FEDERAL COURT OF AUSTRALIA
ADMIRALTY – whether a sale by the Marshal pursuant to an order of a Court of Admiralty made within jurisdiction in an action in rem confers title free of all defects including statutory rights of detention – rights of detention and possible detention under Fisheries Management Act 1991 – whether power of Court of Admiralty to order sale thereby suspended or deferred – effect of order in action in rem – distinction between power to detain a ship in relation to a civil claim and penal power of detention
Fisheries Management Act 1991 (Cth), ss 84(1), (1A), 100, 106
Admiralty Act 1988 (Cth), ss 8, 36
Fisheries Act 1952 (Cth), s 13AA
Fisheries Act 1968 (Vic)
French Prohibition Act
The “Emilie Millon” [1905] 2 KB 817
The “Spermina” (1923) 17 Ll L Rep
Corp v Owners of the Paddle Steamer “Queen of the South” [1968] P 449
Government of the Republic of Spain v SS “Arantzuzu Mendi” [1939] AC 256
Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270
Cheatley v The Queen (1972) 127 CLR 291
McGovern v State of Victoria [1984] VR 570
Re Taunton and West of England Perpetual Benefit Building Society and Roberts’ Contract [1912] 2 Ch 381
The “Cerro Colorado” [1993] 1 Lloyd’s Rep 58
Attorney-General v Norstedt (1816) 3 Price 97:146 ER 203
Score v The Lord Admiral (Parker 272)
Brambles Holdings Ltd v Trade Practices Commission (1980) 32 ALR 328
Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460
Potter v Minahan (1908) 7 CLR 277
Baker v Campbell (1983) 153 CLR 52
American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677
Castrique v Imrie (1870) 4 LR (HL) 414
Admiralty Jurisdiction and Practice by Nigel Meeson [London : LLP, 1993]
Explanatory Memorandum, Minister’s Second Reading Speech (House of Representatives 24 March 1988)
Australian Law Reform Commission, Report No 33
PHILLIP READHEAD, AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
and COMMONWEALTH OF AUSTRALIA
v
ADMIRALTY MARSHAL WESTERN AUSTRALIA DISTRICT REGISTRY,
BERGENSBANKEN ASA and RAVENOR OVERSEAS INC
vg 164 of 1998
RYAN J
MELBOURNE
18 SEPTEMBER 1998
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
PHILLIP READHEAD First Applicant
AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Second Applicant
COMMONWEALTH OF AUSTRALIA Third Applicant
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AND: |
ADMIRALTY MARSHAL WESTERN AUSTRALIA DISTRICT REGISTRY First Respondent
BERGENSBANKEN ASA Second Respondent
RAVENOR OVERSEAS INC Third Respondent
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DATE OF ORDER: |
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WHERE MADE: |
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MINUTES OF ORDER
THE COURT ORDERS:
1 That the preliminary question:
Do the rights asserted by the applicants in proceedings numbered VG 164 of 1998 constitute a defect of title to the ship which a purchaser will acquire upon the sale of the ship ordered by the Court on 20 March 1998 in proceedings numbered VG 53 of 1998?
be answered, no.
2. That the present application be adjourned for further directions to 9 October 1998 such further directions to be given at the same time as further directions in the proceeding No VG 53 of 1998.
3. That the costs of all parties of the preliminary question be reserved.
Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VG 164 of 1998 |
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BETWEEN: |
First Applicant
AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Second Applicant
COMMONWEALTH OF AUSTRALIA Third Applicant
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AND: |
WESTERN AUSTRALIA DISTRICT REGISTRY First Respondent
BERGENSBANKEN ASA Second Respondent
RAVENOR OVERSEAS INC Third Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
On 8 May 1998, I made an order for a preliminary trial of the following question:
Do the rights asserted by the applicants in proceedings numbered VG 164 of 1998 constitute a defect of title to the ship which a purchaser will acquire upon the sale of the ship ordered by the Court on 20 March 1998 in proceedings numbered VG 53 of 1998?
For the purpose only of the trial of that preliminary question, each party, other than the first respondent (“the Marshal”), joined in furnishing to the Court the following agreed statement of facts:
1. On 17 October 1997 the “Aliza Glacial” (the ship) was apprehended in waters adjacent to Heard Island comprising the Australian Fishing Zone as defined in s 4(1) of the Fisheries Management Act 1991 (the Act).
2. It was then brought to Fremantle by the Captain and Master of the ship pursuant to a requirement of an authorised officer under s 84(1)(k) of the Act. The ship arrived in Fremantle on 28 October 1997.
3. The complaints by Officer Readhead against the Captain and Master for offences against sections 100 and 101 of the Act were filed and personally served in the presence of the Owner’s representative, namely, its solicitor Peter McQueen in Western Australia, on 19 November 1977 (Annexure 1). Mr McQueen read the complaints at the time and asked Officer Readhead a question about them. The complaints were returnable on 21 November 1997.
4. On 24 November 1997, the Captain and Master were permitted by Officer Readhead (an authorised officer appointed pursuant to s 83 of the Act) to leave the vessel. On the same day, by oral and written notice, Officer Readhead seized the ship, its fishing equipment, bait and catch on board pursuant to s 84(1)(g)(i) and (ii) of the Act. (Annexure 2)
5. On 5 December 1997 Officer Readhead delivered to the solicitor for the owners a notice purportedly given under section 84(1A) of the Act. (Annexure 3).
6. The ship was berthed at Victoria Quay at the Port of Fremantle under the control of the Second Applicant (“AFMA”) from the time of its arrival until 14 January 1998. On that date, pursuant to an agreement between AFMA and Total Marine Services Pty Ltd (“TMS”), TMS undertook the maintenance and security of the ship on behalf of AFMA, and, in accordance with the power in s 84(1)(m) of the Act, the ship was taken to TMS’s premises at Rous Head at the Port of Fremantle and placed in dead ship mode with only a shore power connection.
8. On 20 February 1998, agents of the First Respondent (“the Admiralty Marshal”) executed the arrest warrant by boarding the ship, posting a written notice of arrest on the bridge screen, obtaining from an AFMA officer a set of keys to the ship, and assuming responsibility for the maintenance and security of the ship, still through the agency of TMS. Nobody associated with the Applicants has boarded the ship or attempted to retake possession of it since 23 February 1998. The Applicant wrote certain letters to the Marshal and the mortgagees solicitors. (Annexure 4)
9. On 20 March 1998, on the motion of the Bank in the Admiralty Act proceedings, Ryan J made orders, inter alia, for summary judgment on the Bank’s claim and for the sale of the ship in accordance with the Admiralty Rules.
