Walker v Government of the Republic of Vanuatu

Federal Court of Australia|2011-04-13|Before: Greenwood J

Introduction 1 There are presently three applications made by notice of motion before the Court. Two of those applications have been filed by Mr Walker, the applicant in the principal proceeding, and the remaining motion has been filed by the Republic of Vanuatu, joined in the principal proceeding as the first respondent under the description "Government of the Republic of Vanuatu". 2 The Republic of Vanuatu has entered a conditional appearance in the principal proceeding and by its motion seeks orders that service of the principal proceeding upon it be set aside on the footing that service was effected without prior leave contrary to Order 8, rule 2(1) of the Federal Court Rules and on the ground that service is ineffective by reason of s 25 of the Foreign States Immunities Act 1985 (Cth). A further order is sought that the principal application and statement of claim be struck out as against the Republic of Vanuatu on the footing that the proceeding gives rise to no justiciable matter before the Federal Court of Australia by reason of ss 9 and 38 of the Foreign States Immunities Act 1985. 3 The Republic of Vanuatu also contends that there is no cause of action falling within Order 11, rule 16(a) of the Federal Court Rules and thus the principal application ought to be struck out as against the Republic of Vanuatu on that ground also. 4 Mr Walker, by one of his notices of motion filed 16 March 2011, seeks orders that he be given leave to file and serve the original process outside of Australia under Order 8, rule 3 of the Federal Court Rules; an order that "the Application be struck out [under nominated rules of the] Federal Court Rules"; and an order "that at all times material to this application the Applicant was the Master, owner, beneficial owner and charter[er] of the Ship Retriever 1 as against all". 5 In the course of the hearing of the notices of motion, Mr Walker accepted that "the Application" referred to in the second order described above is the application by the Republic of Vanuatu to strike out the principal proceeding against it. 6 By Mr Walker's second notice of motion filed on 16 March 2011 he seeks orders that the application [notice of motion] of the Republic of Vanuatu be struck out on the ground of "fraudulent nondisclosure in accordance with the directions of the Court in the inherent jurisdiction of the Court"; an order that that application be struck out on the ground of "fraud and an attempt to pervert the cause of justice"; an order that that application be struck out for "want of prosecution"; and an order that that application be struck out in accordance with a range of nominated rules of the Federal Court Rules.

The contextual matters 7 The relevant contextual matters are these. 8 On 13 August 2009, Mr Walker filed an application in this Court in which he nominated the following parties: "THE SHIP, MV Retriever 1; Government of the Republic of Vanuatu (first respondent) and Michael Hatcher (second respondent). In that application, Mr Walker asserted that the Federal Court had jurisdiction under the "Admiralty Act 1988, s 9 Admiralty; jurisdiction in personam, Admiralty Act 1988 s 12 Jurisdiction in associated matters, Admiralty Act 1988, s 30, and [a range of international conventions]". By his application, Mr Walker recited 23 particulars of claim. The application failed to identify particular claims for relief against particular respondents, and aggregated claims for relief with assorted questions of fact. 9 As a result, on 8 September 2009, orders were made that the applicant file an amended application specifying the relief claimed by the plaintiff against each of the defendants and if relief was sought in reliance upon a provision of an Act, the plaintiff was directed to specify the Act and the provision of the Act relied upon in each case. Mr Walker was also directed to file an amended application which recited the claims for relief against each defendant. Mr Walker was also directed to file a statement of claim in accordance with Form 7 of the Federal Court Rules which satisfied the requirements of Order 4, rule 6 of the Federal Court Rules and Order 11 of the Federal Court Rules. Mr Walker was directed to file an amended application and statement of claim by 8 October 2009.

