Dalian Mengyuan Fishery Company Limited v Commonwealth of Australia

[2006] FCA 1783

FEDERAL COURT OF AUSTRALIA

Dalian Mengyuan Fishery Company Limited v Commonwealth of Australia [2006] FCA 1783

DALIAN MENGYUAN FISHERY CO LIMITED v COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
NSD 1112 OF 2006

ALLSOP J
15 DECEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1112 OF 2006

BETWEEN:

DALIAN MENGYUAN FISHERY CO LIMITED
Applicant

AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Second Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	15 DECEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Proceeding be dismissed pursuant to Order 35A rule 3(1)(a).

2.Applicant pay the Respondent’s cost of the proceeding.

THE COURT DIRECTS THAT:

3.The Respondent through their solicitor send by registered post at the last known address and by email, a copy of these orders and the reasons.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1112 OF 2006

BETWEEN:

DALIAN MENGYUAN FISHERY CO LIMITED
Applicant

AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Second Respondent

JUDGE:	ALLSOP J
DATE:	15 DECEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter on 22 November 2006 there was filed a notice of motion for default judgment.  The matter came before me on 1 December 2006.  I was concerned about the orders sought in that notice of motion and the evidence in support in that I did not think that there could be said to have been strict default of some of the earlier orders.

2. However, the background made clear in the three affidavits relied upon of Ms Ling that were filed on 22 November 2006, 30 November 2006 and 14 December 2006 that the masters of the relevant vessels have been convicted in a criminal trial in the Northern Territory and since then the solicitors for the applicants have gone off the record and apparently nothing has happened in the proceedings for some months.  The matter is set down for hearing on 5 February 2007 for a week.

3. It was in that light that I made orders that I did on 1 December 2006 requiring that the applicant first of all on or before Wednesday of this week file and serve an affidavit of a responsible officer stating that the proceedings are to be prosecuted and file and serve all affidavits to support a case of a challenge to the forfeiture of the vessel.  I also ordered that if that order was not complied with the respondents would have leave to move on the notice of motion filed on 22 November 2006 and in particular to move for an order dismissing the proceedings for default for want of appearance or for want of prosecution.

4. I am satisfied by the evidence of the affidavit of Ms Ling of 14 December 2006 that all relevant steps have been taken to bring those orders to the attention of the applicant.  Order 1 of 1 December 2006 was not complied with.  As far as one can tell from the evidence the applicant appears to have abandoned these proceedings after the conviction, the criminal convictions in the Northern Territory.

5. I do not propose to have any further costs expended in this matter or the Court to reserve valuable hearing time which would deprive other litigants of hearing.  On the evidence before me I am persuaded that there has been not only a failure to comply with an order of the Court in this proceeding but also a failure to prosecute the proceedings with due diligence since the middle of this year or thereabouts.

6. In those circumstances I am content that there has been shown to be default within the meaning of order 35A rule 2, subrule(a), subrule (b), and subrule (f) and in those circumstances I make an order that the proceedings be dismissed under order 35A Rule 3(1)(a) and I order that the applicant pay the respondents' costs of the proceeding.

7. I direct the respondents through their solicitor to send by registered post at the last known address and by email, a copy of these orders and these reasons when they are available.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop J.

Associate:
Dated:       20 December 2006

No appearance by the Applicant
Counsel for the Respondent:	Mr H Burmester QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 December 2006
Date of Judgment:	15 December 2006