10. AFMA has not given any direction for release of the ship pursuant to s 88(1) of the Act.
On behalf of the applicants, it was submitted that, at all material times, the ship had been and remained under the control and in the detention of the Fisheries Officer pursuant to s 84 of the Fisheries Management Act 1991 (“the Act”). That section provides, so far as is relevant:
(1) An officer may:
...
(g) subject to subsection (1A), seize, detain, remove or secure:
(i) any fish that the officer has reasonable grounds to believe has been taken, processed, carried or landed in contravention of this Act; or
(ii) any boat, net, trap or other equipment that the officer has reasonable grounds to believe has been used, is being used or is intended to be used in contravention of this Act; or
(iii) any document or other thing that the officer has reasonable grounds to believe may afford evidence as to the commission of an offence against this Act; and
...
(k) if the officer has reasonable grounds to believe that a boat has been used, is being used or is intended to be used in contravention of this Act, require the master of the boat:
(i) if the boat is at a place in Australia or a Territory – to remain in control of the boat at that place; or
(ii) if the boat is not at a place in Australia or a Territory – to bring the boat to such a place, or to a place at sea, specified by the officer and to remain in control of the boat at that place;
until an officer permits the master to depart from that place; and
(l) require the master of a boat who, because of a requirement under paragraph (k) or a previous requirement under this paragraph, is in control of the boat at a place to take the boat to another place in Australia or in a Territory, or to a place at sea, specified by the officer and to remain in control of the boat at that place until an officer permits the master to depart from that place; and
(m) bring a boat that the officer has reasonable grounds to believe has been used, is being used or is intended to be used in contravention of this Act to a place in Australia or in a Territory (whether or not the boat has previously been brought to another place or other places) and may remain in control of that boat pending the taking and determination of proceedings in respect of that contravention.
Section 84(1A) of the Act provides:
If an officer takes any action under subparagraph (1)(g)(i) or (ii), the officer must, within 7 days after the action is taken, give written notice of the grounds for the taking of the action to the person believed by the officer:
(a) if the action is taken in relation to any fish – to have taken, processed, carried or landed the fish, as the case may be; or
(b) if the action is taken in relation to any boat – to be the owner of the boat; or
(c) if the action is taken in relation to any net, trap or other equipment – to have used, to be using or to be intending to use the net, trap or other equipment, as the case may be.
Section 100 of the Act makes the use of an unlicensed foreign boat for commercial fishing in the Australian Fishing Zone an indictable offence punishable on conviction by a fine not exceeding 2,500 penalty units. Section 101 similarly makes it an offence for a person, at a place within the Australian Fishing Zone, to have in his or her possession or charge a foreign unlicensed boat equipped with nets, traps or other fishing equipment unless the same has been stored and secured and the boat is at the location within the Australian Fishing Zone with the approval of the AFMA or is in transit through the Australian Fishing Zone by the shortest possible route. Complaints have been filed in the Court of Petty Sessions at Perth and served on the captain and fishing master of the ship alleging contraventions of those sections. Upon securing convictions pursuant to those complaints, the first applicant is entitled to apply pursuant to s 106 of the Act to the court recording the conviction for an order for forfeiture of the ship. Section 106 provides:
(1) Where a court convicts a person of an offence against section 13, 95 (not being an offence against that section mentioned in subsection (2)), 99 or 100 the court may order the forfeiture of all or any of the following:
(a) a boat, net, trap or equipment used in the commission of the offence;
(b) fish on board such a boat at the time of the offence;
(c) the proceeds of the sale of any such fish.
(2) Where a court convicts a person of an offence against section 95, being an offence arising out of the person having in his or her possession or in his or her charge a boat for taking fish, or of an offence against section 101, 102, 103 or 104, the court may order the forfeiture of all or any of the following:
(a) the boat in relation to which the offence is committed;
(b) a net, trap or equipment on board that boat at the time of the offence;
(c) fish on board that boat at that time or in relation to which the offence is committed;
(d) fish landed in contravention of section 103;
(e) the proceeds of the sale of any such fish.
(3) Any boat or other property (including fish) ordered by a court to be forfeited becomes the property of the Commonwealth and must be dealt with or disposed of in accordance with the directions of the Minister.
The issue raised by the preliminary question is, therefore, whether a purchaser of the ship pursuant to the sale which I ordered on 20 March 1998 will obtain an unencumbered title to the ship or will take subject to the power of control and detention asserted by the authorised officer and subject to an order for forfeiture by the Court of Petty Sessions, if, and when, one is made by that Court. Indeed, Mr Kaye QC, who appeared with Mr Cosgrave for the applicants, argued that an order for forfeiture attaches to a ship when made irrespective of whether she is in the control of, or under detention by, an authorised officer, and whether she is inside or outside the Australian Fishing Zone and that any person who acquires an interest in the ship does so against the contingency that an order for forfeiture under s 106 might be made at any time.
The corollary of the applicants’ argument was that the possessory rights of control and detention of the ship which are conferred on an authorised officer by the Act, are not affected by the ship’s being arrested pursuant to the Admiralty Act 1988 (“the Admiralty Act”). In effect, it was argued that an arrest by the Marshal cannot affect antecedent possessory rights of the authorised officer and cannot curtail the exercise of powers of law enforcement conferred by the Act. In support of those arguments, reference was made, first, to The “Emilie Millon” [1905] 2 KB 817. In that case the Mersey Docks and Harbour Board had a statutory power to cause a vessel to be detained until the dock tonnage rates in respect of her had been paid. That power was held to be exercisable notwithstanding that the master and crew of the vessel had a maritime lien over her for wages due before she entered the dock. The master and crew enforced their lien by judgment in rem and, while the vessel was under arrest pursuant to a warrant issued by the Court in which that judgment had been obtained, an order was made for her sale by auction by the Marshal of the Court. On a summons in the same Court, it was ordered:
That the sale of the ship the Emilie Millonbe confirmed, and that the vessel be delivered to the purchaser free from all claims and demands against her on payment of the purchase-money into court less the auctioneer’s charges. That the marshal’s account be taxed and paid out of the money when in court. That any right of the Mersey Docks and Harbour Board to payment of their charges in priority to other claimants which they may be entitled to under their Acts of Parliament be preserved as against the fund in court.
