FEDERAL COURT OF AUSTRALIA

Olbers v Commonwealth of Australia (No 3) [2003] FCA 651

PRACTICE AND PROCEDURE – Federal Court Rules – application for separate trial of questions of law – Federal Court Rules O 29 r 2 – principles applicable to application of rule – case management considerations – avoidance of advisory or theoretical questions – uncertain factual foundations – possibility of appeal and remittance for trial on facts – motion dismissed.

Fisheries Management Act 1991 (Cth) s 84, s 87, s 106A

Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 cited

Burton v Honan (1952) 86 CLR 169 cited

Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 cited

OLBERS CO LTD v THE COMMONWEALTH OF AUSTRALIA and AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

W151 OF 2002

FRENCH J

26 JUNE 2003

PERTH

THE COURT ORDERS THAT:

1.         The applicant’s motion filed 5 June 2003 is dismissed.

2.         The applicant is to pay the respondents’ costs of the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

ON MOTION FOR SEPARATE TRIAL OF CERTAIN ISSUES

Introduction

1                     Olbers Co Ltd (“Olbers”) is the owner of the fishing vessel “Volga”.  On 21 May 2002 it instituted proceedings against the Australian Fisheries Management Authority (“AFMA”) arising out of the seizure, detention and proposed forfeiture of its vessel to the Commonwealth.  On 7 February 2002 the vessel was stopped in the Southern Ocean and boarded by members of the Royal Australian Navy from the frigate HMAS Canberra.  It was said to have been fishing in the Australian Fishing Zone (“AFZ”) and to have taken Patagonian Toothfish in contravention of the Fisheries Management Act 1991 (Cth).  It was directed to proceed to Fremantle.  A Notice of Seizure of the vessel, its net, traps, equipment and catch was given on 20 February 2002 under s 106C of the Act.  A further notice was given under s 106F of the Act on 21 March 2002.  By the latter notice the Master of the boat was informed that the boat, the nets, the traps, the equipment and the catch would be condemned as forfeited unless a written claim were given to the Managing Director of AFMA within thirty days of the date of the notice.

2                     The present proceedings were commenced in response to that notice.  Olbers seeks a declaration that the seizure and detention of the vessel, its equipment and catch was illegal and that they were not forfeited.  It also seeks an order that the vessel, its nets and equipment together with the proceeds of the sale of the catch be released to Olbers. 

3                     The Commonwealth of Australia was substituted for AFMA on 19 June 2002.  AFMA was rejoined as Second Respondent on 13 August 2002.  Pre-trial programming directions were made.  A motion for security for costs was dismissed on 16 October 2002.  A motion for a stay of proceedings pending the disposition of criminal charges against members of the crew of the Volga, related to its fishing activities in the AFZ, was dismissed on 11 March 2003. 

4                     On 5 June 2003, a motion was filed for the hearing and determination of certain preliminary issues.  The motion was filed pursuant to directions given on 3 April 2003.

The Questions Proposed for Separate Trial

5                     By its motion Olbers seeks an order pursuant to O 29 of the Federal Court Rules that there be a preliminary hearing of four issues set out in the notice of motion in the following terms:

‘(1)      The extraterritorial exercise of the powers granted to officers under section 84(1) of the Fisheries Management Act 1991 (Cth) as amended (“FMA”) pursuant to the operation of section 87(1) of the FMA in respect of a foreign boat requires a pursuit from a place within the Australian Fishing Zone (“AFZ”) and such a pursuit as a matter of law can only be effected when a direct order to stop is issued to that foreign boat by an officer or authorised person in the Australian Fishing Zone.

(2)       In the alternative to (1), if the FMA does not require a direct order to stop to be issued within the AFZ to a foreign boat to effect a pursuit of that vessel within section 87(1) of the FMA (as a condition to the extraterritorial operation of that Act) then section 87(1) of the FMA is unconstitutional because:

            (a)        it is not authorised by the legislative power vested in the First Respondent by section 51(x) of the Constitution, or any other head of legislative power therein, and

            (b)        it is inconsistent with the First Respondent’s obligations as a signatory of the United Nations Convention of the Law of the Sea as adopted by the FMA and offends section 51(xxix) of the Constitution.