The amended application 10 On 5 October 2009, Mr Walker filed an amended application and a statement of claim in the proceeding. By his amended application Mr Walker recited that the application is for damages and other relief for breach of a contract for salvage operations under which Mr Walker was engaged as a "Salvage Master". The second limb was recited as a claim for damages for "breach of duty and/or in tort in relation to the unlawful exercise of powers by governmental authorities in Vanuatu" which was said to result in the seizure, arrest and conversion of property including the ship MV Retriever 1. 11 The application recites the same collection of statutory provisions under the Admiralty Act 1988 (Cth) and International Conventions recited in the earlier application. 12 Apart from the general descriptive claim mentioned above, Mr Walker described the specific claims for relief as these. The first claim (at claim 1) is a claim for damages in the sum of $US17m for breach of a salvage operation contract between Mr Walker and Mr Hatcher. Within claim 1, Mr Walker, by the use of "and/or" describes a further claim for damages in these terms: … breach of duty and/or statutory duty and/or misfeasance and/or in the torts of fraud, deceit, conversion, conspiracy to defraud and/or breach of international law in connection with the malicious and unlawful boarding and/or arrest, detention, seizure and/or transfer of the ship MV Retriever 1 and other property including personal property beneficially owned by the Applicant at Vanuatu in and after January 8th 2007, and consequential loss including loss of employment and future earnings. 13 That claim must necessarily be a claim for relief sought against the Republic of Vanuatu notwithstanding that Mr Walker does not identify expressly that claim as a claim against the Republic of Vanuatu. Further, it can be seen that the matters said to give rise to that claim are matters concerning contended conduct outside Australia in Vanuatu in and after 8 January 2007. 14 Claim 2 is a claim for damages pursuant to ss 82 and 87 of the Trade Practices Act 1974 (Cth). Claim 3 is a claim for "punitive damages". Claim 4 is a claim for an indemnity against any liability Mr Walker and/or an entity called "Sub Ocean Salvage SA" may be found to have to third parties in connection with equipment seized by officers of the Republic of Vanuatu which was onboard MV Retriever 1 during the course of the relevant contended conduct. Claim 5 is a claim for a declaration that Mr Walker "and/or" Sub Ocean Salvage SA is the true registered and beneficial owner of the MV Retriever 1 and either or both of them are entitled to possession of the ship and rectification of the Register of Ships. By claim 5, Mr Walker also seeks a declaration that the Republic of Vanuatu is vicariously liable for the acts and omissions of the "Vanuatu Maritime Authority; Vanuatu Customs and other Statutory Authorities". Claims 6, 7 and 8 concern claims for any other relief, interest and costs.

The statement of claim 15 Those claims are given content by the statement of claim. 16 By paras 6 to 46 of the statement of claim, Mr Walker sets out a series of facts, contentions and conclusions concerning the arrangements he made with the second respondent Mr Michael Hatcher concerning an agreement made at the Gold Coast in Queensland in approximately May 2005 by which Mr Walker agreed with Mr Hatcher (or Mr Hatcher's entity Bowick International Ltd) to carry out salvage operations in Australia and elsewhere. 17 In those paragraphs Mr Walker pleads that certain representations were made to him and at para 11 Mr Walker sets out the content of the agreement. He says that he was to be the Salvage Master of a ship; for those services, Mr Walker would be entitled to be the beneficial owner of the ship acquired for the salvage operations; Mr Walker would be paid not less than $US10m over a five year period and other entitlements; a lump sum would be made available upon termination; Mr Walker would travel to Singapore to set up an entity to conduct the salvage operations; Mr Walker would travel to Fremantle to acquire a ship; the ship would be purchased in the name of Sub Ocean Salvage SA and would be beneficially owned by Mr Walker; Mr Walker would conduct research in Melbourne about salvage operations; Mr Hatcher would provide funds to pay for the ship, its refitting, stores and all other expenses related to the ship; and, Mr Walker would investigate salvage opportunities in Thailand, the Philippines, New Zealand, Vanuatu and Brazil. 