable case, a prospective
judgment will be
defeated in the sense of being left either wholly or partly
unsatisfied by the risk of removal of the monies from the jurisdiction.
- Orders
made by the Court under Order 25A are the expression within the Federal
Court Rules of the power conferred upon the Court by s 23 of the
Federal Court of Australia Act 1976, in relation to matters in which it
has jurisdiction, “to make orders of such kinds, including interlocutory
orders, ... as
the Court thinks appropriate”.
- The
real question is whether in the exercise of discretion an interlocutory order
ought to be made in terms of a freezing order pending
the determination of the
maritime claim in the proceeding as an action in personam against
Mr Pantaloni attaching, in effect, monies Mr Pantaloni brought into
the jurisdiction and paid into Court consequent upon an
action
in rem commenced beyond the jurisdiction of the Court and paid into
Court solely for the purpose of releasing the ship, which ought not
to have been
arrested. One principle to be considered in the exercise of the discretion
ought to be that in proceedings beyond jurisdiction
the party bearing the burden
of the order ought to be put back in the position he or she enjoyed prior to the
plaintiff invoking
improperly the Court’s remedial orders. Applying that
principle in this case, the in rem action would be struck out and
the monies Mr Pantaloni paid into Court to secure the release of the ship,
would be paid to him unconstrained
by any security or freezing order in support
of the in personam claim. A further consideration is the notion
that proceedings in Admiralty by way of an action in rem commenced
to enforce an owner’s liability or that of a demise charterer enabling the
arrest of a ship are intended to facilitate
the proper enforcement of the
liabilities of those relevant persons, not to enable pressure to be put upon an
owner of a ship who
is not liable for the conduct of another: Shell Oil
Company v The Ship “Lastrigoni” [1974] HCA 27; (1974) 131 CLR 1 per
Menzies J at 6.
- If
the owner of the ship had, by reason of the arrest consequent upon the action
in rem, paid monies into Court to secure the release of the ship
improperly arrested in an action beyond jurisdiction in respect of a liability
asserted against another (in this case Mr Pantaloni) there would simply be
no doubt but that the appropriate orders are the setting
aside of the writ and
the release of the security to the owner. However, Mr Pantaloni paid
monies into Court in a proceeding which
by reason of his joinder and election to
plead to the cause of action based on the contract he made, has proceeded as
both an action
in rem, improperly commenced, and an action
in personam. The arrest of the ship occurred in furtherance of the
action in rem and resulted in a substitute fund to satisfy a
successful claim against the ship. Neither the ship nor the substitute fund is
susceptible
of arrest or continuing preservation in aid of an action
in personam since the very essence of the in rem
proceeding in the “special jurisdiction sometimes called Admiralty and
sometimes called maritime jurisdiction” (The Owners of the Ship
“Shin Kobe Maru” v Empire Shipping Company Inc. (1994) [1994] HCA 54; 181
CLR 404 by the Court at 424) is an action against the res itself.
Since the remedy of arrest is an aspect only of the action in rem,
the failure of the action against the ship operates so far as the action
in rem is concerned to bring about the release of the security fund.
That, however, does not axiomatically exhaust the remedial orders of
the Court
in an appropriate case in respect of the action in personam. For
example, a Mareva injunction might be appropriate in aid of the primary
cause of action in the in personam proceeding: The Rena K
[1978] 1 QB 377; Patrick Stevedores v MV Skulptor Konenkov
(1996) 64 FCR 223 at 236 and 237 per Sheppard J.
- In
this case having regard to the portability of the funds and the matters
described at [119] to [124] of these reasons, I am satisfied
that a freezing
order ought to be made so as to prevent the frustration of the Court’s
process and meet a danger that a prospective
judgment will be wholly or partly
unsatisfied. The monies however ought to be released to the solicitors for the
first defendant
to be held in the trust account of those solicitors or
alternatively placed on investment in the names of both the solicitors for
the
first defendant and the solicitors for the plaintiff pending the determination
of the in personam action.
The particulars
- As
to the particulars, the plaintiff was required by the order of Collier J of
27 November 2009 by consent to file and serve an Amended
Statement of Claim
particularised pursuant to the first defendant’s request served on
15 October 2009, by 21 December 2009.
Counsel for Mr Pantaloni
contends that para 4 of the request has not been properly particularised.
