Iran Amanat v KMP Coastal Oil Pte Ltd ( S74 -97) SLA
[1998] HCATrans 30
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S74 of 1997
B e t w e e n -
THE OWNERS OF THE MOTOR VESSEL “IRAN AMANAT” and the 84 other vessels as set out in the Schedule attached hereto
Applicants
and
KMP COASTAL OIL PTE LIMITED
Respondent
Application for special leave to appeal
BRENNAN CJ
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 13 FEBRUARY 1998, AT 10.54 AM
Copyright in the High Court of Australia
MR A.W. STREET, SC: May it please the Court, I appear with my learned friend, MR G.J. NELL, for the applicant. (instructed by Norton Smith)
MR R.B.S. MACFARLAN, QC: If the Court pleases, I appear with my learned friend, MR P.E. KING, for the respondent. (instructed by Phillips Fox)
MR STREET: Your Honours, we submit that the critical questions of public importance raised by this application are, first, the work done by the meaning “relevant person” in section 3 in establishing admiralty jurisdiction; secondly, whether, contrary, we submit, to the Australian Law Reform Commission Report No 33, section 19 of Admiralty Act 1988 permits the exercise of admiralty jurisdiction in rem where the owner of the vessel is not a person who would be liable on the claim.
BRENNAN CJ: Mr Street, what was the application before the trial judge?
MR STREET: The application before the trial judge was an application to set aside the writ and the arrest on the basis of a want of jurisdiction. That application, your Honours, appears, if one goes to the bundle of material, at tab 23. So, what was advanced before Mr Justice Tamberlin was a challenge to jurisdiction, as your Honours will see in the ground - the only ground that was put before his Honour under rule 52.
BRENNAN CJ: This is an application for release.
MR STREET: That is so, your Honour, for want of jurisdiction.
BRENNAN CJ: Yes, but this was after an entry of an unconditional appearance.
MR STREET: No, your Honour, no. The sequence of facts suggested in the submissions by my learned friend is not correct. What occurred was that there was a hearing that commenced before his Honour Mr Justice Tamberlin seeking the release of the vessel on the basis there was no jurisdiction because the plaintiff was not one who could prove that the owner was a relevant person. So, the application commenced on 18 October and that application commenced and it was part-heard. It was continued on 21 October and at the time of continuing the application on the 21st an appearance in accordance with Form 9 was handed up to pursue the application.
Now, under the Admiralty Rules there is no procedure for a conditional appearance. It provides for and requires the filing of a notice of appearance. If I take your Honours back to the Admiralty Rules which are at tab 10, your Honours will see that rule 23 provides a procedure for an appearance and requires an appearance to be filed in accordance with Form 9. That is what was done but it was done after the application, in essence, to obtain the release of the vessel had commenced. In similar circumstances, it has been held that that does not give rise to any submission to jurisdiction where there is on foot that type of challenge.
Perhaps, your Honours, I could just take your Honours in that regard to tab 18. Perhaps I should take your Honours first to - well, if your Honours have gone to tab 18, if I could take your Honours directly ‑ ‑ ‑
BRENNAN CJ: I can perhaps short-circuit this. Mr Macfarlan, do you take any point on the basis of an unconditional appearance?
MR MACFARLAN: Yes, that is one of our arguments, your Honour, yes.
BRENNAN CJ: I see, very well.
MR STREET:
If I could take your Honours to tab 18, page 13 of a decision of the Full Court of the Federal Court, and if I could take your Honours to the first full passage:
Whilst the Admiralty Rules do not address the question, the provisions of O 9 rr 6 and 7 of the Federal Court Rules are applicable (see r 6(1) of the Admiralty Rules). So, although Tor could have entered a conditional appearance, this would have been treated as unconditional, unless the Court otherwise ordered under O9 r 6(2). It would then have been open to Tor to move, under O 9 r 7, to set aside the originating process. Its notice of motion for an order setting aside the writ was filed on 7 May 1997 but it will be recalled that earlier on 30 April 1997, it had filed, not only its notice of appearance but also, simultaneously, an application for release on grounds that included an absence of jurisdiction.
So, in that case what had happened was at the same time that the appearance was handed up there was a challenge to jurisdiction and what was said in those circumstances, the filing of an appearance should not be treated as a submission to jurisdiction.
