Maersk A/S v Patti - [2022] FCA 663

FEDERAL COURT OF AUSTRALIA
Maersk A/S v Patti [2022] FCA 663

File number(s): NSD 1291 of 2021

Judgment of: RARES J

Date of judgment: 13 May 2022

Catchwords: PRACTICE AND PROCEDURE – application to strike out defence – whether respondent entitled to invoke privilege against self-incrimination or self-exposure to a penalty to avoid pleading to statement of claim – where statement of claim makes no direct allegations of criminality or conduct that may sound in a civil penalty – where privileges important common law rights – where many allegations could not possibly tend to prove criminality or liability for a civil penalty – Held: defence struck out

Legislation:
Australian Consumer Law ss 18 and 236

Competition and Consumer Act2010 (Cth)

Corporations Act 2001 (Cth)

Federal Court of Australia Act 1976 (Cth) Pt VB

Federal Court Rules 2011 (Cth) Pt 16

Cases cited:
Adams v Director of the Fair Work Building Industry Inspectorate (2017) 258 FCR 257

Australian Building and Construction Commissioner v O’Halloran [2021] FCAFC 185

Buckmaster v Meiklejohn (1853) 8 Exch 634 at 637; [155 ER 1506

CC Containers Pty Ltd v Ming Lee [2012] VSC 149

Grochowski v Kearney [2020] FCA 1248

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70

Macdonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612

Reid v Howard (1995) 184 CLR 1

Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (2018) 357 ALR 695

Sullivan v Krepp [2020] SASC 97

The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96

Division: General Division

Registry: New South Wales

National Practice Area: Admiralty and Maritime

Number of paragraphs: 29

Date of hearing: 13 May 2022

Counsel for the Plaintiff: Mr J A Hogan-Doran SC and Ms K Petch

Solicitor for the Plaintiff: HWL Ebsworth Lawyers

Counsel for the Defendant: Mr J S Emmett SC and Mr H Hill-Smith

Solicitor for the Defendant: Roberts Gray Lawyers

ORDERS

NSD 1291 of 2021

BETWEEN:
MAERSK A/S

Plaintiff

AND:
MAURICE ANGELO PATTI

Defendant

ORDER MADE BY:

RARES J

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS THAT:
Applicant’s Interlocutory Application
1.The defence filed by the Respondent on or about 8 March 2022 be struck out, with leave to replead.
2.The Respondent pay the Applicant’s costs thrown away by reason of the repleaded defence.
3.The Respondent pay 75% of the Applicant’s costs of its Interlocutory Application dated 29 March 2022.

Defence
4.The Respondent serve on the Applicant any request for particulars on or before 20 May 2022.
5.The Applicant serve on the Respondent any response to the aforementioned request for particulars on or before 27 May 2022.
6.On or before 10 June 2022 the Respondent file and serve a defence prepared in compliance with the Federal Court Rules 2011 (Cth).

Evidence
7.The Applicant serve any outlines of lay evidence on which it intends to rely at the final hearing on or before 24 June 2022.
8.The Respondent…

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: [2022] FCA 663
Decision Date: 13 May 2022

CaseChat Overview and Summary

The case before the court involved an application by the applicant, Maersk A/S, to strike out the defence of the respondent, Mr Patti. The application was made under the Federal Court Rules 2011 (Cth). The primary dispute centred around whether Mr Patti was entitled to invoke privilege against self-incrimination or self-exposure to a penalty to avoid pleading to the statement of claim. The statement of claim did not make direct allegations of criminality or conduct that could result in a civil penalty. The court was required to determine if Mr Patti could plead to the defence without being subjected to self-incrimination or self-exposure to a penalty.

The court examined the legal issues and concluded that Mr Patti could not invoke the self-incrimination or penalty privileges to avoid pleading to the statement of claim. The court found that many of the allegations in the statement of claim could not possibly tend to prove criminality or liability for a civil penalty. The court also acknowledged the importance of privileges as common law rights. The court determined that the current defence was embarrassing and ordered it to be struck out. The respondent was granted leave to re-plead, with specific timelines set for particulars, responses, and the filing of an amended defence.

The court made several orders to manage the proceedings. The defence filed by the respondent was struck out, and the respondent was ordered to pay the applicant's costs thrown away due to the repleaded defence. The respondent was also ordered to pay 75% of the applicant's costs of the interlocutory application. The respondent was required to serve any requests for particulars on the applicant by a specified date, and the applicant was required to respond to those requests within a set timeframe. The respondent was then required to file and serve an amended defence in accordance with the Federal Court Rules 2011 (Cth) by a specific date. The court also ordered that the proceeding be referred to mediation and set a date for case management.