It provides:
- As
for all of the three (3) invoices, with respect to each item of work referred to
in the column headed “description”
give the following particulars:
–
(a) the labour carried
out;
(b) the person or persons by whom this labour was carried
out;
(c) the date the said labour was carried out;
(d) at what rate the labour is claimed;
(e) identify each item of material or equipment supplied and/or
hired;
(f) the dates on which each piece of equipment and materials were supplied,
hired or installed;
(g) the costs of each item of supply and/or hire;
(g) if any labour, material, service or equipment was supplied by a third party,
identify the third party and supply invoices for
the supply of such labour,
material or equipment and state which of the said invoices have been paid.
Further, supply the date of
such payment and identify those invoices that have
not been paid.
- The
numbering of the second subparagraph (g) is clearly a typographical error.
It will be referred to as subparagraph (h).
- The
response was given on 23 December 2009 in these terms:
- Attached
are tax invoices 7158, 7174 and 7212, including spreadsheets containing
particulars. Those items requested and not included
in those spreadsheets are
currently being sought by the plaintiff including details on third parties.
- The
first respondent says it needs the particulars to identify the basis of each
claim; avoid ambush and plead both its defence and
cross-claim. The real
complaint is that the plaintiff simply again provided copies of the invoices and
particular spreadsheets which
is criticised as not a proper or specific response
to the request leaving the first defendant to work out the particularity of the
claim for itself. The plaintiff says that the particulars sought by the request
are improper as they seek evidence of the claims
contained in the invoices and
not particulars of the claims. The plaintiff says the response of
23 December 2009 was confined to
those particulars which the plaintiff
believed on advice were proper particulars pursuant to a proper request.
However, no objection
was taken by the plaintiff to any aspect of the request on
the ground that the request sought evidence rather than particulars and
the
plaintiff consented to the order before Collier J. The plaintiff now says
that to the extent that the request sought evidence
rather than particulars, it
does not come within the ambit of the order and thus the plaintiff has not
failed to comply. Brisbane
Slipways says that it provided particulars of
subparagraphs (a), (c), (d) and (h) by way of schedules attached to its
response.
It says that subparagraphs (b) and (e) are the subject of a
request for evidence. The plaintiff does not specifically address
subparagraphs
(f) or (g).
- Mr Pantaloni
contends that the method of providing the particulars requires him and his
advisors to search through the schedules
and “if you’re really
careful you might be able to find some answers to some of the questions buried
amongst the papers”:
Transcript 16, L33-34.
- There
is some merit in this criticism although by carefully reading the schedules it
is possible to identify a considerable body
of detail. For example, the first
invoice is Invoice No. 7158. Particulars of that invoice have been
provided by a schedule which
sets out 20 columns. Those columns describe the
item number in the invoice, the job description for the item, comments in
relation
to the item, the quantity related to the calculation (for example if
work was undertaken for a week the quantity reflected shows
a number such as 2;
where the work involved daily work the quantity shows a number), the unit
(whether it was a day or week etc);
the rate, the price, the quoted price, the
component of the price which was not quoted and a total. The remaining columns
are headed
(a), (b), (c), (d), (e), (f), (g) and (h) to correspond with the
elements of the request.
- For
example, in respect of the item “haul up and down” in Invoice
No. 7158, the first defendant asks for particulars
of the labour carried
out. The schedule directs the reader to the comments column which says
“dry dock vessel and return”
which addresses request (a). The
amount charged for the identified period 17 January 2009 to 30 January
2009 is $8,650.00. The
date in the schedule addresses request (c). The
plaintiff refuses to provide particulars of request (b) concerning the
person or
persons who undertook the work of placing the ship in dry dock and
returning it from dry dock as that is said to constitute evidence.
The rate
charged is shown in column (d) as per the quote. Request (e) for that
item is a request to identify each item of material
or equipment supplied and/or
hired and by column (e) the reader is directed to another invoice.
Column (f) is uncompleted as the
date for the dry docking of the vessel and
return is shown on the schedule otherwise. The cost of dry docking is shown in
column
(g) and column (h) identifies the party that engaged in the
activity as “Brisbane Ship Lifts”. The date of supply (presumably
of the invoice from Brisbane Ship Lifts is shown as 9 February 2009). The
second last column shows that the item is paid and the
last column shows the
date of payment. To take another example, Invoice No. 7158 contains
Item 1.13 described as “unloading
and loading ships gear”.
