FEDERAL COURT OF AUSTRALIA
ADMIRALTY - Application for leave to appeal against trial Judge’s direction that Admiralty Marshal be paid $20,000 to enable him to engage two engineers to service each of two ships under arrest - power of Admiralty Marshal under Admiralty Rule 78 (b) to require payment of sum on account of fees and expenses yet to be incurred by him - futility of appeal - absence of substantial injustice in refusing leave to appeal even if decision at first instance wrong.
Admiralty Rule 78
Decor Corporation Pty Limited v Dart Industries Inc. (1991) 33 FCR 397 (FC) (applied)
Trade Practices Commission v Rank Commercial Limited (1994) 53 FCR 303 (FC) (applied)
WAITEMATA STEVEDORING SERVICES LIMITED v THE SHIP MV “RANGITATA” & ANOR
NG 115 of 1998
LINDGREN J
SYDNEY
22 april 1998
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
WAITEMATA STEVEDORING SERVICES LIMITED PLAINTIFF
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AND: |
The Ship MV “Rangitata” First DEFENDANT
ecomar-schiffarhts gmbh & co kg SECOND DEFENDANT
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DATE OF ORDER: |
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WHERE MADE: |
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THE COURT ORDERS THAT:
1. The application for leave to appeal be dismissed.
2. The plaintiff pay the Admiralty Marshal’s costs of the application as costs in relation to the arrest.
3. The plaintiff and the Admiralty Marshal have liberty to apply in relation to any difficulty which may arise as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
WAITEMATA STEVEDORING SERVICES LIMITED PLAINTIFF
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AND: |
The Ship MV “Rangitata” First DEFENDANT
ecomar-schiffarhts gmbh & co kg SECOND DEFENDANT
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JUDGE: |
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DATE: |
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PLACE: |
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REASONS FOR JUDGMENT
(application for leave to appeal)
(ex tempore)
The plaintiff moves for leave to appeal from an interlocutory judgment of Tamberlin J given on 13 March 1998. The Marshal had applied under Admiralty Rule 48(1) for directions with respect to two vessels under arrest, the “MV Turakina” and the “MV Rangitata”. The “MV Turakina” was the subject of a different proceeding, not presently relevant. The Marshal sought to obtain funds to enable him to replace two engineers on each vessel. The existing engineers proposed to depart the vessels within the then near future, leaving them without the services of such officers. The Marshal’s applications had come on before the trial Judge as a matter of urgency.
The directions sought by the Marshal in respect of the “MV Rangitata” were as follows:
“1. As costs and expenses of arrest, the Marshal engage Intercontinental Ship Management Pty Ltd (“ISM”):
(a) to advise the Marshal and
(b) to engage such engineers, Master, officers and other crew whom the Marshal, in his discretion, requires to maintain the safe custody of the vessel under arrest and any cargo on board.
2. The Plaintiff’s solicitor put the Marshal in funds in advance forthwith as requested by the Marshal to pay ISM’s reasonabley [sic] anticipated charges and expenses.”
His Honour made orders substantially in the form sought, adding to proposed order 2 the words “in relation to the arrest”.
There was evidence before his Honour from a Mr Sorensen, a qualified chief engineer first class and managing director of Inter-Continental Ship Management Pty Limited, who was previously the general manager of Howard Smith Shipping. Although Mr Sorensen was cross-examined, no contradictory evidence was filed by either plaintiff. In short, Mr Sorensen’s evidence was that it would be imprudent to have only a chief engineer on board without any other engineer. His Honour was satisfied that it was shown to be necessary to have two engineers on each vessel.
Before I note the proposed grounds of appeal, it is desirable to refer to some of the Admiralty Rules. Admiralty Rule 48(1) is as follows:
“48(1)Where a Marshal has custody of a ship or other property, the Marshal or a party may at any time apply to the court for directions with respect to the ship or property.”
Admiralty Rule 41 provides that an application for an arrest warrant constitutes an undertaking to the court, where the application is made by a solicitor on behalf of the applicant (as was the case here), by the solicitor, to pay to the Marshal, on demand, an amount equal to the amount of the fees and expenses of the Marshal in relation to the arrest. Moreover, Admiralty Form 12, which is the form of application for an arrest warrant, contains this undertaking:
“I undertake to pay the fees and expenses of the Marshal in complying with this application.”
In connection with the enforcement of such undertakings, Admiralty Rule 75 is also noteworthy:
“75. Any person who fails to comply with an undertaking given to a court under these rules is liable for committal.”