If I could take your Honours to tab 17 - and, your Honours, here is another decision to the same effect - and this is Kali Boat Building v The “Bosna”. That is a decision of Justice Mitchell, and at page 117, starting at about point 5 of the way down the page in the first full paragraph just after the reference:
To refute the argument of Mr Legoe it is necessary to look no further than at Nagrint v The “Regis”. In that case the plaintiff instituted an action in rem against the ship. There was no personal defendant. An appearance to the writ was entered on behalf of the owner who then raised the objection that the cause of action was not a matter of Admiralty jurisdiction. Dixon J (as he then was) forwarded the question to be raised as an objection to the sufficiency of the statement of claim to support a proceeding in rem, under Order 32, Rule 2 of the Rules of the High Court. There was no question that the mere entry of the appearance validated the action. Nor can I find any reason in principle why it should do so. I do not think that Dalgety Co. Ltd. v Aitchison, upon which Mr Legoe placed some reliance, carries the matter any further.
Now, your Honours, those two cases, in essence, what the court was driving at was that where there was at the same time a challenge to jurisdiction that was being pursued as there was in this case, it could not constitute a submission to jurisdiction and, at the end of the day, submission to jurisdiction is one of implied intention. When there is on foot an application challenging the jurisdiction on the very grounds that are the subject of these proceedings, we would respectfully submit there could be no content in that issue. Quite apart from the fact and, further to that aspect, one has the problem that under the requirement of section 10 of the Admiralty Act the Federal Court only has jurisdiction where such proceedings can be brought. If, in fact, such proceedings cannot be brought, one cannot, in our respectful submission, overcome that want of jurisdiction for proceedings in rem simply by an appearance. So that, in any event, we would say proceedings in rem that are proceedings brought against the ship pursuant to section 10 and section 19 or section 17 are ones where an appearance, if filed in accordance with Form 9, could not, in any event destroy a want of jurisdiction argument if it was available. So, your Honours, they are our answers to that issue.
BRENNAN CJ: Yes. Does that last argument raise a section 78B point?
MR STREET: No, your Honour, it was not raised at all. Perhaps I should add this, as my learned friend says he is taking the point: this is a point that was not taken before his Honour Mr Justice Tamberlin. So, that is a further submission that we should put forward in relation to this issue. So that it was not a point taken before Justice Tamberlin that there was a challenge at the time of this application and that there had been a submission to jurisdiction and, in those circumstances as well as the reasons we have earlier put, we would say that no such issue prevents` the question here raised being appropriate for this Court to determine.
Your Honours, that is the answer we would raise to that inappropriate vehicle aspect. Otherwise, your Honours, the kernel of the case, in essence, turns, as I have started to identify, on this question of the work done by “relevant person” in section 3 and section 19 and what we respectfully submit is that it involves a jurisdictional fact and the determination of a jurisdictional fact, and that is, in essence, what the Full Court’s decision has destroyed.
If I could just take your Honours briefly to page 44 to make good that proposition. What the Full Court has done at lines 26 and 27:
Accordingly, the jurisdiction issue does not raise a question whether the Owner is, in fact and law, liable to KMP in respect of the supply of the bunker fuel. The only question is whether the Owner, on the assumption that it is liable to KMP, had the relevant nexus with the Sister Ships -
Now, your Honours, that assumption is not what is used in the language in section 3. Their Honours have, in essence, elevated the language in section 3 to an assumption of actual liability. That destroys the very purpose of the nexus that was intended by the Law Reform Commission in their report where they embraced the jurisdictional fact type principle of personal liability that had been established in Shell Oil Company Ltd v The Ship “Lastrigoni”.
BRENNAN CJ: It had been conceded in that case, had it not? It was not in doubt?
MR STREET: The principle though - in that case there was a challenge to jurisdiction on the basis that there was no liability. It was conceded, in relation to the issue of no liability, that there was no contract. That does not destroy the point that that case stood for which is that there must be a personal liability, in other words, a nexus between the claim and the person against whom it is said that they would be liable.
