case_text: This leads to a consideration of whether Wandella's registered mark, WHACKOS, is substantially identical with or deceptively similar to Effem's two registered marks, for the purposes of s 44 as well as s 60. The deceptive similarity issue (but not substantial identicality) was raised in relation to both grounds and is essentially the same. The proper approach to considering deceptive similarity is well settled. It involves a comparison between Wandella's registered mark and an imperfect recollection of Effem's marks and whether there is a real and tangible danger of consumers being led to believe that Wandella's goods came from the same source as Effem's goods: Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1953] HCA 73 ; (1954) 91 CLR 592 at 595. 29 Firstly, I consider whether Wandella's mark is deceptively similar to the SCHMACKOS mark. The type of products which Wandella proposes to sell using the mark WHACKOS closely correspond with the type of products sold by Effem. They are "similar goods" as required by s 44(1)(a)(i) and defined in s 14(1). It can be anticipated that Wandella would use the mark selling products in the same way as Effem presently sells its SCHMACKOS products, namely, in supermarkets and pet shops where the consumer selects the products from a shelf. Other methods of sale may be deployed by Wandella. 30 Wandella's mark WHACKOS would probably be viewed by the consumer as a made up word, as would clearly be the case with Effem's mark, SCHMACKOS. I accept that there are similarities both visual and aural between the two marks, WHACKOS and SCHMACKOS. Effem's submission was that Wandella's mark naturally broke into two components. The first was WH, which was a soft consonant "breathed" when spoken and visually registered in the mind as soft and subservient, more a breath than a sound. The second element was the ACKO, which could be treated as having two syllables (separated by a hard consonant) or a single syllable. Both words involved a distinctive sounding combination, with short vowel sounds at the beginning and end separated by the hard consonants. The ACKO completely dominated the total mark aurally. The final S of SCHMACKOS was not significant as it was clearly a plural form. It was accepted, however, that the first component SCHM was more significant visually than the shorter WH.


case_outcome: discussed

case_text: The next use of the words GO WACKO relied upon as use as a trade mark, is in the expression DOGS GO WACKO FOR SCHMACKOS which appears on the front of Effem's packaging. It is possible for a word or words forming only part of a composite expression to be used as a trade mark. Examples are found in Kolotex Glo Australia Pty Ltd v Sara Lee Personal Products (Australia) Pty Ltd (1993) 26 IPR 1 (" Kolotex ") and Wellness Pty Ltd v Pro Bio Living Waters Pty Ltd (2004) 61 IPR 242. There are also cases in which a word (which is a registered trade mark) appears in an expression used by an alleged infringer where it has been held that such use does not constitute infringement. Pepsico was such a case. Before discussing the two authorities where words within an expression were used as trade marks, it is desirable to refer to the judgment of the High Court in Mark Foy's Ltd v Davies Coop and Company Ltd [1956] HCA 41 ; (1956) 95 CLR 190. 20 Wellness Pty Ltd v Pro Bio Living Waters Pty Ltd is a more recent authority. It concerned the alleged infringement of the applicant's registered mark, LIVING WATER. The applicant had used the mark in relation to water produced by its "Wellness water filter". One of the classes in respect of which the mark was registered was Class 32, which covers "bottled water, spring and mineral water". The respondent advertised, distributed and sold its bottled water by reference to "Pro-Bio Living Waters". One issue was whether the expression used by the respondent constituted a single mark or two marks. Bennett J concluded that the words "Living Waters" were used by the respondent as a trade mark in itself. This conclusion was partly based on the way in which the expression was graphically represented. Bennett J accepted the applicant's submission that "Pro-Bio" had been deliberately created as an embellished mark on bottles and signs, while "Living Waters" was more understated. There were differences in font, style and size of the two components. The two components performed quite distinct and separate functions. "Pro-Bio" was used to identify the source of the product range. "Living Waters" was used as a secondary mark in respect of the products that formed part of the respondent's Living Waters' bottled water range. Bennett J concluded that "Pro-Bio" was used to denote the company that was the origin of the "Living Waters" range. 21 In the present case, the words said to be an unregistered trade mark, GO WACKO, appear in the expression DOGS GO WACKO FOR SCHMACKOS on the front of the packaging. There is a natural connection within the entire expression between GO and WACKO and that latter word loosely rhymes with SCHMACKOS later in the expression. This rhyming gives prominence to the words WACKO and SCHMACKOS particularly when spoken. However the entire expression appears in a black border against a yellow background which tends to integrate the expression and focus attention on it as a whole. Also the expression is significantly less prominent than the obvious indicator of the nature and source of the goods, the word SCHMACKOS, which appears elsewhere on the front of the packaging in much larger text, again in a black (and thicker) border with the bright yellow background. That word tends to dominate the front of the packaging though often in association with the description of the specific product and an image of a dog. I do not think the words GO WACKO in the expression on the front of the packaging would be taken to be a signifier of the source of the goods by a person looking at the packaging. Again I have had regard to the repetition of the words on the back of the packaging and their use in advertising to which I now turn. 22 The advertising relied on by Effem was television advertising. A DVD recording of twelve advertisements was tendered by Effem. However, ultimately only seven of the advertisements were relied on to demonstrate, amongst other things, the use of the words GO WACKO as a trade mark. The titles of the advertisements relied on were: "Vet", "Crackle 'N' Crunch", "Bath", "Tea party", "Things that go bump", "Builder's mate", "Sing" and "Be nice to cat". Each of the advertisements involved a story acted out by speaking clay animation figures together with voice-overs. It is unnecessary to describe each advertisement in detail, as all except "Be nice to cat" had a very similar format. The six with the common format involved a story generally which developed, with minor variations, in a sequence. 23 There is an opening scene or scenes involving a dog and its owner which create a context in which the dog is asked to do something. In the advertisements listed (excluding "Be nice to cat"), this is to submit to an examination by the vet, take a bath, participate in a child's tea party, investigate noises caused by an intruder, retrieve a dropped hammer and sing a song. In each instance, the dog shows great reluctance to do the requested act. A person then seeks to induce the dog to do the act by offering food but is unsuccessful. The dog is then offered a SCHMACKOS product which is referred to by name in the voice-over, having the effect of highlighting the offering of a SCHMACKOS in contrast to the earlier offering. The dog is then given SCHMACKOS by a person, who refers to the product as a SCHMACKOS. 24 An image of the packaging is then shown, generally taking the form discussed earlier in relation to the actual packaging but with the word SCHMACKOS appearing in exaggerated form. The dog responds positively and vigorously and does what had been requested in an exaggerated way. The advertisement concludes with a jingle sung as a voice-over, with the words DOGS GO WACKO, DOGS GO WACKO, FOR SCHMACKOS. The way it is sung, the first two phrases are sung quickly, with no discernible prominence given to the words GO WACKO. The word SCHMACKOS is emphasised by being drawn out and sung in an exaggerated warbling voice. At about the same time, the words DOGS GO WACKO FOR SCHMACKOS appear as a superimposed graphic. The "Be nice to cat" advertisement ends slightly differently, not with the jingle but with a song sung more slowly and concluding with the lines I'D GO WACKO WITHOUT SCHMACKOS AND YOU.


case_outcome: referred to

case_text: In this context, the notion of "jurisdiction" is the authority to hear and decide to adjudicate: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559 at 570 [2] . One needs, of course, to recognise that within, and bound up with, that notion of authority to adjudicate there is the authority to adjudicate the kind of controversy involved (what might be said to be the subject matter of any proceeding) and also the authority to deal with the particular respondent involved. The second aspect of the question may depend on presence within the jurisdiction (the word "jurisdiction" being used here in a territorial or locality sense) or whether relevant local law entitles the service of process outside the jurisdiction: see the comments of Branson J in Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317 at 349 [149] . In Edensor Gleeson CJ, Gaudron J and Gummow J said at 570 [2]: It is convenient to begin with the word "jurisdiction". This is a "generic term" generally signifying authority to adjudicate. It is used in various senses. The jurisdiction of a court to hear and determine a personal action and to grant relief may depend upon no more than effective service of that court's process upon the defendant within the territorial bounds of its competence or pursuant to the exercise of a "long-arm" jurisdiction; or it may depend also upon the proceeding being with respect to a particular subject matter. [footnotes omitted]


case_text: As the High Court said in The 'Shin Kobe Maru' the question is whether a claim made bears a certain legal character. The High Court in that case also said (at 422) that the word "claim": ...would ordinarily be construed as the assertion of a right or interest recognized by the law and carrying an entitlement to relief. This analysis must be undertaken "by reference to the nature of the plaintiff's case as put forward, without reference to ... whether it is likely to succeed or not": The 'Moschanthy' [1971] 1 Lloyd's Rep 37 at 42. See also Baltic Shipping Co Ltd v Pegasus Lines SA [1996] 3 NZLR 641 at 647-48. Statements in some of the cases of the necessity to show some strength in the case before the jurisdiction of the court is attracted (that is before the court is legitimately seized of authority to adjudicate) appear impermissibly to combine the attraction of jurisdiction with its exercise: cf The 'Bass Reefer' (1992) 37 FCR 375. See generally, Toh, KS Admiralty Law and Practice (Butterworths Asia, 1998) p 40 and the cases there discussed.