It is particularly important for present purposes to note Admiralty Rule 78:
“78. Where a person is liable to pay fees and expenses of a Marshal under these rules, the Marshal:
(a) may accept an amount of money as a deposit towards discharging the liability; and
(b) may make one or more demands for interim payments on account of those fees or expenses.” (emphasis supplied)
The proposed notice of appeal sets out nine grounds which are as follows:
“1. His Honour erred in failing to give effect to Rule 78 of the Admiralty Rules.
2. His Honour erred in ordering the Plaintiff to provide the Admiralty Marshall with substantial sums for anticipated and/or future expenses.
3. His Honour erred in failing to consider the import and operation of the undertaking given on arrest.
4. His Honour erred in failing to give any effect to the Plaintiff’s application to have the Vessel released.
5. His Honour erred in making orders without affording the Plaintiff an opportunity to adduce any evidence.
6. His Honour erred in finding that the Plaintiff’s inability to adduce evidence within the time constraints amounted to a failure to adduce any evidence to the contrary.
7. His Honour erred in drawing inferences based on the findings referred to in paragraph 2.
8. His Honour erred in failing to consider the conflict of interest inherent in the evidence of Mr Sorensen.
9. His Honour erred in finding that $20,000.00 was a reasonable sum when such a finding was not available on the evidence.”
Although I will refer to all nine grounds, the plaintiffs’ submissions concentrated on the first three. I will indicate at the outset my views on two matters which are central to my decision on the application for leave. First, Admiralty Rule 78(b) clearly empowers the Marshal to make one or more demands for interim payments on account of fees or expenses yet to be incurred, and is not confined to enabling the making of demands for interim payments on account of fees or expenses already incurred. This follows from the terms, nature and purpose of paragraph (b) itself and also from the expression “as a deposit” in paragraph (a) of the rule. Second, Admiralty Rule 78 makes it clear that the Marshal is not confined to relying on the undertaking expressed in the form of application for arrest or the undertaking created directly by Admiralty Rule 41.
Against the above background I approach the application for leave to appeal. The relevant statutory provisions are ss 24(1A) and 25(2)(a) of the Federal Court of Australia Act 1976 and Federal Court Rules O 52 r (10). The general test which is applied in relation to such applications requires me to consider whether the decision is attended with sufficient doubt to warrant its being reconsidered and whether substantial injustice would result, supposing the decision at first instance was wrong, if leave were not granted: Decor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397 (FC) (“Decor”). Decor was followed by a Full Court of this Court in Trade Practices Commission v Rank Commercial Limited (1994) 53 FCR 303 (FC) at 313. The test to which I have referred is not a fixed formula, however: other considerations may be relevant, such as whether substantive rights rather than points of practice are in issue. It is accepted that a “tight rein” should be kept on appeals relating to points of practice and procedure. In the present case, what is at issue is such an issue as distinct from one affecting the plaintiff’s substantive rights.
I have formed a clear view that, even supposing (without deciding) the decision at first instance to have been affected by some error, no substantial injustice would result in this case. This flows from the fact that Admiralty Rule 78 would clearly (upon the construction of it described earlier) empower the Marshal in any event to require payment of the very sum of $20,000 in question.
It may be said that the form of order sought by the Marshal in this case was not that envisaged by Admiralty Rule 48, and that the kind of direction contemplated by that Rule is, in the circumstances of the present case, a direction to the effect that the Marshal was justified in making a demand under Admiralty Rule 78 for the sum of $20,000. It may be said that Admiralty Rule 48 contemplates a direction to the Marshal rather than, as in par 2 of the Marshal’s application, an order against the plaintiff's solicitor. But the fact that any deficiency of form could quite easily be overcome by the making of a demand under Admiralty Rule 78 (b) in view of the construction which I take of that provision, demonstrates that no injustice has arisen. The amount in question has in fact been paid to the Marshal and it would be a futility to allow an appeal, the result of which would be only to invite the Marshal to achieve the position in which he is placed at present by following a different procedure.
What I have said to date deals with grounds 1, 2 and 3. The remaining grounds (4 to 9) have not been supported by argument and do not, in any event, appear to involve any error of principle or any substantial injustice.
The application for leave to appeal will be dismissed and the plaintiff will be ordered to pay the Admiralty Marshal's costs as costs “in relation to the arrest”. I will reserve liberty to either party to apply in relation to any difficulty which may arise as to costs.
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I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren |
Associate:
Dated: 1 May 1998
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Counsel for the Plaintiff: |
Mr D A Cowdroy QC with Ms L A Muston |
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Solicitor for the Plaintiff: |
Conway Leather Shaw |
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Counsel for the Admiralty Marshal: |
Mr A W Street SC |
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Solicitor for the Respondent: |
Douglas Coleman |
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Date of Hearing: |
16 March 1998 |
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Last Submission Received: |
24 March 1998 |
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Date of Judgment: |
22 April 1998 |