18 Paragraphs 15 to 46 set out the implementation steps by which Mr Walker selected an exnavy auxiliary mine sweeper called the HMAS Brolga as the appropriate vessel; the purchase transaction was completed on 19 April 2006; the vessel was renamed MV Retriever 1; Mr Walker on 11 June 2006 took up the position of "Master of the Ship" and "Salvage Master" for the salvage operation. Those paragraphs also recite that the ship was acquired by Chance Cove Ltd and that on 7 July 2006 Mr Hatcher caused the ship to be registered in the Panamanian Ship Registry in the name of Chance Cove Ltd. Those paragraphs describe the steps to refit the ship and the taking of the ship from Freemantle to Melbourne. 19 On 12 December 2006, the ship under Mr Walker's command departed Melbourne and sailed to Fiji and then to Vanuatu. The remaining section of the pleading describes the events thereafter. 20 Briefly, the pleaded facts are these. 21 On 8 January 2007, the ship arrived at the Quarantine Station in Port Vila, Vanuatu. Approximately four hours after arrival, the ship was boarded by Customs officials and Navy personnel of the Republic of Vanuatu. Customs officers sealed the bond store and gun locker. Mr Walker pleads that he and the crew were unlawfully detained and property was taken at the directions of Customs officers. He says that on 9 January 2007 Customs officers and Navy personnel, including Officer Soape, boarded the ship. Mr Walker contends that Officer Soape took possession of property and engaged in a number of activities about which complaint is made. On 10 January 2007, Mr Walker and two other crew members who had been arrested and taken into custody were released on condition that the ship be moved to the "Government Wharf". Mr Walker pleads that at that location the "Base Commander" denied Mr Walker and the crew access to fresh water and shore power. Mr Walker contends that these acts were motivated by malice and were calculated to cause him harm. Mr Walker pleads that between 12 and 17 January 2007 officials of the Republic of Vanuatu removed various items and documents from the ship including legal documents. Mr Walker pleads that he complained about the conduct to the Vanuatu Police, Vanuatu Customs, the AttorneyGeneral and the Vanuatu Maritime Authority. 22 At paras 70 to 73, Mr Walker pleads matters concerning the conduct of Mr Hatcher. 23 At para 74, Mr Walker pleads that on 3 March 2007 an officer of the Vanuatu Maritime Authority made an inspection of the ship and requested certain things and documents to be produced. Mr Walker pleads that on 15 March 2007 the Director of Public Prosecutions of the Republic of Vanuatu sent those documents to the Vanuatu Maritime Authority and that on 20 March 2007 the Authority issued a "Detention Order" on the footing that particular documents relating to the ship could not be produced. Mr Walker pleads that the Authority in issuing that order acted unlawfully. The conduct is described at para 75 as fraudulent, deliberate, unreasonable and capricious. In similar terms, Mr Walker pleads at para 78 that the Authority seized chattels on the ship and took possession of personal property of Mr Walker. That conduct is also described as fraudulent and malicious conduct. That contention is reasserted at para 83 in the same language. In May 2007, the Authority issued a further detention order which is said to have been issued fraudulently. At para 85, Mr Walker pleads that at the direction of the Republic of Vanuatu, he was arrested and removed from the ship and that this conduct was motivated by malice. Paragraph 88 pleads conduct relating to a prohibition placed upon Mr Walker from boarding the ship and the failure to provide him with assistance. 24 At para 89, Mr Walker pleads that the Republic of Vanuatu "maliciously and wilfully and calculated to cause harm to the Applicant, through its Statutory Authorities the [Authority] and in contravention of its obligations under international maritime laws thereby abandoned the Applicant as a seafarer with total disregard for the welfare of the Applicant". This conduct is said to have occurred in bad faith. 25 At paras 92 to 97, Mr Walker pleads matters concerning arrangements said to have been made between the Republic of Vanuatu and Mr Hatcher. Mr Walker pleads that without his knowledge, Mr Hatcher purported to give the ship to the Authority at no cost in return for an agreement that the Authority would take no action against Mr Hatcher. Mr Walker says that this transaction was effected pursuant to a memorandum of agreement dated on or about 11 May 2007 entered into by Mr Hatcher on behalf of Chance Cove Ltd. Mr Walker pleads that Mr Hatcher knew that neither he nor Chance Cove Ltd had any right to enter into such an agreement. Mr Walker at para 98 pleads that the Authority and other Statutory Authorities in Vanuatu acted improperly, deliberately and unlawfully which ultimately is said to give rise to a claim for damages. Alternatively, it is said that the Authority and other Statutory Authorities of the Republic of Vanuatu failed to take adequate precautions to act lawfully in all the circumstances. 