That item shows in the schedule a price of $6,800.00 by reference to a comment
of “removing
and moving ship’s gear”. The period is
17 January 2009 to 30 January 2009 and is cross-referenced to another
schedule
which identifies for the period 15 January 2009 to 29 January
2009, work undertaken on 18 January 2009 and 19 January 2009, the
number
of men who undertook the work, the rate at which the work was charged,
the classification of the individuals, the name of the individuals,
the charges
broken down by individual and the total amount for that particular item.
- The
same is true of Item 1.12 described as “HP wash hull” which is
described in the comments as “high pressure
hull wash” and the
components of that charge are broken down in a further schedule by the number of
days, the dates, the number
of men, the charge rate, the rate per man, the
classification of the man and the name of the individual with a total shown of
$8,660.50.
- It
is therefore not true to say that if you are really careful you might be able to
find some answers to some of the questions.
Any fair-minded effort in examining
the schedules will direct the reader to a considerable body of information in
relation to each
invoice.
- However,
the plaintiff willingly accepted the burden of an order to provide particulars
in response to para 4 of the request and
now wants to take the position
that any inadequacy in the provision of particulars or an election on its part
not to provide particulars
pursuant to parts of para 4 of the request is
proper as the request is improper. The plaintiff ought not to have consented to
the
order if it proposed not to provide all of the particulars requested. It
ought to have brought on a directions hearing to vary the
order to relieve it of
the burden of compliance with the order as framed. Compliance or otherwise with
a Court order is not a discretionary
matter according to the variability of the
views of the party.
- I
accept that the plaintiff has complied with request (a). I accept that
request (b) goes to matters of evidence and in any event
discovery of
documents will provide details of those matters. I accept that request (c)
is satisfied as is request (d). Request
(e) has been answered from
time to time by cross-referencing to invoices from a supplier to the plaintiff.
The plaintiff ought to
provide particulars in response to request (e) by
providing copies of the relevant invoices in respect of each item where
applicable.
That obligation is consistent with the obligation the plaintiff
undertook by agreeing to the orders made before Collier J.
- The
plaintiff ought not to be relieved of the discipline of doing, in accordance
with the order, what it said to the Court it would
do. The particulars provided
pursuant to request (f) are adequate. So too are particulars provided in
relation to request (g).
- Request (h)
however has been more controversial. The first defendant says that the
plaintiff in very many respects has not undertaken
the work at all and that
third parties have taken steps and provided materials and labour to and in
respect of the ship at the request
of the plaintiff. The first defendant says
that the plaintiff is seeking to claim against him monies not due because the
work, labour
and materials were supplied and provided by someone else. The
plaintiff claims amounts said to be due and owing pursuant to its
contract with
the first defendant. In the bilateral contractual arrangement between those
parties monies are either due and owing
for work the subject matter of the
contract or not. It may be that agents, subcontractors or third parties
actually engaged in work
and services concerning one or more of the items which
required work and labour and material to be provided under the contract.
The
contractual relationship the plaintiff has with each of its agents,
subcontractors and other parties is a bilateral matter between
the plaintiff and
each of those parties. The first defendant seeks to resist the
plaintiff’s claim on the footing that work,
labour and materials were not
supplied and provided in conformity with the contract. It resists the claim on
the contract with the
plaintiff on the footing that work, labour and materials
were supplied to the ship by agents or subcontractors to the plaintiff or
third
parties to the contractual relationship between the plaintiff and the first
defendant. The plaintiff is required to provide
particulars of the work and
labour done and materials supplied to and in respect of the ship pursuant to its
contract with Mr Pantaloni
and it might do that by providing copies of
invoices of work undertaken by its agents or subcontractors which identify the
scope,
nature and dates of that work and supply of materials.
- The
request as framed is too broad in principle. It seeks information as to whether
the plaintiff has paid agents or subcontractors
which is not relevant to the
real question on the pleadings of whether work was done by the plaintiff (either
by its employees, servants,
agents, contractors or otherwise) pursuant to the
contract with the first defendant which has given rise to a proper claim under
the contract. Mr Pantaloni seems to contend that if the contract price to
him (based on the quoted rates and prices) is greater
than the cost to the
plaintiff of the acquisition of services or materials from the plaintiff’s
suppliers or subcontractors,
the plaintiff is required under the contract to
charge the first defendant the plaintiff’s acquisition cost rather than
the
contract price in respect of each item of work, labour and materials
supplied. The precise formulation of the first defendant’s
cross-claim is
not clear as the material facts have not yet been pleaded. It may be contended
that the terms and conditions of the
contract required the plaintiff to pass on
under the contract the actual costs or supply side prices incurred by the
plaintiff in
respect of particular work undertaken by contractors to it. That
remains to be seen. Some particulars framed, for example, as
“subcontractor
access fees” suggest simply a pass on of some items.
