Australian Longline Industries P/L v Church, S.G

[1994] FCA 1010

JUDGMENT No. . !L(?. !.$?....../ %...

IN THE FEDERAL COURT OF AUSTRALIA	)
)
AUSTRALIAN CAPITAL TERRITORY	)
) No. ACT G 59 of 1991
DISTRICT REGISTRY	)
GENERAL DIVISION

BETWEEN: AUSTRALIAN LONGLINE INDUSTRIES

PTY LIMITED and HWANG YONG

Applicants

AND: STEPHEN GEORGE CHURCH

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER :	Neaves J.
DATE OF ORDER	20 December 1994
WHERE MADE	Canberra
THE COURT ORDERS THAT:

1.   The motion herein to join the Commonwealth of Australia as a respondent be dismissed.

2. The substantive application herein be dismissed.

3.   The applicants pay the respondent's costs of and incidental to the motion and the application, including reserved costs.

Note: Settlement and entry of	orders	dealt with in Order
36 of the Federal Court Rules.

21 DEC 1994

AUSFWLIA

PRINCIPAL

REGISTRY

IN THE FEDERAL COURT OF AUSTRALIA	)
AUSTRALIAN CAPITAL TERRITORY	j
\ No. ACT G 59 of 1991
DISTRICT REGISTRY	j
)
GENERAL DIVISION	j

BETWEEN: AUSTRALIAN LONGLINE INDUSTRIES

PTY LIMITED and HWANG YONG

Applicants

AND: STEPHEN GEORGE CHURCH

Respondent

CORAM: Neaves S.

m: 20 December 1994

REASONS FOR JUDGMENT

Before the Court is a motion on behalf of Australian Longline Industries Pty Limited and Hwang Yong ("the applicants") for leave to join the Commonwealth of Australia as a respondent to a proceeding brought by the applicants against Stephen George Church as respondent. The proceeding arises out of the action of the respondent in going aboard a fishing boat called "D Three", of which the first applicant was said to be the charterer by demise, and serving on the

, I

t second applicant, the Master of the boat, a notice under

, 8

, par.lO(l)(e) of the Fisheries Act 1952 (Cth) signed by the

2.

respondent requiring the second applicant to bring the boat to Eden in the State of New South Wales and to remain in control of the boat at that place until an officer permitted him to depart from that place and in subsequently going aboard the boat and serving upon the second applicant a notice under par.lO(l)(ea) of that Act requiring the second respondent to take the boat to Sydney Fish Market Wharf, Blackwattle Bay, Pyrmont, Sydney and to remain in control of the boat at that place until an officer permitted him to depart from that place.

In the substantive proceeding, the applicants assert that the serving of the notices was not authorised by the Fisheries Act and claim damages, interest and costs arising out of the detention of the boat at Eden. Shortly after the proceedings were instituted, the respondent waived compliance by the second applicant with the notices purporting to have been given pursuant to pars 10(l) (e) and 10(l) (ea) of the Fisheries Act and the boat sailed for Japan.

Although the application instituting the proceedings named as a respondent the Minister administering the Fisheries Act, it was apparent from the outset, and later conceded by the applicants, that no relief was, or could properly be, sought against the Minister. By consent, an order was made that the Minister cease to be a party to the proceeding.

3.

In my opinion, the motion for leave to join the Commonwealth of Australia as a respondent to the proceeding and, indeed, the substantive proceeding itself must be dismissed on the basis that the Court has no jurisdiction to entertain them.

To support the contention that the Court has jurisdiction in the matter the applicants rely on s.39B of the Judiciary Act 1903 (Cth) or, alternatively, on subs.4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).

Section 39B of the Judiciary Act relevantly confers jurisdiction on this Court with respect to any matter in which an injunction is sought against an officer of the Commonwealth. When the substantive proceeding was commenced an injunction was sought against the respondent. That, of course, is not sufficient to found jurisdiction in this Court unless the respondent is properly described as an officer of the Commonwealth. However, in my opinion, he clearly does not answer that description. He was at the relevant time an officer of the New South Wales Offlce of Fisheries and, as a person permanently employed in the Public Service of that State, was authorised in writing to perform duties under the Fisheries Act in pursuance of an arrangement between the Commonwealth and the State of New South Wales. He was, thus, an "officer" within the meaning of that expression in the Fisheries Act (see the definition of "officer" in subs.4(1)) but he was not an officer of the Commonwealth within the

4.

meaning of that expression in s.39B of the Judiciary Act. I should add that the circumstance that the relevant Minister was named as a respondent in the application when originally filed does not assist the applicants as no injunctlve relief was ever sought, or could properly have been sought, against him.

Subsection 4(1) of the Jurisdiction of Courts (Cross-vesting) Act provides that this Court has and may exercise original jurisdiction with respect to State matters, an expression relevantly defined in subs.3(1) to mean a matter in which the Supreme Court of New South Wales has jurisdiction otherwise than by reason of a law of the Commonwealth. Had the present proceeding been instituted in the Supreme Court of New South Wales, that Court would have had jurisdiction to entertain it but, as the matter is one arising under a law made by the Parliament, namely the Fisheries Act, the jurisdiction of the Supreme Court would have been federal jurisdiction by virtue of the operation of subs. 39(2) of the Judiciary Act. It follows from the decision of this Court in Kodak (Australasia) Pty Ltd v Commonwealth of Australia (1988) 22 FCR 197 that the New South Wales statute is not the source of jurisdiction in this Court to entertain the proceeding commenced by the applicants.

In the result, the motion and the substantive

application are dismissed. The applicants must pay the

respondent's costs of and incidental to the application,

including reserved costs.

I certify that this and the preceding

4 pages are a true copy of the

Reasons for Judgment herein of the

Dated: 20 December 1994

Counsel for the applicants : Mr T.E. Harrison

Solicitors for the applicants : A. Relf & Co.

Counsel for the respondent : Mr A. Robertson

and for the Commonwealth of

Australia

Solicitor for the respondent : Australian Government

and for the Commonwealth of	Solicitor
Australia

Date of hearing : 23 December 1993