FEDERAL COURT OF AUSTRALIA
Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654
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Citation: |
Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654 |
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Parties: |
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File number(s): |
QUD 91 of 2009 |
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Judges: |
GREENWOOD J |
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Date of judgment: |
24 June 2010 |
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Catchwords: |
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: |
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: |
Schwarz & Co (Grain) Ltd v St Elefterio ex Arion (Owners) [1957] P 179 - cited Iran Amanat v KMP Coastal Oil (1999) 196 CLR 130 – cited and quoted Ocean Industries Pty Ltd v Owners of the Ship MV “Steven C” [1994] 1 Qd R 69; (1991) 104 ALR 353 – cited and quoted The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc. (1994) 181 CLR 404 – cited and quoted Opal Marine Agencies Pty Ltd v Proceeds of Sale of Vessel MV “Skulptor Konenkov” (2000) 98 FCR 519 – cited and quoted Kent v SS “Maria Luisa” (No. 2) (2003) 130 FCR 12 – cited and quoted Tisand Pty Ltd v The Owners of the Ship MV Cape Moreton (2005) 143 FCR 43 – cited and quoted Patrick Stevedores v Turakina (1998) 154 ALR 666 – cited and quoted CMC (Australia) Pty Ltd v Ship “Socofl Stream” (1999) 95 FCR 403 - cited ASP Holdings v Pan Australia Shipping (2006) 235 ALR 554 – cited Nautilus Australia Ltd v The Ship “Rossel Current” [1999] QSC 39 – cited Shell Oil Company v The Ship “Lastrigoni” (1974) 131 CLR 1 – cited The Rena K [1978] 1 QB 377 – cited Comcare v John Holland Rail (2009) 109 ALD 508 – cited Warner Music Australia v Swiftel Communications (2005) 67 IPR 27 - cited |
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Date of hearing: |
8 March 2010 |
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Place: |
Brisbane |
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Division: |
GENERAL DIVISION |
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Category: |
Catchwords |
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Number of paragraphs: |
171 |
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Counsel for the Plaintiff: |
Mr S Brennan |
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Solicitor for the Plaintiff: |
Cranston McEachern Lawyers |
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Counsel for the First and Second Defendants: |
Mr J Curran |
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Solicitor for the First and Second Defendants: |
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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GENERAL DIVISION |
QUD 91 of 2009 |
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BRISBANE SLIPWAYS OPERATIONS PTY LTD ACN 104 531 991 Plaintiff
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AND: |
YANNICK PANTALONI First Defendant
SNC AREMITI Second Defendant
THE SHIP "AREMITI 4" Third Defendant
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JUDGE: |
GREENWOOD J |
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DATE OF ORDER: |
24 JUNE 2010 |
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WHERE MADE: |
BRISBANE |
THE COURT ORDERS THAT:
2. 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).
3. 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.
4. 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.
5. 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:
6. 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.
7. 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.
8. 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:
9. The plaintiff’s Notice of Motion for the joinder of Arc en Ciel Voyages as a fourth defendant is dismissed.
10. 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.
11. The costs of and incidental to the trial of the separate question of jurisdiction are reserved for further submissions.
12. 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.
13. 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.
14. 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.
15. The 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.
16. The first defendant shall deliver a Defence and Cross‑Claim in response to the Further Further Amended Statement of Claim by 30 July 2010.
17. The proceeding will be listed for directions at 9.30am on 3 August 2010.
18. 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.
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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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GENERAL DIVISION |
QUD 91 of 2009 |
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BETWEEN: |
BRISBANE SLIPWAYS OPERATIONS PTY LTD ACN 104 531 991 Plaintiff
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AND: |
YANNICK PANTALONI First Defendant
SNC AREMITI Second Defendant
THE SHIP "AREMITI 4" Third Defendant
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JUDGE: |
GREENWOOD J |
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DATE: |
24 JUNE 2010 |
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PLACE: |
BRISBANE |
REASONS FOR JUDGMENT
Background and short synopsis of the contentions
1 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.
2 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”.
3 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.
4 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.
5 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.
6 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.
7 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.
8 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.
9 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
10 There are three further matters to be addressed.
11 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.
12 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.
13 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
14 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 …”.
15 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.
16 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) 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.
17 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.
18 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.
19 On 13 May 2009, the plaintiff filed a Statement of Claim in the action. The contentions were these.
20 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.
21 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”.
22 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.
23 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
24 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) 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.
25 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
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(o) a claim in respect of the alteration, repair or equipping of a ship;
26 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.
27 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).
28 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
29 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.
30 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
31 The remaining procedural steps in the proceeding now need to be identified.
32 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.
33 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.
34 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.
35 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.
36 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.
37 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.
38 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.
39 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.
40 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.
41 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.
42 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”.
43 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.