- So
far as the plaintiff’s claim is concerned, particulars of what was done or
supplied is to be provided to the first defendant.
Documents relevant to
whether work was done or not are likely to be discoverable if the contest is
whether work was done or not.
The scope of disclosure will become more clear
once Mr Pantaloni delivers an Amended Defence and Counter-Claim in the
proceeding.
- Since
the plaintiff accepted an obligation under the earlier order of providing
particulars consisting of the identification of each
third party supplier to the
plaintiff and invoices rendered by third parties to the plaintiff for the supply
of labour, materials
or equipment, the plaintiff ought not to be relieved of the
discipline of providing those particulars. The plaintiff, as a matter
of proper
particulars, ought not to be required to say whether supply side invoices have
been paid, the date of payment and whether
particular invoices have not been
paid. Of course, to the extent that any of the existing particulars (such as
the one previously
mentioned) suggest that an element of the plaintiff’s
claim is the contractual recovery of “out-of-pocket expenses”
incurred by the plaintiff in performing the contract to be passed on under the
contract simply as recoupment, Order 12, rule 4(1)
of the Federal
Court Rules requires the plaintiff to give “particulars of those
monies” which would involve identification of the invoices, the work,
the
date of the work and whether the invoice for that category of expenses is paid
or not.
- Absent
that consideration, the plaintiff is required to tell the defendant what work
was done (labour and materials) by it under
the contract, when it was done and
how the invoice for the work was calculated, whether that work was done by the
plaintiff by its
employees or whether the plaintiff secured the performance of
the contractual work by contracting for the performance of that work
with
subcontractors. When third parties did that work, they were standing in the
shoes of the plaintiff.
- Having
regard to these considerations, the discretion ought not to be exercised in a
way which orders the striking out of the Further
Amended Statement of Claim on
the ground of non-compliance with the order of Collier J for the provision
of particulars. The plaintiff
ought to provide further particulars which
reflect the considerations mentioned above and an appropriate order will be
formulated.
Arc en Ciel Voyages
- A
further question concerns whether Arc en Ciel Voyages ought to be joined as a
fourth defendant pursuant to Order 6, rule 8 of the
Federal Court
Rules. Order 6, rule 8 is in these
terms:
Addition of parties
8 (1) Where a person who is not a party:
(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is necessary to ensure that all matters
in dispute in the proceeding may be effectually
and completely determined and
adjudicated upon;
the Court may order that the person be added as a party and make orders for the
further conduct of the proceeding.
(2) A person shall not be added as an applicant without the person’s
consent.
- By
the Further Amended Statement of Claim filed on 22 December 2009 the
plaintiff claims $71,013.60 for work and labour done and
material supplied by it
for and on behalf of and at the request of Mr Pantaloni in respect of the
ship pursuant to the plaintiff’s
contract with the first defendant made on
or about 15 January 2009. By para 9 an alternative claim is made
against Mr Pantaloni
in an amount of $59,951.00 and by para 10 the
plaintiff claims relief consisting of a judgment in the alternative in the
amounts
claimed and that the monies paid into Court be paid out of Court to the
plaintiff in satisfaction of the monetary claim as determined
pursuant to the
alternative claims. No cause of action is maintained and the proceeding is not
commenced against either Prestige
Marine SARL or Arc en Ciel Voyages.
- In
the Amended Defence of Mr Pantaloni filed on 9 October 2009 in
response to the earlier Statement of Claim, Mr Pantaloni contended
that
although he signed a Works Agreement with the plaintiff on 15 January 2009
he did so for and on behalf of the then time charterer,
Prestige Marine SARL.
Mr Pantaloni does not contend that he engaged in any conduct on behalf of
Arc en Ciel Voyages.
- Mr McEachern,
the plaintiff’s solicitor, in his affidavit filed 19 February 2010
says that Mr Pantaloni is a director of Arc
en Ciel Voyages which is a
limited liability company registered in New Caledonia. Mr McEachern says
that whilst Mr Pantaloni, as
an individual, signed documents commissioning
work to be done on the ship by the plaintiff, the street address of the company
Arc
en Ciel Voyages was used by Mr Pantaloni and invoices rendered by the
plaintiff are addressed to Arc en Ciel Voyages. It follows,
according to
Mr McEachern, that the “first defendant could be said to have been
acting on behalf of his company Arc en Ciel
Voyages”. Mr McEachern
says that the Statement of Claim has been duly amended to include reference to
that company as fourth
defendant.