case_text: The recognition of this international character of the jurisdiction (and so the law which the judges ascertain and declare in the exercise of such jurisdiction) does not elevate the resolution of such controversies (or the applicable law governing their resolution) above the municipal context or above municipal law: American and Ocean Insurance Co v 356 Bales of Cotton 26 US 511 (1828) at 545-46, The 'Lottawanna' 88 US 558 (1875) at 573-75, The 'Western Maid' 257 US 419 (1922) at 432, Moragne v States Marine Lines Inc 398 US 375 (1970) at 386-88, The 'Tojo Maru' [1972] AC 242 at 290-91 and Blunden v Commonwealth [2003] HCA 73 ; (2003) 218 CLR 330 at 337-78 [13] ; but it does illuminate the broad source and scope of the jurisdiction. Further, of course, the fundamental place of ss 79 and 80 of the Judiciary Act 1903 (Cth) in the resolution of controversies in the exercise of federal jurisdiction is to be recognised: see the discussion by Gummow J in this respect in The 'Shin Kobe Maru' (FC) at 87. 52 For present purposes, it is unnecessary to explore the boundaries of s 76(iii). It is sufficient to recognise that the ALRC, in recommending, as it did, a defined list of maritime claims in s 4 of the draft legislation (which became s 4 of the Act), was not intending to exhaust the field of the jurisdiction encompassed within s 76(iii): see ALRC Report at [193]-[195]. There is, therefore, jurisdiction encompassed within the reach of s 76(iii) which Parliament has not conferred on federal courts and invested in State courts as federal jurisdiction under the Act. This is important to recognise in the operation of the Act, in particular in respect of the associated jurisdiction contemplated by s 12, to which I will come. The Act and its interpretation 53 The Act deals with "jurisdiction" in Part II (ss 9 to 13). The conferral and investiture of jurisdiction effected by ss 9 and 10 is by reference to actions in personam and actions in rem . Sections 9 and 10 are in the following terms: s 9 (1) Jurisdiction is conferred on the Federal Court, the Federal Magistrates Court and on the courts of the Territories, and the courts of the States are invested with federal jurisdiction, in respect of proceedings commenced as actions in personam : (a) on a maritime claim; or (b) on a claim for damage done to a ship. (2) Subsection (1) does not confer on a court other than the Federal Court or a Supreme Court of a Territory, or invest a court of a State other than the Supreme Court of a State with, jurisdiction in respect of limitation proceedings. s 10 Jurisdiction is conferred on the Federal Court and on the Supreme Courts of the Territories, and the Supreme Courts of the States are invested with federal jurisdiction, in respect of proceedings that may, under this Act, be commenced as actions in rem .


case_text: As to pilotage, the claim is one which complains of the faulty undertaking of the pilot. Global Peace was under compulsory pilotage. The owner of Global Peace was thereby answerable for any loss or damage caused by the ship, or by a fault of the navigation of the ship in the same manner as the owner would be if pilotage were not compulsory: s 410B(2) of the Navigation Act 1912 (Cth) and/or the Queensland equivalent provision, s 102 of the Transport Operations (Maritime Safety) Act 1994 (Qld). In this regard, see Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68. Using plain language, to the extent (as it does) that the claim against the defendant is based on assertions that the pilot was at fault, it is a claim in respect of the pilotage that was carried out by the pilot. The claim can be directed at the ship because it is a claim against the relevant person who is asserted to be responsible by law for the pilot's default. The direction of the claim against the defendant does not make the claim any less in respect of the pilotage of the ship that was undertaken, than it would have been if made against the pilot personally. 95 As to towage, subject to the concept of towage extending to the activities of the tug here, all the above would support the conclusion that this is a claim in respect of the towage of Global Peace .


case_title: Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317


case_text: Towage is not merely (though it includes) the assistance given to one vessel (the tow) by another (the tug) to move through the water by pulling on a rope or hawser linking tug and tow. It can be seen also to include any operation in connection with the holding, pushing, pulling, moving, escorting or guiding of or standing by a vessel: Burrard Towing Co v Reed Stenhouse Ltd (1996) 19 BCLR (3d) 391 referring to the United Kingdom Standard Conditions for Towage.


case_title: City of Charleroy v Bittern (1923) 14 LlL Rep 302

case_text: "Navigation" is a word capable of wide meaning. It is used, sometimes in the phrase "navigation or management", in a number of maritime contexts, including article IV of the Hague Rules and Hague-Visby Rules dealing with the distinction between care of cargo and navigation or management of the ship. It has been said that a ship need not be in a state of motion to be in a state of navigation: Hayn v Culliford (1878) 3 CPD 410 at 417. One definition is the science or art of conducting a ship from place to place through the water: The 'Warkworth' (1884) 9 PD 145 at 148. However the word is apt to encompass, if the context permits, the controlled movement of a ship to berth with the assistance of tugs: see generally The 'Lord' v Newsum Sons & Co [1920] 1 KB 846 at 849; Cyber Sea Technologies Inc v Underwater Harvester Remotely Operated Vehicle Serial (2000) 1 FC 569 at [6] and [7]; Good v The London Steamship Owners' Mutual Protecting Association (1871) LR 6 CP 563 at 569; Whistler International Limited v Kawasaki Kisen Kaisha Ltd [2001] 1 AC 638 at 643-44; The 'Glenochil' [1896] P 10 at 15-16; City of Charleroy v Bittern (1923) 14 Ll L Rep 302; The 'Mac' (1882) 7 PD 126 at 130; The 'Harlow' [1922] P 175 at 181; and The 'Champion' [1932] P1 at 10 and 15-16. Some cases require the planned or ordered movement from one place to another: see Polpen Shipping Co v Commercial Union Assurance Co Ltd [1943] 1 KB 161 at 167 and Steedman v Scofield [1992] 2 Lloyd's Rep 163 .


case_title: Currie v McKnight [1897] AC 97

case_text: The early cases such as The 'Vera Cruz' (No 2) (1884) 9 PD 96 and Currie v McKnight [1897] AC 97 appear on their own facts to require a close and direct connection between the damage and the ship as an instrument. Lord Diplock approved these cases in The 'Eschersheim' , but factually applied the phrase more broadly than perhaps was done in those cases. A similarly somewhat broader approach can also be found in The 'Industrie' (1871) LR 3 A & E 303, The 'Chr Knudsen' [1932] P 153 and the The 'Minerva' [1933] P 224. 87 The need in the cases for the direct connection and for the ship to be somehow the instrument of the damage can be seen in Currie v McKnight where damage was caused to a ship by the crew of another ship cutting the mooring lines linking two ships in order to allow their ship to depart. The first ship, after the mooring lines were cut, was unable to get a head of steam up in time and was driven ashore. The court said that the damage to that ship was caused by the human acts of the crew of the other ship alone and not by the ship on which they were aboard when they cut the lines. This was so, even though what they did was in connection with the operation of taking that other ship to sea. One can see both closer notions of causation than perhaps are current today and the echo of the personification theory in the need for the ship itself to be the active or noxious instrument to be operative considerations see for instance Lord Halsbury LC in Currie v McKnight at 101: The phrase that it must be the fault of the ship itself is not a mere figurative expression, but it imports, in my opinion, that the ship against which a maritime lien for damages is claimed is the instrument of mischief, and that in order to establish the liability of the ship itself to the maritime lien claimed some act of navigation of the ship itself should either mediately or immediately be the cause of the damage. [footnotes omitted] In this respect, see Toh, K S op cit at 18.


case_title: Cyber Sea Technologies Inc v Underwater Harvester Remotely Operated Vehicle Serial (2000) 1 FC 569


case_title: De Lovio v Boit 7 F.Cas 218 (1815)

case_text: This view had its roots in the seminal decision of Story J sitting as a Circuit Judge in De Lovio v Boit 7 F.Cas 218 (1815) in rejecting the view that had up to that point been expressed as to the linkage of the phrase "of admiralty and maritime jurisdiction" in Article III section 2 of the United States Constitution to the character and content of English jurisdiction at the time of Independence: see for example United States v McGill 4 US 426 (1806) at 429-30 (Washington J sitting as a Circuit Judge). Nevertheless, as can be seen from all the judgments in the Federal Court and the High Court in The 'Shin Kobe Maru' , the discerned width and scope of s 76(iii) was a product of the liberal construction of a provision of the Australian Constitution , though set against a context of the recognised international character of the jurisdiction amongst maritime nations of the world as incorporated in the United States Constitution , from which source (Article III Section 2) the words of s 76(iii) were taken. 50 The rich international character of the jurisdiction can be seen in the expression of the scope of the jurisdiction by Story J in De Lovio v Boit at 442-43: The clause however of the Constitution not only confers Admiralty jurisdiction, but the word `maritime' is superadded, seemingly ex industria, to remove every latent doubt. `Cases of maritime jurisdiction' must include all maritime contracts, torts and injuries, which are in the understanding of the common law, as well as of the Admiralty, `causae civiles et maritimae'. In this view there is a peculiar propriety in the incorporation of the term `maritime' into the Constitution . The disputes and discussions, respecting what the Admiralty jurisdiction was, could not but be well known to the framers of that instrument ... One party sought to limit it by locality; another by the subject matter. It was wise, therefore, to dissipate all question by giving cognisance of all `cases of maritime jurisdiction', or, what is precisely equivalent, of all maritime cases. Upon any other construction, the word `maritime' would be mere tautology; but in this sense it has a peculiar and appropriate force ... The language of the constitution will therefore warrant the most liberal interpretation; and it may not be unfit to hold, that it had reference to that maritime jurisdiction, which commercial convenience, public policy, and national rights, have contributed to establish, with slight local differences, over all Europe; that jurisdiction, which under the name of consular courts, first established itself upon the shores of the Mediterranean, and, from the general equity and simplicity of its proceedings, soon commended itself to all the maritime states; that jurisdiction, in short, which collecting the wisdom of the civil law, and combining it with the customs and usages of the sea, produced the venerable Consolato del Mare, and still continues in its decisions to regulate the commerce, the intercourse and the warfare of mankind. ... At all events, there is no solid reason for construing the terms of the Constitution in a narrow and limited sense, or for ingrafting upon them the restrictions of English statutes, or decisions at common law founded on those statutes, which were sometimes dictated by jealousy, and sometimes by misapprehension, which are often contradictory, and rarely supported by any consistent principle. The advantages resulting to the commerce and navigation of the United States, from a uniformity of rules and decisions in all maritime questions, authorise us to believe that national policy, as well as juridical logic, require the clause of the Constitution to be so construed as to embrace all maritime contracts, torts and injuries, or, in other words, to embrace all those causes, which originally and inherently belonged to the Admiralty, before any statutable restriction. 57 It will be necessary to return to aspects of s 4. For present purposes, it is only necessary to emphasise that it was not intended that the closed lists in s 4(2) and (3) would exhaust the scope of s 76(iii). Rather, the lists of claims were those which, conformably with the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships done at Brussels on 10 May 1952 (the "1952 Arrest Convention") and with comparative international admiralty practice of major trading partners, were seen to be appropriate to found the procedure central to Admiralty practice, the action in rem, and the consequential availability of arrest. (For instance, there would seem little doubt that one class of maritime contracts concerned with maritime commerce is marine insurance. Indeed, De Lovio v Boit itself is authority for the proposition, never doubted thereafter in the United States, that a policy of marine insurance is a maritime contract and therefore "of admiralty jurisdiction". Claims concerning disputes about marine insurance claims are not, however (with the exception of premiums or calls in s 4(3)(s) of the Act) general maritime claims.) 58 It is also important to understand the international or world-wide nature of the reach of the Act effected by s 5 which is in the following terms: (1) Subject to the succeeding provisions of this section, this Act applies in relation to: (a) all ships, irrespective of the places of residence or domicile of their owners; and (b) all maritime claims, wherever arising. (2) This Act does not apply in relation to a proceeding commenced before the commencement of this Act. (3) This Act does not apply in relation to a cause of action that arose: (a) in respect of an inland waterways vessel; or (b) in respect of the use or intended use of a ship on inland waters. (4) Paragraph (3)(b) does not have effect in relation to a cause of action if, at the time when the cause of action arose, the ship concerned was a foreign ship. 59 Section 12 of the Act deals with "associated jurisdiction". It is in the following terms: The jurisdiction that a court has under this Act extends to jurisdiction in respect of a matter of Admiralty and maritime jurisdiction not otherwise within its jurisdiction that is associated with a matter in which the jurisdiction of the court under this Act is invoked.