26 On 17 January 2011, the Republic of Vanuatu entered a conditional appearance in the proceeding. 27 As to service, Mr Walker filed an affidavit on 4 February 2011 in which he said that on or about 11 November 2009 he had arranged for Mr John Malcolm, a Barrister of the Vanuatu Bar, to arrange for service of the "Originating Documents" upon the AttorneyGeneral in Vanuatu. On 22 February 2011, Mr Walker filed a further affidavit asserting the same matters as to service. On 17 January 2011, Mr Walker filed a further affidavit in which he said that on or about 10 January 2011 he received an affidavit of service from Mr Tulczyn of Port Vila in which Mr Tulczyn said that on or about 29 December 2010 he had caused the document exhibited to his affidavit to be served upon an officer of the Vanuatu AttorneyGeneral's Department. That document is simply a notice of listing of the matter before the Federal Court for review. 28 In any event, a conditional appearance was filed in the Republic of Vanuatu as mentioned. 29 On 18 January 2011, the applicant was ordered to file and serve an application pursuant to Order 8, rule 3 of the Federal Court Rules together with any affidavits in support of that application by 4 February 2011 and subject to compliance with Order 1, the Republic of Vanuatu was ordered to file any application pursuant to Order 9, rule 7 or Order 11, rule 16 of the Federal Court Rules by 4 February 2011. Affidavits in reply were to be filed by 25 February 2011. 30 Mr Walker is unrepresented in these proceedings. The Federal Court Registry endeavoured to secure pro bono advice for Mr Walker in relation to these proceedings shortly after the first directions hearing of the matter. Unfortunately, assistance was not able to be secured. Mr Walker has the carriage of the proceedings on his own behalf.

Order 8, rule 3 31 Order 8, rule 3 of the Federal Court Rules provides that service of an originating process on a person in a foreign country is effective for the purpose of the proceeding only if the Court has given leave under Order 8, rule 3(2) before the application is served; or the Court confirms the service under Order 8, rule 3(5); or any objection to service is waived by the relevant person. Order 8, rule 3(2) provides that the Court may give leave to a party to serve an originating process on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country, on such terms and conditions as the Court considers appropriate, if the Court is satisfied that it has jurisdiction in the proceeding; the proceeding is of a kind mentioned in Order 8, rule 2; and the person seeking leave has a prima facie case for all or any of the relief claimed by the person in the proceeding. 32 Order 8, rule 3(5) provides that if an originating process has been served on a person in a foreign country without the leave of the Court, the Court may, by order, confirm the service if the Court is satisfied that it has jurisdiction in the proceeding; the proceeding is of a kind mentioned in Order 8, rule 2; and the person seeking an order for confirmation has a prima facie case for all or any of the relief claimed by that person in the proceeding. In addition, the applicant for an order for confirmation must demonstrate that service was permitted by a convention, if a convention applies, or the Hague Convention, if the Hague Convention applies, or (where neither apply) in accordance with the law of the foreign country. The applicant for such an order must also satisfy the Court that the failure to apply for leave under Order 8, rule 3(1) is "sufficiently explained". The reference to a convention means a convention, agreement, arrangement or treaty about service outside Australia, of judicial documents, to which the Commonwealth (or a State) and a foreign country are parties: Order 8, rule 1 Federal Court Rules. 33 For present purposes, the relevant service arrangements are those required by the laws of the foreign country. 34 It can be seen from the way in which the proceedings have been framed that no relief is claimed against the ship as a claim in rem under the Admiralty Act 1988 (Cth). The ship MV Retriever 1 is recited in the heading to the proceeding but no relief is asserted. That follows because the ship is not present within the jurisdiction. The ship is in Vanuatu. Moreover, there is no claim framed against the Republic of Vanuatu in relation to conduct of that respondent in Australia. All of the conduct about which complaint is made occurred in Vanuatu.

