FEDERAL COURT OF AUSTRALIA

 

Pan United Shipyard Pte Ltd v The Ship “Rodolfo Mata” [2004] FCA 117



ADMIRALTY PRACTICE  -  application for leave to serve writ in rem – whether good reason for leave to be granted – where no opportunity to effect service on ship or surrogate vessel


Admiralty Act 1988 (Cth) ss 19, 22(1)

Supreme Court (U.K.) Rules (1995) O 6 r 8(1)(a)

Admiralty Rules (1988) rr 6, 20, 80


Aichhorn & Co K G v The Ship “M V  Talabot(1974)132 CLR 449 cited

General Motors-Holden Limited & Ors v The Ship “Northern Highway” & Ors (1982) 29 SASR 138 cited

The Berny” [1979] QB 80 cited

The Helene Roth” [1980] QB 274 cited

The Myrto” (No. 3) [1987] 2 Lloyds Law Reports 1

Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 cited


Fiocco and Brewer “Civil Procedure in Western Australia – A Practice Manual for 1998


PAN UNITED SHIPYARD PTE LTD v THE SHIP “RODOLFO MATA”

WA36 OF 2003

WA37 OF 2003



LEE J

11 FEBRUARY 2004

PERTH



IN THE FEDERAL COURT OF AUSTRALIA

 

WESTERN AUSTRALIA DISTRICT REGISTRY

WA36 OF 2003

 

BETWEEN:

PAN UNITED SHIPYARD PTE LTD

PLAINTIFF

 

AND:

THE SHIP "RODOLFO MATA"

DEFENDANT

 

JUDGE:

LEE J

DATE OF ORDER:

11 FEBRUARY 2004

WHERE MADE:

PERTH

 

THE COURT ORDERS THAT:

 

1.       The plaintiff amend the name of the plaintiff in the title of the writ by 18 February 2004.


2.         The plaintiff have leave to serve the writ on the defendant ship on or before the 14 February 2005.


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



IN THE FEDERAL COURT OF AUSTRALIA

 

WESTERN AUSTRALIA DISTRICT REGISTRY

WA37 OF 2003

 

BETWEEN:

PAN UNITED SHIPYARD PTE LTD

PLAINTIFF

 

AND:

THE SHIP "RODOLFO MATA"

DEFENDANT

 

JUDGE:

LEE J

DATE OF ORDER:

11 FEBRUARY 2004

WHERE MADE:

PERTH

 

THE COURT ORDERS THAT:


1.         The plaintiff amend the name of the plaintiff in the title of the writ by 18 February 2004.


2.         The plaintiff have leave to serve the writ on the defendant ship on or before the 14 February 2005.


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



IN THE FEDERAL COURT OF AUSTRALIA

 

WESTERN AUSTRALIA DISTRICT REGISTRY

WA36 OF 2003
WA37 OF 2003

 

BETWEEN:

PAN UNITED SHIPYARD PTE LTD

PLAINTIFF

 

AND:

THE SHIP "RODOLFO MATA"

DEFENDANT

 

 

JUDGE:

LEE J

DATE:

11 FEBRUARY 2004

PLACE:

PERTH


REASONS FOR JUDGMENT


LEE J:

1                     By an ex parte application the plaintiff, a foreign corporation incorporated in Singapore, seeks orders that the writs in rem issued in these matters “be renewed for a period of twelve months”.  The writs were issued against the ship Rodolfo Mata on 14 February 2003.  The writ in proceeding WA36/2003 claimed a sum of S $60,346,516, plus interest and costs, and a further unliquidated amount, for conversion work carried out on the vessel at Singapore between May 2001 and January 2002.  The writ in proceeding WA37/2003 sought to recover a sum of S $2,524,549, plus interests and costs, in respect of further repairs and services rendered to the vessel by the plaintiff at Singapore in the same period.  Principally the plaintiff’s claims relate to work carried out on the vessel to convert it from a container ship to a livestock carrier. 

2                     The port of registry for the Rodolfo Mata is Kingstown in Saint Vincent & The Grenadines. 

3                     Between 17 and 22 January 2003 the ship loaded a cargo of livestock at the port of Fremantle for carriage to Jeddah in Saudi Arabia but has not returned to Australian waters since then.  The plaintiff believes that after that voyage the ship has been laid-up in Indonesian waters.  After the writs were issued there has been no opportunity for the plaintiff to effect service of the writs on the ship.  It does not appear from the inquires made by the plaintiff that there is any surrogate ship to the Rodolfo Mata against which the plaintiff may commence a proceeding pursuant to 19 of the Admiralty Act 1988 (Cth) (“the Act”) if such a ship entered Australian waters.

4                     A plaintiff must serve a writ in rem within Australia (s 22(1) of the Act).  It follows that the ship named in the writ must come into Australia before a plaintiff will have an opportunity to effect service.  (See:  General Motors-Holden Limited & Ors v The Ship “Northern Highway” & Ors (1982) 29 SASR 138 per Legoe J at 142.) 