On appeal by the Harbour Board against that order, it was held by the Court of Appeal that the Board’s power of detention continued to be exercisable notwithstanding the sale of the vessel. Romer LJ with whom Collins MR and Mathew LJ agreed, observed, at 821:
The Mersey Docks and Harbour Board have a right by statute to detain the vessel until the dock tonnage rates and harbour rates are paid. That is an express statutory right, and the board have nothing to do with any sale of the vessel to a purchaser. That is a matter which only concerns those who are interested in the vessel. It does not concern the board. The board are entitled to detain the vessel, whoever is the owner, until the rates are paid. The order appealed against deprives them of that right, and without their consent purports to give them an option to try and make some claim to a lien upon or right against the fund in priority to other claimants. The board have no such lien or right. If this vessel had been allowed to leave the dock, the board would have been left to make a futile claim against the fund in court. The order is clearly wrong, and must be discharged.
In The “Spermina” (1923) 17 Ll L Rep 17, 52, 76 and 109 a similar right was apparently acknowledged to be exercisable by the Manchester Ship Canal Company but the difficulty was overcome by the liquidator of the mortgagee of the vessel agreeing to pay the canal company’s dues to date, and by an agreement that any further dues would be included in the expenses of sale of the vessel and be a first charge on the proceeds of a sale by the Marshal in the mortgagee’s action.
The rights of a port authority and an arresting Marshal have been held in Corps v Owners of the Paddle Steamer “Queen of the South” [1968] P 449 to co-exist. In that case an action in rem was brought against the owners of the vessel by necessaries men claiming Ł290 and the vessel was arrested. Some weeks later, the plaintiffs moved the Court for judgment and orders for appraisement and sale. The Port of London Authority, in exercise of its statutory powers, then purported to seize the ship to enforce payment of about Ł290 in respect of unpaid rates. Brandon J said, at 458-459:
It has been argued for the plaintiffs, first that the interveners had no right to seize the ship at all while she was under the arrest of the court in the plaintiffs’ action, and second, that in any case the placing of a notice on the ship was not an actual seizure. I do not accept either of these arguments. As to the first point, I do not see why the interveners should not exercise their statutory right of detention even while the ship is under arrest provided that they do not interfere with the marshal’s custody, which it is not suggested that they have done. To hold otherwise would involve implying an unnecessary qualification in section75 of the Act of 1920.
...
The interveners have not at any time taken any steps to exercise their right of sale, either in respect of the particular rates just referred to, or any other rates. The fact that the interveners have not yet taken steps to exercise certain powers, however, does not mean that they may not do so later. Subject to the making of the necessary demand under section 75, and the giving of the necessary notice under section 84, it seems that the interveners could at any time in the future take steps to detain and sell the ship in respect of all rates which are now, or may hereafter become, due to them.
This being the nature of the rights which the interveners have already exercised, or may in the future exercise, against the ship, the purpose of their intervention is, so I understand it, twofold. First, they are concerned that they shall not, as a result of standing by and doing nothing, while the plaintiffs obtain a judgment against the ship and an order for her sale, be held to have waived or abandoned their statutory rights. This concern arises, I was told, from the decision in The Acrux [1962] 1 Lloyd’s Rep 405. Second, recognising the potential conflict between the court’s power of sale in an action in rem against the ship, and their own rights of detention and sale under the Act of 1920, and recognising also the practical difficulties which such conflict may put in the way of an advantageous sale either by the court or by them, they seek an order of the court which will avoid such conflict, while nevertheless ensuring payment of the rates due to them in priority to other claims against the ship, including that of the plaintiffs.
In the absence of agreement by the plaintiffs to arrangements which would preserve the right of the Port Authority to recover the amount secured by its statutory charge in priority to any other claims on the fund resulting from a sale by the Marshal, his Lordship continued, at 461:
In these circumstances it is necessary for the court to decide the matter on the basis of the legal rights of the parties. The right of a dock or harbour authority under its private Acts to detain a ship for rates is a statutory possessory lien: per Lord Birkenhead LC in Mersey Docks & Harbour Board v Hay, the Countess [1923] AC 345, 354, HL. The right of such an authority to sell a ship in order to reimburse itself for rates out of the proceeds may be compared with a mortgagee’s right of sale usually given to him by contract and in any case by section 35 of the Merchant Shipping Act 1894.
It is well established that, in an action in rem against a ship, the court has power to sell her free of both a repairer’s common law possessory lien and a mortgagee’s contractual or statutory right of sale. It does so on the basis that the rights of which the ship is freed by the sale, together with any priority over other rights to which they may be entitled, are transferred to, and preserved against, the proceeds of sale in court.
If the matter were free from authority, I should have thought in principle that the court should be able to deal with the statutory possessory lien of a dock or harbour authority in the same way as it deals with the common law possessory lien of a repairer and with the statutory right of sale of such an authority in the same way as it deals with the contractual or statutory right of sale of a mortgagee. That is to say, I should have thought that the court should have power, in an action in rem against a ship, to sell her free of both rights, while transferring equivalent rights with equivalent priority to the proceeds of sale in court, and further should have power to do this whether the dock or harbour authority consents or not. If the court does not have such power it is extremely inconvenient, for it means that, in any case where a dock or harbour authority has a right of detention or sale, the court cannot transfer the ship to a purchaser free of encumbrances, with all the disadvantages arising from such a situation discussed by Hewson J in The Acrux [1962] 1 Lloyd’s Rep 405.
However, Brandon J went on to refer to Scottish and English authority including The “Emilie Millon” (supra) and The “Spermina” (supra) and seemed to regard those authorities as establishing that it is still good law at least that the court cannot make an order for the sale and delivery of a ship to a purchaser which would deprive a dock authority, without its consent, of its statutory right of detention. However, he appeared to consider that there is power in the court, at least with the consent of the authority, to transfer the authority’s rights of detention and sale to a fund in court representing the ship. In the event, however, his Lordship exercised a power, which he considered the court had, if it thought it for the benefit of all those interested in the vessel in order that she might be sold to advantage, to authorise the Marshal to pay off the rates owed to the authority and include the expenditure in his expenses of sale.