Mr Walker's central contentions 35 Mr Walker by his affidavit sworn 1 March 2011 contends for these matters in support of the orders he seeks by his two notices of motion. First, he says that the notice of motion of the Republic of Vanuatu should be struck out on the footing that service occurred in November 2009 and no step has been taken to bring on the notice of motion now before the Court. Secondly, Mr Walker says that the Court has jurisdiction under the Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) and the Trade Practices Act 1974. Thirdly, Mr Walker says that he has a default judgment against the ship for $US135,000 plus costs in Vanuatu and that the Australian proceedings involve questions in relation to the ship. Fourthly, proceedings taken to sell the ship (by a liquidator or otherwise) cannot overcome his judgment and rights in rem in respect of the ship. Fifthly, Mr Walker says that Mr Hatcher and Mr Walker carried on business in Australia and entered into contracts in Australia. Mr Walker says that Mr Hatcher and the Authority entered into the agreement pleaded in the statement of claim when Mr Hatcher was within the jurisdiction of Australia. Sixthly, Mr Walker says that the Court is conferred with jurisdiction under the Admiralty Act on the basis that the beneficial ownership or otherwise of the ship is in issue and the question of whether the Authority had any right or entitlement to seize the ship is in issue in the proceedings. 36 As to the notice of motion by the Republic of Vanuatu, Mr Walker says that the making of the motion is motivated by malice and is vexatious. 37 Mr Walker contends that the Court has jurisdiction in relation to the claims against Mr Hatcher quite apart from any contention as to a claim against the Republic of Vanuatu. 38 One further matter of fact is this.

The affidavit of Ms Harders 39 The Republic of Vanuatu relies upon an affidavit of Ms Jennifer Harders who is a Technical Adviser to the State Law Office in Vanuatu. She has held that position since March 2007. By her affidavit sworn 4 February 2011 Ms Harders says that Mr Walker commenced proceedings in the Supreme Court of Vanuatu against the Authority by Action No. 73 of 2007, Kell Walker v Vanuatu Maritime Authority. Mr Walker also commenced proceedings in the Supreme Court of Vanuatu against the ship MV Retriever 1 by Action No. 146 of 2007, Captain Walker v MV Retriever & Chance Cove Ltd. On 9 October 2009, the Supreme Court ordered that those two proceedings be consolidated with Action No. 95 of 2007 and Action No. 14 of 2009. Ms Harders is the State Counsel with day to day carriage of the consolidated proceedings. Ms Harders says that on 22 October 2009 Mr Walker filed a consolidated statement of claim in the consolidated proceedings. 40 On 11 November 2010, consent orders were made in the consolidated proceedings in these terms: 1. The M/V Retriever 1 … be sold to the highest bidder in response to the public tender issued by the [Vanuatu Maritime Authority] (in liquidation). 2. The liquidator of the [Vanuatu Maritime Authority] shall be empowered to execute all documents required for the sale of the [MV Retriever 1], including a sale agreement and a bill of sale. 3. The disbursements incurred by the [seller] … connected with the public tender be deducted from the proceeds of the sale of the [MV Retriever 1]. 4. The balance of the proceeds of sale be paid into court and held in an interest bearing trust account pending further orders. 5. All claims in rem against the [MV Retriever 1], by all parties, shall merge in these consent orders. 6. All claims in rem against the [MV Retriever 1], by all parties, shall be preserved … against the proceeds of sale held in court. 7. These orders are without prejudice to any claim in personam against any party. 41 These consent orders were signed on behalf of Mr Kell Walker by Mr John Caldwell Malcolm, his lawyer. 