Perhaps I would just briefly take your Honours to the The Ship “Lastrigoni”. It is behind tab 1. Your Honours will see from the summary at page 1 that it was a:
summons for an order to set aside proceedings.....on the ground that that -
there was no Admiralty jurisdiction. In other words, it was a challenge to jurisdiction for the want of no liability. At about point 5 on page 3, your Honours, one can see the proposition:
The owner of the Lastrigoni was not a party to this contract.
That gave rise to the submission, at about point 7:
The ground of the application is that the owner of the ship is under no liability to the plaintiff for the sum claimed.
Now, your Honours, the proposition that was picked up in the Law Reform Commission Report is that identified, in particular, in point 6 on page 6, which was, in essence, the requirement for personal liability not a procedure to facilitate pressure. Now, that requirement for personal liability is the nexus with the claim that was required, in essence, by those words “relevant person”, in our submission, in section 3.
BRENNAN CJ: First of all, on page 3:
It is not disputed that the owner of the ship was under no contractual liability to pay for the bunkers supplied -
so that was the first proposition. In other words, in so far as there is any jurisdictional facts in question, it is conceded that there is no liability. So that at the end of the day none can attach.
MR STREET: Your Honour, I accept that it was conceded that there was no contract even though there was an argument that was put that somehow ‑ ‑ ‑
BRENNAN CJ: No contractual liability and no other liability being suggested.
MR STREET: Your Honour, I think it was advanced that there was some other liability because, in essence, part of the argument that was developed ‑ ‑ ‑
BRENNAN CJ: Does Justice Menzies accept any other basis of liability?
MR STREET: No. It was not successful but your Honours will see at the bottom of the page he identifies the arguments that were developed:
The second was that, in the circumstances, an action in rem lay notwithstanding the absence of any contractual liability on the part of the owners to pay for the bunkers supplied and that this was so by virtue of s. 6.....either with or without the aid of cl. 6.4 of the bunker fuel oil contract.
So that some reliance was apparently being placed under clause 6.4 of the bunker fuel oil contract to try and make out an argument of liability. And 6.4 on page 3, as your Honours will recall, seeks to say that it was one “on the faith and credit of the vessel”, so there was a contention that picked up the significance of the contract in part. But what I was seeking to put, your Honours, is that it was not a party to the contract. It was treated as a jurisdictional question, there being no liability and, in our respectful submission, the essence of the decision in Shell Oil Co, which was picked up and utilised by the Law Report Commission, was the need for this personal liability.
BRENNAN CJ: Now, what do you say is the question of fact that a judge, hearing a challenge to jurisdiction, must determine?
MR STREET: It is whether the ship owner would be liable on the claim that is alleged in the writ.
BRENNAN CJ: Would be, in what circumstances?
MR STREET: Assuming that the cause of action was capable of being sustained. So that making the assumption that the cause of action is made out, as a jurisdictional fact, is it the ship owner who is a party who would be liable or is it the ship owner who would be, if it was a tort, the tortfeasor?
BRENNAN CJ: In other words, the ship owner would be liable on the assumption that the ship owner is liable?
MR STREET: No, your Honour, no.
BRENNAN CJ: Well, what is it?
MR STREET: To put the proposition that one assumes a cause of action is sustainable is really just the question of breach. It is not the question, in our respectful submission - - -
BRENNAN CJ: I do not understand that.
MR STREET: We respectfully submit that what is required by section 3 is identification of a nexus between the owner and the cause of action, and that the work that was intended to be done by the words “would be liable” is one which means that if the claim that is being advanced in the writ is one, for example, as in this case, in contract, that the person who is the ship owner is the person who would be liable on that claim. Now, that is the factual issue which we say the Full Court has simply brushed aside by way of an assumption, and that that is a fact or a jurisdictional fact.
BRENNAN CJ: I understand that it is brushed aside but I still do not understand what it is as a fact that has to be established. I understood that the question is, “If there be any liability, it lies in contract?”. Let that be assumed.
MR STREET: Yes, your Honour.
BRENNAN CJ: In other words, that is established simply by the terms of the writ. If that is what appears on the face of the writ, is that all that is necessary?
MR STREET: No, your Honour, no.
BRENNAN CJ: Well, that, plus ownership of the ship? Is that all that is necessary?
MR STREET: No, your Honour. What must be established is the fact that the ship owner is a person who would be liable on that claim.
BRENNAN CJ: Very well. Now, “would be liable” in what circumstances?