In Government of the Republic of Spain v SS “Arantzuzu Mendi” [1939] AC 256 a Spanish ship registered at Bilbao was arrested in the Thames by the Admiralty Marshal at the instance of her owners who had issued a writ in rem for possession. Whilst under arrest, she was requisitioned by the Nationalist Government of Spain and the master and managing director of the owners agreed to hold her at the disposal of the Nationalist Government. The Republican Government then issued a writ making the vessel a defendant and requiring her to enter an appearance. The Nationalist Government entered an appearance under protest and moved to set aside the writ and the arrest on the ground that the action impleaded a foreign sovereign State. On advice from the Foreign Secretary that “his Majesty’s Government recognizes that the Nationalist Government now exercises effective control over all the Basque Provinces of Spain”, Bucknill J set aside the writ. That order was affirmed by the Court of Appeal and further upheld on appeal to the House of Lords. It was argued on behalf of the Republican Government that the ship, being in the possession of the Marshal following the earlier arrest at the instance of the owners, could not therefore be in the possession of the Nationalist Government. That argument was rejected by Lord Atkin who observed, at 266:
This seems to me based upon a misapprehension of the position created by the arrest. The ship arrested does not by the mere fact of arrest pass from the possession of its then possessors to a new possession of the Marshal. His right is not possession but custody. Any interference with his custody will be properly punished as a contempt of the Court which ordered arrest but, subject to his complete control of the custody, all the possessory rights which previously existed continue to exist, including all the remedies which are based on possession. There may be some doubt even whether the sheriff’s officer, who has levied under a fieri facias, is in fact in possession. But his case is quite different, for he acts under a direction of the Court to make of the goods of the defendant so much money: he has the right to sell and therefore to hand over possession to the purchaser. His case therefore need not be discussed here. But a bare arrest appears to me clearly to give custody and not possession. The argument on this footing fails, and the simple fact emerges that the Nationalist Government was in possession of this ship at the material date by the master and crew acting with the consent of the owners.
It was also urged on behalf of the applicants that a judgment in rem against a ship, although binding against the whole world, does not exclude or abrogate the rights of detention and control exercisable by an authorised officer. Nor, it was argued, can a sale by the Marshal, even though it confers on the purchaser a legal title clear of pre-existing legal and equitable interests, affect the rights and law enforcement powers conferred by the Act on an authorised officer.
It was next submitted on behalf of the applicants that forfeiture of a boat is part of the penal and enforcement provisions of the Act; see Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 where Brennan J, for example, observed at 280:
The need for drastic penalties to vindicate the laws governing customs and fisheries exists in part by reason of the difficulty in policing these laws and ensuring that foreign owners of vessels (or other conveyances) do not permit their use in breaching those laws.
His Honour then cited a passage from the judgment of Mason J in Cheatley v The Queen (1972) 127 CLR 291 at 311 and continued:
These considerations demonstrate that the provision for forfeiture contained in s 106(1)(a) of the Act authorizing, as it does, the forfeiture of vessels owned by persons who are or might be innocent of any complicity in the offence which creates the liability to forfeiture is appropriate and adapted to the enforcement of the offence-creating provision.
Cheatley concerned s 13AA of the Fisheries Act 1952 (Cth) which conferred a power of forfeiture in terms not dissimilar to those of s 106 of the Act. In the extended passage from the judgment of Mason J, from which Brennan J quoted an extract in Ex parte Lawler, it was observed at 310:
But it is not an essential element in the legal concept of forfeiture as a penalty that its imposition is confined to forfeiture of goods owned by a convicted offender. Forfeiture of goods may be prescribed as the penalty or consequence of offences or acts committed or done by persons other than the owner of the goods. There is a variety of circumstances such as the nature of goods, the need for a deterrent penalty or the difficulty of enforcing provisions against foreign owners which may make it appropriate to provide for forfeiture although the owner is not the offender. Notable examples are the forfeiture of firearms as a consequence of unlawfully possessing firearms and the automatic forfeiture under ss 228 and 229 of the Customs Act 1901 (as amended) of ships used in smuggling and goods unlawfully imported. In the latter instances forfeiture does not occur by means of judicial order. Nevertheless they are a striking illustration of a context in which forfeiture occurs to the disadvantage of the owner although he may not be a party to the prohibited transaction.
It may be said then that forfeiture is a penalty or consequence which attends, on some occasions at least, the illegal use or possession of goods. Even on these occasions it is a punishment of the wrongdoer because it brings to an end his possession or use of the goods.
The circumstances that the power may be exercised so as to deprive an owner of his property in a foreign boat in proceedings to which he is not a party is not in my opinion a ground for accepting the restricted interpretation suggested by the respondents. Section 13AA is the central provision of a licensing scheme regulating fishing by foreign boats in proclaimed waters in the declared fishing zone extending twelve miles seawards from territorial limits. The legislature plainly viewed a contravention of its provisions as a very serious matter. The difficulty of enforcing compliance along the length of the Australian coastline called for a stern deterrent if observance of the provisions was to take place. There were obvious difficulties in laying obligations upon foreign owners and taking proceedings against them. Such considerations in my opinion make it inappropriate to arrive at a conclusion as to legislative intention based on the consideration that the power, if exercised, will result in a deprivation of property of an owner who is not a party to the proceedings.
See also the views expressed on a corresponding provision of the Victorian Fisheries Act 1968 by a Full Court of the Supreme Court of Victoria in McGovern v State of Victoria [1984] VR 570 where an order of the County Court for forfeiture of a boat was held to determine the status or disposition of the res analogously to the effect of certain decisions of Courts of Admiralty. In a joint judgment, the Full Court said, at 576:
We think that the principle underlying those decisions is indistinguishable from that which should be held to apply to the present case. That principle is that a judicial decision which creates title to or affects property in a thing in possession is a decision that determines the status of that thing and, to that extent, is conclusive in rem. See Castrique v Imrie (1870) LR 4 HL 414, at p 428 and the observation of the Court of Appeal in Fracis, Times & Co v Carr (1900) 82 LT 698, at p 702 to the effect that for a judgment to act in rem in relation to a “res” it must determine the status or disposition of it in the way of condemnation, forfeiture, declaration of status or title or order for sale or transfer. The correctness of this proposition remained unimpeached by the reversal of the case on other grounds sub nom Carr v Fracis, Times & Co [1902] AC 176.
Accordingly, it was submitted on behalf of the applicants that, upon obtaining an order for forfeiture, the authorised officer holds whatever title that order gives him against the rest of the world including any purchaser from the Marshal. That being so, it was urged, the Court should exercise care in framing orders for a sale so as not to create a misleading impression that the purchaser will obtain a clear title as against the authorised officer which an order for sale cannot confer.