- Mr Gary
Kidd exhibits to his affidavit filed 24 September 2009 a number of emails
sent by Mr Pantaloni which bear the signature block
after
Mr Pantaloni’s name of Arc en Ciel or Arc en Ciel Service as
reflected at [89], [90] and [95] of these reasons. In the
plaintiff’s
written submissions, the following observation was made in support of
joinder:
[I]t is possible that because,
by arrangement, the invoices were made out to Arc En Ciel Voyages, he [i.e. Mr
Pantaloni] will seek
to run the argument at trial that they are the party
liable, and judgment is not available against him personally. In his emails
as
annexed to Gary Kidd’s affidavit dated 22 September 2009, Panataloni
[sic] purports to write on behalf of Arc En Ciel, and unless that is
shown to be fraudulent, the Court must assume that Arc En Ciel has
been aware of
the arrangements between the Plaintiff and Mr Panataloni [sic], and thus
does not suffer any prejudice by being joined at this later
stage.
- Mr Pantaloni
contends in his affidavit sworn by leave on 8 March 2010 that “at no
time was I employed by or the agent of the
company Arc en Ciel Voyages nor did I
ever inform anyone that I was an employee or agent of Arc en Ciel
Voyages”.
- Accordingly,
the apprehension is that Mr Pantaloni “could be said to have been
acting on behalf of Arc en Ciel Voyages”,
according to Mr McEachern
and that an argument might be advanced by Mr Pantaloni that he is
not liable on the contract because he was acting at all material times for and
on behalf of
Arc en Ciel Voyages. Mr Pantaloni, of course, does not make
that contention and by his Amended Defence he expressly pleads that
he was
acting for and on behalf of Prestige Marine SARL. The plaintiff does not
advance any contention that it has an arguable cause
of action against Arc en
Ciel Voyages. It does not isolate any particular facts which, for example,
might suggest that Mr Pantaloni
was acting for a disclosed or undisclosed
principal, Arc en Ciel Voyages, that would be liable on the claim under the
contract made
by Mr Pantaloni. Mr McEachern simply puts the matter on
the speculative basis that Mr Pantaloni could be said to have been
acting on behalf of Arc en Ciel Voyages but the plaintiff does not contend that
Mr Pantaloni was so acting.
- It
follows, having regard to the Further Amended Statement of Claim, that Arc en
Ciel Voyages is not an entity that ought to have
been joined as a party in the
proceeding pursuant to Order 6, rule 8(1) for the purpose of any
aspect of the relief sought in the
proceeding. It also follows that Arc en Ciel
Voyages is not an entity whose joinder as a party is necessary to ensure
that all matters in dispute in the proceeding may be effectually and
completely determined and adjudicated upon. The plaintiff does not assert an
arguable cause
of action against the company and Mr Pantaloni does not
contend, on the present pleadings, that he was acting for and on behalf of
Arc
en Ciel Voyages. There is no matter in dispute in the proceeding as to the role
or liability of Arc en Ciel Voyages in relation
to the conduct of
Mr Pantaloni giving rise to the contract and ultimately the claim against
him. It cannot be said therefore that
Arc en Ciel Voyages is an entity the
joinder of which as a party is necessary in order to ensure that all matters in
controversy
are dispositively dealt with. In Comcare v John Holland Rail
[2009] FCA 660; (2009) 109 ALD 508 at 514; [2009] FCA 660 at [13], Jessup J
considered the authorities relating to the expression “all matters in
dispute in the proceeding” and discussed
the observations of
Branson J in Warner Music Australia v Swiftel Communications [2005] FCA 1127; (2005)
67 IPR 27 at 29 and 30; [2005] FCA 1127 at [13]. After discussing the
authorities, Jessup J in Comcare said
this:
I also agree that it will not be sufficient for an applicant seeking joinder
merely to show that he or she has claims against the
proposed respondent which
could not be dismissed as unarguable in the [General Steel Industries Inc. v
Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125] sense. However,
with respect to Branson J, neither do I accept that O 6 r 8 is
concerned only with existing proceedings which are
“improperly constituted
by reason of the failure to join a person as a party”. I consider that
such a view takes too
narrow an approach to the concept of ensuring that all
matters in dispute in the proceeding are effectually and completely determined
and adjudicated upon. It is sufficient for present purposes to say that I
consider that the expression “all matters in dispute
in the
proceeding” extends at least to matters which are placed in dispute by an
existing party and which, if determined in
a particular way, would result in a
finding that another person, rather than the existing party, should be called to
account for
the transgression presently alleged by the applicant.