case_text: For the reasons that I have identified, it is unnecessary to decide either of these questions. Given the restrictive approach to maritime liens in Anglo-Australian law, there are significant obstacles in the way of the first question, being an argument that a new class of maritime lien should be recognised: see for example, The 'Acrux' , The 'Halcyon Isle' [1981] AC 221; and Fournier v The Ship 'Margaret Z' [1999] 3 NZLR 111 [22]-[23].


case_text: The plaintiff says that the claim is one arising out of the act or omission of a person (being the person in charge of the tug) for whose wrongful acts or omissions the owner of Global Peace is liable. This way of putting the claim invokes s 4(3)(d)(iii). The plaintiff also says that the claim is one arising out of an act or omission of the owner (through the asserted default of the master), thereby invoking s 4(3)(d)(i). This much can be accepted. However, more is required. The act or omission must be in the navigation or management of the ship . 103 In the present context, the general maritime claim must concern the ship for the purposes of s 17. The ship for s 17 is the same ship as for s 4(3)(d). However, whilst it is undoubted that the act or omission (as asserted) of the tugmaster was an act or omission in the navigation or management of the tug, that does not mean that it was not also in the navigation or management of the tow, Global Peace. If the events (as asserted) occurred in the towage operation, it can be said that the acts or omissions took place in the navigation or management of Global Peace as well as of Tom Tough. This arises out of the nature of the towage operation: the tug is in the course of navigation and its operation is effecting or is part of the navigation or management of Global Peace. 104 "Navigation" is a word capable of wide meaning. It is used, sometimes in the phrase "navigation or management", in a number of maritime contexts, including article IV of the Hague Rules and Hague-Visby Rules dealing with the distinction between care of cargo and navigation or management of the ship. It has been said that a ship need not be in a state of motion to be in a state of navigation: Hayn v Culliford (1878) 3 CPD 410 at 417. One definition is the science or art of conducting a ship from place to place through the water: The 'Warkworth' (1884) 9 PD 145 at 148. However the word is apt to encompass, if the context permits, the controlled movement of a ship to berth with the assistance of tugs: see generally The 'Lord' v Newsum Sons & Co [1920] 1 KB 846 at 849; Cyber Sea Technologies Inc v Underwater Harvester Remotely Operated Vehicle Serial (2000) 1 FC 569 at [6] and [7]; Good v The London Steamship Owners' Mutual Protecting Association (1871) LR 6 CP 563 at 569; Whistler International Limited v Kawasaki Kisen Kaisha Ltd [2001] 1 AC 638 at 643-44; The 'Glenochil' [1896] P 10 at 15-16; City of Charleroy v Bittern (1923) 14 Ll L Rep 302; The 'Mac' (1882) 7 PD 126 at 130; The 'Harlow' [1922] P 175 at 181; and The 'Champion' [1932] P1 at 10 and 15-16. Some cases require the planned or ordered movement from one place to another: see Polpen Shipping Co v Commercial Union Assurance Co Ltd [1943] 1 KB 161 at 167 and Steedman v Scofield [1992] 2 Lloyd's Rep 163 .


case_title: Hayn v Culliford (1878) 3 CPD 410


case_text: This view swept away the doubts and hesitations about the scope or reach of s 76(iii) that had been expressed by Isaacs J in John Sharp and Sons Ltd v Ship 'Katherine Mackall' [1924] HCA 37 ; (1924) 34 CLR 420 at 427-428 and passed over the caution (if I may put it that way without any intended disrespect) of Dixon J in McIlwraith McEachern Ltd v Shell Co of Australia Limited [1945] HCA 11 ; (1945) 70 CLR 175 at 208-209. This view vindicated the submission of Sir Owen Dixon, when he had been senior counsel for the Commonwealth, in The 'Katherine Mackall' at 424, the views of Gibbs J in China Ocean Shipping Co v South Australia [1979] HCA 57 ; (1979) 145 CLR 172 at 204, the views of Zelling J in the 1981 FS Dethridge Memorial Address "Of Admiralty and Maritime Jurisdiction" FS Dethridge Memorial Addresses 1977-1988 (Maritime Law Association of Australia and New Zealand, 1989) also found in (1982) 56 ALJ 101, and the views of the authors of the Australian Law Reform Commission Report on Civil Admiralty Jurisdiction Report No 33 (the 'ALRC Report') at [70]. This had been the view of the Full Court of this Court in the decision under appeal in The 'Shin Kobe Maru' (1992) 38 FCR 227 ( The 'Skin Kobe Maru' (FCFC)) at 235 and 245-47, and of Gummow J at first instance in The 'Shin Kobe Maru' (1991) 32 FCR 78 ( The 'Shin Kobe Maru' (FC)) at 100-111.


case_title: McIlwraith McEachern Ltd v Shell Co of Australia Limited [1945] HCA 11 ; (1945) 70 CLR 175


case_text: In Nagrint v The Ship 'Regis' [1939] HCA 6 ; (1939) 61 CLR 688 at 698, Dixon J commented on the artificiality of the distinction based on the need for the ship to be an active agent, but recognised the importance of it in the jurisprudence: see the discussion of the cases at 698-700. A helpful passage is at 700: It is true that these cases are no more than illustrations of the manner in which the test has been applied. But they show that when the injury arises from some defect in the condition of the ship considered as premises or as a structure upon which the person injured is standing, walking or moving, the ship is treated as no more than a potential danger of a passive kind, a danger to the user, whose use is the active cause of the injury. But where the injury is the result of the management or navigation of the ship as a moving object or of the working of the gear or of some other operation, then the damage is to be regarded as done by the ship as an active agent or as the "noxious instrument." In the present case, according to the allegations, the improper navigation of the ship caused her so to behave that she capsized. Her behaviour as an active agent was the direct cause of the harm, and in that sense she was the noxious instrument. 88 What then is claimed here? One goes to the statement of claim which supports the amended writ. The oil came from Global Peace . The defendant says that it was the ship's bunker fuel. That can be seen for various purposes, including the operation of the arrest provisions to be part of the ship: Scandinavian Bunkering AS v The Bunkers on Board the Ship FV 'Taruman' [2006] FCAFC 75. It is alleged that those in charge of Global Peace , the pilot and master, failed in their duties in the navigation or management of the ship, in respect of its handling in the berthing operation. It is also alleged that those in charge of the tug were negligent for which the owner of Global peace was responsible. The propositions by way of assertions are that the ship was mishandled by, in part, those on board the ship. Thus, if these allegations are made good Medi Vitoria has had her hull fouled by the oil that has escaped from Global Peace by, in part, the faulty navigation or management or handling of Global Peace in manoeuvring the ship in the berthing operation. To paraphrase the words of Dixon J in Nagrint v The Ship 'Regis' at 200, the injury to Medi Vitoria is claimed to be the result of the navigation or management of Global Peace as a moving object in her berthing or some other operation in her berthing.


case_text: In Owners of 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 ( The 'Shin Kobe Maru' (HC)), the High Court, in a unanimous joint judgment, made clear the broad Constitutional scope of s 76(iii). It was not limited by English and colonial history; it was not tied to the state of Admiralty jurisdiction in England or the local colonies as at 1900 or 1890. Rather, it was stated (at 424) that s 76(iii): extends to matters of the kind generally accepted by maritime nations as falling within a special jurisdiction, sometimes called Admiralty and sometimes called maritime jurisdiction, concerned with the resolution of controversies relating to marine commerce and navigation.


