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Brisbane Slipways Operations Pty Ltd v Pantaloni

Brisbane Slipways Operations Pty Ltd v Pantaloni

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FEDERAL COURT OF AUSTRALIA
Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654

Citation: Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654

Parties: BRISBANE SLIPWAYS OPERATIONS PTY LTD ACN 104 531 991 v YANNICK PANTALONI, SNC AREMITI and THE SHIP "AREMITI 4"

File number(s): QUD 91 of 2009

Judges: GREENWOOD J

Date of judgment: 24 June 2010

Catchwords:
ADMIRALTY – consideration of a challenge to the jurisdiction of the Federal Court to hear a proceeding commenced as an action in rem in reliance upon ss 10, 17 and 18 of the Admiralty Act 1988 (Cth) – consideration of the Court’s jurisdiction in an action in personam in reliance upon s 9 of the Admiralty Act 1988 (Cth) – consideration of whether the plaintiff’s proceeding to the extent that it engages an action in rem against the ship Aremiti 4 should be struck out as beyond jurisdiction – consideration of whether monies paid into Court to secure the release of the ship by the first defendant ought to be paid out of Court to that party – consideration of whether a remedial freezing order ought to be made under Order 25A of the Federal Court Rules preventing the removal by the first defendant of monies brought into the jurisdiction to secure release of the ship, from the jurisdiction, in aid of the plaintiff’s action in personam – consideration of whether a New Caledonian corporation should be joined as a party in the proceedings

PRACTICE AND PROCEDURE – consideration of an application for a freezing order under Order 25A of the Federal Court Rules – consideration of Order 6, rule 8 as to joinder of a party

Legislation: Admiralty Act 1988 (Cth), ss 3, 4, 9, 10, 12, 13, 15, 16, 17, 18, 20
Admiralty Rules 1988 (Cth), Rules 3, 6, 15, 16, 19 and Forms 6 and 9
Federal Court Rules, Order 6, rule 8; Order 25A

Cases cited:
Schwarz & Co (Grain) Ltd v St Elefterio ex Arion (Owners) [1957] P 179 - cited
Iran Amanat v KMP Coastal Oil (1999) 196 CLR 130 – cited and quoted
Ocean Industries Pty Ltd v Owners of the Ship MV “Steven C” [1994] 1 Qd R 69; (1991) 104 ALR 353 – cited and quoted
The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc. (1994) 181 CLR 404 – cited and quoted
Opal Marine Agencies Pty Ltd v Proceeds of Sale of Vessel MV “Skulptor Konenkov” (2000) 98 FCR 519 – cited and quoted
Kent v SS “Maria Luisa” (No. 2) (2003) 130 FCR 12 – cited and quoted
Tisand Pty Ltd v The Owners of the Ship MV Cape Moreton (2005) 143 FCR 43 – cited and quoted
Patrick Stevedores v Turakina (1998) 154 ALR 666 – cited and quoted
CMC (Australia) Pty Ltd v Ship “Socofl Stream” (1999) 95 FCR 403 - cited
ASP Holdings v Pan Australia Shipping (2006) 235 ALR 554 – cited
Nautilus Australia Ltd v The Ship “Rossel…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FCA 654
Decision Date: 24 June 2010

CaseChat Overview and Summary

The case of Brisbane Slipways Operations Pty Ltd v Pantaloni involved a dispute regarding the jurisdiction of the Federal Court to hear an action initiated under the Admiralty Act 1988 (Cth). Brisbane Slipways Operations Pty Ltd, the plaintiff, initiated an action in rem against the ship Aremiti 4 and in personam against Yannick Pantaloni, the first defendant, seeking redress for unpaid claims related to services provided to the ship. The legal issues before the court included whether the Federal Court had jurisdiction to hear the action in rem against the ship and the fund paid into court, whether the action in personam against Pantaloni was within the court's jurisdiction, and whether monies paid into court by Pantaloni should be returned to him. Additionally, the court had to consider if a New Caledonian corporation, Arc en Ciel Voyages, should be joined as a party in the proceedings.

The court's reasoning focused on the statutory framework provided by the Admiralty Act 1988 (Cth) and the Constitution, particularly sections 9, 10, 17, and 18. The court found that the action in rem against the ship Aremiti 4 was beyond the court's jurisdiction as it did not fall within the specific categories of maritime claims that could be pursued in rem under the Act. Conversely, the action in personam against Pantaloni was deemed to be within the court's jurisdiction as it related to a maritime claim. The court also determined that the monies paid into court by Pantaloni should be returned to him, subject to conditions regarding their use and preservation pending the outcome of the proceedings. The application to join Arc en Ciel Voyages as a party was dismissed.