(3)       Forfeiture of a foreign boat, net, trap, equipment or fish pursuant to the provisions of Part 6 Division 6 Sub-Division B (section 106A) of the FMA requires that the thing forfeited to the First Respondent have been used in respect of an offence nominated in section 106A of the FMA, which, in turn, requires:

            (a)        the provision of particulars by the Respondents of the offence alleged to have been committed using the foreign boat, net, trap, equipment or fish seized, and

            (b)        proof of the commission of the offence(s) particularised in (a) beyond reasonable doubt in a court of competent jurisdiction.

(4)       Further, and in the alternative to (3), to the extent that Part 6 Division 6 (includes section 106A) of the FMA does not require proof in the terms set out at (3)(b) herein it is unconstitutional because such forfeitures would:

            (a)        be in breach of section 51(xxxi) of the Constitution, being acquisitions of property by the First Respondent not on just terms;

            (b)        be in breach of Part III of the Constitution, because forfeiture is a function that is essentially and exclusively judicial and is consequent upon the adjudgement and punishment of criminal guilt, it cannot be effected by an administrative and/or civil process, and

            (c)        not be authorised by the legislative power vested in the First Respondent by section 51(x) of the Constitution, or any other head of legislative power therein.’

The Rules of Court – Order 29

6                     Order 29 of the Federal Court Rules provides in the parts relevant to this application:

‘1.  In this Order, “question” includes any question or issue in any proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.

2.   The Court may make orders for –

(a)       the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and

(b)       the statement of a case and the question for decision.

3.  Where any question is decided under this Order, the Court shall, subject to rule 4, make such order, grant such relief or give such directions as the nature of the case requires.

4.  Where the decision of a question under this Order –

(a)       substantially disposes of the proceeding or of the whole or any part of any claim for relief in the proceeding; or

(b)       renders unnecessary any trial or further trial in the proceeding or on the whole or any part of any claim for relief in the proceeding,

the Court may, as the nature of the case requires –

(c)        dismiss the proceeding or the whole or any part of any claim for relief in the proceeding; or

(d)       pronounce any judgment; or

(e)        make any other order.”

7                     Authorities relevant to the application of the order were referred to, and applicable principles summarised, by Branson J in Reading Australia Pty Ltd v Australian Mutual Providence Society [1999] FCA 718.  Her Honour’s summary of the principles (omitting reference to the authorities) is as follows:

‘(a)      the term “question” in O 29 r 1 includes any question of fact or law in a proceeding.  The distinction in the rule between an “issue” and a “question” is the distinction between that which, when resolved, will result in an adjudication in favour of one party or the other, being an “issue”, and less decisive matters of dispute being “questions”;

(b)       a question can be the subject of an order for a separate decision under O 29 r 2 even though a decision on such a question will not determine any of the parties’ rights;

(c)       however, the judicial determination of a question under O 29 r 2 must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties;

(d)       where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined;

(e)       care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of issues not “ripe” for separate and preliminary determination.  An issue may not be “ripe” for separate and preliminary determination in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved;

(f)        factors which tend to support the making of an order under O 29 r 2 include that the separate determination of the question may –

            (i)         contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or

            (ii)        contribute to the settlement of the litigation;

(g)       factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may –

            (i)         give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial;

            (ii)        result in significant overlap between the evidence adduced on the hearing of the separate question and at trial – possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding … This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or

            (iii)       prolong rather than shorten the litigation.’

8                     The overarching consideration informing the discretion to make an order under O 29 r 2 is efficient case management.  It is subject to the limitation that the Court cannot give an advisory opinion on theoretical or hypothetical facts even if such an opinion were likely to lead to a settlement or resolution of the proceedings.

The Pleadings

9                     In its amended statement of claim filed on 8 July 2002, Olbers pleads that it is a company incorporated in the Russian Federation entitled to sue and be sued in its own name and this is admitted.  In paragraph 3 it alleges that AFMA is an agency of the Commonwealth, established pursuant to s 5 of the Fisheries Administration Act 1991 (Cth), a body corporate pursuant to s 10(1)(a) of that Act and entitled to sue or be sued under s 10(1)(c) of that Act.  It also alleges in paragraph 3(d) that AFMA in its administration of the Act is obliged to give effect to the objects of the Act set out in s 3 thereof.  Each of these matters is admitted.  In paragraph 3(f) Olbers says that, in its administration of the Act, AFMA is obliged to have regard and give effect to the Commonwealth’s obligations pursuant to any applicable international treaty, agreement or protocol.  This is denied, it being said that AFMA is only obliged to have regard and give effect to any such treaty, agreement or protocol to the extent it is required to do so by the Fisheries Management Act or any regulations made under it or any other applicable Commonwealth legislation.

