Federal Court and Supreme Court
Admiralty Users' Group Meeting - NSW - Minutes
15 September 2003
Attendees: Tamberlin, Emmett, Palmer
and Allsop JJ, Alexander Street SC, Greg Nell, John Levingston,
Stuart Hetherington, David Stone, Martyn Hughes, James
Neill, Douglas Coleman, John Mathieson, Philip Kellow,
Lance Grant and Michael Whitehead.
Apologies: Sheller JA, Hely J and Ipp
JA, Ian Davis, Peter McQueen, Robert Wilson and Robert
Macfarlan QC.
Allsop J welcomed participants and
outlined the process followed by the drafting committee
in it preparation of the report to the meeting circulated
on 1 September 2003. He emphasised that what was contained
in the report was not intended to be a reflection of either
Court's views or the views of Sydney practitioners and
certainly not a reflection of anything which has been
agreed, but simply a range of matters and issues which
Sydney practitioners felt should be put forward for consideration.
Discussion about the report followed.
David Stone suggested that the proposed
amended subrule 39(2) be reworded to something like "….which
identifies sufficient short particulars of the claim and
of any necessary facts….".
Stuart Hetherington suggested that
a fundamental interpretative issue which needed to be
clarified was whether "may" was mandatory or
discretionary in relation to the issue of an arrest warrant
(subrule 40(1)). After discussion it was suggested whilst
this was a basal issue it was something that needed to
be considered by the Statutory Rule Committee. It was
suggested that reference to the need for clarification
should be included in the report. Stuart Hetherington
also suggested that the proposed draft Rule 54A and the
commentary on it required further consideration in regard
to who should be required to complete an affidavit on
behalf of a corporation acting as a surety required.
There was a lengthy discussion in regard
to the adequacy of guarantees from P & I and overseas
and Australian financial institutions (other than banks)
as an alternative to solicitor's undertakings. It was
suggested that the report should be amended to reflect
that a number of members of the Sydney profession felt
such measures should be an alternative.
There was also discussion of the use
of an overdraft account established by the arresting party
with the Marshal being a signatory as an alternative to
the proposal that the Marshal establish an overdraft.
There was discussion of some of the practical difficulties
associated with being able to establish such an overdraft
but also the circumstances which might enable that facility
to work satisfactorily.
Doug Coleman suggested that it might
be more appropriate to provide in proposed subrule 70(2)
that the default requirements be that a ship or other
property be advertised for a period of six weeks and payment
be required within one week.
Participants were invited to
make any further comments on the report in the light of
the discussions to Allsop or Palmer JJ before the end
of the week to enable a revised version of the report
to be prepared for presentation at the MLAANZ conference
to be held in October 2003 in Brisbane.