MR STREET: Would be liable on the assumption that the cause of action can be sustained.
BRENNAN CJ: In other words, we take the assumption that the contract will make that ship owner liable.
MR STREET: No, your Honour. In our respectful submission, that is the ‑ ‑ ‑
BRENNAN CJ: I do not understand how you are dividing these.
MR STREET: Your Honour, we are, because what we are saying is that what was required and the foundation for it was this need or causal nexus between the ship owner’s liability and the claim.
BRENNAN CJ: I understand all the concepts. What I am not understanding is the onus of proof of a specific issue. If you can identify that for me I will be able to follow what you are saying.
MR STREET: Your Honours, can I seek to do that by taking your Honours to The “Aventicum” which I think, perhaps, it puts it more clearly than I can in the light of what I have just put to your Honours. Behind tab 20 - The “Aventicum” is a decision of Justice Slynn which was expressly referred to in The “Shin Kobe Maru” and followed. Can I take your Honours just to page 185 and identify in the second column, the second paragraph, about three or four lines down, the motion that was before him was one:
first, that the writ and the service of the writ and all subsequent proceedings be set aside on the grounds that the Court had no jurisdiction over the Aventicum -
so that is the nature of the application which was before him.
If I can take your Honours to page 186 - and this is the page that was cited in “Shin Kobe Maru” but, as your Honours will recall, “Shin Kobe Maru” dealt with section 16. There was no question of “relevant person. In the first column, in the first paragraph:
Three things, it is accepted, have to be established before this jurisdiction can properly be exercised.
If I go directly to the second matter:
The second matter which has to be shown is that the person who would be liable on the carriage claim in an action in personam was when the cause of action arose the owner or charterer of or in possession or in control the ship. It is therefore necessary to ascertain who was, when the cause of action arose, either the owner or charterer or the person in possession or control of the ship and -
and can I emphasise “and” -
whether that person would be liable on the claim in an action in personam for damages arising out of the carriage.
Now, your Honours, that was that second aspect, that is the fact that was required. His Honour then went on to refer to The “St Merriel”, and if I could just draw your Honours’ attention to that at the bottom of the page. The “St Merriel” reinforces the very submission that we are seeking to take and I will take your Honours to it in a moment but before I do could I also say that the passage that was picked up by the High Court in “Shin Kobe Maru” placing onus in respect of jurisdiction fairly and squarely on the plaintiff, inconsistent with what the Full Court has done, appears in the last six or seven lines in the second column in the last full paragraph, where it says:
I have come to the conclusion that on this motion the onus is upon the plaintiffs to show that the person against whom it is sought to invoke the Admiralty jurisdiction is the person who beneficially owns all shares -
et cetera.
Now, your Honours, if I can then go to The “St Merriel” which your Honours, in fact, have at tab 2, your Honours will see that this was a case in relation to which there was a challenge to jurisdiction in respect of the supply of materials and services to the vessel, as appears on page 248, and if one goes to page 257, the proposition appears at about five lines down:
They contended that the subsection gave a right to proceed in rem only if a liability in personam existed and submitted various reasons -
and, your Honours, there is then a quote of what was said by Justice Willmer in The “St Elefterio”. If I could take your Honours then to page 258 - and that is a passage that has been cited in the Full Court’s judgment so I will not read it - and start off, in the first paragraph:
It seems to me that the purpose of subsection (4) is, amongst other things, to identify the person or persons whose ships may be arrested and that such identification is a question of fact. I have had sufficient facts on affidavit in this case to reach a firm decision upon that matter and I ask myself on those facts, first, who would be liable in this case if the action as constituted succeeded? It would be the person who, when the cause of action arose - be he the owner or the charterer or the person who is in possession or in control of the ship - made the contract for the repair by the plaintiffs.
Now, your Honours, that is the very jurisdictional fact we rely upon. This decision was picked up by The “Aventicum” and is one which we say is consistent with the kernel of the argument that we have presented. Your Honours, can I - - -
BRENNAN CJ: Just before you go on, is his Lordship not saying there that, “I have got sufficient here to see, prima facie, that there is a jurisdictional basis for it.”? In other words, I could understand your argument if you are putting it on the footing that there has to be some showing of prima facie liability. What I do not understand at the moment is your argument that there has to be proof, I take it, on the balance of probabilities, of something which I do not understand.