10                  In paragraph 4 of the amended statement of claim, Olbers asserts its ownership of the Volga, the nets and equipment that were at all material times on board the vessel and the fish that were on board the vessel when it was boarded.  This is denied by the Commonwealth and AFMA who say that the vessel, the equipment and the catch are forfeited to the Commonwealth pursuant to s 106A of the Fisheries Management Act.  They say that that forfeiture occurred prior to the boarding of the vessel on 7 February 2002 and that, upon forfeiture, title to the vessel, the equipment and the catch vested in the Commonwealth. 

11                  The allegations in paragraphs 5, 6 and 7 of the amended statement of claim are all admitted.  They are that the Volga is registered in the Ship Registry of the Russian Federation and is entitled to fly the Russian flag (par 5), that on 7 February 2002 it was boarded by Australian Fisheries Officers and navy personnel from an Australian military helicopter in the Southern Ocean (par 6), and that, when the boarding took place, it was in international waters outside the AFZ as that term is defined in s 4(1) of the Australian Fisheries Management Act. 

12                  In paragraph 8 of the Amended Statement of Claim it is alleged:

‘8.        At no time prior to the Boarding did:

            (a)        the military helicopter or any Australian military ship require or order the Vessel to stop in the AFZ; or

            (b)        the Vessel receive any communication from the military helicopter or from any Australian military ship.’

In their amended defence, the Commonwealth and AFMA admit ‘… that no direct order to stop was issued to the Vessel within the Australian Fishing Zone’.  Otherwise they deny paragraphs 8(a) and 8(b) of the amended statement of claim.  Paragraph 8 of the amended defence goes on:

‘… The Respondents further say that prior to the boarding of the Vessel, the helicopter from HMAS Canberra transmitted three messages to the Vessel on VHF Marine Channel 16, the first of which notified the Vessel that it was about to be boarded by Australian officers exercising powers under the Fisheries Management Act, and was transmitted at 1205 hours when the vessel was approximately 0.5 nautical miles outside the AFZ.  The Vessel did not transmit an acknowledgment of any of these messages, but after  transmission of the first message the Vessel immediately altered course by over 90^o to approximately 120^o true being a course which would take the vessel away from the boundary of the AFZ.’

13                  The Commonwealth and AFMA admit the allegation in paragraph 9 of the amended statement of claim that shortly after the boarding on 7 February 2002 the Master of the vessel was served with a Notice of Apprehension purporting to be issued under the Fisheries Management Act.  They also admit that the Notice of Apprehension claimed, inter alia, that the vessel was apprehended under the Act and set out the grounds for apprehension relied upon by the respondents.  It is admitted that the Notice of Apprehension did not inform the Master of the vessel that the catch had been apprehended or seized and that, following the boarding, the vessel was taken to Fremantle under Australian naval escort and arrived there on 19 February 2002.

14                  The allegation that the Master of the vessel was served by AFMA with a notice under s 106C of the Act is admitted. It is asserted, in the amended defence, that the officer serving the notice seized the vessel, the equipment and the catch on that day, 20 February 2002, pursuant to s 84(1)(ga) of the Fisheries Management Act immediately prior to serving the notice of seizure.  Allegations in the statement of claim as to the notice from AFMA on 21 March 2002, that it claimed the vessel, the equipment and the catch, that AFMA served notice under s 106F of the Act and that the present proceedings were issued on 21 May 2002 pursuant to s 106G of the Act are all admitted.  It is also admitted that the catch was sold at or about the date of issue of these proceedings and that the Commonwealth has retained the proceeds of that sale which, it is said, in the amended defence amounted to $1,932,579.28.

15                  The amended statement of claim asserts the invalidity of the purported exercise of powers under the Act by AFMA in relation to the Volga.  It is convenient at this point to set out paragraphs 20 to 24 inclusive of the amended statement of claim which are in the following terms:

‘20.      Any purported exercise of powers conferred by the Act by the Second Respondent, its servants or agents, preparatory to, in the process of or following the Boarding in respect of the Vessel, Equipment or Catch was invalid and unlawful because there was no pursuit falling within section 87(1)(a) of the Act for either or both of the following reasons:

            (a)        no order to stop was issued to the vessel within the AFZ; and

            (b)        the purported pursuit was not commenced inside the AFZ.

