The Crew of the "Ionian Mariner" v United States Trust Co of New York

[1997] FCA 1393

IN THE FEDERAL COURT OF AUSTRALIA	VG 553 of 1995
VICTORIA DISTRICT REGISTRY

BETWEEN:	THE CREW OF THE SHIP “IONIAN MARINER” First Applicant
AND:	THE INTERNATIONAL TRANSPORT WORKERS’ FEDERATION Second Applicant
AND:	THE PAN HELLENIC SEAMAN’S FEDERATION Third Applicant
AND:	UNITED STATES TRUST COMPANY OF NEW YORK Respondent

JUDGE:	RYAN J
DATE:	25 NOVEMBER 1997
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:  In this matter, I consider it an appropriate exercise of the Court’s discretion to make some order for the provision of security for the costs of the US Trust Company of New York (“the US Trust Co”) of that part of the action which requires determination of a question or questions identified in the reasons of the Full Court, especially those of Burchett J.  Those questions include whether by virtue of what has been called a trust of a promise of which the alleged trustee or trustees are the added parties, the International Transport Federation (“ITF”) and the Pan Hellenic Seamen’s Federation (“PNO”) can enforce a promise by the owners of the ship “Ionian Mariner” to pay remuneration to crew at certain specified rates.

It has been urged by Mr Santamaria for the crew and the ITF and PNO that the Us Trust Co in the particular circumstances of this case should not be viewed as a respondent brought unwillingly into this litigation as a whole.  However, I consider that this application for security should be evaluated in the light of the issue or issues remaining to be tried.  So regarded, I do not perceive the position of the US Trust Co to be materially different from that of any other litigant faced with an action by applicants not resident in this country with no apparent readily realisable assets here.

Nor do I consider that the ITF or the PNO can be equated with the plaintiff trustee in White v Butt [1909] KB 50. In my view, those federations occupy a position in the present litigation more analogous to that of corporate applicants who have sued in this Court as trustees of family trusts or similar arrangements and have been required to provide security. However, it is well established by authority, including Brundza v Robbie & Co [No 2] 1952 171 per Fullagar J at 175 citing Aberdare & Plymouth Co v Hartley (1888) 32 S.J. 644 that the function of the Court on applications of this kind is not to make an order which completely indemnifies the respondent or defendant for the costs which might be incurred.

In all the circumstances and in light of the evidence I consider it appropriate to require the provision of $32,000 as security for the costs of the United States Trust Co up to and including the first day of the trial of the remaining issues in the litigation.  Accordingly, I shall make orders in terms of the minutes handed up by Mr Nettle.  Those minutes will have additions and amendments so that they read:

1. The US Trust Co file and serve its contentions of fact and law on or before 30 December 1997;

1. The Crew, ITF and PNO file and serve any affidavits on which they will rely at trial on or before 10 March 1998;

1. Any further affidavits to be relied on by the US Trust Co be filed and served on or before 30 April 1998;

1. Any affidavits in reply by the Crew, ITF and PNO be filed and served on or before 31 May 1998;

2. ITF and PNO on or before 13 February 1998 provide security in the sum of $32,000 in a form acceptable to the Registrar of the Court for the costs of the US Trust Co up to and including the first day of the trial of the remaining issues;

1. In default of order 5 hereof there be judgment in favour of the US Trust Co for the sum of the fund remaining in Court in respect of the proceeds of sale of the ship “Ionian Mariner”, together with costs.

I shall order that the costs of all parties of the respondent’s motion on notice dated 17 November 1997 be costs in the cause and the costs of this directions hearing otherwise be reserved.  The summons for directions will be adjourned until 5 June 1997 and I shall reserve liberty to any party to apply on not less than 48 hours notice in writing to the other party.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of the Honourable Justice Ryan.

Associate:

Dated:            25 November 1997

Counsel for the Applicants: (The Crew, the ITF and the PNO)	Mr P Santamaria
Solicitors for the Applicant:	Holding Redlich
(The Crew, the ITF and the PNO)
Counsel for the Respondent: (The US Trust Co)	Mr G Nettle QC with Mr P Booth
Solicitors for the Respondent: (The US Trust Co)	Mallesons Stephen Jaques
Date of Hearing:	25 November 1997
Date of Judgment:	25 November 1997