case_text: The second question raises an important issue about the approach to s 15, and it is appropriate to say something about this. As a matter of construction of s 15 a number of considerations are relevant. First, the approach enunciated by Dixon J in Parisienne Basket and discussed in The Queen v Gray; Ex parte Marsh and The 'Tieng Sheng (No 8)' to which I have already referred must be borne in mind. Secondly, the word "includes" in s 15(2) reflects the fact that the Act leaves open the possibility of other maritime liens being recognised beyond those listed. This might occur by reference to the development of Australian maritime law in this respect, or by the recognition of foreign maritime liens by reference to principles of private international law different to those expressed by the majority of the Privy Council in The 'Halcyon Isle' ; and see Price, G The Law of Maritime Liens (Sweet & Maxwell 1940) at Ch 20. The defendant submitted (as is the case) that s 6 of the Act provides that the Act does not have the effect of creating a new maritime lien, and that this assists the conclusion that the court should not extend the categories of maritime liens. That, however, was an approach to the formulation of the whole Act on the basis of the perceived limitation of the legislative power of the Commonwealth found in Owners of SS Kalibia v Wilson [1910] HCA 77 ; (1910) 11 CLR 689 to the effect that the Commonwealth Parliament does not have implied power to legislate for Admiralty and maritime substantive law. It is unnecessary and inappropriate to discuss whether The 'Kalibia' reflects the current Constitutional position given the emergence of Australia as a fully independent nation state: cf The 'Shin Kobe Maru' (FC) at 86-7; The 'Genessee Chief' 53 US 263 (1851); The 'Lottawanna' ; Butler v Boston and Savannah Steamship Co 130 US 527 (1889); In re Garnett 141 US 1 (1891); Southern Pacific Co v Jensen 244 US 205 (1917); Panama Railroad Co v Johnson 264 US 375 (1924); and Harrison Moore The Constitution of Australia at 562. It is sufficient to say that s 76(iii) provides for Parliament to confer or invest Admiralty and maritime jurisdiction. The absence (according to The 'Kalibia' ) of a coterminous legislative power to deal with substantive law matching the reach of judicial authority over Admiralty and maritime controversies does not limit the full import and implication of the grant of judicial power. The conferral of jurisdiction is not a matter of mere procedure. It is the conferral of a species of governmental power to quell controversies. Subject to limited circumstances that may exist by way of exception, courts have a duty to exercise the power if jurisdiction is invoked. Thus, judges have a responsibility to ascertain and declare the general maritime law of Australia, as part of the common law of Australia. If that includes ascertaining and declaring the law of maritime liens, that is part of the task.


case_text: This kind of distinction between a limitation relevant to the jurisdiction of a court which goes to the existence of jurisdiction (that is as a condition which must exist before authority to adjudicate arises) and which goes to the exercise of jurisdiction was discussed by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; (1938) 59 CLR 369 at 391 as follows: It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed. See also The Queen v Gray: Ex parte Marsh [1985] HCA 67 ; (1985) 157 CLR 351 at 374-75 per Mason J (as he then was), and in an Admiralty context, see The 'Tian Sheng No 8' [2000] 2 Lloyd's Rep 430 at 443 per Sir Anthony Mason sitting in the Hong Kong Court of Final Appeal. 119 Conformably with the approach described in Parisienne Basket , The Queen v Gray ; Ex parte Marsh and the The 'Tien Sheng No 8' these are questions which should be seen as to be resolved within jurisdiction, if the assertions made are that there is liability under the PS (CL) Act and the Pollution Convention. 120 Section 4(3)(b) of the Act should be read with ss 7 and 8 of the PS (CL) Act and the Pollution Convention. By doing so, I conclude that the claim described in s 4(3)(b) is to be characterised by the assertions made and not by reference to the evidence which would see the claim under the Pollution Convention succeed or fail. 121 Thus, the Court has jurisdiction to hear and adjudicate this claim. It is another question, however, whether it should now be dismissed. Mr Street said that he wanted to cross-examine Mr White on this issue. I will hear the parties as to the proper conduct of the motion insofar as it seeks to dismiss this claim summarily. 131 The second question raises an important issue about the approach to s 15, and it is appropriate to say something about this. As a matter of construction of s 15 a number of considerations are relevant. First, the approach enunciated by Dixon J in Parisienne Basket and discussed in The Queen v Gray; Ex parte Marsh and The 'Tieng Sheng (No 8)' to which I have already referred must be borne in mind. Secondly, the word "includes" in s 15(2) reflects the fact that the Act leaves open the possibility of other maritime liens being recognised beyond those listed. This might occur by reference to the development of Australian maritime law in this respect, or by the recognition of foreign maritime liens by reference to principles of private international law different to those expressed by the majority of the Privy Council in The 'Halcyon Isle' ; and see Price, G The Law of Maritime Liens (Sweet & Maxwell 1940) at Ch 20. The defendant submitted (as is the case) that s 6 of the Act provides that the Act does not have the effect of creating a new maritime lien, and that this assists the conclusion that the court should not extend the categories of maritime liens. That, however, was an approach to the formulation of the whole Act on the basis of the perceived limitation of the legislative power of the Commonwealth found in Owners of SS Kalibia v Wilson [1910] HCA 77 ; (1910) 11 CLR 689 to the effect that the Commonwealth Parliament does not have implied power to legislate for Admiralty and maritime substantive law. It is unnecessary and inappropriate to discuss whether The 'Kalibia' reflects the current Constitutional position given the emergence of Australia as a fully independent nation state: cf The 'Shin Kobe Maru' (FC) at 86-7; The 'Genessee Chief' 53 US 263 (1851); The 'Lottawanna' ; Butler v Boston and Savannah Steamship Co 130 US 527 (1889); In re Garnett 141 US 1 (1891); Southern Pacific Co v Jensen 244 US 205 (1917); Panama Railroad Co v Johnson 264 US 375 (1924); and Harrison Moore The Constitution of Australia at 562. It is sufficient to say that s 76(iii) provides for Parliament to confer or invest Admiralty and maritime jurisdiction. The absence (according to The 'Kalibia' ) of a coterminous legislative power to deal with substantive law matching the reach of judicial authority over Admiralty and maritime controversies does not limit the full import and implication of the grant of judicial power. The conferral of jurisdiction is not a matter of mere procedure. It is the conferral of a species of governmental power to quell controversies. Subject to limited circumstances that may exist by way of exception, courts have a duty to exercise the power if jurisdiction is invoked. Thus, judges have a responsibility to ascertain and declare the general maritime law of Australia, as part of the common law of Australia. If that includes ascertaining and declaring the law of maritime liens, that is part of the task.


case_text: In [193] to [195], [227] and [228] of the ALRC Report, there was discussion of both accrued jurisdiction and associated jurisdiction. Accrued jurisdiction is another way of referring to the whole of a matter or controversy beyond the element of identifiably federal law: that is, apparently otherwise non-federal elements which are part of the one controversy which, for a reason or reasons having its or their source or sources in s 75 or s 76 of the Constitution , is in federal jurisdiction: see especially Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 and Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570. Provisions such as s 12 of the Act and s 32 of the Federal Court of Australia Act 1976 (Cth) dealing with associated jurisdiction confer (or invest) jurisdiction in a matter which, by reference to ss 75 and 76 of the Constitution , could be (but has not been) conferred (or invested), if it is "associated" with a matter in respect of which jurisdiction has been conferred (or invested) and which has been invoked. See generally Philip Morris Inc v Adam P Brown Male Fashions [1981] HCA 7 ; (1981) 148 CLR 457, PCS Operations Pty Ltd v Maritime Union of Australia [1998] HCA 29 ; (1998) 153 ALR 520 and Zines Cowen and Zines's Federal Jurisdiction in Australia (Federation Press, 3 rd Ed 2003) at 148-49. For reasons that will become apparent, it is unnecessary to explore the relationship between accrued and associated jurisdiction any further, or to discuss the content of the relationship of matters which leads to a conclusion that they are "associated". It is, however, important to recognise that s 12 deals with associated matters of Admiralty and maritime jurisdiction (and not other kinds of matters contemplated by s 75 or 76 of the Constitution ).


case_title: Philip Morris Inc v Adam P Brown Male Fashions [1981] HCA 7 ; (1981) 148 CLR 457


case_title: Polpen Shipping Co v Commercial Union Assurance Co Ltd [1943] 1 KB 151


case_text: What then is claimed here? One goes to the statement of claim which supports the amended writ. The oil came from Global Peace . The defendant says that it was the ship's bunker fuel. That can be seen for various purposes, including the operation of the arrest provisions to be part of the ship: Scandinavian Bunkering AS v The Bunkers on Board the Ship FV 'Taruman' [2006] FCAFC 75. It is alleged that those in charge of Global Peace , the pilot and master, failed in their duties in the navigation or management of the ship, in respect of its handling in the berthing operation. It is also alleged that those in charge of the tug were negligent for which the owner of Global peace was responsible. The propositions by way of assertions are that the ship was mishandled by, in part, those on board the ship. Thus, if these allegations are made good Medi Vitoria has had her hull fouled by the oil that has escaped from Global Peace by, in part, the faulty navigation or management or handling of Global Peace in manoeuvring the ship in the berthing operation. To paraphrase the words of Dixon J in Nagrint v The Ship 'Regis' at 200, the injury to Medi Vitoria is claimed to be the result of the navigation or management of Global Peace as a moving object in her berthing or some other operation in her berthing.


case_text: Recalling that such a provision conferring jurisdiction on a superior court is to be interpreted liberally and without imposing or reading in limitations not found in the express words, what do these paragraphs mean? The words "in respect of" provide for a wide relational connection and should be given their ordinary broad meaning: The 'Sydney Sunset' [2001] FCA 210 at [12] per Tamberlin J which was applied by Belinda Ang JC in The 'Alexandrea' [2002] 3 SLR 56 at 61 [25] and [26]; The Kommunar' [1997] 1 Lloyd's Rep 1 at 5; and The 'Edinburgh Castle' [1999] 2 Lloyds Rep 362 and 363. The phrase has been said to "have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject matters to which the words refer": Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 at 111, cited in State Government Insurance Office (Qld) v Crittenden [1966] HCA 56 ; (1966) 117 CLR 412 at 416. However, of course, the meaning of the phrase, in any given case, is to be derived substantially from context: State Government Insurance Office (Qld) v Rees [1979] HCA 52 ; (1979) 144 CLR 549 at 561 and Workers Compensation Board (Qld) v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 at 646-47.


