Elbe Shipping SA v Giant Marine Shipping SA [2007] FCA 1000

FEDERAL COURT OF AUSTRALIA

Elbe Shipping SA v Giant Marine Shipping SA [2007] FCA 1000

Constitutional law– judicial power – whether legislation infringes or usurps judicial power of Commonwealth – whether legislation invalid Procedure– motion to set aside subpoena to produce documents – production of documents to court prohibited under s 60 of Transport Safety Investigation Act 2003 (Cth) – whether the power of the court to order the production of documents by subpoena is properly characterised as practice and procedure – subpoena set aside Constitution ss 49, 51, 98 Transport Safety Investigation Act 2003 (Cth) ss 3, 7, 53, 56, 57, 58, 60 Admiralty Act 1988 (Cth) s 59 Judiciary Act 1903 (Cth) s 78B Evidence Act 1995 (Cth) ss 16, 130 Parliamentary Privileges Act 1987 (Cth)

Sankey v Whitlam (1978) 142 CLR 1 discussed Nicholas v The Queen (1998) 193 CLR 173 applied Warren v Warren [1997] QB 488 cited Williamson v Ah On [(1926) 39 CLR 95 cited Kizon v Palmer (1997) 72 FCR 409 cited Rann v Olsen (2000) 172 ALR 395 cited ELBE SHIPPING SA v GIANT MARINE SHIPPING SA, BEING THE OWNERS OF THE SHIP "GLOBAL PEACE" AND ADSTEAM HARBOUR PTY LIMITED NSD 124 OF 2006 SQ MARINE SA v GIANT MARINE SHIPPING SA BEING OWNERS OF THE SHIP "GLOBAL PEACE" AND ADSTEAM HARBOUR PTY LIMITED NSD 125 OF 2006

DOWSETT J

5 JULY 2007

BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY NSD 124 OF 2006

BETWEEN: ELBE SHIPPING SA

Plaintiff

AND: GIANT MARINE SHIPPING SA, BEING THE OWNERS OF THE SHIP "GLOBAL PEACE"

First Defendant

ADSTEAM HARBOUR PTY LIMITED

Second Defendant

JUDGE: DOWSETT J DATE OF ORDER: 5 JULY 2007

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The subpoena issued to the Proper Officer of the Australian Transport Safety Bureau be set aside. 2. The plaintiff pay the Proper Officer's costs of and incidental to the motion of 21 February 2007. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.