The court ordered the dismissal of the action in rem against the ship and the fund, while allowing the action in personam against Pantaloni to proceed. The plaintiff was granted leave to re-plead its cause of action in personam, with specific directives on providing particulars of the claim. Furthermore, the court restrained Pantaloni and his solicitors from removing or disposing of the paid-in monies except under certain conditions. The plaintiff was also ordered to pay costs related to various motions and notices, and the proceeding was scheduled for further directions.

Orders

Orders of the court

1. The part of the proceeding comprising an action in rem against the ship Aremiti 4 is dismissed as beyond the jurisdiction of the Court conferred by sections 10, 17 or 18 of the Admiralty Act 1988 (Cth) and to the extent that the action in rem proceeds as a claim against monies paid into Court to secure the release of the ship Aremiti 4, the claims based upon an action in rem against the fund is dismissed.

2. The part of the proceeding comprising an action in personam against the first defendant, Yannick Pantaloni, is within the jurisdiction of the Court conferred by section 9 of the Admiralty Act 1988 (Cth) and proceeds as an action in personam in respect of a maritime claim for the purposes of s 4 of the Admiralty Act 1988 (Cth).

3. The plaintiff’s Further Amended Statement of Claim in the proceeding filed on 22 December 2009 is struck out with leave granted to the plaintiff to re‑plead its cause of action in personam excising from the proceeding any aspect of the claim made as an action in rem against the ship Aremiti 4 or the money paid into Court on 7 April 2009 and leave is granted to file and serve a Further Further Amended Statement of Claim by 12 July 2010.

4. The plaintiff shall provide particulars of its claim as pleaded by the Further Further Amended Statement of Claim to the extent that the amended pleading pleads claims reliant on the three invoices and credit adjustment note pleaded in the Further Amended Statement of Claim filed on 22 December 2009 and the subject of the particulars given by the plaintiff on 23 December 2009 and such further particulars shall identify the particulars sought by para (e) of the first defendant’s Request for Particulars of 15 October 2009 by providing copies of relevant invoices in respect of each item in the schedules attached to the plaintiff’s response of 23 December 2009 where applicable and particulars of each third party supplier to the plaintiff together with copies of invoices rendered by third parties to the plaintiff in respect of the supply of work, labour or materials to the ship pursuant to the contract between the plaintiff and Mr Pantaloni.

5. The monies paid into Court by Mr Pantaloni on 7 April 2009 described by Mr Pantaloni in his Notice of Payment into Court as $71,030.60 (notwithstanding that the amount of the plaintiff’s claim was $71,013.60) to secure the release of the ship Aremiti 4 shall be paid out of Court, together with accretions, to Wellners Lawyers, the solicitors for the first defendant, Yannick Pantaloni, within 21 days.

AND UPON THE PLAINTIFF :filing and serving a written undertaking within seven days to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order (the “usual undertaking as to damages”)

THE COURT MAKES THE FURTHER ORDERS AT 6, 7 AND 8:

6. The monies paid out of Court pursuant to Order 5 shall be preserved by this order in the trust account of Wellners Lawyers pending the determination of the proceeding or by agreement between the parties such monies may be placed on investment in the name of both the solicitors for the first defendant and the solicitors for the plaintiff, Cranston McEachern, pending the determination of the proceeding or invested as otherwise proposed by the parties and approved by the Court.

7. Neither the first defendant nor the solicitors for the first defendant, Wellners Lawyers, shall cause directly or indirectly the monies paid out of Court and to be held, by these orders, in the trust account of the first defendant’s solicitors subject to agreement between the parties to place such monies on investment in the name of both the solicitors for the first defendant and the solicitors for the plaintiff pending the determination of the proceeding or as may otherwise be proposed by the parties and approved by the Court, to be removed from the jurisdiction and the solicitors for the first defendant, Wellners Lawyers, shall not pending the trial of the action cause the monies paid from Court to the trust account of that firm to be paid out of the trust account of that firm other than by order of the Court except for the purpose of establishing the investment account described in these orders or as may otherwise be proposed by the parties and approved by the Court.

8. The first defendant is restrained from removing or causing to be removed any part of the sum of $71,030.60 together with accretions, if any, from the trust account of Wellners Lawyers or from disposing of or dealing with the said sum or any part of it pending the trial of the action except for the purpose of considering and if thought fit agreeing to a joint investment account being established in the name of the solicitors for the first defendant and the solicitors for the plaintiff jointly pending the determination of the proceeding or as may otherwise be proposed by the parties and approved by the Court or earlier order.

THE COURT FURTHER ORDERS THAT:

9. The plaintiff’s Notice of Motion for the joinder of Arc en Ciel Voyages as a fourth defendant is dismissed.

10. The first defendant’s Notice of Motion for an order that the plaintiff’s Further Amended Statement of Claim filed on 22 December 2009 be struck out on the ground of the plaintiff’s failure to provide proper particulars of para 4 of the first defendant’s Request for Particulars served on 15 October 2009 is dismissed.