case_title: State Government Insurance Office (Qld) v Rees [1979] HCA 52 ; (1979) 144 CLR 549


case_text: Whether or not a claim bears the requisite legal character in any given case may not be straightforward. In a number of cases the courts have examined the assertions made in, and facts proven in relation to, the writ and accompanying documents to answer the question whether the claim, as made, answers the description of the words of the relevant paragraph as an appropriate enquiry as to the jurisdiction of the court: see, for example, The 'Bass Reefer', The 'Acrux' [1965] P 391 ; and The 'Antonis P Lemos' [1983] 2 Lloyd's Rep 310. How, in any given case, the plaintiff chooses to discharge the responsibility on it to satisfy the court of the jurisdiction of the court is a matter for it. The plaintiff may choose to lead evidence of the underlying claim. But it should always be borne in mind that it is the claim, that is the relevant assertions, that must bear the requisite legal character. Care should be taken not to invest this task with a function or requirement of proving the claim at some prefatory level or to some preliminary standard of satisfaction. To do so would raise difficulties of a character similar, indeed related to, those that Willmer J saw posed by the defendant's unsuccessful argument in The 'St Elefterio' [1957] P 179 at 185-87. 130 For the reasons that I have identified, it is unnecessary to decide either of these questions. Given the restrictive approach to maritime liens in Anglo-Australian law, there are significant obstacles in the way of the first question, being an argument that a new class of maritime lien should be recognised: see for example, The 'Acrux' , The 'Halcyon Isle' [1981] AC 221; and Fournier v The Ship 'Margaret Z' [1999] 3 NZLR 111 [22]-[23]. 135 This approach accords with comparative practice in other jurisdictions: see for example, The 'Acrux' and The 'St Merriel' [1963] P 247.


case_title: The 'Alexandrea' [2002] 3 SLR 56


case_text: Whether or not a claim bears the requisite legal character in any given case may not be straightforward. In a number of cases the courts have examined the assertions made in, and facts proven in relation to, the writ and accompanying documents to answer the question whether the claim, as made, answers the description of the words of the relevant paragraph as an appropriate enquiry as to the jurisdiction of the court: see, for example, The 'Bass Reefer', The 'Acrux' [1965] P 391 ; and The 'Antonis P Lemos' [1983] 2 Lloyd's Rep 310. How, in any given case, the plaintiff chooses to discharge the responsibility on it to satisfy the court of the jurisdiction of the court is a matter for it. The plaintiff may choose to lead evidence of the underlying claim. But it should always be borne in mind that it is the claim, that is the relevant assertions, that must bear the requisite legal character. Care should be taken not to invest this task with a function or requirement of proving the claim at some prefatory level or to some preliminary standard of satisfaction. To do so would raise difficulties of a character similar, indeed related to, those that Willmer J saw posed by the defendant's unsuccessful argument in The 'St Elefterio' [1957] P 179 at 185-87.


case_title: The'Champion' [1932] P 1

case_text: The early cases such as The 'Vera Cruz' (No 2) (1884) 9 PD 96 and Currie v McKnight [1897] AC 97 appear on their own facts to require a close and direct connection between the damage and the ship as an instrument. Lord Diplock approved these cases in The 'Eschersheim' , but factually applied the phrase more broadly than perhaps was done in those cases. A similarly somewhat broader approach can also be found in The 'Industrie' (1871) LR 3 A & E 303, The 'Chr Knudsen' [1932] P 153 and the The 'Minerva' [1933] P 224.


case_title: The 'Edinburgh Castle' [1999] 2 Lloyds Rep 362


case_text: A convenient description of the phrase and its contents can be taken from the judgment of Lord Diplock (in whose reasons all members of the House of Lords concurred) in The 'Eschersheim' [1976] 2 Lloyd's Rep 1 at 8: The figurative phrase "damage done by a ship" is a term of art in maritime law whose meaning is well settled by authority: see The Vera Cruz (1884) 9 P.D. 96; Currie v. M'Knight, [1897] A.C. 97. To fall within the phrase not only must the damage be the direct result or natural consequence of something done by those engaged in the navigation of the ship but the ship itself must be the actual instrument by which the damage was done. The commonest case is that of collision, which is specifically mentioned in the convention: but physical contact between the ship and whatever object sustains the damage is not essential-a ship may negligently cause a wash by which some other vessel or some property on shore is damaged. 83 In The ' Eschersheim ' there was a challenge to jurisdiction and a stay application. The tug Rotesand took in tow the ship Erkowit, which had been holed in a collision with a third vessel. A salvage agreement was signed between those on Rotesand and Erkowit's master. The tug beached Erkowit in a sinking condition. No particular damage to Erkowit or her cargo was caused by the beaching, but extensive pollution damage later occurred to surrounding areas from oil in Erkowit , and the cargo and the crew's possessions on Erkowit were later damaged and lost. The claims were against the salvors for negligent salvage. The owners claimed for loss of the ship; the master, crew and cargo owners claimed for the loss of possessions and cargo. Brandon J at first instance said the claims thus made were not for damage done by a ship, that is Rotesand ; the Court of Appeal disagreed. The House of Lords agreed with the Court of Appeal. The following parts of Lord Diplock's judgment at 8 reveal the fineness of the distinctions involved and the difficulty of resolving these issues entirely satisfactorily on a motion about jurisdiction by reference to the "character" of the claim: In the instant case the act of casting off the Erkowit in such a way as to beach her upon an exposed shore was something done by those engaged in the navigation of the Rotesand, as a result of which the Erkowit and her cargo were left exposed to the risk of being damaged by wind and wave if the weather worsened before she could be removed to a more sheltered position. I do not understand it to be claimed that the actual beaching caused any physical damage to ship or cargo, but for the purposes of this appeal it must be assumed that the chain of causation is unbroken between the beaching of the Erkowit and her subsequent breaking-up by wind and wave. Had the damage been caused by the beaching, there could in my view have been no question but that the Rotesand could properly be regarded as the actual instrument by which that damage was done. Although for my part I find this a borderline case, I do not think that the intervening failure of the appellants to take steps to avert the risk of damage, which forms the subject of the alternative grounds of negligence, prevents the Rotesand from remaining the actual instrument by which the damage subsequent to the beaching was done. I accordingly agree with the Court of Appeal that the shipowners' and cargo-owners' claims also fall under par. (d) of s. 1(1). 85 In The 'Rama' [1996] 2 Lloyd's Rep 281, Clarke J discussed The 'Eschersheim' and concluded at 293 that to be "damage done by a ship" three criteria must be satisfied: (a) the damage must be caused by something done by those engaged in the navigation or management of the ship in a physical sense; (b) the ship must be the actual or noxious instrument by which the damage is done; and (c) the damage must be sustained by a person or property external to the ship. 86 The early cases such as The 'Vera Cruz' (No 2) (1884) 9 PD 96 and Currie v McKnight [1897] AC 97 appear on their own facts to require a close and direct connection between the damage and the ship as an instrument. Lord Diplock approved these cases in The 'Eschersheim' , but factually applied the phrase more broadly than perhaps was done in those cases. A similarly somewhat broader approach can also be found in The 'Industrie' (1871) LR 3 A & E 303, The 'Chr Knudsen' [1932] P 153 and the The 'Minerva' [1933] P 224.


case_title: The 'Halcyon Isle' [1981] AC 221

case_text: For the reasons that I have identified, it is unnecessary to decide either of these questions. Given the restrictive approach to maritime liens in Anglo-Australian law, there are significant obstacles in the way of the first question, being an argument that a new class of maritime lien should be recognised: see for example, The 'Acrux' , The 'Halcyon Isle' [1981] AC 221; and Fournier v The Ship 'Margaret Z' [1999] 3 NZLR 111 [22]-[23]. 131 The second question raises an important issue about the approach to s 15, and it is appropriate to say something about this. As a matter of construction of s 15 a number of considerations are relevant. First, the approach enunciated by Dixon J in Parisienne Basket and discussed in The Queen v Gray; Ex parte Marsh and The 'Tieng Sheng (No 8)' to which I have already referred must be borne in mind. Secondly, the word "includes" in s 15(2) reflects the fact that the Act leaves open the possibility of other maritime liens being recognised beyond those listed. This might occur by reference to the development of Australian maritime law in this respect, or by the recognition of foreign maritime liens by reference to principles of private international law different to those expressed by the majority of the Privy Council in The 'Halcyon Isle' ; and see Price, G The Law of Maritime Liens (Sweet & Maxwell 1940) at Ch 20. The defendant submitted (as is the case) that s 6 of the Act provides that the Act does not have the effect of creating a new maritime lien, and that this assists the conclusion that the court should not extend the categories of maritime liens. That, however, was an approach to the formulation of the whole Act on the basis of the perceived limitation of the legislative power of the Commonwealth found in Owners of SS Kalibia v Wilson [1910] HCA 77 ; (1910) 11 CLR 689 to the effect that the Commonwealth Parliament does not have implied power to legislate for Admiralty and maritime substantive law. It is unnecessary and inappropriate to discuss whether The 'Kalibia' reflects the current Constitutional position given the emergence of Australia as a fully independent nation state: cf The 'Shin Kobe Maru' (FC) at 86-7; The 'Genessee Chief' 53 US 263 (1851); The 'Lottawanna' ; Butler v Boston and Savannah Steamship Co 130 US 527 (1889); In re Garnett 141 US 1 (1891); Southern Pacific Co v Jensen 244 US 205 (1917); Panama Railroad Co v Johnson 264 US 375 (1924); and Harrison Moore The Constitution of Australia at 562. It is sufficient to say that s 76(iii) provides for Parliament to confer or invest Admiralty and maritime jurisdiction. The absence (according to The 'Kalibia' ) of a coterminous legislative power to deal with substantive law matching the reach of judicial authority over Admiralty and maritime controversies does not limit the full import and implication of the grant of judicial power. The conferral of jurisdiction is not a matter of mere procedure. It is the conferral of a species of governmental power to quell controversies. Subject to limited circumstances that may exist by way of exception, courts have a duty to exercise the power if jurisdiction is invoked. Thus, judges have a responsibility to ascertain and declare the general maritime law of Australia, as part of the common law of Australia. If that includes ascertaining and declaring the law of maritime liens, that is part of the task.