42 As to those consent orders, Mr Walker says that he did not authorise Mr Malcolm to agree to those orders or to sign the consent order on his behalf (see Transcript p 25, lns 611). Mr Walker relied upon an email from Mr Malcolm to him dated 17 January 2011 which was directed to the question of service. That email told Mr Walker that Mr Malcolm had been contacted by the AttorneyGeneral concerning a matter issued by Mr Walker about a year or so ago in Australia "not properly served and claiming damages for your jail term". Mr Malcolm says that the AttorneyGeneral said that if that proceeding continues it would cost a small fortune and if lost the costs would come out of anything obtained from the sale of the MV Retriever 1. Mr Malcolm says that the AttorneyGeneral enquired whether Mr Walker would be willing to discontinue the claim and deal with the issues within the arrangements relating to the sale of the ship in Vanuatu. Mr Malcolm's email concludes "On the retriever we now have sale orders …". Mr Malcolm and Mr Walker seem to have been in exchanges about the arrangements for sale of the MV Retriever 1 in January 2011 and I infer that the reference in the email to the sale orders is a reference to the consent orders of 11 November 2010. However, Mr Walker says that those arrangements were not made with his consent. Mr Walker did not write to Mr Malcolm or send an email challenging those arrangements.

The disposition of the motions 43 The amended proceedings of 5 October 2009 were served upon the Republic of Vanuatu in Vanuatu on or about 29 December 2010. Earlier attempts at service of the proceedings were made by or on behalf of Mr Walker. However, no attempt at service was preceded by an order for leave to serve proceedings upon the Republic of Vanuatu in accordance with Order 8, rule 3(1)(a) supported by affidavit material satisfying the elements of Order 8, rule 3(1) and (2). No proof of service has been adduced consistent with the laws of the Republic of Vanuatu. However, a conditional appearance was filed by the Republic of Vanuatu on 17 January 2011. The motion to set aside service and strike out the claims in the principal proceeding was brought on by the first respondent within a reasonable time from the filing of the conditional appearance on 17 January 2011 and was made in accordance with the order of 18 January 2011. 44 There is no substance to the proposition that the notice of motion of the Republic of Vanuatu ought to be struck out on the ground of want of prosecution or on the contended footing that the filing of the notice of motion is infected with "fraudulent nondisclosure". Nor does the application reflect in any sense an attempt to "pervert the course of justice". Framing relief in those terms is not only without any merit on any of the material but is entirely inappropriate and "embarrassing" in the technical sense of that word in the context of claims made in the course of pleadings or claims for relief in application documents before the Court. Nor is any basis demonstrated for striking out the notice of motion of the Republic of Vanuatu by reference to any of the Federal Court Rules referred to in Order 2, of one of Mr Walker's notices of motion of 16 March 2011 and Order 4 of the other notice of motion of Mr Walker filed on 16 March 2011. 45 Mr Walker ought to have filed an application in accordance with Order 8, rule 3 seeking leave to file the proceedings in a foreign country supported by an affidavit making out the elements of Order 8, rule 3. Alternatively, if Mr Walker had elected to serve the proceedings in a foreign country he ought then to have made an application by notice of motion supported by proper affidavit material (not simply an oral application at a directions hearing unsupported by any material) making out the elements of Order 8, rule 3(5). Moreover, Mr Walker ought to have made the appropriate application for confirmation under Order 8, rule 3(5) (since he had taken the course of electing to serve the originating proceedings without first having obtained leave) by notice of motion supported by appropriate affidavit material, and ought to have done so in accordance with the order of 18 January 2011, by 4 February 2011. However, Mr Walker filed his two notices of motion on 16 March 2011. 46 Further, there is no basis for determining by way of a notice of motion in the proceeding the question of fact of whether Mr Walker was at all material times the "Master, owner, beneficial owner and charter[er] of the Ship Retriever 1 as against all" even assuming that the Court is invested with jurisdiction in the matters the subject of the claim. If the Court has jurisdiction, those matters must be decided upon all the evidence at trial in determining final relief in the proceedings. 