Olbers Co Ltd v Commonwealth of Australia [2002] FCA 1269

FEDERAL COURT OF AUSTRALIA

Olbers Co Ltd v Commonwealth of Australia [2002] FCA 1269 PRACTICE AND PROCEDURE – security for costs – corporate owner of fishing vessel – vessel apprehended in Southern Ocean – alleged commission of offences in Australian Fishing Zone – catch of Patagonian Toothfish – corporate owner of vessel domiciled in Russia – vessel allegedly forfeited to Commonwealth – notice of seizure of vessel – notice to institute proceedings – proceedings instituted by corporation – motion for security for costs – corporation in position of defendant to statutory forfeiture and condemnation – principles governing discretion to order security for costs – security for costs not ordered. Fisheries Management Act 1991 (Cth) s 106E, s 106F Federal Court of Australia Act 1976 (Cth) s 56 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 applied Willey v Synan (1935) 54 CLR 175 cited Interwest Ltd (receivers and managers appointed) v Tricontinental Corporation Ltd (1991) 9 ACLC 1,218 cited Aquatown Pty Ltd v Holder Stroud Pty Ltd (1995) 13 ACLC 1,847 followed OLBERS CO LTD v THE COMMONWEALTH OF AUSTRALIA and AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY W151 of 2002 FRENCH J 16 OCTOBER 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W151 OF 2002

BETWEEN: OLBERS CO LTD

APPLICANT

AND: THE COMMONWEALTH OF AUSTRALIA

FIRST RESPONDENT

AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

SECOND RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 16 OCTOBER 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT:

On the Respondents' Motion for security for costs filed 7 August 2002: 1. The motion is dismissed. 2. The respondents are to pay the applicant's costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.