case_text: "Navigation" is a word capable of wide meaning. It is used, sometimes in the phrase "navigation or management", in a number of maritime contexts, including article IV of the Hague Rules and Hague-Visby Rules dealing with the distinction between care of cargo and navigation or management of the ship. It has been said that a ship need not be in a state of motion to be in a state of navigation: Hayn v Culliford (1878) 3 CPD 410 at 417. One definition is the science or art of conducting a ship from place to place through the water: The 'Warkworth' (1884) 9 PD 145 at 148. However the word is apt to encompass, if the context permits, the controlled movement of a ship to berth with the assistance of tugs: see generally The 'Lord' v Newsum Sons & Co [1920] 1 KB 846 at 849; Cyber Sea Technologies Inc v Underwater Harvester Remotely Operated Vehicle Serial (2000) 1 FC 569 at [6] and [7]; Good v The London Steamship Owners' Mutual Protecting Association (1871) LR 6 CP 563 at 569; Whistler International Limited v Kawasaki Kisen Kaisha Ltd [2001] 1 AC 638 at 643-44; The 'Glenochil' [1896] P 10 at 15-16; City of Charleroy v Bittern (1923) 14 Ll L Rep 302; The 'Mac' (1882) 7 PD 126 at 130; The 'Harlow' [1922] P 175 at 181; and The 'Champion' [1932] P1 at 10 and 15-16. Some cases require the planned or ordered movement from one place to another: see Polpen Shipping Co v Commercial Union Assurance Co Ltd [1943] 1 KB 161 at 167 and Steedman v Scofield [1992] 2 Lloyd's Rep 163 .


case_title: The 'Lord' v Newsum Sons & Co [1920] 1 KB 846


case_title: The 'Minerva' [1933] P 224


case_text: The conventional and shorter definition expressed in The 'Princess Alice' (1849) Wm Rob 138 at 139-40; 166 ER 914 at 915 by Dr Lushington that towage is the employment of one vessel to expedite the voyage of another when nothing more is required than the acceleration of her progress, is not to be limited to activity requiring a line on board. As Benedict on Admiralty (5 th Ed, Banks & Co 1925) said at 166 [100]: Countless vessels, such as barges and canal boats, have no motive power of their own and are built with a view to receiving their propelling force from other sources. Other vessels with motive power of their own yet employ auxiliary power to hasten their progress or to assist in working about harbours or into docks. To supply such power to another vessel is towage and the towage contract is in all its features within the cognizance of the admiralty for such a contract is in its nature maritime. [footnotes omitted] See also Australian Coastal Shipping Commission v P V Wyuna [1964] HCA 76 ; (1965) 111 CLR 303; The 'Oceanic Grandeur' [1972] HCA 51 ; (1972) 127 CLR 312 at 332; The 'Sacramento' 273 US 326 at 328 and Lugenbuhl, C and Sharpe, D "The Law of Towage at the Millenium: What Changes Are Needed" (1999) 73 Tulane Law Review 181.


case_outcome: cited

case_title: The 'Princess Alice' (1849) Wm Rob 138; 166 ER 914


case_title: The 'Rama' [1996] 2 Lloyd's Rep 281

case_text: In The 'Rama' [1996] 2 Lloyd's Rep 281, Clarke J discussed The 'Eschersheim' and concluded at 293 that to be "damage done by a ship" three criteria must be satisfied: (a) the damage must be caused by something done by those engaged in the navigation or management of the ship in a physical sense; (b) the ship must be the actual or noxious instrument by which the damage is done; and (c) the damage must be sustained by a person or property external to the ship.


case_title: The 'Shin Kobe Maru' (1991) 32 FCR 78


case_title: The 'Shin Kobe Maru' (1992) 38 FCR 227


case_title: The 'St Elefterio' [1957] P 179


case_title: The 'St Merriel' [1963] P 247

case_text: This approach accords with comparative practice in other jurisdictions: see for example, The 'Acrux' and The 'St Merriel' [1963] P 247.


case_title: The 'Sydney Sunset' [2001] FCA 210


case_text: This kind of distinction between a limitation relevant to the jurisdiction of a court which goes to the existence of jurisdiction (that is as a condition which must exist before authority to adjudicate arises) and which goes to the exercise of jurisdiction was discussed by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; (1938) 59 CLR 369 at 391 as follows: It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed. See also The Queen v Gray: Ex parte Marsh [1985] HCA 67 ; (1985) 157 CLR 351 at 374-75 per Mason J (as he then was), and in an Admiralty context, see The 'Tian Sheng No 8' [2000] 2 Lloyd's Rep 430 at 443 per Sir Anthony Mason sitting in the Hong Kong Court of Final Appeal.


case_title: The 'Vera Cruz' (No 2) (1884) 9 PD 96


case_title: The 'Warkworth' (1884) 9 PD 145


case_text: If the question is whether, for the purposes of paragraphs (a) and (b) of s 17 or s 18 or s 19, there is the necessary relationship between the ship or other property and the relevant person, that is whether at the specified times the relevant person was the owner or charterer or in possession or control of the ship or other property, that must be established as a state of affairs or as a fact upon which jurisdiction or authority to commence the proceedings as an action in rem depends: The Owners of the Motor Vessel 'Iran Amanat' v KMP Coastal Oil Pte Limited [1999] HCA 11 ; (1999) 196 CLR 130, 138 and the cases there cited by way of example.


case_title: The Queen v Gray: Ex parte Marsh [1985] HCA 67 ; (1985) 157 CLR 351


case_text: In Tisand Pty Ltd v the Owners of the Ship MV Cape Moreton (Ex Freya) [2005] FCAFC 68 ; (2005) 143 FCR 43, the Full Court discussed the approach to interpretation of the Act at [59] to [65]. I need not set out those passages here. To those comments, only two matters need be added for emphasis, for the purposes of this case. First, provisions conferring jurisdiction or granting powers to a court should be interpreted liberally and without imposing limitations not found in the express words: The 'Shin Kobe Maru' (HC) at 421. Secondly, a particular aspect of the importance of the context provided by the ALRC Report (otherwise discussed in The 'Cape Moreton' above) is the consideration referred to by the High Court in The 'Iran Amanat' at 138, as follows: The Australian legislation having been enacted against the background of English legislation and authority set out above, the definition of "relevant person" should be understood as having the same meaning as the courts had given to the corresponding words in the English statute. When the Parliament has enacted legislation, affecting the subject of international shipping, and followed a statutory precedent from overseas which has by then received a settled construction, there is every reason to construe the statutory language in the same way in this country unless such construction is unreasonable or inapplicable to Australian circumstances.


case_outcome: applied

case_text: As the High Court said in The 'Shin Kobe Maru' the question is whether a claim made bears a certain legal character. The High Court in that case also said (at 422) that the word "claim": ...would ordinarily be construed as the assertion of a right or interest recognized by the law and carrying an entitlement to relief. This analysis must be undertaken "by reference to the nature of the plaintiff's case as put forward, without reference to ... whether it is likely to succeed or not": The 'Moschanthy' [1971] 1 Lloyd's Rep 37 at 42. See also Baltic Shipping Co Ltd v Pegasus Lines SA [1996] 3 NZLR 641 at 647-48. Statements in some of the cases of the necessity to show some strength in the case before the jurisdiction of the court is attracted (that is before the court is legitimately seized of authority to adjudicate) appear impermissibly to combine the attraction of jurisdiction with its exercise: cf The 'Bass Reefer' (1992) 37 FCR 375. See generally, Toh, KS Admiralty Law and Practice (Butterworths Asia, 1998) p 40 and the cases there discussed.


case_text: Here, by the time the question is to be assessed (the hearing of the motion) the proceeding was constituted by the amended writ, the application to further amend the writ and the statement of claim. The jurisdiction of the court is not to be assessed frozen at an anterior point of time: Westpac Banking Corporation v Paterson (2001) 187 ALR 168. Whilst the authority given in s 15 is to commence a proceeding, it is legitimate (at least so long as there is no fundamental change in the identity of the claim in the proceeding, as there is not here in any of the amendments) to have regard to documents (such as the statement of claim) filed after the commencement of the proceeding which illuminate its nature and character. 125 Here, the plaintiff's claim is that there is a maritime lien arising from all the circumstances pleaded: see [31] of the statement of claim. These circumstances include an assertion that there has been damage done by a ship. This, of course, is a recognised basis of a lien: s 15(2)(b). 126 Though [1] of the amended writ has an ambiguity arising from the second half of the paragraph, reading the amended writ and statement of claim together, the assertions therein amount to a proceeding on a maritime lien for damage done by a ship. Once this conclusion is drawn the Court has authority to hear the proceeding.


case_text: At the conclusion of the hearing on 9 May 2005, I granted an interim injunction until 5.00 pm on 16 May 2005 essentially, in the terms sought by the applicant. I also ordered that by 5.00 pm on 10 May 2005 the applicant apply for the matter to be listed before the Australian Industrial Relations Commission ('AIRC'), that the respondent file and serve any affidavits in opposition to the extension of the injunction by Friday, 13 May 2005, and that the matter be adjourned for further hearing to 10.00 am on 16 May 2005. I also ordered that the costs of the application for an interim injunction should be costs in the cause. My reasons are set out in Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2005] FCA 613. 10 The hearing listed to take place on 16 May 2005 did not proceed because prior to the hearing on that day the respondent advised the applicant that the notice of intended industrial action which had precipitated the application for the interim injunction had been withdrawn, and the foreshadowed industrial action notice was cancelled. 11 Thereafter, neither party took any further steps to progress the substantive application, and on 20 June 2005 the applicant filed a notice of motion for leave to discontinue with an order that the respondent pay its costs.