Orders

Orders of the court

Applicant’s Interlocutory Application

1. The defence filed by the Respondent on or about 8 March 2022 be struck out, with leave to replead.

2. The Respondent pay the Applicant’s costs thrown away by reason of the repleaded defence.

3. The Respondent pay 75% of the Applicant’s costs of its Interlocutory Application dated 29 March 2022.

Defence

4. The Respondent serve on the Applicant any request for particulars on or before 20 May 2022.

5. The Applicant serve on the Respondent any response to the aforementioned request for particulars on or before 27 May 2022.

6. On or before 10 June 2022 the Respondent file and serve a defence prepared in compliance with the Federal Court Rules 2011 (Cth).

Evidence

7. The Applicant serve any outlines of lay evidence on which it intends to rely at the final hearing on or before 24 June 2022.

8. The Respondent serve any outlines of evidence on which he intends to rely at the final hearing on or before 8 July 2022.

9. The Applicant serve any outlines of evidence in reply on which it intends to rely at the final hearing on or before 22 July 2022.

Mediation

10. Subject to further order of the Court:

(a) the proceeding be referred to mediation by the Registrar;

(b) the mediation occur in the period between 10 June 2022 and 24 June 2022;

(c) the Applicant and the Respondent attend and participate in good faith in the mediation to be conducted by a Registrar of the Court; and

(d) the mediation be held on such date in such place as the parties may agree with the Registrar or in default as the Court may appoint.

Case Management

11. The proceedings are listed for case management at 9.30am on 29 July 2022.

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

In other instances, Mr Patti may be able to plead, by invoking one or both of the self-incrimination or penalty privileges but, stating that there is or is not is an issue about whether a fact exists independent of any admission that could be used to involve him in it. For example, it is difficult to see why Mr Patti could not plead to whether Maersk carried some or all of the containers to their ports of discharge, issued bills of lading that incorporated Maersk’s standard terms, provided containers for collection or that were carried but not collected and received payment of freight or not. It is difficult to understand how the pleading of an admission or denial of those matters would have any capacity to be used in a criminal or penalty proceeding against Mr Patti, in the absence of any evidence or explanation giving rise to that possibility. Conclusion Accordingly, in my opinion, the current defence must be struck out as embarrassing. As he has accepted, Mr Patti should have leave to re-plead on the basis that he will have one week to seek particulars of any paragraphs in the statement of claim for which he needs particulars to plead, Maersk will have a week to reply and Mr Patti will have two weeks to file and serve an amended defence in accordance with the Rules.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	NSD 1291 of 2021
Judgment of:	RARES J
Date of judgment:	13 May 2022
Catchwords:	PRACTICE AND PROCEDURE – application to strike out defence – whether respondent entitled to invoke privilege against self-incrimination or self-exposure to a penalty to avoid pleading to statement of claim – where statement of claim makes no direct allegations of criminality or conduct that may sound in a civil penalty – where privileges important common law rights – where many allegations could not possibly tend to prove criminality or liability for a civil penalty – Held: defence struck out
Legislation:	Australian Consumer Law ss 18 and 236 Competition and Consumer Act2010 (Cth) Corporations Act 2001 (Cth) Federal Court of Australia Act 1976 (Cth) Pt VB Federal Court Rules 2011 (Cth) Pt 16
Cases cited:	Adams v Director of the Fair Work Building Industry Inspectorate (2017) 258 FCR 257 Australian Building and Construction Commissioner v O’Halloran [2021] FCAFC 185 Buckmaster v Meiklejohn (1853) 8 Exch 634 at 637; [155 ER 1506 CC Containers Pty Ltd v Ming Lee [2012] VSC 149 Grochowski v Kearney [2020] FCA 1248 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Macdonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612 Reid v Howard (1995) 184 CLR 1 Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (2018) 357 ALR 695 Sullivan v Krepp [2020] SASC 97 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96
Division:	General Division
Registry:	New South Wales
National Practice Area:	Admiralty and Maritime
Number of paragraphs:	29
Date of hearing:	13 May 2022
Counsel for the Plaintiff:	Mr J A Hogan-Doran SC and Ms K Petch
Solicitor for the Plaintiff:	HWL Ebsworth Lawyers
Counsel for the Defendant:	Mr J S Emmett SC and Mr H Hill-Smith
Solicitor for the Defendant:	Roberts Gray Lawyers

ORDER MADE BY:	RARES J
DATE OF ORDER:	13 MAY 2022