Adsteam Harbour Pty Limited v The Registrar of the Australian Register of Ships

AND: THE REGISTRAR OF THE AUSTRALIAN REGISTER OF SHIPS

REASONS FOR JUDGMENT 1 These are my reasons for declarations and orders that I made on 24 June 2005, in effect, rectifying the Australian Register of Ships in respect of the ownership of the tugs 'Hamilton', Wandilla', 'Warren' and 'Wyola'. 2 The applicant, Adsteam Harbour Pty Limited ("Adsteam Harbour"), commenced proceedings on 16 June 2005 in this Court against the Registrar of the Australian Register of Ships (the "Registrar"). No other person was joined as a party. The applicant claimed to be the 100% owner of the four tugs and not the part owner (of only 32 of the 64 shares) as shown by the Register. The error was not said to be one attributable to any fault of the Registrar. Rather, in the circumstances set out in more detail below, what might be called the Adsteam interests had overlooked an aspect of the reorganisation of its business as it affected the ownership of the tugs and the Register was consequently not brought accurately into line with the true ownership interests. 3 It is necessary, first, to say something as to jurisdiction of this Court. At various places in the Shipping Registration Act 1981(Cth) (the "Act"), State and Territory Supreme Courts are vested with jurisdiction to hear matters concerning the Act: see ss 47B, 47C, 59, 66 and 70. The Act does not, in its own terms, confer jurisdiction on this Court. However, this Court has by s 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth) the following jurisdiction: 39B(1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: … (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. 4 Sections 21, 22 and 23 of the Federal Court of Australia Act 1976 (Cth) (the "FCA Act") provide for the wide and flexible exercise of power within its given jurisdiction in the following terms: 21. Declarations of right (1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed. (2) A suit is not open to objection on the ground that a declaratory order only is sought. 22. Determination of matter completely and finally The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided. 23. Making of orders and issue of writs The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. 5 For the purposes of s 39B(1) of the Judiciary Act there can be no doubt that the Registrar, against whom an order in the nature of an injunction was sought, is an officer of the Commonwealth: see ss 48, 49 and 50 of the Act. 6 Section 39B(1A)(c) of the Judiciary Act operates according to its terms as a general conferral of federal civil jurisdiction: see Transport Workers Union v Lee (1998) 84 FCR 60; ACTEW Corp v Pangallo (2002) 127 FCR 1, 22-23 and Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550, 601. This means that in any federal statute it is generally unnecessary for there to be any particular provision conferring jurisdiction upon this Court. Section 39B(1A)(c) acts as a standing general conferral of civil jurisdiction according to its terms, though it is potentially subject to qualification by other federal Acts. The notion of a "matter arising under a law of the Parliament" is a wide one: Zines Federal Jurisdiction in Australia (3rd Ed) pp 15-21; Re Wakim; Ex parte McNally (1999) 198 CLR 511; Fejo v Northern Territory (1998) 195 CLR 96, 120; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575; Re McJannet; Ex parte Australian Workers' Union of Employees (Q) (No 2) (1997) 189 CLR 654, 656-57; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141; Abebe v Commonwealth (1999) 197 CLR 510, 561 at [140]; Ruhani v Director of Police [2005] HCA 42 at [61] and [103] ff; and see generally the helpful discussion by Burchett J (with whom Wilcox J and Tamberlin J agreed) in Australian Solar Mesh Sales Pty Ltd v Andersons (2000) 101 FCR 1, 3-10; and see generally (2002) 23 Aust Bar Review 59. 7 The notion of "arising under" encompasses (though is not limited to) the ascertainment and declaration of rights or obligations owing their existence to Commonwealth law: Mooregate Tobacco v Philip Morris (1980) 145 CLR 457, 476. It is not necessary that the issue under federal law arise in the claim of the moving party. It may find its place in the controversy in the answer of the defendant or respondent or in a cross-claim that is part of the controversy: see Felton v Mulligan (1971) 124 CLR 367, 382-83; and Westpac v Paterson (1999) 167 ALR 377 at [12]-[14] and the cases there cited. Here, the controversy as to whether the Register correctly records the ownership of an Australian registered ship is undoubtedly a matter arising under the Act. See also Advertising Department Pty Ltd v The Ship 'MV Port Phillip" (2004) 141 FCR 251. Section 39B of the Judiciary Act and ss 21, 22 and 23 of the FCA Act together provide together ample power for the making of declarations and necessary orders to remedy the position of the applicant. The power to rectify the Register vested in the Supreme Courts of the States and Territories by s 59 of the Act has no effect on the conferral of jurisdiction on this Court by s 39B(1A)(c) of the Judiciary Act.