47 However, the Court does not have jurisdiction in these proceedings. 48 Section 9 of the Foreign States Immunities Act 1985 (Cth) provides that except as provided by or under the Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding. Sections 10 to 22 of the Foreign States Immunities Act 1985 set out the circumstances giving rise to an exception from the general immunity. Some of those exceptions also contain exclusions within them which render the exception inapplicable in the circumstances of the particular exclusion. However, none of the exceptions from the s 9 immunity in ss 10 to 22 are enlivened having regard to the amended application and the statement of claim. The general immunity conferred by s 9 is a statutory adoption (according to its terms) of the general immunity existing at common law that an independent sovereign State may not be directly or indirectly proceeded against in the courts of the forum without its consent. The absolute nature of that immunity has been the subject of extensive discussion in the Authorities with a more narrow view emerging as to its scope in recent years: see, Compania Vaiera Vascongada v Steamship Cristina [1938] AC 485; Playa Largo (Owners of Cargo lately laden on Board) v I Congreso del Partido (Owners) (I Congreso del Partido) [1983] 1 AC 244; Philippine Admiral (Owners) v Wallem Shipping (Hong Kong) [1977] AC 373; and, Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529. 49 Mr Walker suggests that two sections of the Foreign States Immunities Act 1985 may be give rise to an exception from the s 9 immunity in the circumstances of this case. The first is s 13 which provides, relevantly, that a foreign State is not immune in a proceeding in so far as the proceeding concerns loss of or damage to tangible property caused by an act or omission done or omitted to be done in Australia. None of the pleaded acts on the part of officers of the Republic of Vanuatu or its agencies occurred in Australia. Section 13 has no application. 50 The second is s 18 which addresses actions in rem. 51 Section 18 provides, relevantly, that a foreign State is not immune in a proceeding commenced as an action in rem against a ship concerning a claim in connection with the ship if at the time when the cause of action arose, the ship was in use for commercial purposes. In the principal proceeding, Mr Walker recites, in the amended application, the description "THE SHIP: MV RETRIEVER 1". The respondent parties to the amended application, described as an "Amended Application in Personam", are the Government of the Republic of Vanuatu and Michael Hatcher. The relief claimed is relief by way of damages, and indemnity and a declaratory order against those parties. The reciting of the ship within the proceeding does not elevate the principal proceeding to a proceeding commenced as an action in rem against a ship. Nor does the principal proceeding "concern" a claim in connection with the ship in the relevant sense. First, there is no claim against the ship in the principal proceeding. Secondly, such a claim, if it were to be made, must be a claim in rem arising out of a cause of action in circumstances where the Republic of Vanuatu was using the MV Retriever 1 for commercial purposes. If, during the course of that use, Mr Walker engaged with the Republic of Vanuatu or the ship in such a way that Mr Walker enjoyed a cause of action giving rise to a claim in rem, the Republic of Vanuatu would not be immune from proceedings before the courts of Australia giving remedial relief to an action in rem arising out of the Republic's commercial use of the ship. 52 Those circumstances are not the circumstances of the principal proceeding and thus the exception provided by s 18 does not arise. 53 It follows that in relation to the claims made in Mr Walker's principal proceeding, the Republic of Vanuatu is immune from the claims made against it. 54 Apart from the s 9 immunity, Mr Walker's material does not demonstrate that any of the claims he makes against the Republic of Vanuatu fall within any of the "kinds of proceeding" set out in the table at Order 8, rule 2 of the Federal Court Rules. Nor does the material filed by Mr Walker satisfy the Court that he has a prima facie case made out for any of the relief he claims against the Republic of Vanuatu. Nor is the failure to apply, on proper material, for leave under Order 8, rule 3(1) and (2) sufficiently explained. 