Chapter 2: Appointment, duties and functions of Marshal
Under paragraph 18ZH(1)(a) of the Federal Court of Australia Act 1976, the Registrar may appoint such Marshals for the purposes of the Admiralty Act as are necessary.
The current practice is for the Registrar to appoint a Marshal or Marshals in each District Registry. Also, as required from time to time, the Registrar appoints people to be Marshals in each State and Territory who are not employees of the Federal Court . These are usually only short term (closed) appointments. A blank instrument is available for closed appointments (see [2.3]).
The District Registrar or Marshal should contact Melanie Faithfull in the NSW Registry with written details of the need for the appointment and the person's full name, position, contact details and background. A recent digital photograph of the person's head and shoulders is required so that an ID card from the Court may be prepared. Please also provide details of any other appointments held, such as deputy sheriff, authorised officer.
A copy of the instrument of appointment will be sent to the relevant District Registrar, with the original instrument retained in the Principal Registry.
The Human Resource Management Policy for Admiralty Marshals on the Court's intranet provides guidance on a range of issues for Federal Court staff undertaking the role of a Marshal.
Where the ship or property to be arrested is in a remote area, it is often more appropriate to arrange for a local police officer or other suitable person to be appointed as a Marshal.
In 2013 the Court entered into a Memorandum of Understanding with the Australian Customs and Border Protection Service regarding the provision of assistance with arresting ships. A protocol was developed for the Australian Border Force to provide its officers to be appointed as a Marshal for the purpose of executing an arrest of a ship or property. It was implemented on 4 November 2013.
The appointment for non-Federal Court staff will usually be for a fixed period of time. An instrument for a fixed term appointment for a Marshal is available. It is on the intranet at http://fca.intranet.fedcourt.gov.au/registry_court_services/admiralty2.
The name and details of the person to be appointed, along with an estimate of the length of time of the appointment, is to be sent to Melanie Faithfull in the NSW Registry so that the instrument of appointment can be arranged and returned by email. A photograph of the person is not required.
If a person who holds an appointment as a Marshal ceases to need this appointment or leaves the Court, the Registrar will revoke their appointment as a Marshal.
In this case arrangements should be made with Melanie Faithfull in the NSW Registry to have the appointment revoked. At the same time, if the person holds a MSIC, please return this card to Melanie Faithfull. It must be returned to the Department of Home Affairs, which includes the Australian Border Force, for cancellation.
The functions and obligations of the Marshal are set out in the Admiralty Rules. They include:
- serving initiating process (although this does not have to be done by a Marshal)
- executing arrest warrants
- taking all appropriate steps to retain safe custody of, and to preserve, a ship or property under arrest, including:
- removing from the ship, or storing, cargo that is under arrest
- removing cargo from a ship that is under arrest and storing it
- removing, storing or disposing of perishable goods that are under arrest or are in a ship that is under arrest and
- moving the ship that is under arrest
- arranging for the release of a ship or property pursuant to an order by the court or a registrar
- arranging for the valuation and sale of a ship or property pursuant to an order by the court
- filing a return of sale, and an account of sale and documents in support of the account for taxation
- paying the proceeds of the sale of a ship or property into the court
- filing copies of notices concerning an application for a determination of the order of priority of claims against the ship or property, or the proceeds of the sale such ship or property.
The Marshal may also carry out other functions, as directed by the court, with respect to the custody of a ship or property under arrest.
A Marshal who arrests a ship or property has custody, not possession, of the ship or property. In Government of the Republic of Spain v SS Arantzazu Mendi  AC 256, Lord Atkin explained that, subject to the Marshal's control of the custody, all the possessory rights in relation to the arrested ship or property which previously existed continue to exist, including all the remedies which are based on possession.
There will be situations when a Marshal is unsure about the most appropriate action to take in performing his or her duties and functions.
At first instance, any queries should be directed to the relevant District Registrar. In some cases arrangements may be made for an experienced Marshal to provide advice on the issue or issues that have arisen. Advice may also be obtained from Tony Tesoriero (NSW) who is the nationally appointed Deputy Registrar (Admiralty and maritime) or Russell Trott, Deputy District Registrar, (WA).
Where a ship or property is in the custody of the Marshal, the Marshal may apply to the Court for directions under rule 48 of the Admiralty Rules. Such an application should clearly identify the issue or issues to be considered by the Court and, to the extent possible, the orders that might be made. Under rule 50, the Court may make appropriate orders with respect to the preservation, management or control of a ship or other property that is under arrest.
