The purpose of this notice is to set out the new arrangements that the Court has put in place for the conduct of Admiralty and maritime matters. This notice deals with: the new national arrangement, the identification of Admiralty and maritime work covered by the new arrangements, in personam proceedings, in rem proceedings, assisted or alternative dispute resolution, Court annexed arbitration, and the proper approach to Admiralty and maritime litigation.
National Arrangement
A national arrangement has been established whereby nominated Judges in each Registry will undertake the Admiralty and maritime work of the Court (defined below) at first instance and, as far as practicable, on appeal. They will be assisted in undertaking the work by nominated Registrars, skilled Registry officers and Admiralty Marshals. A National Convening Judge and Registry Convening Judges will co-ordinate the work and harmonise practice and procedure in accordance with this notice to practitioners.
The Judges involved are as follows:
WA
French J
Lee J
(Registry Convening Judge)
SA & NT
Finn J
Mansfield J
(Registry Convening Judge)
Vic & Tas
Ryan J
(Registry Convening Judge)
Finkelstein J
Young J
NSW & ACT
Tamberlin J
Emmett J
Allsop J
(National Convening Judge and Registry Convening Judge)
Qld
Kiefel J
(Registry Convening Judge)
Dowsett J
External Territories – according to Registry of filing
Admiralty and maritime matters
The Admiralty and maritime work of the Court is not limited to proceedings under the Admiralty Act 1988 (Cth). The Admiralty and maritime work of the Court includes any matter or proceeding under or by reference to any of the following Acts and Regulations:
Admiralty Act 1988 and Admiralty Rules;
Australian Maritime Safety Authority Act 1990 and regulations there under;
Carriage of Goods by Sea Act 1991 and regulations there under;
Environment Protection (Sea Dumping) Act 1981 and regulations there under;
Fisheries Management Act 1991 and regulations there under;
Limitation of Liability of Maritime Claims Act 1989 and regulations there under;
Marine Insurance Act 1909 and regulations there under;
Maritime Transport Security Act 2003 and regulations there under;
Navigation Act 1912 and regulations there under, including Navigation (Collision) Regulations 1982
Occupational Health and Safety (Maritime Industry) Act 1993 and regulations there under
Protection of the Sea (Civil Liability) Act 1981 and regulations there under;
Protection of the Sea (Imposition of Contributions to Oil Pollution Compensation Fund Customs) Act 1993 and regulations there under;
Protection of the Sea (Imposition of Contributions to Oil Pollution Compensation Fund Excise) Act 1993 and regulations there under;
Protection of the Sea (Imposition of Contributions to Oil Pollution Compensation Fund General) Act 1993 and regulations there under;
Protection of the Sea (Oil Pollution Compensation Fund) Act 1993 and regulations there under;
Protection of the Sea (Powers of Intervention) Act 1981 and regulations there under;
Protection of the Sea (Prevention of Pollution from Ships) Act 1983 and regulations there under;
Protection of the Sea (Shipping Levy) Act 1981 and regulations there under;
Protection of the Sea (Shipping Levy Collection) Act 1981 and regulations there under;
Sea Installations Act 1987 and regulations there under;
Seafarers Rehabilitation and Compensation Act 1992 and regulations there under;
Shipping Grants Legislation Act 1996 and regulations there under;
Shipping Registration Act 1981 and regulations there under;
Ships (Capital Grants) 1987 and regulations there under.
Causes of action under any such legislation, or administrative or other proceedings brought in connection with that legislation are Admiralty and maritime matters. This includes applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth), appeals from the Administrative Appeals Tribunal, applications under s 39B(1) or S 39B(1A) of the Judiciary Act. Any proceeding which raises issues under those Acts or Regulations falls within the work.
The attention of practitioners is drawn to the general conferral of civil jurisdiction upon the Court in all matters arising under a law of the Commonwealth Parliament: see Judiciary Act 1903, s 39B(1A)(c) and the paper in (2002) 23 Aust Bar Rev 29. For instance, a marine insurance dispute involving an issue under the Marine Insurance Act 1909 (Cth) could be brought in the Federal Court as a matter arising under a law of the Parliament for the purposes of s 39B(1A)(c) and would be dealt with under the new arrangements.
When a matter falls within the Admiralty and maritime work, practitioners should ensure that the Registry staff are advised at the time of filing that the matter is of that nature so that the matter can be allocated to one of the nominated Admiralty and maritime Judges in that Registry.
