FEDERAL COURT OF AUSTRALIA Olbers Co Ltd v Commonwealth of Australia (No 2) [2003] FCA 177 PRACTICE AND PROCEDURE – stay of proceedings – pending related criminal proceedings – corporate owner of fishing vessel – vessel apprehended in Southern Ocean – alleged commission of offences in Australian Fishing Zone – catch of Patagonian Toothfish – vessel allegedly forfeited to Commonwealth – proceedings instituted by corporation – crewmen facing criminal proceedings in relation to offences grounding forfeiture – corporation in position of defendant to statutory forfeiture and condemnation – principles governing discretion to order stay of civil proceedings pending criminal proceedings – stay refused. Fisheries Management Act 1991 (Cth) s 106A, s 84 Whim Creek Consolidated NL v Colgan (1991) 31 FCR 469 cited Cameron's Unit Services Pty Ltd v Kevin R Whelpton Associates (Australia) Pty Ltd (1984) 4 FCR 428 cited Western Australia v Bond Corporation Holdings Ltd and Others (No 2) (1992) 37 FCR 150 cited Olbers Co Ltd v Commonwealth of Australia [2002] FCA 1269 cited Willey v Synan (1935) 54 CLR 175 cited OLBERS CO LTD v THE COMMONWEALTH OF AUSTRALIA and AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY W151 OF 2002 FRENCH J 11 MARCH 2003 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: 11 MARCH 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The applicant's motion filed 15 October 2002 is dismissed. 2. The applicant is to pay the respondents' costs of the motion. 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 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: 11 MARCH 2003 PLACE: PERTH REASONS FOR JUDGMENT ON MOTION FOR STAY OF PROCEEDINGS Introduction 1 On 21 May 2002, Olbers Co Ltd ("Olbers"), the owner of the fishing vessel "Volga", commenced proceedings against the Australian Fisheries Management Authority ("AFMA") arising out of the seizure, detention and proposed forfeiture of its vessel to the Commonwealth. The vessel had been stopped in the Southern Ocean and boarded by members of the Royal Australian Navy from the frigate HMAS Canberra on 7 February 2002. An Australian Fisheries Officer had also taken part in the boarding. The vessel was said to have been fishing in the Australian Fishing Zone and to have taken a catch of Patagonian Toothfish contrary to the Fisheries Management Act 1991 (Cth). It was directed to proceed to Fremantle. A notice of seizure of the vessel, its net, traps, equipment and catch was given on 20 February 2002 under s 106C of the Act. A further notice, pursuant to s 106F of the Act, was given on 21 March 2002 by the Managing Director of the AFMA. The notice was in the following terms: "Australian Fisheries Management Authority FISHERIES MANAGEMENT ACT 1991 NOTICE PURSUANT TO SECTION 106C To the Master of the boat VOLGA, I THOMAS J MORRIS, an officer as defined in Section 4 of the Fisheries Management Act 1991 (the Act), hereby give notice pursuant to Section 106C of the Act, that the following things have been seized: 1. the boat VOLGA (including all nets, traps and equipment and catch). … The things described above will be condemned as forfeited unless the owner of the things or the person who had possession, custody or control of these things immediately before they/it were/was seized, gives a written claim in English for the things to the Managing Director of AFMA within 30 days of the date of this notice. A written claim must be given to: The Managing Director OR by facsimile number Australian Fisheries Management (02)6272 5784 within Australia Authority [International +61 2 6272 5784] Box 7051 Canberra Mail Centre ACT 2610 Signed [Signature] Printed Name TOM MORRIS Warrant ID No 261 Title/Agency SUP FO Date 20/02/02 day/month/year" 2 In these proceedings, which were commenced in response to that notice, Olbers sought a declaration that the seizure and detention of the vessel, its equipment and catch was illegal and that they were not forfeited. It sought an order that the vessel and its nets and equipment be released to Olbers and that the proceeds of the sale of the catch be released to Olbers. Alternatively, it sought an order that the AFMA pay Olbers an amount equivalent to those proceeds. 3 On 19 June 2002, the Commonwealth of Australia was substituted for the AFMA as respondent. However, by a further order on 13 August 2002 the AFMA was rejoined as a second respondent. Directions were made for procedural steps leading to the trial of the action. 4 Subsequently, the respondents filed a motion for security for costs. The motion for security for costs was argued on 10 October 2002 and on 16 October 2002 the motion was dismissed. 5 On 15 October 2002, a motion was filed by Olbers for orders in the following terms: "1. These proceedings be stayed pending the disposition of Charge Numbers 12822, 12823, 12824 and 35286 of 2002 in the Perth Court of Petty Sessions, being criminal proceedings against Messrs. Eiroa, Folgar and Lijo, members of the crew of the Fishing Vessel Volga for offences against the Fishing Management Act (1991) (Cth) (sic). 