11. The costs of and incidental to the trial of the separate question of jurisdiction are reserved for further submissions.

12. The plaintiff shall pay the costs of the first defendant of and incidental to the plaintiff’s Notice of Motion for joinder of Arc en Ciel Voyages as a fourth defendant in the proceeding.

13. The plaintiff shall pay the costs of the first defendant of and incidental to the first defendant’s Notice of Motion for dismissal of the plaintiff’s Further Amended Statement of Claim on the ground of non‑compliance with the order as to the provision of particulars.

14. The costs of and incidental to the plaintiff’s Notice of Motion seeking a freezing order under Order 25A of the Federal Court Rules, Practice Note CM9 and the principles referred to in the applicable authorities, in respect of the monies paid into Court by Mr Pantaloni on 7 April 2009, are reserved for determination upon the conclusion of the proceedings.

15. The first defendant shall file and serve submissions on the question of the costs of and incidental to the determination of the separate question of jurisdiction within 14 days and the plaintiff shall file and serve submissions on cost in reply within a further 14 days and the Court will determine the question of costs on the papers unless a party seeks to be heard on that question by so notifying the Court.

16. The first defendant shall deliver a Defence and Cross‑Claim in response to the Further Further Amended Statement of Claim by 30 July 2010.

17. The proceeding will be listed for directions at 9.30am on 3 August 2010.

18. The parties have liberty to apply on three days notice.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Considerations going to the meaning of “demise charterer” are addressed later in these reasons in the context of the Time Charter Agreement. The evidence Although the dispositive onus falls to the defendant to establish on the balance of probabilities the facts upon which jurisdiction depends, the defendants have adduced evidence in support of the challenge to jurisdiction. In his affidavit filed on 15 September 2009 Mr Pantaloni gives this evidence. He says that he is the Managing Director of Prestige, a limited liability company registered in Noumea, New Caledonia. By an agreement dated 25 June 2008, Prestige chartered the ship Aremiti 4 from its owner SNC Aremiti. The agreement was made in Papeete for a term of three months and 13 days. The original of the “Charter Contract” is written in French. It is in evidence together with an English translation exhibited to Mr Pantaloni’s affidavit. On 8 October 2008, the Charter Contract was extended for a further three months. A copy of the original French agreement together with an English translation is also exhibited to Mr Pantaloni’s affidavit. Mr Pantaloni says that he is “competent in English and in French” and having perused the translation he says it is a true translation. The Charter Contract of 25 June 2008 records that Mr Degage is the Manager of SNC Aremiti and that Prestige Marine Sarl is the lessee or charterer. The ship was leased from 26 June 2008 until 6 October 2008 inclusive. The ship however was scheduled for re‑delivery to the owner at Papeete by midnight on 8 October 2008. The contract provided for a refundable deposit upon return of the ship in “perfect working condition” after sea trials and appraisal by a surveyor. Article 5 provided for a penalty for late payment of rent and a penalty in the event of non‑delivery by midnight on 8 October 2008. Article 7 casts an obligation upon Prestige to ensure the upgrading of the ship in accordance with the laws applicable in the maritime area of New Caledonia. Article 7.1 provides that during the rental period Prestige will “control the vessel [and] will be fully responsible for, including the occurrence of, an accident or other adverse event” and that Prestige “will maintain the [ship] perfectly seaworthy; will take good care [of the ship]” and assumed a commitment to “maintain machinery, engines, equipment and spare parts in perfect working order as ‘a very good father’”. Although the phrase “a very good father” is an odd expression, it plainly conveys a commitment on the part of Prestige to exercise care, supervision and control of a particular character. Article 7.2 casts an obligation upon Prestige to maintain particular insurances during the period of the “hire” and that any repair costs and expenses not covered by insurance would be met by Prestige. Article 7.4 is in these terms:[Prestige] provides pay master, chief engineer and crew to it and subordinates, and this throughout the rental period. It will be solely responsible for their actions. However, the choice of the captain and chief engineer must be approved by [SNC Aremiti] which in no case could be liable for their actions and behaviours.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The plaintiff pleaded that the ship was arrested in respect of the unpaid claims as the ship was properly the subject matter of an action in rem pursuant to s 17 of the Admiralty Act. The plaintiff also pleaded the payment into Court by Mr Pantaloni on 7 April 2009 of the full amount of the claim to secure the release of the ship. Constitutional and statutory considerations That claim as framed by the pleading was made against the following statutory framework. Section 76(ii) of the Constitution confers power on the Parliament to make laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the Parliament and s 76(iii) confers power in any matter of Admiralty and maritime jurisdiction which extends to matters of the kind generally accepted by maritime nations as falling within a special jurisdiction sometimes called Admiralty and sometimes called maritime jurisdiction concerned with the resolution of controversies relating to maritime commerce and navigation: The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc. (1994) 181 CLR 404 by the Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) at 424. By s 77(i) of the Constitution, the Parliament may define the jurisdiction of the Federal Court of Australia with respect to any matter mentioned in ss 76(ii) and (iii) and by ss 9 and 10 of the Admiralty Act the Parliament conferred jurisdiction on the Federal Court in controversies relating to Admiralty and maritime commerce and navigation. By s 9, relevantly, jurisdiction is conferred on the Federal Court in respect of proceedings commenced as actions in personam on a “maritime claim”. A reference to a maritime claim includes a reference to a “general maritime claim” which by s 4(3) of the Admiralty Act comprehends a reference to: (m)a claim in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance; or…(o)a claim in respect of the alteration, repair or equipping of a ship; By s 10, jurisdiction is conferred on the Federal Court in respect of proceedings that may, under the Admiralty Act, be commenced as actions in rem. By s 12 of the Act, the jurisdiction conferred by ss 9 and 10 extends to jurisdiction in respect of a matter of Admiralty and maritime jurisdiction not otherwise within its jurisdiction that is associated with a matter in which the jurisdiction of the Court is invoked under the Admiralty Act and s 13 the Act declares the constitutional position that no jurisdiction beyond the matters mentioned in s 76(ii) or (iii) of the Constitution is conferred by the Act. The right to commence a proceeding in a matter of Admiralty or maritime jurisdiction as an action in rem against a ship is confined by s 14 of the Act to a proceeding on a maritime lien or charge (s 15); a proceeding on a proprietary maritime claim (s 4(2); s 16); a proceeding on a general maritime claim on what is described in the section heading as the “owner’s liabilities” (s 17); a proceeding on a maritime claim in relation to a demise charterer’s liabilities (s 18) and a proceeding on a general maritime claim against a surrogate ship (s 20).