In Personam Proceedings and Registry Convening Judges
The Registry Convening Judges will attempt to harmonise procedure in in personam actions in the same way as in rem actions are dealt with consistently by the Court nationally.
To this end, the Registry Convening Judge in each Registry will act as an Admiralty and Maritime Procedure Judge. Until the proceeding is allocated for hearing, all interlocutory and procedural matters will be dealt with by the Procedure Judge. All directions hearings and interlocutory issues and hearings involved in bringing matters on for trial will be dealt with by the Procedure Judge. At the appropriate time in the preparation and conduct of any matter, it will be allocated a hearing date among the Admiralty and maritime Judges in that Registry through the allocation system that underpins the docket system used by the Court.
Urgent Admiralty or maritime applications should be made to the Procedure Judge or, if he or she is unavailable, to another Admiralty and Maritime Judge in the Registry. This arrangement is not intended to change the procedure under the Admiralty Rules as to applications for arrest that are made to the Registrar.
In Rem Proceedings
The new arrangements make no substantive change to existing in rem procedure. Applications for arrest are made under the Admiralty Rules to the District Registrar. If, however, there is any application that is required to be made to a Judge, parties should first approach the Procedure Judge through his or her associate. If the Procedure Judge is not available any other Admiralty and Maritime Judge in the Registry should be approached.
The Marshals of the Court are available to arrest a vessel anywhere in Australia at any time on any day of the year.
The Court has its own Marshals in every State and Territory and suitably qualified staff from relevant agencies (usually the Sheriff's Office or local police) around Australia have also been appointed as Federal Court Marshals. Additional Marshals are based in regional and remote parts of Australia.
Arrangements are also in place in each Registry for the urgent appointment of a Marshal where necessary. A Marshal may be appointed, for example, when there is insufficient time for a Registry-based Marshal to reach the vessel before it leaves the jurisdiction or when the cost of sending a Registry-based Marshal to the vessel is excessive. Such appointments are strictly supervised by the principal Marshal in the relevant Registry of the Court.
The Marshals have maritime skill and experience or have persons with that skill and experience readily available to them.
Applications to arrest vessels or applications in respect of arrests may be made at any time and the Court is available at all times (24/7) to deal with such applications. After hours telephone numbers are listed on the court website under “Contact the Court” (http://www.fedcourt.gov.au/contacts.html)
As was announced in 2004, poundage has been abolished in the Federal Court.
The approach of the Court to the Marshal’s costs is to restrict the costs charged to the parties to the direct third party costs involved in the arrest, other than in exceptional cases where the amount of work necessitates the provision of additional staff.
Assisted or Alternative Dispute Resolution (ADR)
Section 53A of the Federal Court of Australia Act 1976 provides for Court ordered mediation and arbitration (the latter only with consent). Immunity is conferred on the mediator or arbitrator: section 53C. The parties are expected to discuss the utility of any such ADR mechanism in their case. The Court has Registry officers who are knowledgeable in maritime matters and cargo claims and who are trained mediators. Early mediation or early neutral evaluation by a Registrar or a third party will be encouraged and sometimes ordered. Mediation can also be used to help identify and reduce issues and dispute, or to eliminate procedural arguments, as well as for the purposes of resolving the whole matter.
It is expected that parties will always seek an early resolution of matters and that they will consider Court annexed mediation or early neutral evaluation. This is especially so for the resolution of small cargo claims in a speedy and inexpensive manner.
In appropriate cases, and in particular in small cargo claims, directions will be made on the first return date, or shortly thereafter, for a case management conference to be held before a Registrar as soon as possible. At this conference the Registrar will seek to identify whether the matter is appropriate for an early mediation (perhaps undertaken on the basis of the parties’ instructions, as opposed to statements), what issues are involved and the most timely and efficient method of disposing of the matter.
As well as its Registrars, the Court has other staff with skills and expertise in maritime matters, some of whom are Marshals. These members of the Court staff will be available as required in any Registry to conduct or assist in the conduct of mediations carried out by Registrars. By way of example, Registry staff include persons who have expertise in cargo claim handling, loss adjusting and navigation.
Ad Hoc retained expertise and ADR
In appropriate cases the Court is prepared to make available outside persons with relevant skills retained by the Court on an ad hoc basis. They would assist in the resolution of matters using mediation or early neutral evaluation. The engagement of such persons would generally be through the offices of professional or industry associations.