2. The parties have liberty to apply. 3. The Respondents pay the Applicant's costs of this motion." Submissions in support of the stay were lodged at the time of the filing of the motion. Pre-trial programming directions were made on 16 October and other directions made specifically in relation to the motion for a stay of proceedings. The motion for a stay was adjourned to 19 December 2002. Any further affidavit in support of the motion was to be filed and served by 4 December and any affidavit in opposition to the motion to be filed and served by 11 December. 6 On 19 December, the motion for a stay was further adjourned to 17 February and the time limited for the filing and service of the respondents' affidavits and the applicant's affidavits was extended to 13 January 2003 and 3 February 2003 respectively. Argument on the motion proceeded on 17 February. Judgment was reserved. Three members of the crew of the Volga, Messrs Eiroa, Folgar and Lijo have been charged with offences against the Fisheries Management Act. The charges, which are brought under s 100 of the Fisheries Management Act, allege the use of a foreign fishing boat in the Australian Fishing Zone for commercial fishing without there being in force a Foreign Fishing Licence authorising that use. 7 The crew members were originally to have had a preliminary hearing in relation to the charges. It was scheduled for ten days commencing on 18 November 2002. That hearing is not going ahead because of the abolition of the procedure of preliminary hearings by the Criminal Law (Procedure) Amendment Act 2002 (WA). 8 The crew members have been committed for trial in the District Court. A status conference was scheduled for 5 February 2003. That was to be their first appearance in the District Court. Following a decision of the Full Court of the Supreme Court of Western Australia on 16 December 2002, bail for the three crew members was fixed in the sum of $95,000 for Lijo and $75,000 for each of Eiroa and Folgar. The crew members were permitted to return to Spain pending the trial of the proceedings against them. It appears they departed Australia on or about 20 December 2002. Bail having been granted on these terms, from the prosecutor's perspective there was no basis to seek expedition of the trial dates. At the status conference held on 5 February 2003, the charges were adjourned to arraignment on 5 May 2003 and the defendants bailed until that date. There was a question, apparently unresolved, as to whether they might appear on that date in person or by video link from Spain. In the event that the crew members plead not guilty they will be remanded to a further status conference and pre-trial criminal procedures of the District Court will then apply. Leonard Fletcher, a principal legal officer with the Commonwealth Director of Public Prosecutions, says that estimates of the length of the trial vary from two to three weeks (the Crown's estimate) to three to four weeks (the defendants' estimate). Based on his experience and knowledge of the current state of the criminal list in the District Court, he estimates that the trials would occur between twelve and eighteen months after the status conference absent any order that the trial dates be expedited. 9 On 3 December 2002, the Government of the Federation of Russia submitted an application to the International Tribunal for the Law of the Sea against the Government of Australia under Article 292 of the United Nations Convention on the Law of the Sea. The application sought the prompt release of the Volga and the three crew members. These proceedings were heard before the Tribunal in Hamburg, Germany on 12 and 13 December 2002. On 23 December, the Tribunal delivered its judgment in The "Volga" Case (Russian Federation v Australia), Prompt Release. It ordered the prompt release of the fishing vessel Volga upon the posting of a bond or other security of $A1,920,000. That was the amount which had been sought by Australia for the release of the vessel. It represented the full value of the vessel, fuel, lubricants and fishing equipment. That value was not in dispute between the parties. The Tribunal held it to be reasonable in terms of Article 292 of the Convention. It considered that non-financial conditions set down by Australia requiring the vessel to carry a vessel monitoring system and the submission of information about its ownership could not be considered as components of the bond or other financial security. The Court was informed at the hearing of the present motion that the Volga remains under seizure and that negotiations are continuing as to its bonding and release. If it is released on the Tribunal's terms there may be consequential amendments to the pleadings and to the relief sought by Olbers. Statutory Framework 10 Section 106A of the Fisheries Management Act 1991 relevantly provides: "The following things are forfeited to the Commonwealth: (a) a foreign boat used in an offence against: . . . (iii) section 100; . . . (c) a net or trap, or equipment, that: (i) was on a boat described in paragraph (a) or (b) at the time of the offence mentioned in that paragraph; or (ii) was used in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 101, 101A or 101B; (d) fish: (i) on a boat described in paragraph (a) or (b) at the time of the offence mentioned in that paragraph; or (ii) involved in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 101, 101A or 101B." An officer is empowered under s 84(1)(ga) of the Act to: "(ga) seize all or any of the following that are forfeited to the Commonwealth under section 106A or that the officer has reasonable grounds to believe are forfeited under that section: (i) a boat; (ii) a net, trap or other equipment; (iii) fish; …" The Contentions 11 Olbers contends that forfeiture of a foreign boat such as the vessel under s 106A(a) rests on the boat being used in an offence against one of the sections enumerated at subparagraph (i) to (vi) of that paragraph. Absent evidence to establish the commission of a relevant offence referred to in s 106A(a) there can be no forfeiture of a foreign boat under that provision. Mere untested allegations against the crew of a vessel cannot constitute a relevant offence. The Commonwealth and the AFMA, it was said, can only rely upon s 106A of the Act once a conviction has been entered against a person involving the use of the vessel to commit a relevant offence. Reference was made in this connection to Whim Creek Consolidated NL v Colgan (1991) 31 FCR 469 which was concerned with forfeiture to the Crown of smuggled goods under s 229(1)(a) of the Customs Act 1901 (Cth). It was submitted that the Court in Whim Creek had found that forfeiture pursuant to s 229 followed directly from the existence of facts falling within that provision and did not involve an administrative decision whereas seizure was a decision in respect of which an officer had the discretion and was therefore amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). In that case there was a concession that the conduct of the relevant company and its principal officer attracted the operation of the applicable paragraphs of s 229. It was submitted that in the absence of such a concession the determination of any right on the part of Olbers to the return of the vessel and other things seized awaits the conclusion of these proceedings. 12 Olbers also made reference to the power of seizure under s 84(1)(ga). It submitted that in the absence of any conviction for a relevant offence under s 106A(a) in which the vessel was used, such a vessel could only be seized under s 84(1)(ga) of the Act, as in this case, on the basis of a reasonable belief within the meaning of that provision. Section 106B of the Act describes the circumstances in which such a vessel having been seized by the Commonwealth under s 84(1)(ga) can be dealt with by the AFMA pending the resolution of forfeiture proceedings. These in turn must be predicated on the adducing of evidence of a conviction for a relevant s 106A(a) offence in respect of the things seized. 13 It was contended for Olbers that if these proceedings are allowed to continue in advance of the criminal proceedings there will be a risk of manifest injustice because: 1. The crew would be forced to give evidence in order to preserve Olbers' rights to avoid forfeiture prior to the resolution of the criminal proceedings thereby depriving the crew of their right to silence in relation to the issues at the heart of the criminal proceedings; or 2. Olbers would be denied the co-operation of the crew in these proceedings thereby depriving Olbers of the only witnesses available to give a first hand account and therefore admissible evidence of the events upon which Olbers relies to defeat the purported forfeiture. It was also submitted that the admissibility of evidence in the criminal proceedings may rest on the legality of the acts of the AFMA and the Commonwealth in the purported exercise of powers under the Act. Decisions made in these proceedings on the same issue may affect the admissibility of such evidence in the criminal proceedings. 14 Were the crew ultimately to be acquitted in the criminal proceedings such acquittal, it was submitted, would demonstrate the absence of any power under s 106A(a) of the Act under which the vessel could be forfeited as there would ultimately be no conviction for a relevant offence under s 106A(a) involving the vessel. If the present proceedings were unsuccessful, the vessel might be forfeited even though subsequently no conviction was secured. In the event the crew were to be acquitted there could be no basis for the forfeiture of the vessel and Olbers would be entitled to some of the relief claimed in these proceedings. 