Gardner Smith Pty Limited v The Ship Tomoe 8

[1989] HCATrans 117

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No 378
In Admiralty
GARDNER SMITH PTY LIMITED

Plaintiff

and

THE SHIP "TOMOE 8 11

Defendant

Contested remitter

McHUGH J

(In Chambers)

Tomoe 8

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 17 MAY 1989, AT 10.25 AM

Copyright in the High Court of Australia

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MR A. EMMETT, QC:  May it please the Court, I appear with

MR G. BLAKE, for the plaintiff, which is the applicant in one of the surrnnonses before Your Honour

today. (instructed by Holt Thomson)

MR P. KEANE, QC:  May it please the Court, I appear with my

learned friend, MR G.A. THOMPSON, for the respondent
to my learned friend's surrnnons and for the applicants,

the owner of the vessel and the bareboat charterer of

the vessel. (instructed by Thyne & Macartney)

HIS HONOUR:  There are two surrnnonses. I think it is

convenient to hear the remitter matter first.

MR EMMETT: Before we do that, Your Honour, could we just

establish the question of parties. We are in some

slight doubt as to the capacity in which my learned

friend makes his application. The appearance does

not specify any parties other than "the owners of

the ship".

HIS HONOUR:	Mr Errnnett, what is your problem with that?
MR EMMETT:	We would have e~pected, since my learned friend -

sorry, the appearance does not name a party as being

the person on whose behalf the appearance is entered.

The other application, however, is made on behalf of

both companies, which we understand to be both owner

and bareboat charterer. We would just like to have

clarified whether an appearance is entered only on

behalf of owners and not on behalf of bareboat
charterer as-well which is, of course, the other party

to the contracts of the affreigh.tm:nt which would be

the subject of any proceedings in personam.

HIS HONOUR:  Yes. Mr Keane?

MR KEANE:  Your Honour, the position is that the appearance

has been entered on behalf of Sietamar which is the

owner of the vessel. There has been no appearance

entered on behalf of the demised charterer of the

vessel which is Tomoe Shipping. Your Honour, it would	be our position that Tomoe, the charterer, is entitled
to intervene by virtue of the provisions of Order 11
rule 22 and, Your Honour, in so far as it may be
necessary for there to be an appearance to entitle
us to make the application for the stay which is made on behalf of the charterer, we would, if it were
thought appropriate, seek to obtain leave to enter a
conditional appearance under Order 11 rule 4. It
would be necessary, of course, to obtain an extension
of time to enable us to do that.

HIS HONOUR: What, are you desiring to object to the jurisdiction

of the Court?

MR KEANE:  Yes.

It is not our primary argument, but it is an ~rgument that we would raise.

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Tomoe 8 
HIS HONOUR: 

I think at this stage I want to deal only with the

question of.the remitter and in that matter you have
the carriage of the matter. You have got one party -

I suppose your objection is the same even in that

matter, Mr Emmett?

MR EMMETT:  Can I just indicate the history of the

proceedings. The proceedings were commenced in rem

while the vessel, Tomoe 8, was in Australian waters.

A guarantee was given as a consideration for the plaintiff

not pursuing the arrest of the vessel. The guarantee

is given in respect of the liaiblity of the bareboat

charterer and it was on that basis that the proceedings

for arrest of the ship were abandoned, on the basis

a guarantee was given for the libility of the bareboat

charterer.

We are now faced with a situation where an

appearance is entered for the owner and not for the bareboat charterer. We would just like to have the matter clarified before we take the matter any further

at all because there may be some question as to the

circumstances in which the guarantee was given and

the basis upon which the proceedings for arrest were
not pursued before we move on our summons for remitter,

bearing in mind that it was the High Court's sheriff

who would have been involved in the arrest.

HIS HONOUR:	Yes.
MR KEANE:	Your Honour, the only point of the fact that we have

not an appearance for Tomoe yet ~s that we apprehend

that it may be said against us that we have somehow

waived a jurisdictional objection.

HIS HONOUR:  Can you tell me what the jurisdictional objection

is?