MR STREET: If your Honour pleases. Your Honour, we respectfully submit - - -
BRENNAN CJ: I might say that as I have interrupted you, you can have another five minutes, Mr Street.
MR STREET: If your Honours please. Your Honours, in relation to the question of proof, his Honour Justice Tamberlin found whether it was on a strongly arguable test or on balance of probabilities, the respondent failed. So that on either test his Honour held that they failed. So that what we respectfully submit that it is clear from what is being said there by Justice Slynn and by what has been said in The “St Merriel” that there is a question of fact of identification: “Where your claim is in contract” - and that is this claim - “whether or not you are the person who would be liable on that claim in contract.” My client was not. That is what his Honour looked; that is what his Honour found. His Honour analysed it.
BRENNAN CJ: The point that we are looking at is the issue of whether or not liability is itself a jurisdictional fact, is that not right?
MR STREET: Your Honour, we do not quite put it that way. We accept that it is not correct to say that you are required to show that the person is liable. The jurisdictional fact that we say is required to be determined is whether “you are a person who would be liable if”, as I put it before, “the cause of action was sustained, that is, by being the party to the contract”. That is what we say was required. In this case what the writ did was allege a claim in contract.
BRENNAN CJ: Are you saying that the writ itself is sufficient to establish the jurisdiction?
MR STREET: No, it is not. That is the very - - -
BRENNAN CJ: What else, in addition to the writ must be - - -
MR STREET: There must be evidence adduced to support a finding that the ship owner is the person who would be liable on that claim in the writ and that is what his Honour Mr Justice Tamberlin embarked upon and that is what his Honour held was wanting and, in our respectful submission, that is a necessary fact when one looks at jurisdiction because what section 10 does - - -
BRENNAN CJ: Is this what you say, that if there is sufficient evidence to raise a prima facie case against a ship owner, then the jurisdictional fact is established?
MR STREET: Either a prima facie case, your Honour - and I embrace that - or balance of probabilities. What we would respectfully submit is it is one or the other, and we say in the present case either test was wanting.
BRENNAN CJ: All right.
MR STREET: Your Honours, can I just say that this same question, that is whether or not someone is a person who would be liable on the claim in contract is the very same question that his Honour Mr Justice Sheppard analysed in The “Iron Shortland” and his Honour asked and posed the same question, “Was the ship owner a person who would be liable on the claim in contract?”, and he came to answer the question - and for reasons of efficiency the very page where he answered the question was left out of the bundle - as to whether or not it was a relevant person and he answered it in the affirmative, finding that that person was a party to the contract.
The same question, that is the jurisdictional fact question, was cited in the Court of Appeal’s judgment in Laemthong which went to this Court and in that Court of Appeal decision, if I could just briefly refer your Honours to it, it appears at tab 6, your Honours, and if I could take your Honours to page 68. What is set out on page 68 are what are described as “jurisdictional facts” as is apparent from the sentence after paragraph (4). This was treated by Justice Mildren as being - jurisdictional facts (2) was:
That the applicant was a “relevant person” in relation to the claim and was, when the cause of action arose, the owner -
now, the conjunction means that was a jurisdictional fact, “a ‘relevant person’”.
The same thing appears, your Honours, if I might take your Honours to page 61 in that case in the judgment of Justice Angel and at about point 5 of the way down the page he identifies the question of whether it was within jurisdiction and then he refers:
secondly, that at the time the proceedings were commenced, the applicant was the owner of that ship; thirdly, that the applicant was a “relevant person” in relation of the respondent’s claim.
Now, your Honours, that is the jurisdictional fact that we are contending for here.
Could I take your Honours to page 66, just in respect of the nature of the application, and this is in the judgment of Justice Mildren where it says:
It seems to me that an application under r 52 might be made on jurisdictional grounds, or on any other ground.
So, the procedure by which we advance the application was a procedure entirely consistent with what was said here; inconsistent with what has been said in the Full Court. The question of onus which the Full Court has said in relation to the jurisdictional issue is, in our respectful submission, one that is inconsistent with The “Aventicum” where, as your Honours will recall, the Full Court has suggested that in fact the onus was on the ship owner to prove the want of jurisdiction. In our respectful submission, such a proposition could not be correct.