Citation:		Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654
Parties:		BRISBANE SLIPWAYS OPERATIONS PTY LTD ACN 104 531 991 v YANNICK PANTALONI, SNC AREMITI and THE SHIP "AREMITI 4"
File number(s):		QUD 91 of 2009
Judges:		GREENWOOD J
Date of judgment:		24 June 2010
Catchwords:		ADMIRALTY – consideration of a challenge to the jurisdiction of the Federal Court to hear a proceeding commenced as an action in rem in reliance upon ss 10, 17 and 18 of the Admiralty Act 1988 (Cth) – consideration of the Court’s jurisdiction in an action in personam in reliance upon s 9 of the Admiralty Act 1988 (Cth) – consideration of whether the plaintiff’s proceeding to the extent that it engages an action in rem against the ship Aremiti 4 should be struck out as beyond jurisdiction – consideration of whether monies paid into Court to secure the release of the ship by the first defendant ought to be paid out of Court to that party – consideration of whether a remedial freezing order ought to be made under Order 25A of the Federal Court Rules preventing the removal by the first defendant of monies brought into the jurisdiction to secure release of the ship, from the jurisdiction, in aid of the plaintiff’s action in personam – consideration of whether a New Caledonian corporation should be joined as a party in the proceedings PRACTICE AND PROCEDURE – consideration of an application for a freezing order under Order 25A of the Federal Court Rules – consideration of Order 6, rule 8 as to joinder of a party
Legislation:		Admiralty Act 1988 (Cth), ss 3, 4, 9, 10, 12, 13, 15, 16, 17, 18, 20 Admiralty Rules 1988 (Cth), Rules 3, 6, 15, 16, 19 and Forms 6 and 9 Federal Court Rules, Order 6, rule 8; Order 25A
Cases cited:		Schwarz & Co (Grain) Ltd v St Elefterio ex Arion (Owners) [1957] P 179 - cited Iran Amanat v KMP Coastal Oil (1999) 196 CLR 130 – cited and quoted Ocean Industries Pty Ltd v Owners of the Ship MV “Steven C” [1994] 1 Qd R 69; (1991) 104 ALR 353 – cited and quoted The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc. (1994) 181 CLR 404 – cited and quoted Opal Marine Agencies Pty Ltd v Proceeds of Sale of Vessel MV “Skulptor Konenkov” (2000) 98 FCR 519 – cited and quoted Kent v SS “Maria Luisa” (No. 2) (2003) 130 FCR 12 – cited and quoted Tisand Pty Ltd v The Owners of the Ship MV Cape Moreton (2005) 143 FCR 43 – cited and quoted Patrick Stevedores v Turakina (1998) 154 ALR 666 – cited and quoted CMC (Australia) Pty Ltd v Ship “Socofl Stream” (1999) 95 FCR 403 - cited ASP Holdings v Pan Australia Shipping (2006) 235 ALR 554 – cited Nautilus Australia Ltd v The Ship “Rossel…