15 The Commonwealth and the AFMA on the other hand submitted that there is no requirement for a conviction either prior to the effective forfeiture of a boat or other thing or for the condemnation of the thing. There is no reason in principle why the Court could not, in the civil action, hear the matter, receive the evidence adduced, and make findings on the basis of the civil standard of proof prior to the determination of the criminal proceedings. This is particularly so where the applicant is not a defendant in criminal proceedings. 16 The Court, it was submitted, need not be concerned to preserve all the advantages of the "right to silence" for the crew, for example, the possibility of depriving the prosecution of any opportunity to check an accused's story and obtain evidence to refute it before the trial is over. The Court should not be concerned with merely preserving the tactical status quo in the criminal proceedings. Some of the submissions put for the Commonwealth in this connection were really concerned with the position of accused persons waiving their rights for the purposes of civil actions which they might wish to defend or prosecute. In this case, the Court is concerned with a civil action brought by a third party, namely the corporation which is not merely an alter ego for those facing criminal prosecution. Indeed it appeared to be acknowledged in par 10 of the Commonwealth's submissions that the argument it advanced in this respect has less force in this case where the accused are not the applicant, but rather members of the crew of the vessel the recovery of which is sought by the applicant. 17 It was submitted that the pleadings filed by Olbers provided little assistance in terms of indicating the nature of the evidence the crew members might be able to provide. Presumably any such evidence would go to the issues of location of the vessel at the relevant times and whether fishing was being conducted at a time the vessel was in the Australian Fishing Zone. Assuming that the evidence of the crew members would be that there was no use of the vessel in the Australian Fishing Zone for commercial fishing, there would be no reason to delay the action for one or two years until they gave the same evidence in their criminal proceedings. The argument that Olbers would be denied the opportunity to adduce evidence from the crew members would presuppose the legitimacy of their refusal to give evidence. 18 It was further submitted for the Commonwealth that there is no authority in support of the Olbers' proposition that decisions in this action about the legality of the acts of the Commonwealth in the purported exercise of powers under the Act may affect the admissibility of evidence in the criminal proceedings. There is no doctrine of issue estoppel translatable from civil to criminal proceedings. The Commonwealth submitted that the Olbers' claim that the publicity associated with the civil proceedings could prejudice the fair trial of the crew was contrary to experience. It referred to the consideration of similar circumstances in Cameron's Unit Services Pty Ltd v Kevin R Whelpton Associates (Australia) Pty Ltd (1984) 4 FCR 428 at 434. In that case any trial of Mr Whelpton was likely to be at least two years into the future. While it was possible that the civil proceedings would receive some publicity, provided they were completed promptly, that publicity was held to be unlikely to affect a jury sitting in a trial a couple of years later. The Relevant Criteria 19 Both parties are agreed that the relevant criteria for determining whether a stay should be granted are those set out in Western Australia v Bond Corporation Holdings Ltd and Others (No 2) (1992) 37 FCR 150 at 171-172: 1. Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the Court; 2. It is a grave matter to interfere with such an entitlement; 3. The burden is on the defendant, in a civil action, to show that it is just and convenient that the plaintiff's ordinary rights be interfered with; 4. Neither an accused nor the Crown is entitled as of right to have a civil proceeding stayed because of pending or possible criminal proceedings; 5. The Court's task is one of "the balancing of justice between the parties", taking account of the relevant factors; 6. Each case must be judged on its own merits and it would be wrong and undesirable to attempt to define in the abstract what are relevant factors; 7. One factor to take into account when there are pending or possible criminal proceedings is what is sometimes referred to as the accused's "right of silence", and the reasons why that right, under the law as it stands, is the right of a defendant in a criminal proceeding; 8. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules simply because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose what his defence is likely to be in the criminal proceedings; 9. The Court should consider whether there is a real and not merely notional danger of an injustice in the criminal proceedings; 10. In this respect factors which may be relevant include: (a) the possibility of publicity that might reach and influence jurors in the civil proceedings; (b) the proximity of the criminal hearing; (c) the possibility of a miscarriage of justice, either because the disclosure of the defence allows the fabrication of evidence by the prosecution witnesses or interference with defence witnesses; (d) the burden on the defendant preparing for both sets of proceedings; (e) whether the defendant has already disclosed his defence to the allegations; and (f) the conduct of the defendant. 11. The effect on the plaintiff must also be considered and weighed against the effect on the defendant; and 12. In an appropriate case the proceedings might be allowed to proceed to a certain stage and then be stayed. Whether a Stay Should be Granted 20 As I observed in the reasons for judgment in relation to security for costs, Olbers Co Ltd v Commonwealth of Australia [2002] FCA 1269 at [16], these proceedings are defensive. They are brought to avoid condemnation of the vessel by the Commonwealth pursuant to the provisions of the Fisheries Management Act. As in the forfeiture case in Willey v Synan (1935) 54 CLR 175, the applicant in this case is in substance in the position of the defendant. It is resisting a statutory claim to its property. 21 Applying the criteria from the Bond case on that basis it may be said that prima facie the Commonwealth is entitled to have its assertion of forfeiture resolved in the ordinary course of the procedures and business of this Court. The burden is therefore on Olbers to show that it is just and convenient that the Commonwealth's ordinary rights be interfered with. Olbers is not entitled as of right to have these proceedings stayed because of pending or possible criminal proceedings. The task of the Court involves balancing justice between the parties taking account of relevant factors. In this case it also involves having regard to the interests of third parties, namely the crewmen who are facing criminal proceedings in relation to offences which themselves are said to ground the Commonwealth's claim to forfeiture of the vessel. This is emphasised by the fact that most of the affidavits filed by the Commonwealth in these proceedings exhibit witness statements given by the deponents in the criminal proceedings in the District Court. 22 I accept that if the crewmen are called to give evidence there may be a question whether they would be compelled to give evidence that might incriminate them. It is not known at this point precisely what evidence they may be called to give. It seems likely, however, as a practical matter that they will not be called unless they are in a position to give exculpatory evidence. At the present time it is not clear that there is any practical prejudice in that respect to the rights of the crewmen. A question of course could arise in the civil proceedings whether they should be compelled to give evidence that might incriminate them and, if so, whether they would be entitled to certificates conferring use immunity under s 128 of the Evidence Act 1995 (Cth). 23 Having regard to these considerations, I am not satisfied that to refuse a stay of the civil proceedings would unduly compromise any right to silence enjoyed by the crewmen who are facing criminal charges. In this respect I am not satisfied that there has been demonstrated a real danger of injustice. Nor am I satisfied, having regard to the estimated time before the criminal charges are likely to be tried, that there is shown to be any real risk of publicity in such proximity to the trial that it might reach and influence jurors. 24 There is nothing in the materials before me to indicate the possibility of a miscarriage of justice because disclosure of the defence might allow fabrication of evidence by prosecution witnesses or interference with defence witnesses. It would seem, for the most part, that witness statements relied upon by the prosecution have already been given and indeed are being relied upon in these proceedings. Olbers itself is not facing a criminal charge and so no question arises of a burden imposed on it in preparing for two sets of proceedings. Nor is there any question of premature disclosure by Olbers of a defence to any criminal proceedings. 25 There is nothing in the conduct of Olbers that affects the balance one way or the other. 26 In my opinion, Olbers has not made out a case for a stay of the proceedings. It is not necessary to that conclusion that I should determine the question whether a conviction is a necessary condition of forfeiture under the Act. I am inclined to the view that it is not. However that is a matter which can await judgment in the substantive proceedings. Conclusion 27 For the preceding reasons the applicant's motion will be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 11 March 2003 Counsel for the Applicant: Mr CP Shanahan Solicitor for the Applicant: Leaske & Co Counsel for the Respondent: Mr PR Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 February 2003 Date of Judgment: 11 March 2003