44 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
45 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:
1. That SNC Aremiti is a registered corporation having its head office in Taunoa Papeete, Tahiti, French Polynesia.
2. That Prestige Marine SARL is a limited liability company of Noumea, New Caledonia and is registered as such.
3. That Arc en Ciel Voyages SARL is a limited liability company registered in Noumea, New Caledonia.
4. That SNC Aremiti was the owner of the ship “Aremiti IV” (“the ship”) as of 25 June 2008 to 28 June 2009.
5. 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.
6. That the above time charter was by Agreement dated 8 October 2008 extended to 8 January 2009.
7. That the ship arrived in Brisbane, Queensland on 15 January 2009.
8. 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.
46 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.
47 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.
48 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.
49 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.
50 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.
51 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
52 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
53 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 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.
54 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.
55 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.
56 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.
57 Before examining the evidence relevant to the pleaded controversy on jurisdiction, the following principles should be noted.
Framework principles
58 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) 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).
59 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) 131 CLR 1 at 5, citing Rosenfeld Hillas & Co. Pty Ltd v The Fort Laramie (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]
60 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.
61 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].
62 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”
63 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) 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:
74. 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.
64 In considering the meaning of the word “owner”, Tamberlin and Hely JJ said this at [61], [62] and [66]:
61. 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.
62. The notion of “ownership” carries a connotation of dominance, ultimate control and of ultimate title against the whole world [authorities quoted].
…
66. 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) 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) 165 CLR 489; Chan v Cresdon Pty Ltd (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.
65 These general principles were further addressed in Tisand Pty Ltd v The Owners of the Ship MV Cape Moreton (2005) 143 FCR 43 at 73 and 74 at [118] to [122] where Ryan and Allsop JJ said this:
118 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.
119 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.
120 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.
121 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.)
122. 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.
66 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:
168 … 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.
67 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.
68 Considerations going to the meaning of “demise charterer” are addressed later in these reasons in the context of the Time Charter Agreement.
The evidence
69 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.
70 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.
71 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.
72 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.
73 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.
74 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”.
75 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”.
76 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.
77 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]
78 That letter was said to have been sent on 16 January 2009 by facsimile, email and express post to the plaintiff.
79 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”.
80 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]”.
81 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.
82 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.
83 The principal affidavit relied upon by the plaintiff in discharging its onus is an affidavit of Mr Gary Kidd filed on 24 September 2009.
84 In that affidavit, Mr Kidd gives this evidence.
85 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.
86 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.
87 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.
88 Mr Pantaloni did not give the plaintiff a cheque on Monday, 19 January 2009.
89 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
90 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)
91 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.
92 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. …
93 The plaintiff told Mr Pantaloni that no further work would be undertaken until all charges had been paid.
94 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.
95 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)
96 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.
97 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.
98 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”.
99 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.
100 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.
101 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
102 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 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.
103 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.
104 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.
105 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.
106 Section 17(b) of the Act, however, is not satisfied.
107 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) 130 FCR 12 or Tisand Pty Ltd v The Owners of the Ship MV Cape Moreton (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.
108 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 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.
109 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.
110 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.
111 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”.
112 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.
113 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”.
114 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) 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) 235 ALR 554 at 558 [14] and [15].
115 Accordingly, Mr Pantaloni was not a demise charterer of the Aremiti 4 on 2 April 2009 or at any other time.
116 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.
117 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.
118 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
119 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.
120 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:
5. I apprehend that if the money is released, it will be removed from Australia, or disposed of, or dealt with, or diminished in value.
6. 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.
7. 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.
121 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.
122 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”.
123 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) 131 CLR 1 per Menzies J at 6.
124 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) 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.
125 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
126 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:
4. 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.
127 The numbering of the second subparagraph (g) is clearly a typographical error. It will be referred to as subparagraph (h).
128 The response was given on 23 December 2009 in these terms:
4. 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.
129 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).
130 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.
131 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.
132 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.
133 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.
134 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.
135 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.
136 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.
137 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).
138 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.
139 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.
140 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.
141 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.
142 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.
143 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
144 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.
145 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.
146 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.
147 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.
148 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:
149 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”.
150 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.
151 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) 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) 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) 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.
152 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.
153 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.
154 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.
155 Accordingly, it is not appropriate to join Arc en Ciel Voyages as a fourth defendant.
The orders
156 Having regard to all of these matters, the following orders will be made:
157 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.
158 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).
159 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.
160 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.
161 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.
162 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.
163 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.
164 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.
165 Eighthly, the plaintiff’s Notice of Motion for the joinder of Arc en Ciel Voyages as a fourth defendant is dismissed.
166 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.
167 Tenthly, the costs of and incidental to the trial of the separate question of jurisdiction are reserved for further submissions.
168 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.
169 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.
170 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.
171 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.
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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