21.       In the alternative, any exercise of powers by the Second Respondent, its servants or agents over the Vessel, Equipment or Catch was invalid and unlawful because any purported pursuit was terminated or interrupted so that the statutory requirements conditioning the exercise of powers of pursuit under section 87(1)(b) of the Act outside the AFZ were not met.

22.       Further, any purported exercise of powers conferred by the Act by the Second Respondent, its servants or agents, over the Vessel, the Equipment or Catch was invalid and unlawful because contrary to the requirements of section 84(1)(a) of the Act there were no reasonable grounds to believe that the Vessel had been used, was being used or was intended to be used for fishing in the AFZ.

23.       Further, any purported exercise of powers conferred by the Act by the Second Respondent, its servants or agents, over the Catch was invalid and unlawful because no notice was served in respect of the Catch in accordance with section 84(1A) of the Act.

24.       In the premises, the Respondents can establish no legal basis for the seizure and detention of the Vessel, and the Equipment, or Catch and such seizure and detention was and is illegal.’

16                  In respect of the preceding paragraphs of the amended statement of claim the Commonwealth and AFMA admit that ‘no direct order to stop’ was issued to the vessel within the AFZ but otherwise deny paragraphs 20 and 21.  They say that the exercise of powers by officers under the Fisheries Management Act was authorised by ss 84(1)(a), (g), (ga), (ia), (k) and (t), 87(1), 106A, 106C and 106F of the Act.   They say that the physical evidence found on board the vessel, the admissions made by its Master on 7 February 2002, and files recovered from its computer show that in the period leading up to its boarding on 7 February 2002, the vessel had been engaged in extensive long-line fishing in the AFZ contrary to the Fisheries Management Act.  They say that the catch was seized pursuant to s 84(1)(ga) of the Act and not pursuant to s 84(1)(g) and that accordingly, no notice of seizure was required to be served pursuant to s 84(1A). 

17                  Paragraph 24 of the amended statement of claim is denied.  It is said that the vessel, the equipment and the catch were forfeited to the first respondent pursuant to s 106A of the Fisheries Management Act prior to the boarding of the vessel and that title to the vessel, the equipment and the catch vested in the Commonwealth immediately upon forfeiture.  Alternatively it is said the effect of Olbers having given notice in writing under s 106E claiming the vessel is that Olbers must be taken to have proceeded on the basis that there had been a seizure of the vessel and as if there had been effective service of the Notice of Seizure by utilising the rights given to it under s 106E.

18                  The amended statement of claim goes on to allege a duty of care owed to Olbers by the Commonwealth and AFMA:

‘(1)      to take reasonable care not to misrepresent to the Applicants their statutory powers over the Vessel, Equipment or Catch;

(2)       to take reasonable care not to act unlawfully by purporting to obtain and/or exercise ,statutory powers over the Vessel, Equipment or Catch to which they were not lawfully entitle,; and

(3)       to take reasonable care in the exercise of any statutory powers over, the Vessel, Equipment or Catch that had lawfully accrued to them.’

It is said that AFMA by its unlawful seizure and detention of the vessel and equipment and its issue of the Notice of Apprehension, Notice of Seizure and Notice of Forfeiture breached that duty of care as a result of which Olbers suffered loss and damage.  There is a separate claim for misfeasance in public office, arising out of the same events, raised under paragraph 30 of the amended statement of claim.

19                  In its amended reply Olbers says that forfeiture pursuant to s 106A of the Act can occur only when a person has been convicted of at least one of the offences enumerated in s 106A(a) of the Act in respect of the forfeited boat or equipment.  If a conviction is not required to effect a forfeiture then, to the extent that the Act purports to authorise such a forfeiture, it is not authorised by the Constitution.  Particulars of this contention assert that a purported forfeiture, absent a conviction for a relevant offence, constitutes an acquisition of property which is otherwise than on just terms and so is not authorised by s 51(xxxi) of the Constitution.  Alternatively, it is asserted that such a forfeiture purports to allow the imposition of a criminal penalty by the legislature without proof of criminal guilt and is therefore inconsistent with Chapter III of the Constitution. 

20                  It is also said that where the purported exercise by an officer of any power under s 84(1) of the Act is a place at sea outside the AFZ but not within the territorial sea of another country such a power can only be exercised if one or more officers have pursued the person or boat from a place within the AFZ to the place of seizure.  Pursuit for the purposes of the Act, it is said, is to be understood in terms of the Commonwealth’s obligations under the United Nations Convention on the Law of the Sea (“UNCLOS”).  It is said that there was no lawful or authorised pursuit because the pursuit was not commenced within the AFZ. 

