Dalian Liangzi Seafood Product Co Ltd v Commonwealth

[2007] FCA 996

FEDERAL COURT OF AUSTRALIA

Dalian Liangzi Seafood Product Co Ltd v Commonwealth [2007] FCA 996

DALIAN LIANGZI SEAFOOD PRODUCT CO LIMITED v COMMONWEALTH OF AUSTRALIA

NTD 3 OF 2007

MANSFIELD J
29 JUNE 2007
DARWIN (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 3 OF 2007

BETWEEN:	DALIAN LIANGZI SEAFOOD PRODUCT CO LIMITED Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	29 JUNE 2007
WHERE MADE:	DARWIN (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

1.The application be dismissed.

2.Applicant pay to the respondent costs of the application

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

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 3 OF 2007

BETWEEN:	DALIAN LIANGZI SEAFOOD PRODUCT CO LIMITED Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	MANSFIELD J
DATE:	29 JUNE 2007
PLACE:	DARWIN (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

1. This proceeding was commenced on 2 February 2007 by the owners of the ship Liao Da Gan Yu 8990 (the vessel) following its seizure apparently under s 84 of the Fisheries Management Act 1991 (Cth) (the Act) on 30 October 2006. It was seized because, it was said, the vessel had been used for commercial fishing within the Australian Fishing Zone, had been equipped for fishing within the Australian Fishing Zone and alternatively, that the Master of the vessel had been reckless by bringing the vessel within the Australian Fishing Zone when it was so equipped for commercial fishing, contrary to ss 100A(1) and 101A(1) of the Act.

2. In accordance with the procedures of the Act, notice was given on 2 December 2006 under s 106F of the Act that the vessel and its fish and gear would be condemned as forfeited under s 106G(2) of the Act unless proceedings were commenced for a declaration that the vessel and its fish and gear had not been forfeited within two months of that notice. 

3. That led to these proceedings.  The statement of claim as initially filed and subsequently amended by leave on 27 March 2007 principally asserts that the vessel had not been used for commercial fishing within the Australian Fishing Zone, nor had it been equipped for fishing within the Australian Fishing Zone, nor had the Master been reckless in the way alleged so that there had been no contravention of those provisions. 

4. In fact, an Information had been laid against the Master of the vessel that he had been guilty of said conduct. By 6 June 2007, he had been convicted of offences under ss 100A(1) and 101A(1) of the Act. 

5. On 15 May 2007 I gave directions, in anticipation that the criminal prosecution would be resolved within the next following weeks, that the applicant in this proceeding should file and serve such evidence as it proposed to rely upon in support of its claim by 12 June 2007.  It has not done so.  It has therefore not complied with a direction of the Court. In addition, on 1 June 2007 the solicitors previously acting for the applicant filed notice that they had ceased to act for the applicant.  The applicant was then required to file an address for service within the jurisdiction pursuant to O 7 r 6(1) of the Federal Court Rules 1976 (Cth) (the Rules).  It has not done so, despite my associate having written to the applicant by a letter of 5 June 2007 informing it of that obligation. 

6. In those circumstances the respondent has moved the Court by a motion of 14 June 2007 for judgment under O 35A r 3(1) of the Rules that the application be dismissed with costs because the applicant has failed to comply with the directions of the Court and has failed to comply with the Rules. The motion itself and the supporting material has been served upon the applicant by international express courier and by correspondence from the respondent by letters of 15 and 18 June 2007, each of which also notified the applicant of today’s hearing.  The applicant has not attended the hearing of the motion, nor communicated with the Court in any way since its solicitors ceased to act for it.

7. Normally the Court would be cautious about giving a default judgment without giving an entity in the position of the applicant a little more time to respond.  However, in this instance it is apparent from the amended statement of claim that the real ground of dispute between the parties was whether the Master of the vessel had engaged in the conduct which the criminal Information asserted.  He has been convicted of that conduct. In that context, and bearing in mind the applicant’s failure to comply with the directions of the Court and with the requirements of the Rules it is appropriate to infer, as I do, that the applicant no longer genuinely contests that the vessel, and the fish and gear on the vessel, were duly forfeited pursuant to the Act. 

8. In those circumstances, in my view, it is appropriate to make the order sought on the motion. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:        2 July 2007

Counsel for the Applicant:	The applicant did not appear
Counsel for the Respondent:	Peter Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 June 2007
Date of Judgment:	29 June 2007