Your Honours, in our respectful submission, this is an appropriate case because of section 5 and because of the inconsistency of those decisions and because of its inconsistency with the English decisions including The “St Merriel”, The “Aventicum” and, your Honours there are two further decisions it is inconsistent with. If the Court pleases.
BRENNAN CJ: Yes, thank you, Mr Street. Mr Macfarlan.
MR MACFARLAN: Your Honours, we, of course, accept that ultimately we would have to show that the owners were personally liable to the supplier. We alleged a contractual claim in the writ. We also relied upon restitution and conversion and there may be a pleading argument that will be taken in respect of the latter two claims but, one way or the other, we would have ultimately to show that the owners were personally liable. The question that arises, however, is whether, to found jurisdiction, we need to show at the outset that that is the case, and the Full Court, we say for good reason, said no.
Could I refer your Honours to section 19 of the Admiralty Act which your Honours - - -
BRENNAN CJ: The specific problem is this, is it not, that the Full Court, on that page that Mr Street drew our attention to, page 44, said that:
The only question is whether the Owner, on the assumption that it is liable to KMP, had the relevant nexus with the Sister Ships -
in other words, whether it was the owner of the sister ships. Now, do you accept that that is so?
MR MACFARLAN: Not quite, your Honour. I think if one looks at the judgment as a whole that one sees that it has to be looked in context. Could I take your Honours to the section and I will seek to illustrate why that is so - under tab 9 of the material, your Honours, if your Honours look at section 19 of the Act. Your Honours, we would accept that it is necessary at the outset if there is a challenge to jurisdiction to show ownership or that the person in question is a charterer or otherwise in control. According to “Shin Kobe Maru”, that would have to be shown on the balance of probabilities.
It would also have to be shown that the defendant was a relevant person. But one has to have regard to the definition of “relevant person” and a failure to do that adequately, in our submission, is where the applicant’s argument can be seen to be flawed. The definition is in section 3, your Honours, near the top of the page, page 3, in the same tab:
“relevant person”, in relation to a maritime claim, means a person who would be liable on the claim in a proceeding -
“would be liable”. So the test posed there is different than it is in respect of ownership.
Certainly one has to characterise the claim as being one which, if it were successful, would render the owner liable personally to the plaintiff. But having characterised it in that way, it is not necessary then to go on to reach a finding at the outset that there is liability.
BRENNAN CJ: I am afraid, again, I am lost with this part of the argument. One can understand the definition of “relevant person” as being put in the subjunctive “who would be liable” because the hypothesis is that there is no action in personam, so that if there were an action in personam then, on that hypothesis, you would be liable.
MR MACFARLAN: Yes.
BRENNAN CJ: Now, transposing that to section 19(a), the question that seems to arise under 19(a), at least at the end of the day, is whether one can say that the ship owner is liable in personam even though an in personam action is not brought. Now, the question is what is the difference between the end-of-the-day obligation of proof and that at the jurisdictional stage?
MR MACFARLAN: In a practical sense it is a very important one, of course, your Honours, because the sensible reason behind the Full Court’s approach is that the plaintiff should not be required to prove the ultimate question in a great rush without the benefit of normal procedures such as discovery and interrogatories.
BRENNAN CJ: Quite, normal procedures: discovery and so forth. One could understand that very readily. Now, that seems to me to raise some tension with the obligation of a party who invokes jurisdiction to establish it on the balance of probabilities. The question really turns, as it seems to me, in a choice between three: one is, all you have to do is to prove ownership and allege a liability; the second is you have to prove ownership on the balance of probabilities and prove liability on the balance of probabilities; the third is that you have to prove ownership, allege liability and give prima facie evidence of it. Now, that is where the difficulty seems to me to lie.
MR MACFARLAN: Yes. Your Honour, we say it is a fourth one, namely one has to prove ownership on the balance of probabilities. One has to allege liability. But there is no obligation to prove it either on the balance of probabilities or as an arguable point. Now, that makes sense, your Honours, because - - -
BRENNAN CJ: Can I put another one to you, No 5, and that is, is that defeasible by proof of the negative, on the balance of probabilities, by the party resisting jurisdiction?