MR KEANE:  Your Honour, it is that this Court does not have

Admiralty jurisdiction in respect of claims arising under charter-parties under section 6 of the 1861 Act.

Your Honour, while we apprehend that an entry of

appearance ought not result in the Court's jurisdiction

being expanded as a matter of substance, our only

concern is that it should not be said against us that

we waived our objections in that regard.

HIS HONOUR:  Why have you not entered a conditional appearance

then?

MR KEANE:  In respect of the owner of the ship? Your Honour,

that is something that happened before the possibility

of such a problem was adverted to.

HIS HONOUR:	The owner of the ship has entered an appearance?
ME KEANE:	That is so.

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Tomoe 8 
HIS HONOUR:  But why has not the bareboat charterer entered

a conditional appearance?

MR KEANE:  Your Honour, it should have. To do that it needs

to apply for leave to do so under Order 11 rule 4.

HIS HONOUR:  Yes. Have you any objection to that?

MR EMMETT:	It would be a question as to whether the bareboat charterer has not now submitted to the jurisdiction
by reason of being a party to a motion before the
Court.

HIS HONOUR: That is a separate question, is it not?

MR EMMETT:  It may be. We do not consent to the filing of a

conditional appearance at this stage if that were

to be taken in any way as an acknowledgment that a

conditional appearance can now be entered. Our

contention is that there is no jurisdictional point

now available to be taken by the bareboat charterer.

Andhaving said that, we do not consent to any

conditional appearance being granted - being permitted.

HIS HONOUR:  Mr Keane, if the bareboat charterer was the party,

which it obviously was, that gave the undertaking

under Order 5 rule 8- - -

MR KEANE: ·. Your Honour, the letter of guarantee was given on

behalf of the bareboat charterer and the owner and
reserved all rights of defence, and Your Honour, it

should not be thought that the undertaking was to

enter an appearance; it was in fact a letter of

guarantee for the cargo; it was not an undertaking to

enter an appearance, I should emphasize.

HIS HONOUR:  You both seem very reluctant to state your

positions. Mr Emmett, what order do you want precisely?

I mean, you ask for things to be clarified. What is

it that you want?

MR EMMETT:	We do not ask, Your Honour, we are inviting the applicants in the other motion to indicate the basis
upon which they are making the application and to
clarify the position as to whether or not they say
they have entered an appearance or not. I think that
matter has now been clarified.
HIS HONOUR:	It may have been clarified to your satisfaction;

it is not clarified to my satisfaction.

MR EMMETT: Sorry, the position of my learned friends have been

made clear.	We do not say that that clarifies their
status.	They still seem to be disposed to leave that

up in the air.

HIS HONOUR:  Yes.

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Tomoe 8

MR EMMETT:	It is our submission that they have submitted to the jurisdiction and therefore are defendants and
that we can proceed in personam against both
defendants. And it is on that basis that we would
then move for remitter to the Supreme Court of New
South Wales.
HIS HONOUR:	As against both?
MR EMMETT:	As against both, yes.

HIS HONOUR: Well, your opponent obviously does not agree with

that so you will just have to proceed upon that basis. You will just have to argue that point.

MR EMMETT:  Before Your Honour or - sorry, argue which point,

the remitter or the -

HIS HONOUR:  You can argue your remitter - summons.

MR EMMETT:  Indeed. I am prepared to proceed with that.

HIS HONOUR:  But there still arises a question, does there not,

about the appearance for the bareboat charterer.

There is no appearance.

MR EMMETT:  No, but it is our submission that in effect they

have appeared. They are here without an unconditional

appearance. They have moved in this Court and it is

our submission that they are here as defendants, so

that our application is against both of them as

defendants in the proceedings in respect of proceedings

which we will now continue in personam against both

of them. And it is those proceedings that we seek

to be remitted to the Supreme Court of New South Wales.