- Jessup J
took the view that it would not be sufficient for an applicant seeking joinder
to merely show that he or she satisfies the
General Steel test. That
test would at least require the applicant to show that it has a case against Arc
en Ciel Voyages which is not so obviously
untenable that it cannot possibly
succeed; is not manifestly groundless; is not so manifestly faulty that it does
not admit of argument.
Other such considerations under the General Steel
tests are whether the case upon which the applicant relies is a case which
the Court is satisfied cannot succeed; whether the claim
is based on a cause of
action which under no possibility could be good; and whether the case advanced
on the current state of the
pleadings would be manifestly useless.
- With
respect, I agree with Jessup J’s observation that it is not
sufficient to simply demonstrate satisfaction of the kind
of tests discussed in
General Steel as those tests are no substitute for the language of the
rule. The applicant seeking joinder must demonstrate that it seeks to place
in
dispute the factual question whether Mr Pantaloni was acting in a
particular capacity or purporting to exercise authority howsoever
arising on
behalf of another person rather than simply on his own behalf and that Arc en
Ciel Voyages should be called to account
in the proceeding in respect of the
conduct put in controversy so as to ensure that all matters then in dispute
within the proceeding
are completely determined and finally adjudicated upon.
- The
plaintiff does not assert any cause of action against Arc en Ciel Voyages let
alone a cause of action which might satisfy the
tests reflected in General
Steel. The application for joinder is simply a defensive application on the
assumption that Mr Pantaloni may one day seek to say that
he has no
liability on the contract because he was acting for and on behalf of Arc en Ciel
Voyages. In short, no affirmative case
is made against that corporation at all.
If Mr Pantaloni suddenly changed position on that point, inferences might
arise against
him based upon a late change in position and to the extent that
such a change resulted in a conclusion that Arc en Ciel Voyages should
then be
joined as a party, cost consequences would almost certainly arise. If an
affirmative case is to be made, it ought to be
formulated and the foundation
material facts identified and properly advanced in support of a joinder
application.
- Accordingly,
it is not appropriate to join Arc en Ciel Voyages as a fourth defendant.
The orders
- Having
regard to all of these matters, the following orders will be made:
- First,
that part of the proceeding comprising an action in rem against the
ship Aremiti 4 is dismissed as beyond the jurisdiction of the Court
conferred by sections 10 , 17 or 18 of the Admiralty Act 1988 (Cth)
and to the extent that the action in rem proceeds as a claim against
monies paid into Court to secure the release of the ship Aremiti 4,
the claims based upon an action in rem against the fund is
dismissed.
- Secondly,
that part of the proceeding comprising an action in personam against
the first defendant, Yannick Pantaloni, is within the jurisdiction of the Court
conferred by section 9 of the Admiralty Act 1988 (Cth) and proceeds
as an action in personam in respect of a maritime claim for the
purposes of s 4 of the Admiralty Act 1988 (Cth).
- Thirdly,
the plaintiff’s Further Amended Statement of Claim in the proceeding filed
on 22 December 2009 is struck out with
leave granted to the plaintiff to
re-plead its cause of action in personam excising from the
proceeding any aspect of the claim made as an action in rem against
the ship Aremiti 4 or the money paid into Court on 7 April 2009
and leave is granted to file and serve a Further Further Amended Statement of
Claim by
12 July 2010.
- Fourthly,
the plaintiff shall provide particulars of its claim as pleaded by the Further
Further Amended Statement of Claim to the
extent that the amended pleading
pleads claims reliant on the three invoices and credit adjustment note pleaded
in the Further Amended
Statement of Claim filed on 22 December 2009 and the
subject of the particulars given by the plaintiff on 23 December 2009 and
such
further particulars shall identify the particulars sought by para (e)
of the first defendant’s Request for Particulars of 15
October 2009
by providing copies of relevant invoices in respect of each item in the
schedules attached to the plaintiff’s
response of 23 December 2009
where applicable and particulars of each third party supplier to the plaintiff
together with copies
of invoices rendered by third parties to the plaintiff in
respect of the supply of work, labour or materials to the ship pursuant
to the
contract between the plaintiff and Mr Pantaloni.