MR MACFARLAN: Not in terms of jurisdiction, your Honour. The Full Court pointed out, of course, that the defendant may bring a motion to strike out, on the General Steel’s- type of ground, that the claim is hopeless, so there is always a remedy there if the allegation of liability is a hopeless one - there is a remedy - but it is not a remedy which results in the finding there is no jurisdiction. It is a remedy that assumes jurisdiction but finds that the proceedings are hopeless on a General Steel’s basis.
BRENNAN CJ: So what your submission is, is it, so long as there is an allegation of ownership and a balance of probabilities proof of ownership, plus an allegation of liability on the part of the owner in personam, then that is sufficient?
MR MACFARLAN: Yes, and that is the role of the words “would be” in the definition and they are, of course, different from the words used in connection with ownership where it is simply stated that there has to be ownership and then the conclusion follows there that there has to be proof on the balance of probabilities.
Your Honours, that is the way in which Justice Willmer dealt with the matter in 1957 in The “St Elefterio” and the way in which it has been dealt with whenever the Court has had to consider it thereafter. Your Honours, the best place to illustrate that is by reference to the Full Court decision which - - -
BRENNAN CJ: Perhaps you can take us to the passages which support this.
MR MACFARLAN: Yes, your Honour. In the Full Court decision in the application book, your Honours, at page 38. That is the simplest way to go. At line 35 Justice Willmer said:
the purpose of the words ... ‘the person who would be liable.....is to identify the person or persons whose ship or ships may be arrested in relation -
the next sentence:
The words used, it will be observed, are ‘the person who would be liable’ not ‘the person who is liable,’ and it seems to me, bearing in mind the purpose of the Act, that the natural construction of those quite simple words is that they mean the person who would be liable on the assumption that the action succeeds.
BRENNAN CJ: Now, that seems to me to be flying in the face of the words of the definition which say “would be liable in an action in personam”. In other words, the assumption is if there were an action in personam would be liable, not if an action in personam succeeds would be liable.
MR MACFARLAN: Your Honour, we say that is the same thing.
BRENNAN CJ: Same thing, yes, right.
MR MACFARLAN: If they are going to be liable in an action in personam that means that the action has to succeed.
BRENNAN CJ: Of course.
MR MACFARLAN: And as pointed out at the top of the next page, your Honours, that view was accepted by Justice Goff in The “I Congreso” and, as pointed out at the foot of page 40, line 45, it was accepted by the Full Court of the Supreme Court of Queensland in the “Steven C” and, of course, it was accepted below by the Full Court in this - - -
BRENNAN CJ: Do we have The “I Congreso” here?
MR MACFARLAN: No, we do not, your Honour. Your Honour, we put the submission in our written outline that this had been the way it was dealt with in the cases and we also put the submission which we repeat that there is no case relied upon by the applicant in which the point has arisen for consideration and in which the Court has reached a different view. The best the applicant can do is to point to a couple of cases in which the parties, for whatever reason, have not resisted the early determination of the question of liability, and that decision of Mr Justice Sheppard in The “Iron Shortland” is one such case. For whatever reason, the point was not taken that his Honour should not determine, at that early stage, the question of liability.
So far as any judicial consideration of the point in question is concerned, one has only Justice Willmer’s’ view as accepted by Justice Goff and the two appellate courts in Australia. It makes a lot of sense, as I put, your Honours, because it really is unfair to a plaintiff to require the plaintiff to prove its case on liability in a rush, and it usually is a rush because one is concerned with the arrested vessels which inevitably want to leave port within a manner of days. Sometimes the rush can be taken out of it by undertakings but sometimes not. In the present case, the matter was determined on a final basis within a matter of days.
So, your Honours, the position as we put it is that there were good and sensible reasons for the Full Court’s decision, founded upon the words of the definition of “relevant person”. Those reasons accorded with the only authorities in which the point has been considered. Accordingly, your Honours, we submit that it has not been shown that there is a basis for any realistic argument that the Full Court decision is wrong and the view should be taken that it is clearly correct and the special leave application should be refused with costs. If the Court pleases.
BRENNAN CJ: We need not trouble you in reply, Mr Street.
MR STREET: If the Court pleases.
BRENNAN CJ: Special leave will be granted in this case.
AT 11.35 AM THE MATTER WAS CONCLUDED
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