The Court also has a general power under rule 80 to:
- give any appropriate direction with respect to a proceeding
- extend or abridge any time in which certain things must be done (before or after that time has expired) and
- dispense with compliance with any of the Admiralty Rules before or after the time for compliance.
In the course of an Admiralty proceeding it may be necessary for the Marshal to appear before the Court. This might be because the Marshal is:
- applying to the Court for orders
- the subject of orders being sought by one or more of the parties to the proceeding
- assisting the Court in its consideration of an application by one or more of the parties.
While the Marshal may appear in person, there will be situations where it is appropriate that the Marshal be legally represented. When deciding whether to retain a solicitor or Counsel, consideration should be given to:
- the nature and complexity of each issue which is the subject of the proceeding
- whether the issue is the subject of a dispute between the Marshal and one or more of the parties, or between the parties
- the likely time and resources it would take for the Marshal to deal with the issue without representation
- the likely cost of the representation and whether it is reasonable for the Marshal to incur that cost given the value of the ship or property under arrest.
The relevant District Registrar and the Deputy Registrar in the NSW Registry should be consulted when consideration is being given as to whether a legal representative is to be engaged to appear on behalf of the Marshal.
The Court's Protocol for Interstate Arrests is set out below.
Protocol for Interstate Arrests
Occasionally documents maybe filed in a registry concerning the arrest of a vessel that is located in an area outside the filing Registry. When making arrangements for the arrest, if it is determined that the filing Registry cannot effect the arrest, there are a couple of options to consider. These are arrest either by:
- Interstate Registry
- Australian Border Force (the ABF).
Interstate Registry undertakes the arrest
- If an arrest is to be effected in a Registry other than the filing Registry, as much notice as possible is to be given to the District Registrar and Marshals in the interstate (arresting) Registry.
- There should be discussions between the filing and interstate registries about the most efficient way to effect the arrest, whether it is either by the interstate registry or by the ABF.
- If the interstate Registry is to undertake the arrest, then that Registry will take carriage of the arrest and custody.
- Both filing and arresting Registries should identify the respective officers responsible for the arrest and provide to the file their contact telephone numbers, ie mobile, office and after hours.
- The filing Registry is to provide the arresting Registry with all relevant documents filed in the filing Registry. This should be done electronically where possible.
- Practitioners involved in the in rem proceeding should generally deal with the arresting Registry. However, care should be exercised to ensure all relevant documentation reaches the filing Registry.
- Demands for money for Marshal's fees and expenses associated with an arrest should preferably be made by the arresting Marshal as has been the practice.
- Project codes (bank accounts) are to be opened by the arresting Registry.
- The question of transfer of the proceeding to the arresting Registry will depend on the circumstances. The decision to transfer the proceeding is to be decided by the Docket Judge in consultation with the Marshal.
[Comment: If there is no appearance and the proceeding continues only as a proceeding in rem it would be generally preferable to transfer the proceeding to the arresting Registry. If the in rem proceeding depends upon a jurisdictional argument which can conveniently be done in the filing Registry it may not be preferable to transfer the proceeding. If an appearance is filed and security is put up and the matter proceeds as in rem and in personam proceedings, the question of transfer should be dealt with at the filing Registry on the ordinary principles governing transfer.]
- Interlocutory applications in connection with arrest and custody should generally be filed in the filing Registry although may be heard in the arresting Registry. There should be flexibility in consultation with the admiralty judges in both registries.
[Comment: It is important to retain flexibility based on discussion between the respective Procedure Judges. Subject to particular considerations if there is any local knowledge required or the views of the arresting Registry Marshal are relevant the application should be heard in the arresting Registry with the assistance of videolink if necessary. The location of practitioners will be a consideration as to which Registry Procedure Judge will hear the matter.]
- The filing Registry should advise the arresting Registry of any interlocutory application filed in the filing Registry. To the extent necessary the respective Registry Convening Judges should consult. Generally, the arresting Registry will be responsible for the sale of any vessel and consequential applications and functions.
[Comment: Flexibility may be required in all the circumstances, for instance the location of the parties may affect this.]
- The costs incurred by the arresting Registry should be assessed and provided to the filing Registry. The report will contain recommendations as to the issue of any cost re-allocation.
ABF officers undertakes the arrest
- If the arrest is to be effected by the ABF, the arresting Registry (whether or not this is the same as the filing Registry) should contact the ABF via the 24 hr call centre, the Australian Border Operations Centre (ABOC). A request will be made for an ABF officer to undertake the arrest under the MOU arrangements.