Mr Berkeley QC, who appeared with Mr M Thompson of Counsel for the second respondent, assimilated an ordinary sale of a ship liable to forfeiture under s 106 to a sale of a leasehold interest in land where the tenant had committed a breach of the lease which gave rise to a right of forfeiture in the landlord. In those circumstances, the vendor of the leasehold interest, as Parker J held in Re Taunton and West of England Perpetual Benefit Building Society and Roberts’ Contract [1912] 2 Ch 381, had not discharged the obligation to make out a good title. Accordingly, his Lordship concluded, at 386:
In my opinion, the vendors’ obligation to make out a good title has not been discharged, as the lease has become forfeitable. The order will be to the effect following : The court being of opinion that, so long as the lease remains forfeitable for non-compliance with the notice referred to in the evidence, the vendors have not made a good title, the purchaser to have liberty, if no title is made by the vendors within a month from the date of this order, to apply for the return of the deposit and for other consequential relief. The vendors to pay the purchaser’s costs.
Similarly, it was submitted that, if the present ship is subject to forfeiture under the Act, that would ordinarily be a present and existing defect in title as a result of which a purchaser would not be compelled to complete the purchase but would be entitled to the return of the deposit.
It was next contended on behalf of the second respondent that the ability to give a clean title to the ship has been a fundamental aspect of the power of a Court of Admiralty to order, in an action in rem, the sale of a ship. Reference was made in this context to Meeson, Admiralty Jurisdiction and Practice [London : LLP, 1993] where the learned author noted, at p 142:
The sale of a ship or other property by the court gives the purchaser title free of all maritime liens and other charges or encumbrances, and after the sale all claims or demands against the ship can only be enforced against the proceeds of sale.” Thus in The “Tremont” (1841) 1 Wm Rob 163 Dr Lushington said ibid at page 164: “The jurisdiction of the Court in these matters is confirmed by the municipal law of this country and by the general principles of the maritime law; and the title conferred by the Court in the exercise of this authority is a valid title against the whole world, and is recognised by the Courts of this country and by the courts of all other countries. And in The “Acrux” [1962] 1 Lloyd’s Rep 405 Mr Justice Hewson said ibid at page 409, col 1 to col 2:
The title given by such process [a sale by the Admiralty Marshal] is a valid title and must not be disturbed by those who have knowledge or who may receive knowledge of the proceedings in this Court. So far as all the claimants against this ship before her arrest are concerned, their claims are now against the fund in this Court and not against the ship properly sold to an innocent purchaser free of encumbrances. Were such a clean title as given by this Court to be challenged or disturbed, the innocent purchaser would be gravely prejudiced. Not only that, but as a general proposition the maritime interests of the world would suffer. Were it to become established, contrary to general maritime law, that a proper sale of a ship by a competent Court did not give a clean title, those whose business it is to make advances of money in their various ways to enable ships to pursue their lawful occasions would be prejudiced in all cases where it became necessary to sell the ship under proper process of any competent Court. It would be prejudiced for this reason, that no innocent purchaser would be prepared to pay the full market price for the ship, and the resultant fund, if the ship were sold, would be minimized and not represent her true value.
This was approved by Mr Justice Sheen in The “Cerro Colorado” [1993] 1 Lloyd’s Rep 58 in which he made it clear that it is a contempt of court to do anything which may interfere with the process of selling the ship and obtaining the best price for the ship.
Persons having possessory liens have no right to stop the sale of the ship, but their rights will be protected and given effect against the proceeds of sale.
The “Acrux”, it will be recalled, was referred to by Brandon J in The “Queen of the South” (supra) at 459. In The “Acrux” Hewson J extracted an undertaking from the mortgagees who were claiming against the fund in Court representing the proceeds of sale of the ship that they would not proceed elsewhere against her in respect of any unsatisfied balance of their claim nor institute proceedings in rem or equivalent proceedings against The “Acrux” anywhere in respect of their claim.
In The “Cerro Colorado” [1993] 1 Lloyd’s Rep 58, after an order had been made that the Admiralty Marshal sell the vessel at the instance of the plaintiff mortgagee, a question was raised by an advertisement and an article in Lloyd’s List suggesting that a purchaser on the sale by the Court might take subject to the right of the master and crew in respect of unpaid wages and severance pay for which they had obtained a judgment in a Spanish Court for 700 million pesos. That prompted Sheen J to make a statement in open Court which included these passages:
I wish to make it clear beyond doubt that the Admiralty Marshal selling by order of this Court gives the purchaser a title free of all liens and encumbrances. As long ago as 1841 Dr Lushington said in The Tremont (1841) 1 Wm Rob 163:
The jurisdiction of the Court ... in these matters is confirmed by the municipal law of this country and by the general principles of the maritime law; and the title conferred by the Court in the exercise of this authority is a valid title against the whole world, and is recognised by the courts of this country and by the courts of all other countries.
Dr Lushington drew attention to the serious injury which would be inflicted upon property of this kind sold under the jurisdiction of the Court if there were any doubt about its right to confer a perfect title to the ship.
The general principles of the maritime law to which Dr Lushington referred are now embodied in the Arrest Convention.
...
I can only express the hope that the Spanish Court will, as a matter of comity, recognise the decrees made by this Court, which endeavours to give effect to the International Arrest Convention. From time to time almost every ship-owner wants to borrow money from his bank and to give as security a mortgage on a ship. The value of that security would be drastically reduced if, when it came to be sold by the Court there was any doubt as to whether the purchaser from the Court would get a title free of encumbrances and debts.
Reference was also made on behalf of the mortgagee to Attorney-General v Norstedt (1816) 3 Price 97:146ER 203 where there was a judicial sale of a ship found at sea and brought in as derelict. Before the sale the ship had become forfeit to the Crown for an offence against the revenue laws. Accordingly, the question arose whether she was amenable to seizure by the Crown pursuant to that forfeiture while in the possession of a bona fide purchaser deriving title under the sale by the Court. In delivering the judgment of the Court of Exchequer Thomson CB distinguished Score v The Lord Admiral (Parker 273) where a ship laden with French goods, upon coming into Penzance, had been seized by the Admiral’s officers as a perquisite of Admiralty and was afterwards seized by a Custom-house officer for bringing prohibited goods into Penzance in contravention of the French Prohibition Act. The Custom-house officer successfully moved for prohibition on the ground that the ship had been forfeited by force of the French Prohibition Act and the subsequent seizure by the Admiralty did not prevent the forfeiture. Of that case, the Chief Baron said, at 134:
...there the subject which was to be forfeited remained in its original situation. It had not been sold, or disposed of, nor had any thing been done to condemn it, as a right of Admiralty, before the seizure by the Custom-house officer; and, unquestionably, the forfeiture had been incurred by her importing those French goods, though she was also liable to be seized as a right of Admiralty, for coming under those circumstances into the port; but however, the claim of the Crown was there asserted before any act had been done to alter the property, and in consequence of that claim having been so asserted, the prohibition went to stop the proceeding in the Court of Admiralty.
