Olbers Co Ltd v Commonwealth of Australia

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: