FEDERAL COURT OF AUSTRALIA PROCEDURE – summary judgment – applicants pursuing civil claim in Federal Court – two applicants failing to appear to defend criminal proceedings in which common issue open to be raised in their defence – further applicant failing to join other proceedings in this Court which may determine claim made here – whether claim in this Court an abuse of process. Federal Court Rules, O 20 r 2, O 45 r 7 Webster v Lampard (1993) 177 CLR 598, applied Sea Culture International v Scoles (1991) 32 FCR 275, distinguished Hunter v Chief Constable of the West Midlands Police [1982] AC 529, distinguished Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581, distinguished Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510, distinguished R v Lessur-Millar (1990) 47 A Crim R 111, distinguished RAVENOR OVERSEAS INC; FERNANDO GABRIEL MIRANDA and JAKUP ANDREAS ANDREASSEN v PHILLIP MARTIN READHEAD; THE AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY and THE COMMONWEALTH OF AUSTRALIA WAG 55 of 1998 R D NICHOLSON J PERTH 28 OCTOBER 1998 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 55 of 1998 BETWEEN: RAVENOR OVERSEAS INC fIRST Applicant fernando gabriel miranda second applicant jakup andreas andreassen third applicant AND: PHILLIP MARTIN READHEAD first Respondent the australian fisheries management authority second respondent the commonwealth of australia third respondent JUDGE: R D NICHOLSON J DATE OF ORDER: 28 OCTOBER 1998 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The respondents' motion is dismissed. 2. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 55 of 1998 BETWEEN: RAVENOR OVERSEAS INC fIRST Applicant fernando gabriel miranda second applCiant jakup andreas andreassen third applicant AND: PHILLIP MARTIN READHEAD first Respondent the australian fisheries management authority second respondent the commonwealth of australia third respondent JUDGE: R D NICHOLSON J DATE: 28 OCTOBER 1998 PLACE: PERTH REASONS FOR JUDGMENT R D NICHOLSON J: The respondents bring a motion pursuant to O 20 r 2 of the Federal Court Rules that the application be dismissed generally. The only ground relied on in support is that it is an abuse of process of the Court. Nature of proceeding The applicants' writ of summons was filed on 18 May 1998. It identifies the first applicant as a company incorporated outside Australia carrying on the business of fisheries operations and the registered owner of the vessel "Alizia Glacial" ("the vessel"). This is said to be a registered Panamanian vessel and therefore a "foreign boat" for the purposes of the Fisheries Management Act 1991 (Cth) ("the Act"). The second and third applicants are identified respectively as the Master and the Fishing Master of the vessel, neither being an Australian citizen nor ordinarily resident here. The writ identifies the first respondent as the person appointed under s 83 of the Act to be an "officer" for the purposes of the Act. The second respondent is identified as a body corporate established under the Fisheries Administration Act 1991 (Cth). The writ claims that on 17 October 1997 the vessel was located in the vicinity of Heard Island in waters comprising part of the Australian Fishing Zone ("AFZ") as defined in s 4(1) of the Act. It is further claimed the vessel was not at any material time within the territorial limits of Australia or its external territories nor within its territorial seas. Additionally, the writ claims that on the above date the vessel was boarded by armed members of the Australian Defence Force being naval personnel from a Royal Australian Naval vessel accompanied by the first respondent. Simultaneously, it is said, the second applicant was given a document dated 17 October 1997 signed by the first respondent as a Fisheries Inspector, calling on him to bring the vessel to a particular place (apparently not specified) and to remain in control of it at that place until permitted to depart ("the first direction"). This action was said to be taken pursuant to par 84(1)(k) of the Act and to be occasioned by a belief that the vessel had contravened the Act. At around the same time it is claimed a further notice was served upon the second applicant effecting his apprehension and commanding the vessel, its equipment and catch to proceed to Fremantle ("the second direction"). In the event, it is claimed, the second and third applicants were detained on board and the vessel taken to Fremantle, in doing so passing through waters on the High Seas outside the AFZ and the exclusive economic zone of Australia proclaimed under s 10(B) of the Seas and Submerged Lands Act 1973 (Cth) ("the EEZ"). The vessel, according to the claim, berthed at Fremantle on 28 October 1997 where it has since remained under the control of the second respondent, in consequence of which the first applicant has been denied the use of the vessel. The writ then proceeds by claiming that on 19 November 1997 the second and third applicants were charged with offences against ss 100 and 101 of the Act upon the complaint of the first respondent. Each of these complaints is said to state that upon conviction, application will be made for the forfeiture of the vessel under s 106 of the Act. Then follow claims that the directions were unlawful in purporting to exercise control over the vessel when on the High Seas and outside the AFZ and the EEZ. Alternatively it is alleged the directions ceased to have any lawful effect once the vessel left the AFZ and the EEZ and entered the High Seas. It is further claimed the continuance of the original seizure and control of the vessel by members of the Defence Force and officers of the second respondent in waters outside the AFZ and the EEZ was unlawful and constituted an unlawful restraint and detention of the second and third applicants and other members of the crew. Further and alternatively it is alleged the actions of the members of the Defence Force in boarding the vessel, giving directions, and continuing to exercise control over the vessel as well as detaining the second and third applicants was unlawful. Further and alternatively again it is said the actions of the first and second respondents (through its officers) and the naval personnel on board the vessel had the legal effect of transferring control of it to the third respondent and that this constituted an acquisition of property for the purpose of the Commonwealth within the meaning of s 51(xxx)(i) of the Constitution. It is alleged that the bringing and continuance of the prosecutions would be an abuse of the process of the Courts of Western Australia. The applicants claim declarations to the effect of the claims; an injunction to restrain the prosecution; a mandatory injunction for the release and delivery up of the possession of the vessel; damages for trespass to and unlawful conversion of the vessel; damages for unlawful imprisonment; a declaration that the Commonwealth had acquired property other than on just terms; and compensation for acquisition together with costs and interest. The defence admits certain aspects of the claim as pleaded, into the details of which it is not necessary to go. It is sufficient to say that, save for those aspects, the respondents deny the applicants are entitled to the relief claimed or to any relief. History of proceeding The action was remitted to this Court by order of the Chief Justice of the High Court on 11 March 1998. On that day the Chief Justice dismissed a summons seeking the stating of a case and the reserving of questions in relation to the arrest of the vessel for the opinion of the Full Court. The question which the applicant sought on the special leave application was whether there is any constitutional impediment to Defence Force personnel assisting in the enforcement of the Act. Brennan CJ said this question was raised and decided in Li Chia Hsing v Rankin (1978) 141 CLR 182 where it was decided by the Court, with the possible exception of Murphy J, that there is no constitutional reason why members of the Defence Forces should not assist in carrying out the provisions of the Act. In his reasons the Chief Justice referred to prosecutions pending in the Magistrate's Court of Western Australia. He accepted that the Magistrate's Court, as well as the State Court of Criminal Appeal should it become involved, should take the view that they were bound by Li Chia Hsing. He said it should not be thought that, because some new argument can be devised contrary to a holding of the High Court, the authority of its decisions become problematic. He said there should be no qualification about the duty of other courts faithfully to faithfully apply the decisions of the High Court as they stand. He considered it would be destructive of the authority of the High Court to entertain an application to revisit Li Chia Hsing for the purpose of deciding a question to be raised in a summary prosecution in which no evidence had been taken. He therefore considered the appropriate course was to remit the issues joined to the Federal Court pursuant to s 44 of the Judiciary Act (1903) (Cth). The preliminary hearings in the criminal prosecutions against the second and third applicants, being the prosecutions were referred to in the reasons of Brennan CJ, were listed in the Perth Court of Petty Sessions on 6 to 8 July 1998. Both of those applicants failed to appear. Bench warrants were issued for their arrest. Proceedings were issued in the Victorian District Registry of this Court by Bergensbanken ASA (a Norwegian Bank) under the Admiralty Rules seeking, inter alia, judgment for principal and interest of moneys due under a ship mortgage on the vessel ("the Victorian Admiralty Action"). Under the umbrella of the Victorian Admiralty Action, the plaintiff bank sought and obtained an arrest warrant in respect of the vessel. On 20 March 1998 Ryan J in this Court made an order for the sale of the vessel. By notice of motion filed on 11 March 1998 the respondents sought to be added as parties to the Victorian Admiralty Action. This motion was refused by Ryan J on 16 March 1998. However he granted liberty to the second and third respondents to appear at a directions hearing on 8 May 1998 and to be heard on suitable directions, including the form of advertisement and the terms of sale. His Honour stated that the third respondent should give serious consideration to commencing a separate proceeding which would ventilate the question of whether the purchaser of the vessel would receive a clear title unencumbered by any subsequent claim to forfeiture by the Commonwealth. The result was that on 20 April 1998 the respondents issued an application in the Victorian Registry of this Court ("the Victorian Action"). A hearing of the preliminary issue took place on 13 May 1998. The directions hearing in the Victorian Admiralty Action was adjourned sine die to await the outcome of the hearing in the Victorian Action. Neither the first applicant nor the other applicants entered an appearance in either the Victorian Admiralty Action or the Victorian Action and have not sought to participate in either action. On 18 September 1998 Ryan J gave judgment on the preliminary issue. Ryan J held that the rights asserted by the applicants in the Victorian Admiralty Action did not constitute a deed of title to the vessel which a purchaser will acquire upon the sale of the vessel ordered by the Court on 20 March 1998 in that action. In reaching that view Ryan J referred to his rejection on 16 March 1998 of the application by the applicants in the Victorian Action to be joined as defendants in the Victorian Admiralty Action and to his statement there adverting to the possibility of their intervening when the question of the sale of the vessel is under consideration. In his reasons of 18 September 1998 Ryan J said that the conclusion which he had formed in considering the preliminary question strengthened the claim by the applicants in the Victorian Action to be heard as interveners when the Court is exercising that discretion. He pointed out that the discretion could well be influenced by whether the plaintiff in the Victorian Admiralty Action and other persons interested in the disposition of the vessel pursuant to that action are prepared to agree that the second and third respondents (in this action) should have recourse to the fund arising from the sale in the event an order of forfeiture is subsequently made by the Court of Petty Sessions at Perth. The solicitors on the record for the applicants in this proceeding were Jackson McDonald of Perth. They were acting on instructions from Norton Smith & Co of Sydney who in turn acted on instructions from D W Roberts (English solicitors) of Jersey, British Isles. On 31 August 1998 Jackson McDonald received instructions from Norton Smith to withdraw from representation on behalf of the applicants in these proceedings. Notice was accordingly given by Jackson McDonald pursuant to O 45 r 7 of the Federal Court Rules that they had ceased to act on behalf of the applicant. Prior to the hearing of the present motion, the Registry of this Court gave notice of the motion to Mr D W Roberts at his Jersey address. Mr Roberts was not on the record on behalf of the applicants. The result was that on 17 September 1998 Mr Roberts wrote to the Registry of the Court. In his letter he noted that the notice of cessation to act by Jackson McDonald had been received by the Court and sought to explain that this was due to the cost of advice being unsustainable. He then asserted nevertheless that "My clients and indeed myself" feel very strongly that the arrest of the vessel was an illegal act and "that they had not been fishing within the EEZ zone". He claimed the consequences of the "illegal arrest" had been catastrophic for his clients. He then requested to attend the hearing of the motion via video link facilities. He did so on the basis that an adjournment of the hearing of the motion in this matter listed for the 18 September 1998 would be involved. The decision on that request was reserved for determination together with the respondents' motion. Summary dismissal Order 20 r (2) Federal Court Rules provides that where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for any relief in the proceeding that the proceeding is frivolous or vexatious or the proceeding is an abuse of process of the Court, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding. In Webster v Lampard (1993) 177 CLR 598 at 602 Mason CJ, Deane and Dawson JJ said that the issue on the application for summary judgment is not whether the plaintiffs would probably succeed in their action. Rather the question is whether the material before the primary judge was such that the "action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail". The power to order summary judgment is one which must be exercised with "exceptional caution": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. It is a power which "should never be exercised unless it is clear there is no real question to be tried": Fancourt v Mercantile Credits Ltd (1963) 154 CLR 97 at 99. Both General Steel and Fancourt were relied on by Mason CJ, Deane and Dawson JJ in Webster at 602. Failure by second and third applicants to defend prosecutions on ground of "unlawfulness" For the respondents it is said that the issues agitated by the applicants in the Statement of Claim fall into two broad categories. The first is whether in purporting to exercise control or continue the seizure of the vessel outside the AFZ and the EEZ, the Fisheries officers and the Defence Force officers were acting unlawfully. The second is whether the putative exercise of control or seizure of the vessel by members of the Australian Defence Force was unlawful as being outside permitted constitutional limits to the powers of the defence force. After reference to the injunctive nature of the relief sought and the possibility of forfeiture of the vessel, the argument continues by reference to what are said to be significant developments impacting on both of the broad issues in the claim. It is submitted that the impact is such that both issues can be regarded as "moot, if not extinguished". In relation to the first category of issues it is said the failure of the second and third applicants to appear at the preliminary hearings has deprived this Court of information relevant to this proceeding. Further it is submitted it demonstrates that as those applicants do not seek vindication of their alleged rights when given the opportunity to do so, it would be an abuse of the Court's processes for them to be able to seek to agitate the issue in this Court. In support of this submission reference is made to Sea Culture International v Scoles (1991) 32 FCR 275 at 279. There French J said "an attempt to litigate in the courts a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal may also, according to circumstances, constitute an abuse of process even if not attracting the doctrine of res judicata or issue estoppel". On the adjournment of the hearing of this motion an opportunity was provided to the respondents' counsel to file a list of authorities of cases where an abuse of process had been found to be constituted by a party's failure to advance in forum A a case sought to be advanced in forum B, the abuse being determined by the forum B court. No such case was found. For the respondents it is submitted this is not surprising and that the Court should have in mind the "sound policy reasons" stated by French J in the same passage where he observed that "the possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed". It is well established that an abuse of process will exist where: "The abuse … is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made": Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 541. Lord Diplock, with whom the other members of the House agreed, said in his speech (at 542): "… the principle applicable is, in my view, simply and clearly stated in those passages from the judgment of A.L. Smith L.J. in Stephenson v Garnett [1898] 1 Q.B. 677, 68—681 and the speech of Lord Halsbury L.C. in Reichel v Magrath (1889) 14 App.Cas. 665, 668 which are cited by Goff L.J. in his judgment in the instant case. I need only repeat an extract from the passage which he cites from the judgment of A.L. Smith L.J." '… the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn that the identical question sought to be raised has been already decided by a competent court.' The passage from Lord Halsbury's speech deserves repetition here in full: '… I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.'" It is apparent the principle cannot be applied here because the present case is not one where there has been a final decision against the second or third applicant by another court of competent jurisdiction. It may also be an abuse of process to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings: Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 applying the principle in Henderson v Henderson (1843) 3 Hare 100 at 115 of res judicata. This, however, is not an instance where the second or third applicants have failed to bring forward their whole case and seek to use a later instance to do so. There is no identity of parties between the proceedings here in issue. Furthermore this is not a case of a claim which is on its face spurious or hopeless. There is no evidence this action must fail: Webster v Lampard. Failure to maintain a contention in a criminal proceeding as a consequence of non‑appearance does not lead to an inevitable inference that the ground cannot be made out. There may be many reasons, apart from absence of merit not apparent on the evidence, why the second and third applicants failed to appear to answer the criminal charges against them. I therefore conclude the condition of abuse of process is not established on the facts relied upon in relation to each of them. With that in mind, I am unable to agree that because the second and third applicants have failed to raise the issue of unlawfulness as a defence in the criminal prosecution against them, their activation of that issue in civil proceedings in this Court must therefore be characterised an abuse of process of the Court. Turning to the test in Webster v Lambard, it is not apparent this action must fail. The failure to maintain the argument by way of defence in a criminal proceeding elsewhere in another forum does not mean that the argument is without merit; there may be many reasons apart from merit why those respondents failed to consider the charges against them. Failure by first applicant to join other actions It is also submitted that it is open to inference the first applicant made a deliberate decision not to be involved in the Victorian Action and not to press the arguments there which are now sought by it to be advanced as one of the bases of its claim in this proceeding. It is submitted that because the ownership of the vessel was there in issue, the first applicant should have filed an appearance in that forum as the most appropriate and convenient forum. It is said therefore that for the first applicant to seek to raise those issues in this Court constitutes a clear abuse of process. I cannot agree. There is authority that the failure of a plaintiff in a first action to join a third person as a defendant does not alter the plaintiff's entitlement to bring a second action against that person even though it is contended the issue in the second action had been adjudicated and determined in the first action: Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510. Here, the first applicant has not been made a party to either the Victorian Action or the Victorian Admiralty Action. It is not even faintly contended that there is any requirement of law that the first applicant was required to join in either of those actions. It is necessary to again turn to the test in Webster v Lampard. The fact that the first applicant has chosen not to pursue the issues in the other forum by joinder in the Victorian Action, does not mean the claim is without merit. The present is not a case where an applicant is seeking to litigate in this Court the same fundamentals issues of fact and law which the applicant has raised unsuccessfully before courts elsewhere: cf R v Lessur-Millar (1990) 47 A Crim R 111. Nor is it a case where there is an inconsistency between claims made by a party in one forum as against the claims made in this forum: Sea Culture International. Furthermore the proceedings before Ryan J are not concluded. It is not beyond possibility that the first applicant could seek to be heard in relation to the disposition of the vessel. Additionally, in the event that orders are made of a final nature in relation to the vessel, that may provide evidence of res judicata or estoppel applicable to the claim in this present proceeding. In my opinion the matters upon which the respondents rely do not support a finding of abuse of process in respect of any of the applicants. Request for video link The respondent draws attention to a number of features of the letter from Mr Roberts. The first is that is does not explain why the application for the video link was not made until near the day of the hearing (although reference is made to a recent return by Mr Roberts to his office). It is said there is an inconsistency between the assertion that the applicants are unable to pay legal fees and the assertion by Mr Roberts that he acts for them. Furthermore there has been no prior assertion of the fact stated by him that the applicants were not fishing in the EEZ zone. This, it is said, would be a defence to the criminal prosecutions and the opportunity has not been taken to defend those prosecutions. The most significant fact, however, is that the applicants are no longer represented on the record. Mr Roberts has no standing to request the video link. It is open to the applicants to be represented but they have chosen to terminate that representation. There is therefore no basis on which the request for the video link can be granted and it is refused. Costs On the assumption the motion would be granted the respondent sought costs. As I consider the motion should be dismissed, the issue does not arise. Conclusion For these reasons I consider that the motion should be dismissed and no order made as to costs. I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON Associate: Dated: 28 October 1998 Counsel for the Applicant: No appearance Solicitor for the Applicant: None on record Counsel for the Respondent: T Carey Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 September 1998 Date of Judgment: 28 October 1998