After noting that the jurisdiction of the Court of Admiralty had two branches, one concerned with matters of prize and the other with its general maritime jurisdiction, his Lordship continued, at 135, speaking of the Court of Admiralty:
That Court proceeds, as the Exchequer does, in informations, in rem; the ship itself is liable to be sold under its proceedings, in order to answer the demands that are made upon it. It generally, I believe, happens that the ship is not ordered to be sold till after a definitive sentence upon the subject, and possibly not till after the quantum of salvage is allowed; but here, upon the application of all the parties, and with the consent of the Crown in this instance, (though not in its right as claiming the ship as a forfeiture, but in its right of claiming it as derelict) a sale is ordered, and a sale does take place. Now, as to these judicial sales, there seems to be no reason for any distinction between such as are made under the authority of the Prize Court, and such as are made under this clear jurisdiction of the Admiralty, in the Instance Court; and the effect of a sale, under either of them, is to vest in the purchaser the absolute property in the ship, inasmuch as it is sold for the purposes for which the suit requires it to be sold: whoever was entitled to the produce of that sale, might have come in and claimed it in the Court.
In the present case, before they proceeded to this sale, there was no prohibition, and, indeed, no seizure, had been then made; but if the seizure had been made before, it appears to me it would have been a good ground for their coming and praying a prohibition, as they did in the case cited, on the footing of the Crown having a right by forfeiture – a right prior to that which the other claimants had, and therefore prohibiting the proceeding there; at the same time, it seems to me to be clear, that the salvors, even in that case, would have been entitled to salvage; and if that were not paid, they would of course have been entitled to a sale, in order to make good that salvage, for whosesoever property that ship may be taken to be, still, they who meritoriously preserved it from destruction, would be entitled to compensation in the shape of salvage; but, however, that has not been done in the present instance. The jurisdiction of the Admiralty, therefore, undoubtedly did apply, in this case, before any notice was taken of the forfeiture incurred to the Crown, or of any intention in the Crown to assert its right to this forfeiture; and this judicial sale, as I call it, made by consent of all parties, still was a judicial sale; and therefore it seems to us, that the party purchasing under the authority of the Court, had a judicial title given him; which must secure to him the property – the sale was made for the payment of the salvage and for other purposes – the money was brought into Court, the purchaser having fairly paid it -–and, consequently, we are of opinion that the claim of the Crown now to have this ship, after it has been so transferred, as forfeited by reason of the offence committed before this transaction of the sale took place, is not at all well founded.
Mr Berkeley also invoked the principle that a statute in general terms, like the Act in the present case, is not to be taken to affect existing fundamental principles of law unless its language intractably requires such a construction. Support for that proposition was derived from Brambles Holdings Ltd v Trade Practices Commission (1980) 32 ALR 328 and Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 where Mason J observed, at 473:
The possibility that the Commission could in exercising the power conferred interfere with court proceedings raises problems of a different order. A statute expressed in general terms should not be construed so as to authorize the doing of any act which amounts to a contempt of court. The comment of Fullagar J in Lockwood v The Commonwealth (1954) 90 CLR 177, at p 185 that “what is expressly authorized by or under a statute” is not a contempt was directed to a statute authorizing the issue of Letters Patent directing a particular inquiry; the comment has no application to a statutory power which is expressed in very general terms, there being no indication in the terms that Parliament contemplated the committing of what, but for the statute, would otherwise amount to a contempt of court.
In Potter v Minahan (1908) 7 CLR 277 O’Connor J remarked, at 304:
So far from extending the operation of the Act beyond the ordinary meaning of the words which the legislature has used, it is always necessary, in cases such as this where a Statute affects civil rights, to keep in view the principle of construction stated in Maxwell on Statutes, 4th ed, p 121:- “There are certain objects which the legislature is presumed not to intend; and a construction which would lead to any of them is therefore to be avoided.” After dealing with other matters not material to the aspect of the rule now under consideration the learned author continues (at page 122):- “One of these presumptions is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares (per Trevor J in Arthur v Bokenham 11 Mod, 150: See also Harbert’s Case 3 Rep, 12a, at p 13b), either in express terms or by implication; or, in other words, beyond the immediate scope and object of the Statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness (2 Cranch, 390); and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.”
The same principle was said to have been applied more recently in Baker v Campbell (1983) 153 CLR 52 and American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677. It was sought to apply that principle to the circumstances of the present case by contending that, if it had been intended to detract from the general power of the Court under the Admiralty Act (which by s 8 is binding on the Crown) to order a sale giving a clean title to a purchaser from the Marshal, the Act would contain an express and unequivocal statement to that effect.
I accept, in the light of the ancient statements of principle as recently endorsed, for example, by Sheen J in The “Cerro Colorado”,that a sale by the Marshal pursuant to an order of a Court of Admiralty made within jurisdiction confers on the purchaser an unencumbered title which is good against the whole world. See also Castrique v Imrie (1870) 4 LR (HL) 414 where Blackburn J delivering the joint opinion of Bramwell B, Mellor and Brett JJ, Cleasby B and himself said, at 429:
We think the inquiry is, first, whether the subject matter was so situated as to be within the lawful control of the State under the authority of which the Court sits; and, secondly, whether the sovereign authority of that State has conferred on the Court jurisdiction to decide as to the disposition of the thing, and the Court has acted within its jurisdiction. If these conditions are fulfilled, the adjudication is conclusive against all the world.
However, the question remains whether the Fisheries Management Act 1991 operates, in the events which have happened, to deprive an Australian Court of Admiralty of power or jurisdiction to make an order for sale having that effect.
The authors of some modern textbooks have adverted to the problem of resolving the conflict between the principle that the Marshal, on a sale by the Court, confers a title to the ship free of all defects including the various statutory rights in other authorities to detain the ship. Thus, Meeson op. cit. noted at p 153:
Given the existence of this overriding statutory right, the question arises as to how the potential conflict between the exercise of the statutory right and the exercise of the court’s power of sale should be resolved. This question arose in The “Spermina” (1923) 17 Ll L Rep 17, 52, 76, 109 where the harbour authority, for reasons known only to itself, refused to consent to an order whereby their rights would be fully protected by being transferred to the proceeds of sale, which in that case would have been sufficient to meet their claim. This attitude was considered by Mr Justice Hill to be “most unreasonable”, but nevertheless he considered that the authority was acting within its rights. He therefore held that he could not resolve the situation by ordering the harbour authority to give up their statutory right in return for being granted equivalent rights against the proceeds of sale, as this would have been contrary to the decision of the Court of Appeal in The “Emilie Millon” [1905] 2 KB 817 (CA). However, in the end he persuaded the authority to adopt that course.