HIS HONOUR:  We will proceed upon the basis that you have an

application against both and it will be a matter for

Mr Keane then to persuade me that is not the case. Or

maybe it is a matter for you to persuade me-

MR EMMETT: Well, one way or the other, but that is an issue.
HIS HONOUR:	Yes.
MR EMMETT:	Your Honour, the summons was filed last Friday,

12 May, and seeks remitter under section 44 to the

Supreme Court of New South Wales where it will be

entertained in its Admiralty Division... We move on

the affidavit of my instructing solicitor, David

Fairley Galbraith, sworn 5 May 1989. Perhaps I should

outline, before I read the affidavit, the circumstances

of the claim. I do not know to what extent

Your Honour has had the opportunity of looking at any

other material.

HIS HONOUR:  Yes, I have had a quick look at it.

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Tomoe 8

MR EMMETT:  The position was that the plaintiff is a charterer

from the bareboat charterer and it might be

convenient to look at some documents which are

annexed to an affidavit because I propose to tender

the documents which are annexures to the affidavit

of Francis Grant Turner. Does Your Honour have that

affidavit which was sworn on 6 March 1989?

HIS HONOUR:	Yes.
MR EMMETT:	There was a Tanker Voyage Charter Party which is

annexure A between Tomoe Shipping Co (S) Pte Ltd and

the plaintiff and I tender annexure A to that

affidavit.

If my friend is proposing to read the affidavit,

then it might be easier if he reads the affidavit and

then the material is before Your Honour.

MR KEANE:  I am content to do that so Your Honour does not have

to go through this process. I read the affidavit of

Francis Grant Turner which I understand was filed

on 8 March 1989.

HIS HONOUR:  Yes. I think it might have been 23 March 1989 it

was filed.

MR EMMETT:  Can I indicate that I would object to paragraph 8

of that affidavit and to the first sentence of

paragraph 9.

HIS HONOUR:  I will just read the affidavit myself.

MR EMMETT:  Thank you. I also object to paragraph 4, Your Honour.

HIS HONOUR:  Mr Emmett, what is the basis of the objection to

paragraph 4?

MR EMMETT:	I do not object to the annexure being tendered
-·	but in so far as any evidentiary value other than the
letter is sought to be obtained, then that is not the
way to do it. In other words, it is not conceded
that the plaintiff does have an office in Singapore
and at the moment I cannot see on the copy any
indication that would suggest to the contrary. It
is not on my copy apparently. But, as I say, I have
no objection to that letter being tendered. There is
no dispute about its authenticity and whatever flows from that flows from it, that is Your Honour might or
might not draw an inference that the plaintiff has an
office in Singapore, if anything turns on it.

HIS HONOUR: Well, that is all it is tendered for.-

MR EMMETT:  Yes, I see. The copy annexed to my affidavit, I

must say, did not have the bottom line.	I do not
know whether Your Honour's has, does it?

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Tomoe 8 
HIS HONOUR:  Yes, mine has. Paragraph 4 is objected to but

admitted. Mr Keane, how do you support paragraph 8?

MR KEANE:  Your Honour, in so far as there may be an objection

to it on the ground of relevance, it is supported on
the basis that it is a matter relevant to the question

of whether this forum is appropriate or inappropriate.

HIS HONOUR:	But we are not dealing with the question of forum. I want to make that plain.	I am hearing a summons
for the remitter only.

MR KEANE: Yes.	Your Honour, for my own benefit, should I then understand that the question of the application for
a stay is a matter that Your Honour would be remitting
with the rest of the action?
HIS HONOUR:	The general policy of this Court is not to determine

matters in the original jurisidction.Unless there is something very special about this case, and there is

certainly none occurs to me at the moment, then it is

a question of remitter.

MR KEANE:  We would not be trying to override Your Honour's

initial impression but all I am concerned to do is

to preserve our position in relation to the stay

application when it should be made to the appropriate

tribunal.

HIS HONOUR:	I assume that there might be some material in this affidavit which nevertheless was relevant on the
remitter question.
MR KEANE:	Your Honour, in so far as there is an objection to

paragraph 8 on the basis it is irrelevant to the

question of remitter, I.could not support it.	We
would support it on the question of the stay.	But

for what is germane for Your Honour's purposes at

the moment, I do not seek to support it, and

similarly, Your Honour, there would be no relevance

in paragraph 9. I should say that, looking at the

matter narrowly in terms of remitter only, there is

probably no relevance in paragraph 4 either.