21                  It is not necessary for present purposes to refer to the other matters raised in the reply.

Statutory Framework

22                  The powers of officers are set out in s 84 of the Fisheries Management Act. Section 84 provides relevantly:

‘84(1)  An officer may:

(aa)     for the purposes of boarding a boat that is at a place where the officer may board it under paragraph (a) or (b):

            (i)         require the master to stop the boat at such a place to allow the officer to board it; and

            (ii)        if the master does not stop the boat as required and the boat is not an Australian-flagged boat, use any reasonable means consistent with international law to stop the boat (including firing at or into the boat after firing a warning shot, and using a device to prevent or impede use of the system for propelling the boat); and

(a)       board a boat in the AFZ or in Australia or an external Territory or a boat that the officer has reasonable grounds to believe has been used, is being used, or is intended to be used, for fishing in the AFZ and may:

            (i)         search the boat for fish, for equipment that has been used, is being used, is intended to be used or is capable of being used for fishing or for any document or record relating to the fishing operations of the boat; and

            (ii)        break open any hold, compartment, container or other receptacle on the boat that the officer has reasonable grounds to believe contains anything that may afford evidence as to the commission of an offence against this Act; and

…

(c)       examine anything found by action taken under paragraph (a) or (b); and

…

(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

(ga)     seize all or any of the following that are forfeited to the Commonwealth under section 106A or that the officer has reasonable grounds to believe are forfeited under that section:

            (i)         a boat;

            (ii)        a net, trap or other equipment;

            (iii)       fish;…’

23                  Section 87 provides for the pursuit of persons and boats as follows:

‘87(1)  An officer may exercise, with respect to boats (including foreign boats) and persons (including foreign nationals) at a place at sea outside the AFZ but not within the territorial sea of another country, a power conferred on the officer under section 84 if:

(a)       one or more officers (whether or not including the officer exercising the power) have pursued the person or boat from a place within the AFZ to such place; and

(b)       the pursuit was not terminated or interrupted at any time before the officer concerned arrived at such a place with a view to exercising that power.

   (2)  For the purposes of subsection (1), a pursuit of a person or boat is not taken to be terminated or substantially interrupted only because the officer or officers concerned lose sight of the person or boat.

   (3)  A reference in subsection (2) to losing sight of a person or boat includes a reference to losing output from a radar or other sensing device.’

24                  Reference should also be made to s 106A of the Fisheries Management Act which relevantly provides:

“The following things are forfeited to the Commonwealth:

(a)       a foreign boat used in an offence against:

            …

(iii)      section 100;

…

(c)        a net or trap, or equipment, that:

            (i)         was on a boat described in paragraph (a) or (b) at the time of the offence mentioned in that paragraph; or

            (ii)        was used in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 101, 101A or 101B;

 (d)      fish:

            (i)         on a boat described in paragraph (a) or (b) at the time of the offence mentioned in that paragraph; or

            (ii)        involved in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 101, 101A or 101B.”

The Contentions

25                  It was submitted for Olbers that the determination in its favour of questions  (1) and (2) in its notice of motion will dispose of the proceedings finally.  This is because, upon such a determination, the detention of the vessel and everything that came thereafter would be outside the legislative competence of the Commonwealth, outside jurisdiction and/or unlawful. 

26                  In respect of question (3) it was contended that, assuming the only offences relied upon by the Commonwealth to support forfeiture of the Volga are the alleged offences with which members of the crew have been charged, the determination of questions (3) and (4) in Olbers’ favour would render the need for a trial in this Court unnecessary.  That is because the outcome of the criminal proceedings, once established in this Court, would determine the outcome of these proceedings.  It was said that the resolution of questions (1) and (2) goes to the heart of these proceedings because they determine the issue of legal authority.  Argument upon those questions would be required at trial and hearing that argument now will not increase the parties’ costs and may significantly reduce them.  It was anticipated that argument in relation to the questions identified would occupy no more than two hearing days.

27                  It was submitted for the Commonwealth and AFMA that questions (1) and (2) are predicated upon acceptance of Olbers’ argument that determination, in favour of Olbers, of the alleged requirement for a stop order would determine the substantive outcome.  However it was said to emerge from the defence that this is by no means determinative and there would, in the event of a determination in Olbers’ favour, still need to be a decision on whether the vessel was forfeited notwithstanding the absence of an order to stop. 