case_title: Re McJannet; Ex parte The Australian Workers' Union of Employees Queensland (No 2) [1997] HCA 40 ; (1997) 189 CLR 654

case_text: Counsel for the applicant relied specifically upon the following observation by the High Court in Re McJannet; Ex parte The Australian Workers' Union of Employees, Queensland (No 2) [1997] HCA 40 ; (1997) 189 CLR 654 at 656 ('McJannet') : 'The test for determining whether a proceeding is in a matter arising under the Act for the purposes of s 347(1) is whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act ...' 17 The applicant submitted that in this case, the right which it sought to enforce by bringing the application was a right, not under the Act , but a right under the TP Act in respect of a threatened breach of s 45D of that Act . The applicant submitted further that it did not matter that in order to succeed in vindicating its claim for relief under the TP Act that it would need to overcome a defence founded upon a statutory immunity to be found in s 170MT and s 170ML of the Act . The applicant argued that in determining whether s 347 of the Act had application, the inquiry was limited to whether the right sought to be vindicated by the applicant arose under the Act . The applicant submitted that 'if a defence raises issues arising under the Workplace Relations Act that is not a matter arising under the Act for the purposes of s 347'. 31 In my view, the observations of the High Court in the McJannet case which were relied upon by the applicant and which refer only to the source of the claim which is made and not the source of any defence to such claim, were not intended to derogate the pre-existing law which is articulated in the observations in each of the LNC and the Felton cases referred to above. The observations that the High Court made in the McJannet case which are relied upon by the applicant, are to be read subject to the context in which those observations were made. In McJannet , the prosecutors sought in the High Court a writ of prohibition against the judges of the Federal Court. The proceeding before the High Court was one where the prosecutor asserted that there was an absence of jurisdiction in the Federal Court to consider the proceeding which was before the Federal Court. The High Court was not therefore required to consider the characterisation of the 'matter' other than by reference to the characterisation of the claim by way of a writ of prohibition, which had been made in the High Court. There was in the proceeding before the High Court no attempt to enforce a duty arising under the Act , and, therefore, there was no need for the High Court to address the question of whether a claim arising under the Industrial Relations Act 1988 (Cth) (as the Act was then named), or a defence of immunity under that Act , would be included within the scope of 'a matter arising under the Act '.


case_text: The respondent submitted the scope of 'the matter' in question was to be identified by reference to the scope of the 'justiciable controversy' to be determined in this application. The applicant argued that the determination of the justiciable controversy required the determination of both the applicant's claim and its defence, namely, that the impugned conduct was 'protected action' under the Act and afforded the respondent immunity from the suit brought by the applicant under the TP Act in respect of an alleged breach of s 45D of that Act . The respondent argued that this was a sufficient basis upon which the Court could conclude that the respondent was a party to a proceeding in a matter arising under the Act for the purposes of s 347 of the Act . In support of this submission, the respondent relied upon the following observations of the High Court in the case of L.N.C. Industries Limited v B.M.W. (Australia) Limited [1983] HCA 31 ; (1983) 151 CLR 575 at 581 ('L.N.C.') : 'It is true to say that a matter does not arise under a law made by the Parliament merely because the interpretation of the law is involved: Felton v Mulligan ((1971) 124 CLR 376, at pp. 374, 382, 396, 408, 416). On the other hand, a matter may arise under a law of the Parliament although the interpretation or validity of the law is not involved; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett ((1945) [1945] HCA 50 ; 70 CLR 141, at p. 154). The conclusion reached by Latham C.J. in that case, and stated in a passage that has often been cited with approval is, "that a matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law." Equally, there is a matter arising under a federal law if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is a law of the Commonwealth: Felton v Mulligan ((1971) [1971] HCA 39 ; 124 CLR [367] , at p. 408).'


case_text: The applicant also relied upon the decision of Hill J in Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 ('Aust-Home Investments') , in support of its submission that the Court could have regard to the question of whether the respondent had acted unreasonably in relation to the threatened industrial action, and whether the applicant had acted reasonably in commencing the substantive application and seeking the interim injunction. In support of his submission that the respondent had acted unreasonably prior to the commencement of the applications, counsel for the applicant referred to the fact that in my reasons for granting the interim injunction, at [21], I had referred to inferences available on the evidence as it then stood, that in relation to at least one employer, the respondent did not genuinely try and negotiate for a collective agreement, before threatening industrial action. Counsel also referred to the fact that the respondent had not filed affidavits opposing the injunctions. Further, it was submitted that in the circumstances the applicant had no choice but to issue the application. 22 Counsel for the respondent submitted that this was a case where the Court should follow the general rule and not speculate on what would have happened had the matter gone to trial. Counsel for the respondent disputed that the respondent had acted unreasonably and submitted that any trial of the issues raised in the application would have required the Court to make credibility findings and findings as to the bona fides of officers of the respondent. Further, counsel also identified several legal arguments which were available to be raised at the trial in support of the respondent's case. Counsel referred to the following observations by Hill J in the Aust-Home Investments at 201: 'It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial: Stratford . This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue.' 23 Counsel for the respondent also disputed that the applicant had no choice but to commence the application because it could have proceeded in the AIRC. Counsel further submitted that the respondent and its members had decided to cancel the proposed industrial action after the parties had attended a conciliation conference convened in accordance with my order that the parties refer this matter to the AIRC.


case_text: Counsel for the applicant also referred to the cases of Homestyle Pty Ltd v The Western Australian Builders Labourers, Painters and Plasterers Union of Workers [2002] WASC 57 ('Homestyle') and Metropolitan Properties Pty Limited v Caltex Petroleum Pty Limited [1999] WASC 153 ('Metropolitan Properties') as instances where a court had awarded a discontinuing plaintiff costs in respect of an interlocutory injunction where the requirement for the injunction has fallen away due to no fault on the part of the plaintiff. 25 Counsel for the respondent also submitted that the Homestyle and Metropolitan Properties cases, were distinguishable in that in each of those cases, there had been a contested hearing in relation to the interlocutory injunctions and costs had been reserved in respect of each of those injunctions whereas in this case, there had been no contested interlocutory hearing and the costs of the injunction application were 'costs in the cause'.


case_title: Metropolitan Properties Pty Limited v Caltex Petroleum Pty Limited [1999] WASC 153


case_text: Counsel for the respondent said that there were several similarities between this case and the case of J T Stratford & Son Ltd v Lindley (No 2) [1969] 1 WLR 1547 where an interlocutory injunction had been obtained restraining the defendants who were trade union officials from enforcing an embargo on the plaintiff's barges as part of an industrial dispute. As in this case, the 'costs order' made in respect of the interlocutory injunction was that 'costs be in the cause'. Thereafter, the substantive action was not pursued and the action never came to trial. Eventually the defendants brought a summons to dismiss the action for want of prosecution and the plaintiff countered with a summons for leave to discontinue on the basis that the defendants pay the costs of the action including the costs of the interlocutory injunction. The Court of Appeal rejected the plaintiff's arguments that it should have the costs because they would very probably have won the action had it been tried on the merits. The Court of Appeal however upheld the decision that leave to discontinue should be given on the basis that there be no order for costs.


case_text: It is accepted that the word 'matter' in s 347 of the Act is to be construed by reference to the way that the term was construed in Fencott v Mueller [1983] HCA 12 ; (1983) 152 CLR 570 at 603, namely, as a 'justiciable controversy identifiable independently of all the proceedings which are brought for its determination and encompassing all claims made in the scope of the controversy' (see, for example, Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at 445-446).


case_title: Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439


case_text: Further, it is also accepted that the question of whether a 'matter' in a 'matter arising under the Act ' is to be determined by a reference to a test similar to that applied in deciding whether a matter is one 'arising under' a law of the Commonwealth for the purposes of s 76(ii) of the Constitution of the Commonwealth (see, for example, BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers (No 2) [2005] FCA 908).