55 As to the question of service, Part III of the Foreign States Immunities Act 1985 addresses the requirements for service upon a foreign State. Section 23 provides that service of initiating process on a foreign State may be effected in accordance with an agreement to which the State is a party. Section 24 provides that initiating process that is to be served on a foreign State may be delivered to the AttorneyGeneral for the Commonwealth for transmission by the Department of Foreign Affairs to the department or organ of the foreign State that is equivalent to the Department of Foreign Affairs of the Commonwealth. The remaining parts of s 24 deal with the requirements of giving effect to s 24(1) of that Act. Section 25 provides that purported service of an initiating process upon a foreign State in Australia otherwise than as allowed or provided for s 23 or s 24 of the Act is ineffective. 56 Purported service by Mr Walker upon a person in Australia on the contended footing that that person is an agent or representative of the Republic of Vanuatu is ineffective by reason of s 25 of the Act. Mr Walker did not effect service upon the foreign State in the manner contemplated by s 24 of the Act as was required. 57 Mr Walker contends that jurisdiction arises under s 10 of the Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth). That section provides, relevantly, that where there is in force an instrument made by the AttorneyGeneral under s 9(1)(c) of that Act in relation to a foreign judgment and the plaintiff or any other person has recovered from a defendant in Australia or in any other country an amount pursuant to that foreign judgment, the plaintiff is liable to pay to the defendant an amount equal to the amount recovered pursuant to the foreign judgment. Section 10 is concerned with matters arising in connection with the enforceability of judgments given in foreign antitrust proceedings. The reference in s 10 to s 9(1)(c) is a reference to an instrument in writing signed by the AttorneyGeneral by which he or she declares that he or she is satisfied about relevant matters in relation to a judgment given in a foreign court in antitrust proceedings to which Part II of the Act applies. No aspect of the principal proceeding engages Part II or s 10 of the Foreign Proceedings (Excess of Jurisdiction) Act 1984 in respect of any judgment Mr Walker may have obtained in a foreign court in Vanuatu in connection with his claim for $US135,000. 58 No aspect of the pleaded conduct on the part of the Republic of Vanuatu or its officers or officers of its agencies in Vanuatu gives rise to a claim under the Trade Practices Act 1974 in the Federal Court of Australia. 59 No aspect of the claim for relief recited in the amended application or in the statement of claim gives rise to a claim in personam under the Admiralty Act 1988 (Cth). All of the conduct complained of by Mr Walker on the part of the Republic of Vanuatu occurred in Vanuatu and any cause of action which he might have arose in Vanuatu. 60 Accordingly, there is no justiciable controversy engaging the jurisdiction of the Federal Court of Australia in respect of any of the claims made by Mr Walker against the Republic of Vanuatu. By his application and statement of claim, Mr Walker also asserts relief and some facts suggesting a cause of action against Mr Hatcher based upon a contract Mr Walker entered into with Mr Hatcher in Australia and on the footing that certain representations were made by Mr Hatcher to Mr Walker. Those claims, if properly framed and formulated, may fall within the jurisdiction of the Federal Court of Australia. The questions to be determined in these applications concern matters the subject of claims against the Republic of Vanuatu. 61 It follows that the service of the proceedings upon the Republic of Vanuatu ought to be set aside. Mr Walker's two notices of motion of 16 March 2011 are to be dismissed. The Republic of Vanuatu is entitled to an order for its costs of and incidental to Mr Walker's two notices of motion and the notice of motion of the Republic of Vanuatu of 4 February 2011. I certify that the preceding sixtyone (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Trade Practices Act 1974(Cth)

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (4)

Cited By (2)