Facts 8 In a transaction in earlier years Adelaide Steamship Industries Proprietary Limited (Adelaide Steamship Industries) transferred 32 shares in each of the tugs to Fremantle Towage Proprietary limited (Fremantle Towage). In 2005, Fremantle Towage transferred these shares to Adsteam Harbour. 9 The other 32 shares in each of the tugs were at the time of the application before me registered in the name of the Swan River Shipping Company Limited ("Swan"). Swan and Adelaide Steamship Industries were prior to 1997 partners in a partnership called "Fremantle Tug Operators". From 1997, the partnership was reconstituted between Swan and Fremantle Towage. The ultimate holding company of Swan in 1997 was Howard Smith Limited, the immediate parent being Farwood Pty Limited (Farwood). Swan sold its interest in the partnership including its interest in the tugs to Farwood. 10 In March 2001, Adsteam interests, through Adsteam Enterprises Pty Ltd acquired Howard Smith and its subsidiaries. The shares in Farwood were purchased by Adsteam Towage Holdings Pty Ltd. 11 In 2004 the Fremantle Tug Operators partnership (then operated by Fremantle Towage and Farwood) was dissolved. Farwood and Fremantle Towage agreed by sale agreements dated 1 July 2004 to sell, amongst other things, their vessels to Adsteam Harbour (the applicant). Each agreement provided for bills of sale and registration of the respective 50% interests (totalling 100% or 64 shares) in Adsteam Harbour. 12 The steps to complete this sale from Farwood to Adsteam Harbour by way of lodgement of the bills of sale were not taken. Moreover it would appear that the 1997 transfer of shares from Swan to Farwood had never been registered. 13 I was satisfied on all the evidence that ownership of all the shares in the tugs was from July 2005 with the applicant. An oversight occurred in not registering the sales from Farwood. I was satisfied that Howard Smith interests had all been paid and that no creditor was affected. The Register as at late June 2005 was an incorrect reflection of ownership of the tugs. The Register is, of course, a record of ownership; entry on the Register does not give title or ownership: see s 77 of the Act and generally, Tisand Pty Ltd v The Owners of the Ship "MV Cape Moreton" (ex Freya) [2005] FCAFC 68 at [152]. 14 The reason for the application was that the Adsteam interests desired, by 30 June 2005, to sell the tugs. It became evident at a late stage in that process that at least one oversight had occurred. In order timeously to comply with contractual obligations and to sell the tugs at the balance date an order was sought correcting the Register. Although subsection 36(2) of the Act provides that in special circumstances the Registrar may accept a transfer for lodgement outside the usual 14-day period from the date of the execution of the bill of sale, Adsteam sought to have the matter dealt with by order of the Court. This was entirely proper and not a reflection in the slightest on the Registrar who could not be expected, at short notice, to conduct an enquiry of the kind necessary to rectify the Register. 15 The Registrar appeared. No objection was taken by the Registrar to the orders being made. 16 It can be seen from the orders that were made on 24 June 2005 that I sought to protect the position of Howard Smith Limited should I be wrong about the view that I came to on the evidence that Howard Smith had no remaining interest in the tugs. No application pursuant to those orders was made by Howard Smith. 17 In all the circumstances, I thought it appropriate for the above reasons to make the orders that I did.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate: Dated: 19 September 2005 Counsel for the Applicant: Mr A S Bell

Solicitor for the Respondent: Ms B Pearson of AMSA Legal