- For an interstate arrest, where the ABF agrees it is able to assist, the arresting Registry will take carriage of the arrest and custody. The ABF will only be carrying out the actual arrest. All other activities will be the responsibility of the filing Registry such as dealing with the practitioners/parties involved in the proceedings.
- The filing Registry will provide all relevant documents filed in the filing Registry to the arresting Registry. This should be done electronically.
The actions of the Marshal are subject to the scrutiny of the Court and the parties to an Admiralty matter. It is therefore important that a full and complete record is kept by each Marshal in relation to the performance of their functions. The File Index at Annexure 2 contains a full list of records that should be included in the Marshal's file.
The arresting Marshal records should include the following:
- A Marshal's Time and Record Log – this document may be maintained in hard copy or in electronic form, and is a chronological and time record including duration of each event, conversation or other action taken in the course of the arrest, custody and release of the ship or property (whether by discharge or pursuant to a judicial sale). The log must be kept up to date at all times.
- Marshal's Receipts and Expenditure Record – a record should be kept of each receipt and expense incurred by the Marshal. It should include a copy of the tax invoices and receipts concerning those expenses and disbursements. Expenses are discussed in greater detail in the next chapter and in Chapter 8 of this Manual.
The parties' solicitors will regularly request a Statement of Marshal's costs and expenses to date and these should be supplied promptly.
- Demands for funds – a record should be kept of the date and amount of each demand for funds, and of each payment received. It should include a copy of all relevant correspondence.
- Court papers – a copy of the originating process, warrant of arrest, supporting affidavits, request not to execute arrest warrant, affidavits of service, Court orders and other Court documents should be kept by the Marshal.
- Correspondence – a file should be kept containing copies of all correspondence (including emails) sent and received by the Marshal.
The following sample documents will be of assistance in recording the details of each action taken by the Marshal:
- Annexure 2(a) file index
- Annexure 2(b) sample time and record log
- Annexure 2(c) sample vehicle log
- Annexure 2(d) sample receipt and expenditure record
- Annexure 2(e) sample form of reconciliation
- Administration File Spine Label.
See also [4.3] – Recording the condition of the ship
The Work Health and Safety Act 2011 provides a nationally consistent framework protecting the health, safety and welfare of workers at work. Commencing on 1 January 2012 it is intended to harmonise occupational health and safety laws across Australia. It sets out the responsibilities of both employees and employers in relation to work health and safety of the employees of the Commonwealth and of Commonwealth authorities.
All employees have a responsibility to safeguard their own health and safety and that of their colleagues in the workplace, section 28. A 'workplace' is where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be while at work. A place includes a vehicle, vessel or aircraft or other mobile structure, section 8.
The work of a Marshal may at times present greater risks and danger than would normally be the case in an office environment. Therefore, it is imperative that Marshals take even greater care not to put themselves or others at risk in potentially dangerous situations such as during the boarding and arrest of ships at a berth, at a mooring or at sea.
Each Marshal should use his or her judgement in all situations and make a decision about whether he or she is able to carry out the duties of a Marshal without putting himself or herself or others at risk.
The following documents will be of assistance:
- Local Guidelines on arresting vessels at anchor
- Guidelines for offshore arrests
- Helicopter safety
- Personal protective equipment.
The Marshal Contact Register contains contact details including office telephone number, home telephone number, mobile number and office email address for all internal Marshals.
The Register was found on the Court's computer system by opening the Excel program and selecting: Q:\National Data\Admiralty\Marshal\Marshal Contact Register document. It is now on the SharePoint site: http://thehub.fedcourt.gov.au/teams/AdmiraltyMarshal/Lists/Register%20of%20Marshal/AllItems.aspx. Please contact Andrew Gilbert (Victoria Registry) to get access to this database.
The Register is accessible by all Federal Court Marshals and Registrars on a 'read only' basis. Maintenance access has been assigned to Melanie Faithfull in the NSW Registry.
Making the Register available on a national level is in keeping with the national approach adopted for the admiralty and maritime jurisdiction of the Court. It assists Registrars and Marshals in interstate arrests by facilitating contact between Registries and Marshals at any time.
New appointments and revocations can occur at any time. Staff are not notified of changes to the Register as they occur. Registrars and Marshals should print a version of the Register when needed to hold with other after hours contact details. At the foot of the Register is a 'last modified' date that is updated when changes are made.
Where a Marshal's contact details have changed the Marshal should send an email to Melanie Faithfull with details of the change.