HIS HONOUR:  No. What about paragraph 9, that first sentence?

MR KEANE:  Your Honour, its relevance is purely in relation

to the question of the stay. Your Honour, I do not

know that I might be able to assist in the expeditious

resolution of the particular question before

Your Honour. In so far as the question is as to which

court the matter should be remitted, we really have

very little to say, with respect. We would not urge

upon Your Honour that it should be remitted to the

Federal Court because there is a slight question as to that Court's- - -

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Tomoe 8

HIS HONOUR:  I think there is a serious question about the

effect of section 5(2) of the ADMIRALTY ACT,

notwithstanding the fact that this Court confers

jurisdiction when it remits under section 44 and it

would be a bit odd that if the action proceeded in

this Court, it could not be heard under the 1988 Act

and the rules, but if it was remitted to the Federal

Court it would have to be, would it not?

MR KEANE: Possibly, Your Honour.

HIS HONOUR:	The Federal Court had no jurisdiction prior to the cormnencement of that Act?
MR KEANE:	Your Honour, there is a view that it did.

MR EMMETT: It is arguable that it did.

MR KEANE:  I do not know whether Your Honour is familiar with

the article that appeared in the Australian Law

Journal about four years ago by Justice McPherson

where His Honour expressed the view that the

Federal Court did have such jurisdiction on the basis

that it was a court of unlimited jurisdiction in terms

of pecuniary limits. But there was that view. As I

say, Your Honour, I hope I am not wasting time rather

than attempting to save it. We would not urge upon

Your Honour that Your Honour should remit it to the

Federal Court.

We have a very short affidavit by Mr Turner which

suggests that the matter might be dealt expeditiously

if it were remitted to the Supreme Court of Queensland.

That is an affidavit which I apprehend was filed on

11 May.

HIS HONOUR: Yes, I have read that affidavit.

MR KEANE:  Your Honour will see that Mr Turner swears in

paragraphs 2 and 3 as to the circumstance that the

SupDeme Court of Queensland does deal with such

matters and that the matter could be expected to be
dealt with quite expeditiously.	I should say that his

attention in paragraph 3 is directed specifically to

the question of the resolution of a stay. But that

apart, Your Honour, and obviously in terms of the

convenience of the parties in the principal action

should the matter proceed, Your Honour would appreciate

that - it may well be thought by Your Honour that there

is not a great deal of difference so far as the people

coming from Singapore are concerned, whether they come

to Brisbane or Sydney.

HIS HONOUR:  No. The choice really seems to be, Mr Keane,

between the Supreme Court of New South Wales and

Queensland. South Australia is obviously out, even

though it was the one court that would have had

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Tomoe 8

jurisdiction, apart from this Court, at the

commencement of the action on 25 October 1988.

MR KEANE:  So, as Your Honour says, it is a choice between

Queensland and New South Wales.

HIS HONOUR:  If the action was to proceed, assuming that

your stay application failed, then from the point

of view of convenience to the parties in Australia,

New South Wales is obviously the -

MR KEANE: We could not argue otherwise, Your Honour.

HIS HONOUR: Subject to this question of appearances and so

on, I do not know that we need proceed any further

because I have a firm view about the matter that the

Supreme Court of New South Wales is the appropriate

place to remit, but I am just troubled about this

question of the parties in the appearances.

MR KEANE:  Your Honour, our position in relation to that, if I

might state it, would be that our learned friends and

ourselves have a difference of view as to the effect

of the appearance that has been entered. Our learned

friends seek to argue that by reason of that there

has been a waiver of any jurisdictional objection

that might have been taken. It would be our submission

that in ordering the remitter, Your Honour's order

should not affect the position - - -

HIS HONOUR:  No; that is a matter I could remit for determination

there as well.

MR KEANE:  And the position, in other words, ought to be

preserved as it is before Your Honour and that can

be fought out at another date.

HIS HONOUR:  What do you say about that, Mr Emmett?