case_text: The respondent submitted the scope of 'the matter' in question was to be identified by reference to the scope of the 'justiciable controversy' to be determined in this application. The applicant argued that the determination of the justiciable controversy required the determination of both the applicant's claim and its defence, namely, that the impugned conduct was 'protected action' under the Act and afforded the respondent immunity from the suit brought by the applicant under the TP Act in respect of an alleged breach of s 45D of that Act . The respondent argued that this was a sufficient basis upon which the Court could conclude that the respondent was a party to a proceeding in a matter arising under the Act for the purposes of s 347 of the Act . In support of this submission, the respondent relied upon the following observations of the High Court in the case of L.N.C. Industries Limited v B.M.W. (Australia) Limited [1983] HCA 31 ; (1983) 151 CLR 575 at 581 ('L.N.C.') : 'It is true to say that a matter does not arise under a law made by the Parliament merely because the interpretation of the law is involved: Felton v Mulligan ((1971) 124 CLR 376, at pp. 374, 382, 396, 408, 416). On the other hand, a matter may arise under a law of the Parliament although the interpretation or validity of the law is not involved; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett ((1945) [1945] HCA 50 ; 70 CLR 141, at p. 154). The conclusion reached by Latham C.J. in that case, and stated in a passage that has often been cited with approval is, "that a matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law." Equally, there is a matter arising under a federal law if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is a law of the Commonwealth: Felton v Mulligan ((1971) [1971] HCA 39 ; 124 CLR [367] , at p. 408).' 29 In Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367 ('Felton') Walsh J said at 408: 'A comparison between the terms of s. 76(i.) and those of s 76(ii.) of the Constitution indicates that a distinction is to be drawn between a matter "arising under" a law of the Parliament and a matter which involves the interpretation of such a law. The fact that the interpretation of a law is involved does not necessarily mean that there is a matter arising under the law. But, in my opinion, there is a matter arising under the law if the source of the right claimed by the plaintiff or applicant or the source of a defence which asserts that the defendant or respondent is immune from the liability or obligation alleged against him is a law of the Parliament. I think that that view of what constitutes a matter arising under a law of the Parliament is in conformity with the statements made in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141 by Latham C.J. and by McTiernan J. (1945) 70 CLR, at p 173. There Latham C.J. said: "If a right claimed is conferred by or under a federal statute, the claim arises under the statute" (1945) 70 CLR, at p 154. Likewise, in my opinion, if the answer made to a claim is that the defendant is free from the obligation asserted against him and that this freedom is conferred by an Act of the Parliament, the defence arises under that Act and the result is that there is before the Court a "matter" which arises under that Act .' 30 In my view, the determination of the justiciable controversy, which includes the applicant's claim that the impugned conduct comprised a threatened breach of s 45D of the TP Act , would also require determination of the respondent's defence that the impugned conduct was protected action within the meaning of the Act . Both the claim and the defence are in my view part of the same matter. Applying the observations of the High Court in the Felton and LNC cases referred to above, the proceeding is to be regarded as being in a matter arising under the Act because the source of the defence which asserts that the respondent is immune from liability or obligation, is founded on s 170ML and s 170MT of the Act . 31 In my view, the observations of the High Court in the McJannet case which were relied upon by the applicant and which refer only to the source of the claim which is made and not the source of any defence to such claim, were not intended to derogate the pre-existing law which is articulated in the observations in each of the LNC and the Felton cases referred to above. The observations that the High Court made in the McJannet case which are relied upon by the applicant, are to be read subject to the context in which those observations were made. In McJannet , the prosecutors sought in the High Court a writ of prohibition against the judges of the Federal Court. The proceeding before the High Court was one where the prosecutor asserted that there was an absence of jurisdiction in the Federal Court to consider the proceeding which was before the Federal Court. The High Court was not therefore required to consider the characterisation of the 'matter' other than by reference to the characterisation of the claim by way of a writ of prohibition, which had been made in the High Court. There was in the proceeding before the High Court no attempt to enforce a duty arising under the Act , and, therefore, there was no need for the High Court to address the question of whether a claim arising under the Industrial Relations Act 1988 (Cth) (as the Act was then named), or a defence of immunity under that Act , would be included within the scope of 'a matter arising under the Act '.


case_text: Dr Bell relies, in particular, upon the observations of Giles J in News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250 at 261. It is convenient to set out the relevant passage of Giles J judgment, which is as follows: But against them stands the compelling consideration that Lenfest is a foreign corporation, served out of Australia, over which the Court asserts jurisdiction only when it is sufficiently shown by News that (inter alia) the proceedings fall within one of the cases in Pt 10 , r 1A of the Supreme Court Rules . It is difficult to conceive of leave to serve a subpoena or a notice to produce upon such a foreign defendant who does nothing, that is, does not apply pursuant to Pt 11 r 8 (or Pt 10 , r 6A), in order to assist the plaintiff to establish the Court's jurisdiction. Whatever its strength, and whether or not its strength varies according to the circumstances, from the comity earlier discussed a foreign defendant served outside Australia should not lightly be subjected to the jurisdiction of this Court, but more importantly should not have imposed upon him one of the Court's compulsory processes in aid of establishing the jurisdiction itself. That position is not changed when, while contesting the jurisdiction, the defendant participates in the proceedings with a view to establishing the absence of jurisdiction. 8 It will be noted that Giles J drew attention to the consideration that a respondent seeking to challenge the jurisdiction of the court should not have imposed upon it one of the Court's compulsory processes in aid of establishing the jurisdiction. 9 The rule which Giles J considered in News was, in my view, not materially different from the rules of the Federal Court , and it seems to me that the principle stated by his Honour is one that I ought to follow. 10 The effect of so doing is that I do not consider that at this stage of the proceedings in which the jurisdiction is under challenge, the applicant can invoke the compulsory processes of the Court. The rules of the Federal Court provide that a notice to produce has the force and effect of a subpoena. Accordingly, the issue of a notice to produce must be considered as an attempt to invoke the Court's compulsory processes in the way discussed by Giles J in the News . 11 Mr Wood, who appears for the applicant, submitted that the decision of Giles J is distinguishable. He drew attention to what appears at 259 to 260 where his Honour observed that he did not think that Pt 36 rule 16 of the Supreme Court Rules should be read down and that it empowers the service of a notice to produce on a foreign party. However, I do not consider those observations of Giles J bear upon the issue before me this morning. 17 I propose to make an order in similar terms to that which was made by Giles J in the News . Accordingly I will order that the respondent is not obliged to produce the documents referred to in the notices to produce until further order of the Court. 18 I will also order that the applicant in the proceedings, Armacel Pty Limited, pay the costs of the notice of motion filed on 6 December 2007. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 7 December 2007 Counsel for the Applicant: C D Wood Solicitor for the Applicant: Lawmark Solicitors & Notaries Counsel for the Respondent: A S Bell Solicitor for the Respondent: Minter Ellison Date of Hearing: 6 December 2007 Date of Judgment: 6 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1928.html


case_outcome: distinguished

case_text: Mr Wood also referred me to a decision of a Full Court of this Court in Lloyd Werft Bremerhaven GmbH v The Owners of the ship Zoya Kosmodemyanskaya as surrogate for the ships Taras Schevchenko, Delphin and Kazakhstan and Tor Shipping Co [1997] 1162 FCA (31 October 1997). Mr Wood referred me to a passage of the judgment of Beaumont, Burchett and Lindgren JJ appearing at 24. Their Honours there observed that the adjectival rules to be applied at the hearing of the case were those appropriate to a final hearing, so that the Court's power to dispense with the rules of evidence, which is available on an interlocutory hearing, was not available. 13 I do not consider that the observations of the Full Court in Zoya are of assistance. Their Honours were dealing with an entirely different situation; the matter was an admiralty matter in which a party, who was said to be the owner of a vessel that had been arrested, sought an order setting aside the arrest of the ship. There was no question but that the ship was present in Australia's territorial waters. 14 Zoya was not a case in which there was a question of submission to the jurisdiction; the matter involved the construction and application of s 19 of the Admiralty Act 1988 (Cth). I do not consider that it follows from what their Honours said in that case that the hearing of the motion to set aside the order for service, or the originating process in the present case, is a final hearing in the way in which the admiralty matter was considered to be a final hearing in Zoya .


case_text: There was debate before me in addition to the issue of principle which I have mentioned, about the terms of the notice to produce. Dr Bell submitted that the notice to produce infringed the fundamental principle, stated in authorities such as Small v Commissioner of Railways (1938) 38 SR (NSW) 564, that a notice to produce or subpoena ought not to be used as a substitute for discovery. 16 That issue does not arise because I have decided the issue of principle in favour of the respondent to the proceedings. Nevertheless, the tentative view that I have come to is the notice to produce is not a substitute for discovery because it does not call for a judgment as to the relevance of particular matters, and at this stage of the proceedings seems to me to sufficiently identify the documents. It is true, as Dr Bell observes, that the notice is drafted in very wide terms and there may be some room for further debate about the scope of the notice. Nevertheless, as I have said, that issue does not call for determination this morning.


case_text: There are three distinct matters to which it is necessary to refer. The first relates to ss 45E and 45EA . The second, to accessorial liability and ss 76 and 75B of the TP Act. The third concerns the standard of proof in this matter and s 140(2) of the Evidence Act 1995 (Cth). The applicable principles in relation to each of these are not in dispute in these proceedings. They have been the subject of recent judicial consideration, notably in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 ("CEPU") and Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162.


case_text: There are three distinct matters to which it is necessary to refer. The first relates to ss 45E and 45EA . The second, to accessorial liability and ss 76 and 75B of the TP Act. The third concerns the standard of proof in this matter and s 140(2) of the Evidence Act 1995 (Cth). The applicable principles in relation to each of these are not in dispute in these proceedings. They have been the subject of recent judicial consideration, notably in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 ("CEPU") and Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162. 10 The concepts in these various provisions have not been defined. However, they have been the subject of judicial illumination. For present purposes I need refer only to the following, presently uncontroversial, propositions. First , for an "arrangement or understanding" to be found, there must be a "meeting of the minds" of the parties under which one or both of them committed to a particular course of action: CEPU at [15] and [175]; Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [75]. As Smithers J observed in Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 291: Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of ... the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act. Secondly , a mere expectation, as a matter of fact, or a hope that something might be done or happen or that a party will act in a particular way, is not of itself sufficient to found an arrangement or understanding: see Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452 at [45]; IPM Operation at [104]-[112]. Thirdly , the necessary consensus or meeting of minds need not involve, though it commonly will in fact embody, a reciprocity of obligation: Amcor Printing Papers at [75]. Fourthly , as to the requirement that the provision be included in the arrangement or understanding for the proscribed purpose or for purposes which include that purpose, the test of purpose is a subjective one and the proscribed subjective purpose is to be had by each party to the arrangement or understanding: CEPU at [182]. Fifthly , the purpose of conduct for present purposes is the end sought to be accomplished by the conduct and is to be distinguished from the motive for such conduct which is the reason for seeking that end: CEPU at [181] and the cases there cited. Sixthly , the term "hindering" in s 45E(3) has been given a broad construction and encompasses conduct which in any way affects to an appreciable extent the ease of the usual way of supplying or acquiring an article or service: IPM Operations at [127]; Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited [1993] FCA 266 ; (1993) 42 FCR 452 at 459-460.