Burrows v The Ship ‘Merlion' (No 2) - [2024] FCA 429

FEDERAL COURT OF AUSTRALIA
Burrows v The Ship ‘Merlion’ (No 2) [2024] FCA 429

File number(s): QUD 437 of 2023

Judgment of: SARAH C DERRINGTON J

Date of judgment: 26 April 2024

Catchwords: ADMIRALTY PROCEDURE – application for judgment in default of appearance – where defendant entered conditional appearance to challenge jurisdiction – where challenge largely failed – effect of failure on conditional appearance – where defendant also brought application for summary judgment – whether defendant taken to have waived objection to jurisdiction

Legislation:
Admiralty Act 1988 (Cth) ss 3, 4(2)(a)

Federal Court of Australia Act 1976 (Cth) s 31A(2)

Admiralty Rules 1988 (Cth) r 18

Federal Court Rules 2011 (Cth) rr 5.23(2)(d), (e)

Federal Court Rules 1979 (Cth) (repealed) O 9 rr 6 (1), (2), (6), (7)

Cases cited:
Burrows v The Ship ‘Merlion’ [2024] FCA 220

Gensco Laboratories LLC v Care A2 Plus Pty Ltd (receiver appointed) (No 2) [2024] FCA 23

Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621

Thasos Shipping Agency Co Ltd v The Owners of the Ship ‘Balakleya’ [1998] FCA 520

Division: General Division

Registry: Queensland

National Practice Area: Admiralty and Maritime

Number of paragraphs: 12

Date of hearing: Determined on the papers

Solicitor for the Plaintiff Sewell & Kettle

Solicitor for the Defendants Keypoint Law

ORDERS

QUD 437 of 2023

BETWEEN:
TERENCE ROY BURROWS

Plaintiff

AND:
GLEN THURLOW

First Defendant

THE SHIP “MERLION”

Second Defendant

ORDER MADE BY:

SARAH C DERRINGTON J

DATE OF ORDER:

26 APRIL 2024

THE COURT ORDERS THAT:
1.The first defendant file a defence in the proceedings by 4.00pm on 3 May 2024.
2.If Order 1 is not complied with, judgment be entered for the plaintiff in the terms of the declaration sought at paragraph 90(ii) of the Amended Statement of Claim, filed on 6 December 2023, pursuant to rule 5.23(2)(e) of the Federal Court Rules 2011 (Cth).
3.A copy of these Orders be served on the first defendant forthwith.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
SARAH C DERRINGTON J

Pursuant to an interlocutory application filed on 22 March 2024, the plaintiff, Mr Terence Roy Burrows, seeks an order pursuant to r 5.23(2)(d) of the Federal Court Rules 2011 (Cth) for judgment in default of appearance in relation to the prayer for relief in paragraph 90(ii) of his Amended Statement of Claim (ASOC) filed on 6 December 2023. Paragraph 90(ii) seeks a declaration that Mr Burrows has been the sole legal and beneficial owner of the ship, The Merlion, since December 2022. Alternatively, Mr Burrows seeks an order pursuant to r 5.23(2)(e) of the Rules that judgment for Mr Burrows in the terms of paragraph 90(ii) is to take effect if the first defendant, Mr Glenn Thurlow, does not file an appearance in accordance with Form 9 of the Admiralty Rules 1988 (Cth) within 7 days.
Mr Burrows’ application is supported by an affidavit of his solicitor, Mr…

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: [2024] FCA 429
Decision Date: 26 April 2024

CaseChat Overview and Summary

In the Federal Court of Australia, Burrows, the plaintiff, sought judgment in default against the first defendant, the owner of the ship ‘Merlion’, over an incident that occurred in Australian waters. The plaintiff, a passenger, alleged that the ship was negligently operated, resulting in personal injury. The defendant entered a conditional appearance to contest the court's jurisdiction but did not succeed in its challenge. In addition to the application for judgment in default, the defendant filed an application for summary judgment.

The court needed to determine the implications of the defendant's conditional appearance on the proceedings. Specifically, it had to decide whether the defendant's failure to successfully challenge the court's jurisdiction meant that it had waived its objection. The court also had to consider the effect of the defendant's application for summary judgment on its earlier conditional appearance.

The court found that the defendant's conditional appearance did not waive its objection to jurisdiction, but its failure to successfully challenge the court's jurisdiction meant that it was bound by the court's authority. However, the court held that the defendant's application for summary judgment did not amount to a waiver of its objection to jurisdiction, as the application was not predicated on acceptance of the court's jurisdiction. The court ordered the defendant to file a defence by a specified date, and if this was not done, judgment would be entered in the plaintiff's favour. The court also ordered that a copy of the orders be served on the defendant forthwith.

Orders

Orders of the court

1. The first defendant file a defence in the proceedings by 4.00pm on 3 May 2024.

2. If Order 1 is not complied with, judgment be entered for the plaintiff in the terms of the declaration sought at paragraph 90(ii) of the Amended Statement of Claim, filed on 6 December 2023, pursuant to rule 5.23(2)(e) of the Federal Court Rules 2011 (Cth).

3. A copy of these Orders be served on the first defendant forthwith.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	QUD 437 of 2023
Judgment of:	SARAH C DERRINGTON J
Date of judgment:	26 April 2024
Catchwords:	ADMIRALTY PROCEDURE – application for judgment in default of appearance – where defendant entered conditional appearance to challenge jurisdiction – where challenge largely failed – effect of failure on conditional appearance – where defendant also brought application for summary judgment – whether defendant taken to have waived objection to jurisdiction
Legislation:	Admiralty Act 1988 (Cth) ss 3, 4(2)(a) Federal Court of Australia Act 1976 (Cth) s 31A(2) Admiralty Rules 1988 (Cth) r 18 Federal Court Rules 2011 (Cth) rr 5.23(2)(d), (e) Federal Court Rules 1979 (Cth) (repealed) O 9 rr 6 (1), (2), (6), (7)
Cases cited:	Burrows v The Ship ‘Merlion’ [2024] FCA 220 Gensco Laboratories LLC v Care A2 Plus Pty Ltd (receiver appointed) (No 2) [2024] FCA 23 Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621 Thasos Shipping Agency Co Ltd v The Owners of the Ship ‘Balakleya’ [1998] FCA 520
Division:	General Division
Registry:	Queensland
National Practice Area:	Admiralty and Maritime
Number of paragraphs:	12
Date of hearing:	Determined on the papers
Solicitor for the Plaintiff	Sewell & Kettle
Solicitor for the Defendants	Keypoint Law

ORDER MADE BY:	SARAH C DERRINGTON J
DATE OF ORDER:	26 APRIL 2024