28                  Question (3)(a) could be resolved by a request for particulars and by provision of the same.  Question (3)(b) might lend itself to being dealt with as a preliminary question subject to Olbers indicating what ‘beyond reasonable doubt in a court of competent jurisdiction’ connotes in the context of this matter.  Paragraph 2(1) of the Olbers’ reply indicates that Olbers is referring to a court where a conviction can result and automatic forfeiture under s 106A could only occur after a conviction for one of the offences referred to in that section.  That proposition was said to be in conflict with the authority of the High Court in Burton v Honan (1952) 86 CLR 169 at 176 per Dixon CJ.

29                  Question (4), items (a) and (c) were said to be in direct conflict with settled law in relation to the constitutionality of analogous forfeiture provisions under the Customs Act 1901 (Cth) – Burton v Honan at 176 and 180-181 per Dixon CJ.  See also Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270.

Whether the Questions Raised Should be Separately Tried

30                  Although some of the argument on the Olbers’ motion went to the merits of the substantive contentions reflected in the questions posed, this is not the occasion to expand upon those matters.  The issue now before the Court, in accordance with the principles outlined earlier, is whether the questions identified in the motion, if resolved one way, would dispose of the proceedings or significantly shorten them with an attendant saving in time and money. 

31                  As to the latter possibility, any prophesied economies are to be balanced against the fragmentation of the trial of the issue.  Experience in the courts over many years has demonstrated that fragmentation of proceedings rarely result in any saving of time in the long run and that projections as to costs savings are likely at best to be speculative. 

32                  The first two questions proposed for preliminary determination depend upon the factual proposition that ‘a direct order to stop’ was not issued to the Volga before the action based upon s 84 of the Fisheries Management Act was undertaken.  The term ‘direct order to stop’ has no statutory meaning.  It does not appear in s 84, nor in s 87.  Nor has it been suggested that it appears anywhere else in the Act. 

33                  Section 84(1)(aa) empowers an officer to require the master of a boat to stop it to allow the officer to board, and if that request is not obeyed, to use any reasonable means consistent with international law to stop the boat.  The section does not in terms condition the power to board, or to take any consequential action, upon the issue of an order to stop, direct or indirect.  It appears that the posited requirement is based upon the provisions of the UNCLOS.  So much appears from the amended reply. UNCLOS is said to condition the lawfulness of a pursuit grounding the extraterritorial jurisdiction to seize a foreign ship outside the AFZ on the prior communication of a visual or auditory signal to stop given at a distance which enables it to be seen or heard by the foreign ship.

34                  The Commonwealth and AFMA maintain, notwithstanding ‘no direct order to stop’ was issued to the vessel, three messages were transmitted to it the first of which notified it that it was about to be boarded by Australian officers exercising powers under the Fisheries Management Act.  There would be therefore at the very least a factual question whether an order to stop, sufficient for the purposes of the UNCLS was given.  Moreover, as the Commonwealth and AFMA point out in their submissions there would, in the event of a determination in favour of Olbers on this point still need to be a decision on whether the vessel were forfeited notwithstanding the absence of an order to stop.

35                  The terms in which questions (1) and (2) are framed have about them the character of hypothetical or advisory opinions which, on their face, are not rooted in a common factual foundation.  In any event, a determination of those questions in favour of Olbers will not dispose of the need for a trial of the causes of action in negligence and misfeasance in public office.   

36                  Question (3)(a) is not framed in terms of a question to which O 29 is applicable as it raises an issue about a requirement for the provision of particulars.  As to question (3)(b), that question might be answered in favour of Olbers, but if that answer were overturned on appeal it would have to come back for trial on the facts necessary to establish the relevant offences.  It is better that any determination of that matter be made after a trial of all factual issues so that, whatever the outcome, any appeal on the question can be final.  And, in any event, the causes of action in negligence and misfeasance in public office would remain for determination.

37                  The separate determination of the constitutional issue raised in question (4) in the motion is linked to question (3)(b) and, in my opinion, no sufficient benefit would accrue from endeavouring to determine that question separately. 

38                  For the preceding reasons, I am of the view that it is not appropriate to have a separate trial of the questions raised in the Olbers’ motion.  The motion is therefore dismissed.

Associate:

Dated:              26 June 2003