Memorandum issued by the Hon. Justice
Allsop - 9 May 2003
TO: Interested Persons
FROM: Allsop J
DATE: 9 May 2003
SUBJECT: Federal Court Admiralty Users' Group
At the meeting of the Federal Court
Admiralty Users' Group held on 24 April 2003 it was decided
to set up a sub-committee (Tamberlin and Allsop JJ, Peter
McQueen, Drew James, Sandy Street SC and Greg Nell) to
organise the next full meeting of the profession.
The meeting will be held at 4.30 pm
on Tuesday 3 June 2003 at level 17 of the Joint Courts
Building.
The most important matter to discuss
is the question of reform of the Statutory Rules. Enclosed
is material dealing with the question of rule reform.
Before explaining what is contained in the enclosed material
it is appropriate to say that the most germane material
for the next meeting is the fourth enclosure referred
to and emboldened below. However, since there has been
a body of work undertaken by the Court, the Supreme Court
and the profession leading up to this point, it is appropriate
that all interested parties have access to all material.
The enclosed material is as follows:
First there is a paper
by Justice Finkelstein prepared in 2001 which was
sent to MLAANZ in November 2001. A number of practitioners
have seen it already. It was intended to act as a point
of discussion.
Secondly, there is a commentary
by Sandy Street SC on Justice Finkelstein's paper
which was provided to the Federal Court shortly after
the meeting of 24 April 2003.
Arising from the discussion on 24 April
2003, it is appropriate to have a discussion amongst all
interested NSW practitioners of their views on the following
topics:
1.
Which elements raised by the above documents should be
sought to be included within the Statutory Rules, in particular
to avoid, where possible, inconsistency between court
practices?
2.
Which elements, if any, raised by the above documents
should not be sought to be included within the Statutory
Rules - whether because it would be a bad idea or because
it is somehow more appropriate for individual courts to
deal with the matter?
3.
What drafting issues arise and how should that be progressed?
4. The
question of the development of standards or guidelines
or perhaps practice notes dealing with traditional thorny
problems such as dealing with cargo, ship movement, repairs
and maintenance etc. It may be that, whilst recognising
the difficulty and danger in being too prescriptive in
advance of changing or particular situations, an essential
guide can be provided for the assistance of practitioners
of the very least which the Court would expect in such
situations for orders to be made. It may be sufficient
for these to be drafted by the profession and agreed through
users' meetings with the general imprimatur of the Court.
Practice notes may be too prescriptive. Views may differ.
5. Should
there be a co-ordinated push to eliminate poundage all
round Australia? .
6.
Should the question of jurisdictional facts in ss 17-19
of the Admiralty
Act be able to be dealt with on an interlocutory basis
in circumstances of urgency: cf The
Shin Kobe Maru (1994) 181 CLR 404, 426 and The
Zoya (1997) 79 FCR 71? If so the Admiralty Act may
need amendment.
Not all this may able to be dealt with
in one meeting.
It is important, however, to gain the
views of all interested practitioners about, in particular,
1 to 4 above.
One matter to be discussed is the election
or nomination of delegates to prepare final drafts of
discussion and views of interested practitioners, in order
to assist in the formulation of any submission to the
Statutory Rules Committee.
Not everyone may be able to get to
the meeting. Not everyone may be interested in every point
raised. If anyone cannot get to the meeting, or would
otherwise prefer to deal with the matter in writing, he
or she is welcome to send an email to me with any contribution.
<Justice.Allsop@fedcourt.gov.au>.
The Judges in the Federal Court Sydney
Admiralty Panel think it appropriate to invite any interested
New South Wales Supreme Court Judges to attend. To that
end, these documents have been sent to Sheller JA, Ipp
JA, Palmer J and Nicholas J, with an invitation to attend
the meeting.