5                     As Menzies, Gibbs and Mason JJ said in Aichhorn & Co K G v The Ship “M V  Talabot(1974)132 CLR 449 at 455:

“Since the jurisdiction of the court to entertain an action in rem is based on the presence of the res within the territory of the state under whose authority the court sits, and since the purpose of such an action is to enable the judgment to be satisfied out of the res, it must follow, at least as a general rule, that a writ in an action in rem can only be served if the res is within the jurisdiction.”

6                     Although the plaintiff has sought “renewal” of the writs that is not an order provided for by the Admiralty Rules, or by the Rules of the Federal Court.  Where previous authorities spoke of “renewal” of a writ in rem they were concerned with the Rules of the Supreme Court (U.K.), or variants thereof, which made specific provision for renewal of a writ if service thereof was not effected within twelve months from the date of issue.  (See:  Rules of the Supreme Court (U.K.) (1995) O 6 r 8(1)(a); cf:  Fiocco and Brewer “Civil Procedure in Western Australia – A Practice Manual for 1998” at [7.040 (iii)].)

7                     Such rules were appropriate in earlier times where the progress and management of litigation was left to the parties involved.  However, with the advent of a system of case management under judicial supervision it became unnecessary to provide for renewal of a writ by specific rule of court.  Accordingly, under the Rules of the Federal Court the question of service of the originating process of the Court was a matter to be addressed at a directions hearing fixed at the time the process was issued.  Notwithstanding that the form of writ in rem prescribed by the Admiralty Rules (Form 6) makes no provision for a directions hearing, it has been the practice of this Court to apply its case management system to a proceeding in rem

8                     Although the Admiralty Rules set standard provisions for the exercise of admiralty jurisdiction by this Court or other courts, it is acknowledged in r 6 thereof that the Admiralty Rules do not exclude the operation of rules of a court exercising admiralty jurisdiction that are not inconsistent with the Admiralty Rules.  Thus, where application of the Rules of the Federal Court supplement the Admiralty Rules, they may be applied in the exercise of admiralty jurisdiction by the Court.  It may be noted also, that r 80 of the Admiralty Rules provides that the Court may give any appropriate direction with respect to a proceeding and extend any time prescribed by the Admiralty Rules and, on such terms as are just, dispense with compliance with any of those rules.

9                     Rule 20 of the Admiralty Rules provides as follows:

“20.     Initiating process in a proceeding commenced as an action in rem is effective for service for a period of 12 months after it is issued and may not be served after that time without the leave of the court.”

10                  Applying that rule according to its ordinary meaning the Court has power to extend the time within which a writ in rem may be served by granting leave to serve the writ beyond a period of twelve months.  Such leave may be in respect of a specific occasion or may be granted in general terms.  It would seem to follow that the power to grant leave would not be exhausted upon the use of the power and further leave may be granted if circumstances warrant the exercise of that discretion.

11                  The principles to be applied on an application to this Court for leave to serve a writ in rem that otherwise would not be effective for service, should be taken to be consonant with those that have been considered appropriate in other jurisdictions for determining whether a writ in rem should be “renewed” for the purpose of allowing service of the writ to be effected more than twelve months after issue.  The obligation on the plaintiff in such an application is to show “good reason” for the grant of leave.  It is not a requirement that exceptional circumstances be demonstrated.  (See:  “The Myrto” (No. 3) [1987] 2 Lloyds Law Reports 1 Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597).

12                  If the plaintiff shows that it has taken reasonable steps to be informed of the whereabouts of the ship the subject of the writ, and it appears that the ship has not entered Australia, or has not been present in Australia for a sufficient period to provide the plaintiff with a reasonable opportunity to effect service on the vessel, then leave to serve beyond the effective term of the writ may be granted.  (See:  “The Helene Roth” [1980] QB 273 per Sheen J at 279; “The Berny” [1979] QB 80 per Brandon J at 103-105). 

13                  Having regard to the foregoing I am satisfied by the material presented by the plaintiff that the plaintiff has not had an opportunity to effect service of the writs on the ship since the writs were issued, nor the opportunity to commence a like proceeding against a surrogate vessel. Those circumstances represent “good reason” why leave in general terms should be granted to the plaintiff to permit it to effect service of the writs on the Rodolfo Mata if the vessel enters Australia on or before 14 February 2005.  No limitation issues appear to be relevant and it is not apparent that the defendant would be prejudiced by leave being granted in the foregoing terms.  An order will be made accordingly.

14                  In the course of the hearing of the application, the plaintiff informed the Court that as from 31 January 2004 the name of the plaintiff was changed to “Pan-United Marine Limited”.  A further order will be made that the writs be duly amended by the plaintiff within seven days. 


I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.



Associate:


Dated:              26 February 2004




Counsel for the Plaintiff:

JE Wyatt



Solicitors for the Plaintiff:

Phillips Fox



Date of Hearing:

11 February 2004



Date of Judgment:

11 February 2004