- Fifthly,
the monies paid into Court by Mr Pantaloni on 7 April 2009 described
by Mr Pantaloni in his Notice of Payment into Court
as $71,030.60
(notwithstanding that the amount of the plaintiff’s claim was $71,013.60)
to secure the release of the ship Aremiti 4 shall be paid out of
Court, together with accretions, to Wellners Lawyers, the solicitors for the
first defendant, Yannick Pantaloni,
to be held by this order in the trust
account of that firm pending the determination of the proceeding or by agreement
between the
parties such monies may be placed on investment in the name of both
the solicitors for the first defendant and the solicitors for
the plaintiff,
Cranston McEachern, pending the determination of the proceeding.
- Sixthly,
neither the first defendant nor the solicitors for the first defendant, Wellners
Lawyers, shall cause directly or indirectly
the monies paid out of Court and to
be held, by these orders, in the trust account of the first defendant’s
solicitors subject
to agreement between the parties to place such monies on
investment in the name of both the solicitors for the first defendant and
the
solicitors for the plaintiff pending the determination of the proceeding, to be
removed from the jurisdiction and the solicitors
for the first defendant,
Wellners Lawyers, shall not pending the trial of the action cause the monies
paid from Court to the trust
account of that firm to be paid out of the trust
account of that firm other than by order of the Court except for the purpose of
establishing the investment account described in these orders.
- Seventhly,
the first defendant is restrained from removing or causing to be removed any
part of the sum of $71,030.60 together with
accretions, if any, from Australia
or from disposing of or dealing with the said sum or any part of it pending the
trial of the action
except for the purpose of considering and if thought fit
agreeing to a joint investment account being established in the name of
the
solicitors for the first defendant and the solicitors for the plaintiff jointly
pending the determination of the proceeding or
earlier order.
- Each
of the orders in relation to the preservation of the fund presently paid into
Court will be conditioned by the plaintiff providing
the usual undertaking as to
damages.
- Eighthly,
the plaintiff’s Notice of Motion for the joinder of Arc en Ciel Voyages as
a fourth defendant is dismissed.
- Ninthly,
the first defendant’s Notice of Motion for an order that the
plaintiff’s Further Amended Statement of Claim
filed on 22 December
2009 be struck out on the ground of the plaintiff’s failure to provide
proper particulars of para 4 of
the first defendant’s Request for
Particulars served on 15 October 2009 is dismissed.
- Tenthly,
the costs of and incidental to the trial of the separate question of
jurisdiction are reserved for further submissions.
- Eleventhly,
the plaintiff shall pay the costs of the first defendant of and incidental to
the plaintiff’s Notice of Motion
for joinder of Arc en Ciel Voyages as a
fourth defendant in the proceeding.
- Twelfthly,
the plaintiff shall pay the costs of the first defendant of and incidental to
the first defendant’s Notice of Motion
for dismissal of the
plaintiff’s Further Amended Statement of Claim on the ground of
non-compliance with the order as to the
provision of particulars.
- Thirteenthly,
the costs of and incidental to the plaintiff’s Notice of Motion seeking a
freezing order in respect of the monies
paid into Court by Mr Pantaloni on
7 April 2009 are reserved for determination upon the conclusion of the
proceedings.
- In
addition, an order will be made that the first defendant deliver a defence and
cross-claim in response to the Further Further
Amended Statement of Claim by 30
July 2010. The proceeding will be listed for directions at 9.30am on Tuesday,
3 August 2010. Subject
to hearing from the parties, the Court proposes to
order on 3 August 2010 that the claims and cross-claims in the proceeding
be mediated
by a Deputy District Registrar of the Federal Court. As to the
question of costs of and incidental to the determination of the separate
question of jurisdiction, the first defendant shall file and serve submissions
on costs within 14 days and the plaintiff shall file
and serve submissions
on costs within a further 14 days thereafter and the Court will determine
the question of costs on the papers
unless a party seeks to be heard on the
question of costs by so notifying the Court.
|
I certify that the preceding one hundred and seventy one (171) numbered
paragraphs are a true copy of the Reasons for Judgment herein
of the Honourable
Justice Greenwood.
|
Associate:
Dated: 24 June 2010
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2010/654.html