So too in The “Sea Spray”, [1907] P 133, where property had been arrested after the exercise by a harbour authority of a statutory power of detention in respect of wreck removal, Mr Justice Bargrave Deane ordered the harbour authority to sell the ship and cargo and reimburse themselves first out of the proceeds of sale of the cargo and pay the balance into court, presumably because he did not consider that he could order a sale by the court in such circumstances. It is implicit in this order that the sale by the harbour authority will be a sale free of all encumbrances, the maritime lien being transferred to the proceeds of sale. In The “Ousel” [1957] 1 Lloyd’s Rep 151 this effect of such a sale was made explicit, Mr Justice Willmer stating (ibid at page 153, column 1) that “It is not, I understand, disputed that the harbour authority, exercising their statutory power of sale, sell free of encumbrances”. This view is, however, contrary to the previous opinion of Mr Justice Hill in The “Spermina”, and it was not considered to be the law subsequently by Mr Justice Brandon in The “Queen of the South” [1968] P 449. It is suggested that the view expressed in The “Ousel” was plainly wrong as a matter of law, unless it can be rationalised on the grounds that the harbour authority is to be treated as in some way exercising its power of sale on behalf of the court so as to attract the effect of a court sale.
In The “Countess” the harbour authority detained a vessel and it was ordered to be released on payment into court, and Lord Birkenhead LC said that “the sum in Court represents the vessel for this purpose”(ibid at page 356) and that it was subject to the lien of the harbour authority (ibid at page 359).
The conflict between the decision of the Court of Appeal in The “Emilie Millon” [1905] 2 KB 817 (CA) and the House of Lords in The “Countess” was considered in a Scottish case The “Sierra Nevada” (1932) 42 Ll L Rep 309 (Ct Sess) in which it was held that in Scotland the statutory right of a harbour authority was transferred to the proceeds of sale where the ship was sold by the court with the consent or acquiescence of the harbour authority, and, therefore, the harbour authority took in priority to the mortgagees. Lord Fleming based his decision on the principle that the effect of a court sale in Scotland was to transfer the vessel free of all claims against it, and this included the claims of the harbour authority. This reasoning is equally applicable to a sale by the Admiralty Marshal in England, as was recognised by Mr Justice Brandon in The “Queen of the South” [1968] P 449 at page 462A-D.
It is suggested that as a matter both of principle and of public policy, a sale of a vessel by the Admiralty Court must transfer the vessel free of all claims which could be enforced against the ship, however they arise. It cannot have been the intention of Parliament that by granting statutory powers of detention and sale this ancient principle of maritime law was to be abrogated. Should this point arise for decision in the future it is suggested that the reasoning of Lord Fleming in The “Sierra Nevada”, which Mr Justice Brandon found attractive in The “Queen of the South”, ought to be followed by the court.
However, in The “Queen of the South”, Mr Justice Brandon avoided having to decide this point of law by resolving the matter in a practical way by authorising the Marshal to pay off the claims of the harbour authority and to include such expenses in his expenses of sale, and this is the practice which is now followed by the Admiralty Court and so to this extent the point is of academic interest only.
Section 36 of the Admiralty Actembodies a legislative mechanism for resolving the conflict where the statutory right of detention has been conferred in relation to a civil claim on which a proceeding may be commenced in rem against the ship. That section provides:
(1) This section applies where:
(a) a law other than this Act (including a law of a State or Territory) confers on a person a power to detain a ship in relation to a civil claim; and
(b) a proceeding on the civil claim may be commenced as an action in rem against the ship.
(2) Where the ship is under arrest under this Act, the power to detain the ship shall not be exercised.
(3) The exercise of the power to detain the ship does not prevent the arrest of the ship under this Act.
(4) Where a ship that has been detained under such a power is arrested under this Act, then, by force of this subsection, the detention is suspended for so long as the ship is under arrest.
(5) Where a ship that has been detained, or would, but for subsection (2), be liable to be detained, under such a power is arrested and sold under this Act, the civil claim is, unless the court otherwise directs, payable in priority to any claim against the ship other than the claim of a Marshal for expenses.
The Explanatory Memorandum presented to Parliament in the Minister’s Second Reading Speech (House of Representatives 24 March 1988) on the Bill which was enacted as the Admiralty Act contained this note on what became s 36:
Clause 36: Statutory powers of detention
Clause 36 clarifies and regularises the situation where there are competing rights to arrest and to detain a ship in respect of a maritime claim under the Bill and under another law. The court’s power of arrest prevails, but the claim which is the subject of the statutory power of detention is converted into a claim against the ship having, under cl 36(5), an appropriately high priority. Clause 36 has no application to penal, administrative or similar powers of detention, e.g. under customs legislation: it is concerned only with claims which can be brought in Admiralty as maritime claims.
Reference: Report, paras 263-266; The Queen of the South [1968] P 449.
The reference to paras 263-266 of the Report were to those paragraphs in Report No 33 of the Australian Law Reform Commission on Civil Admiralty Jurisdiction which were in these terms:
Arrest, Possessory Liens and Statutory Rights of Detention
263. Introduction. Arrest by the admiralty Marshal may interfere with the possession of the holder of a possessory lien or a right of detention exercised under a statute (such as that of a port authority to secure payment of dock charges). Conversely, exercise of a statutory right of detention may clash with the custody of the Marshal. English admiralty courts have evolved some rules to resolve these often difficult conflicts. Although ostensibly about possession, these conflicts are often in reality concerned with priority.
264. Arrest and Possessory Liens
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Although it is not altogether clear just what priority the possessory lien enjoys in admiralty vis-ŕ-vis a claim supported by statutory right of action in rem, this general solution is satisfactory. There appears to be no Australian decision on the point. The proposed legislation could give express power to local admiralty courts to adopt the solution developed in England. But the English courts have not required legislation to guide them on this point, and it is unnecessary to cover it in the proposed legislation.
265. Arrest and Statutory Rights of Detention. By contrast the English authorities on resolving conflicts between rights of detention and arrest are in conflict. [The Report then refers to The Queen of the South quoting the last paragraph cited above from the judgment of Brandon J and continued]...