Court annexed arbitration
The Court also has power to refer matters (by consent) to arbitration under s 53A of the Federal Court Of Australia Act 1976 (Cth). If parties desire a Registrar to act as an arbitrator, this can be arranged. Speedy procedure using procedures akin to those used in the London Maritime Arbitration Association Small Claims Procedures can be used. This may be particularly suitable in small cargo claims. If this course were taken, parties could agree to deal with the matter on the papers, or with minimal oral evidence, waiving rules of evidence, if the so wished. If a Registrar acted as arbitrator, fees (hearing and room) would be eliminated. Sections 53AA and 53AB provide for referral of questions of law and review on a question of law to the Court. By this mechanism, if the parties wish it, appeals on factual questions can be eliminated.
Approach of Practitioners and Litigants to Admiralty and Maritime litigation
Parties are urged to agree upon short minutes of order sufficiently prior to any scheduled directions hearing such that they can be sent, where agreed, by email to the judge’s associate. Where possible, a directions hearing will be vacated if the parties can agree upon an appropriate regime prior to the nominated time and date of the directions hearing. An exception to this convenient method of procedure is where one (or more) of the parties is or has been, in significant default of existing orders, or where there are difficult issues which need, sooner rather than later, to be ventilated. It is inappropriate for one party to send submissions, letters and partisan documents to the judge. The facsimile machine and the email system are not to be used for private or unilateral filing of submissions or complaints without the leave of the Court, but if all parties agree on a communication being sent to the judge it may be forwarded, without leave, to the associate.
At some early point in the procedural conduct of the matter, the Court will wish to understand the nature of the dispute, the real issues in dispute, how the real issues are to be proved and whether or not there are technical issues, whether there are particular evidential difficulties, whether because of expert or overseas witnesses. The Court appreciates that in Admiralty and maritime matters both the plaintiff and the defendant may, on occasions, need extended periods of time to obtain instructions from overseas clients and to ascertain what did or did not happen in places or on ships which may be both far away and inaccessible. Nevertheless, due allowance being made for such matters, the Court expects the parties and their legal representatives promptly to ascertain, as far as is reasonably possible, the nature and extent of the facts which pertain to any particular case. This is not limited to the particular points which the party wants to prove. It is not an acceptable way of conducting litigation to 'put the other side to proof' on all issues. The parties are expected to identify the real and genuine issues in dispute, whether of fact or law, after due investigation. It is the duty of the profession to assist the Court in the performance of its duty to resolve disputes by reference to what truly is, or should be, in dispute: see generally Ashmore v Corporation of Lloyds [1992] 1 WLR 446, 453, and see the speech by Hayne J 'Judicial Case Management and the Duties of Counsel', Wednesday 24 February 1999 to the Readers of the Bar Practice Course, Brisbane, contained on the High Court Website under the link 'publications'. In this context, parties should expect that the Court will be ready to use s 190(3) of the Evidence Act 1995 (Cth) in appropriate circumstances to lessen the cost of proving matters not bona fide in dispute.
How the parties co-operate to identify the issues in dispute, and to agree on facts that are not truly in dispute is a matter for the profession and their commercial clients.
An aspect of this co-operation between the parties’ representatives that the Court expects, however, is the provision of information and documentation in a prompt and timely fashion. Where legal practitioners make reasonable requests for documents or information (whether strictly 'particulars' or not) those requests should generally be met without the delay. In some cases, for various reasons, the formality (and cost) of a verified list of documents is necessary.
These matters should be made plain to clients. This could be achieved by providing this Notice to Practitioners to them. In dealing with questions of costs the Court will presume that clients have been made aware of the general approach and the expectations of the Court reflected in this Notice to Practitioners.
Aim of the new arrangements
The underlying idea of this new arrangement is the provision by the Court of the full range of its facilities, including mediation, early neutral evaluation, arbitration and judicial hearing to bring matters flexibly, cheaply and speedily to resolution. The Court encourages the use of external mediation and arbitration. Equally it is able, should parties and the profession desire it, to provide specialised, skilled Judges and Registrars who can deal with matters in a variety of ways best suited to the particular maritime dispute.
This notice to practitioners can be found on the Court’s Admiralty and maritime website:
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