MR EMMETT:  There probably is no point in Your Honour trying to resolve that question. It may well simply be a

matter of, if there is a question as to whether or

not there is a proper appearance, whether it is

necessary for leave to be granted under Part X of

the Supreme Court Rules for service outside the

jurisdiction on the bareboat charterer, but there is

really no need for Your Honour to get involved in

that if Your Honour is disposed to remit the matter

to the supreme court.

HIS HONOUR:  Unless either party want me to give a formal

judgment about the matter, I can just simply make

orders. Do either - - -

MR KEANE:  No, Your Honour. Our only concern is that to the

extent that Your Honour appreciates we have a

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Tomoe 8

complaint about jurisdiction, all we would seek is

an indication that our position in relation to that

is reserved and the fact that Your Honour is

making these orders does not confer a jurisdiction
that we would have sought to convince Your Honour

Your Honour did not have.

HIS HONOUR:  No. What is the name of the bareboat charterer?

MR KEANE: It is Tomoe Shipping Co (S) Pte Ltd.

MR EMMETT:	It appears from annexure A to Mr Turner's affidavit.
MR KEANE:	That is the Tanker Voyage Charter Party between

that company and the plaintiff.

HIS HONOUR:  Yes, I have it. What is the date of your summons

for the stay? Is it 23 March?

MR KEANE:  It is the same date as the date of filing of

Mr Turner's affidavit so it would be 23 March.

HIS HONOUR:  I will just run these orders past you. One,

that the matter be remitted to the Supreme Court of

New South Wales in its Admiralty Jurisdiction with

the following directions: one, that the summons

dated 23 March 1989 for a stay of the proceedings be

heard and determined by that court as though the

summons had been raised for decision by that court

in accordance with its rules; two, that any question

as to whether the bareboat charterer, Tomoe Shipping

Co (S) Pte Ltd, has submitted to the jurisdiction be

heard and determined by the Supreme Court of New

South Wales; three, subject to any appeal any other

matter remaining for decision in the action be heard

and determined in the Supreme Court of New South

Wales.

I think they are the substantive orders I

would make.

MR KEANE:

They are satisfactory so far as we are concerned,

Your Honour.

MR EMMETT:  Yes, I do not want to say anything about them,

Your Honour.

HIS HONOUR:	Now, what about the question of costs, Mr Emmett?
MR EMMETT:	We would ask for our costs of the remitter summons.

There was discussion between the parties as to whether

the matter should go to the Supreme Court of Queensland.

As we understood it, my friends were coming here to

suggest that the matter should go to the Supreme Court

of Queensland rather than New South Wales. The costs

of the stay application, I think, should be reserved

for determination by the Supreme Court of New South Wales.

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Tomoe 8

HIS HONOUR:	Yes. What do you say about costs, Mr Keane?
MR KEANE:	Your Honour, we really came here, with respect, to

argue the question of the stay and that has been

hived off. The balance of the matters are really

matters that, I think will be apparent, were not
matters of grave controversy. In our submission, all

the costs should be reserved.

HIS HONOUR: Subject to any difficulty about reserving costs,

Mr Emmett, that is the order I would propose to

make, to leave it to the trial judge in New South

Wales to dispose of. Any problems?

MR EMMETT:  May it please Your Honour.

HIS HONOUR: In this matter I will make the following orders:

Order that matter No 378 in Admiralty be remitted to the Supreme Court in New South

Wales in its Admiralty jurisdiction with the

following directions:

1. That the summons dated 23 March 1989 for a

stay of the proceedings be heard and determined

by that court as though the summons had been

raised for decision by that court in accordance

with its rules.

2. That any question as to whether the

bareboat charterer Tomoe Shipping Co (S)

Pte Ltd has submitted to the jurisdiction	be heard and determined by that court in
accordance with its rules.
matters remaining for decision in the 3. That subject to any appeal, any other
proceedings be heard and determined in the
Supreme Court of New South Wales.
4. That the costs of and incidental to these summonses be reserved and disposed of in the
Supreme Court of New South Wales.
5. I certify for counsel.

Anything further?

MR KEANE:	No, Your Honour.
MR EMMETT:	No, Your Honour.

HIS HONOUR: Adjourn the Court.

Kr. 10. 58 AM THE MATTER WAS ADJOURNED SINE DIE

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