At present the better view is that the admiralty court has no power to accord the claim giving rise to the statutory right of detention first priority if transferred to a claim in admiralty (The Emilie Millon [1905] 2 KB 817 (CA); The Charger [1966] 3 All ER 117; McGuffie (1964 & 1975) para 1573; cf The Spermina (1923) 17 Lloyd’s Rep 17). If, as recommended in para 174, port and harbour dues and similar fees and levies are made a head of jurisdiction in the proposed legislation, a claim brought in reliance on this head will rank below maritime liens and mortgages. Justice Brandon found it unnecessary to resolve the conflict of authority. Instead, he referred to a different line of authority ([1968] P 449, 464 referring to The Parita [1964] 1 Lloyd’s Rep 199; The Westport (No 2) [1965] 2 All ER 447) which showed that the court had the power to authorise the Marshal to pay the amount claimed by the holder of the statutory right of sale when this was for the benefit of all interested parties. The Marshal can then include this amount in his expenses and recoup them as first priority on the sale of the vessel ([1968] P 449, 464).
266. Reform. There are no reported Australian decisions on how statutory powers of detention relate to the admiralty power to arrest and sell the vessel. One option would be to make no provision in the proposed legislation on the point. Courts would be free either to follow the solution of Justice Brandon or to resolve the conflicting authorities in the way which he favoured. Alternatively the legislation could provide for either solution. Since the authorities are conflicting, and since the problem is quite likely to arise, especially where a ship is insolvent, express legislative provision should be made. Allowing the Marshal to buy off the claim may be risky in some situations. If the anticipated sale proceeds of the ship are not much more than the claim and costs of sale it may be imprudent of the Marshal to risk incurring a loss through buying it out. The inconvenient stand-off referred to by Justice Brandon would then result: the statutory claimant has the right to sell the vessel but could not, in practice, do so because any purchaser would take it subject to admiralty claims; admiralty could sell free of all claims but its right to sell is subordinate to that of the statutory claimant. For these reasons the best solution is to give the admiralty court power to override any statutory right of detention already exercised, on condition that the claim underlying that right is given the appropriate priority, which should (unless the court otherwise orders) be first priority after the expenses of sale in admiralty. In the converse (and less usual) situation, where a ship is arrested before a statutory right of detention is exercised, the power of detention should be excluded. This provision will have no application to rights of detention or seizure which exist for purposes other than the recovery of civil claims within admiralty jurisdiction. (Although it has been held that the Commonwealth may not interfere with fiscal or governmental rights of the States under the incidental power (Victoria v Commonwealth (1956) 99 CLR 575), that case involved a very different situation. It is doubtful whether statutory rights of detention would fall within the protected class of “fiscal or governmental rights”: even if they do, the incidental power in aid of federal judicial power in respect of a matter itself within federal jurisdiction is very strong, and is sufficient to validate the proposed provision.) For example it will not affect powers of forfeiture or seizure pursuant to customs, quarantine or similar legislation.
Since the right of detention claimed by the present applicant is in aid of a forfeiture by way of a penalty and has no relation to a civil claim, it is clear that s 36 of the Admiralty Act has no application. However, the legislature may be taken to have been aware in 1991 when it enacted the Fisheries Management Act, of the wide-ranging powers, including a power of sale, possessed by Courts of Admiralty and recently confirmed by the Admiralty Act. It is significant that it did not provide for that power of sale to be suspended whilst a vessel is detained pursuant to s 84. Equally, however, the legislature has not provided that the general power of sale exercisable by a Court of Admiralty, including conveyance to a purchaser from the Marshal of a clean title to the vessel, should, in all cases, override the right of detention under the Act and the inchoate right of the Crown to the forfeiture of the vessel.
In these circumstances, I consider that the legislature intended to leave to the Court of Admiralty, in the exercise of its discretion, the adjustment of the competing rights of the authorised officer under the Act on the one hand, and of the plaintiff in an action in rem and other persons interested in the resolution of that action on the other. This interpretation allows the Court of Admiralty to make an order, for example, securing the salvor’s reward for salvage of the vessel while she is under detention, to use Mr Berkeley’s illustration which echoes the discussion of the point by Thomson CB in Attorney General v Norstedt (supra). It also permits the Court, in an appropriate case, to defer the sale to preserve the utility of the detention of the vessel under the Act if those who would be entitled to claim on the fund in the event of a sale refuse to allow an order for forfeiture, if made, to attach to that fund in lieu of the vessel.
In rejecting, on 16 March 1998, an application by the present applicants to be joined as defendants to the action instituted in this Court by the present respondent, Bergensbanken ASA, (VG 53 of 1998) I adverted to their possibly intervening when the question of the sale of the ship is under consideration. I there said:
...I have come to the clear view that a case has not been made out for the joinder of either the AFMA or the Commonwealth as a defendant to the action presently in this Court. That is not to say that an occasion may not arise in the future for the joinder of the AFMA or the Commonwealth or both if and when an order for forfeiture is made by a court of competent jurisdiction. Nor should I be taken as pre-empting an application by either or both of those entities to intervene when the Court is considering an application for the sale of the ship or the terms on which any such sale should be advertised or effected.
The conclusion which I have formed in considering the preliminary question strengthens the present applicants’ claim to be heard as interveners when the Court is exercising the discretion which, I consider, has been left to it by the operation in conjunction of the Fisheries Management Act and the Admiralty Act. That discretion could well be influenced by whether the plaintiff in VG 53 of 1998 and the other persons interested in the disposition of the ship pursuant to that action are prepared to agree that the AFMA or the Commonwealth should have recourse to the fund arising from the sale in the event that an order for forfeiture is subsequently made by the Court of Petty Sessions at Perth. Accordingly, I shall order that the preliminary question be answered, no, that the present application be adjourned for further directions in the light of these reasons to 9 October 1998 to be given at the same time as further directions in the proceeding No VG 53 of 1998 and that the costs of all parties of the preliminary question be reserved.
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I certify that this and the preceding (22) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 18 September 1998
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Counsel for First, Second and Third Applicants: |
Mr S Kaye QC with Mr P Cosgrave |
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Solicitors for the First, Second and Third Applicants: |
Australian Government Solicitor |
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Appearance on behalf of the First Respondent: |
Mr J Wood, Marshal |
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Counsel for the Second Respondent: |
Mr H Berkeley QC with Mr M Thompson |
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Solicitors for the Second Respondent: |
Mallesons Stephen Jaques |
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Counsel for the Third Respondent: |
No appearance |
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Solicitors for the Third Respondent: |
No appearance |
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Date of Hearing: |
14 May 1998 |
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Date of Judgment: |
18 September 1998 |
