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IN THE FEDERAL COURT OF AUSTRALIA |
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Plaintiff |
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AND: |
Defendant |
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
HIS HONOUR: The first question raised by this motion is whether the Australian Fishing Management Authority (“the AFMA”) and the Commonwealth of Australia (“the Commonwealth”) should be added as defendants to this action which has been brought in rem against the defendant, the ship “Aliza Glacial” (“the ship”). The action in rem in this Court is brought by the plaintiff as mortgagee of the ship. The ship was boarded by Fisheries officers and defence forces personnel on 17 October 1997 near Heard Island, allegedly in waters forming part of the Australian Fishing Zone. She was thereafter escorted to Fremantle where she remained in the possession of the AFMA or the Commonwealth at Rous Head near Fremantle. On 23 February 1998 the ship was arrested at that location under the authority of a Marshal of this Court.
The application for joinder of the AFMA and the Commonwealth is made pursuant to O 6 r 8(1) the Federal Court Rules which provides:
Where a person who is not a party-
(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon,
the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceeding.
I have been referred by Mr Cosgrave of Counsel for the AFMA and the Commonwealth to the judgment of the Full Court of this Court in News Ltd and Others v Australian Rugby Football League Ltd and Others (1996) 64 FCR 410 where it was observed at p 524:
The post-Judicature Act rules of court also included provisions of the
kind now found in FCR O.6, rr.1 and 2 for the joinder of multiple claims and
multiple parties, either plaintiffs or defendants, where the subject matter of
the proceedings is in respect of, or arises out of, the same transaction or
series of transactions, involving some common question of law or fact. These provisions reflect an intention, which
now receives more emphasis than in the past, to avoid where reasonably
practicable a multiplicity of proceedings: Montgomery v Foy, Morgan & Co. [1895] 2 QB 321; but see Amon v Raphael Tuck &
Sons Ltd [1956] 1 QB 357, at 378,
per Devlin J.
In relation to a rule
based on the precursor to FCR O.6, r.8, Lord Diplock, delivering the opinion of
the Judicial Committee of the Privy Council in Pegang Mining Co. Ltd. v. Choong Sam [1969] 2 MLJ 52, said this (at 55-56):
The cases
illustrate the great variety of circumstances in which it may be sought to join
an additional party to an existing action.
In their Lordships’ view one of the principal objects of the rule is to
enable the court to prevent injustice being done to a person whose rights will
be affected by its judgment by proceeding to adjudicate upon the matter in
dispute in the action without his being given an opportunity of being heard. To achieve this object calls for a
flexibility of approach which makes it undesirable in the present case, in
which the facts are unique, to attempt to lay down any general proposition
which could be applicable to all cases.
It has
been sometimes said as in Moser v. Marsden
[1892] 1 Ch. 487 and in In re I.G. Farbenindustrie A.G. [1944] Ch. 41 that a party may be added if his legal interests will be
affected by the judgment in the action but not if his commercial interests only
would be affected. While their
Lordships agree that the mere fact that a person is likely to be better off
financially if a case is decided one way rather than another is not a
sufficient ground to entitle him to be added as a party, they do not find the
dichotomy between ‘legal’ and ‘commercial’ interests helpful. A better way of expressing the test is: will
his rights against or liabilities to any party to the action in respect of the
subject matter of the action be directly affected by any order which may be
made in the action?
An order which directly
affects a third person's rights against or liabilities to a party should not be
made unless the person is also joined as a party. If made, the order will be set aside. Order 6, r.7 is not directed to that type of situation, but to
cases where there is a curable defect, for example the misnaming of a party.
The essential question which arises in this case is whether an order could be made in the present proceedings which would directly affect the rights or liabilities of the AFMA or the Commonwealth. In my view, as things presently stand, the proposed added defendants have only an inchoate right, if it can be called that, to forfeiture of the ship in the event that an order is made under s 106 of the Fisheries Management Act 1991. It is common ground that no such order has been made to date. Mr Cosgrave did refer to s 84 of the same Act, pursuant to which the power to board and take possession of a suspected vessel is conferred.
However, as I apprehend it, no order which could be made in the admiralty action in rem in this Court could impinge on the exercise of those rights. Accordingly, I have come to the clear view that a case has not been made out for the joinder of either the AFMA or the Commonwealth as a defendant to the action presently in this Court. That is not to say that an occasion may not arise in the future for the joinder of the AFMA or the Commonwealth or both if and when an order for forfeiture is made by a court of competent jurisdiction. Nor should I be taken as pre-empting an application by either or both of those entities to intervene when the Court is considering an application for the sale of the ship or the terms on which any such sale should be advertised or effected. However, I consider it inappropriate and, indeed, not open to the Court at present to order that either the AFMA or the Commonwealth be added as a defendant to this action.
It follows that the second order sought in the motion on notice dated 11 March 1998 that the action to be transferred to the Western Australian District Registry is not open to be pursued. I shall therefore order:
1. that the motion be dismissed;
2. that the AFMA and the Commonwealth pay the plaintiff’s costs of the motion.
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I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 16 March 1998
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Counsel for the Plaintiff (Respondent in motion on notice): |
Mr M Thompson |
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Solicitors for the Plaintiff (Respondent in motion on notice): |
Mallesons Stephen Jaques |
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Counsel for the Defendant: |
No appearance |
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Solicitors for the Defendant: |
No appearance |
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Counsel for the Australian Fisheries Management Authority and Commonwealth of Australia (Applicant in motion on notice): |
Mr P Cosgrave |
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Solicitors for the Australian Fisheries Management Authority and Commonwealth of Australia (Applicant in motion on notice): |
Australian Government Solicitor |
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Mr J Wood, Deputy Marshal Represented the Marshal |
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Date of Hearing: |
16 March 1998 |
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Date of Judgment: |
16 March 1998 |