Federal Court Admiralty Property
Users' Group Meeting - NSW - Minutes
3 June 2003
1. There was a discussion of a number
of matters raised in the Draft Agenda prepared by Street
SC which had been distributed to the participants at the
previous meeting on 24 April 2003.
2.
The Draft Agenda in the form it was previously circulated
is attached for convenience.
3.
At the end of the meeting on 3 June 2003 it was decided
to set up a drafting committee to bring forward a draft
of various rules discussed on 3 June to the next meeting
(date to be arranged). The members of that drafting committee
from the profession are Street SC and Nell. Justices Tamberlin
and Allsop from the Federal Court and Justice Palmer form
the Supreme Court will make up the balance of the drafting
committee.
4.
The matters dealt with at the meeting were as follows:
Solicitors' Undertakings
5.
There was general agreement that the single solicitor
undertaking should not be the only way of securing the
Marshal's fees. Firm undertakings and clean irrevocable
bankers' documentary credits from Australian trading banks
were also discussed.
6. The
drafting committee will attempt to incorporate these into
some rules. If a bond has a limit there may need to be
a role for the judge at the point of the issue of the
warrant. (See [11] ff below.)
Replacement Undertakings to Obtain
Release
7. Discussion
took place about the removal of the overlapping undertakings.
There was an expressed desire to have the arrestor's undertaking
or security fall away by the replacing undertaking or
security. Questions of ensuring that the Marshal is not
left with any gap in protection was discussed. Also the
question of what is covered in the way of earlier charges
was raised.
8.
The drafting committee will prepare some suggested wording.
The Affidavit Supporting Arrest
and the Role of the Judge
9. Discussion
took place on draft rule 39A.
10. Concern was expressed that arrest
should not be made harder by raising hurdles. There was
comment that the rules and the pro-forma affidavit in
the schedule should be made clearer.
11.
There was also discussion about he role of the judge.
There was a suggestion that the arrest order should be
made by the judge, as opposed to the current administrative
issue of a warrant.
12. The
general feeling of the meeting was that the present system
is working well. There is and has been no problem in obtaining
a judge within hours to release vessels, if that is required;
but it was also thought that some clarification of the
supporting paperwork might be useful.
13.
The drafting committee will look at tidying up the rules,
and, if, after discussion, it is thought appropriate,
will bring forward a "competing" set of rules
that more fully involve the judge at the arrest stage
for the purposes of discussion.
14.
It should be noted that if an irrevocable banker's bond
with a limit is to be used, it may be that a judge has
to approve that as security depending upon the size of
the vessel, its cargo, its condition etc. The drafting
committee will look at this.
Caveat Register
15.
The Federal Court will examine the question of an electronic
register and liaise with the Supreme Courts about this.
Aid to other Courts
16.
Draft Rule 46A in the draft agenda was approved of in
substance.
Repatriation
17.
Draft Rule 48A was thought to be appropriate to have to
ensure the certainty of the power so to act.
18.
Draft Rule 48B was also thought appropriate, not because
of any past difficulty but to be a protection in circumstances
where there may be a bank guarantee in a limited amount.
Movement of the Vessel
19.
Draft Rules 48C and 48D were discussed. Some significant
problems remain. As a matter of principle there can be
no attempt in the rules to eliminate any liability in
the Marshal which might in law arise from moving the vessel.
The Marshall must of course have adequate liability insurance.
The drafting committee will look at this but some questions
of principle remain.
