Walker v Government of the Republic of Vanuatu

REASONS FOR JUDGMENT 1 This proceeding concerns an interlocutory application by the applicant, Mr Walker, for summary judgment against Mr Michael Hatcher in an amount of US$17 million on the ground that the respondent has failed to enter an appearance in the proceeding and has failed to put on a defence in the proceeding. 2 Mr Walker is (and has been, throughout the proceeding) a self-represented litigant. 3 It is necessary to explain aspects of the background to the present application. 4 On 21 July 2009, Mr Walker filed an originating application in this Court (which was accepted for filing by the Federal Court Registry on 13 August 2009) 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 this Court had jurisdiction under the Admiralty Act 1988 (Cth); jurisdiction "in personam"; jurisdiction in "associated matters"; and jurisdiction by reference to a range of international conventions. By his originating application, Mr Walker recites 30 paragraphs described as "Particulars of Claim". However, the originating application failed to identify particular claims for relief against particular respondents and generally aggregated all of the claims for relief with assorted questions of fact. 5 On 8 September 2009, orders were made that the applicant file an amended application specifying the relief claimed against each defendant and if relief was sought in reliance upon a particular provision of an Act, Mr Walker was directed to specify the Act and the provision of the relevant Act relied upon in each case. Mr Walker was also directed to file an amended application setting out the claims for relief against each defendant. Further, Mr Walker was directed to file a statement of claim in accordance with Form 7 of the Federal Court Rules which complied with the requirements of Order 4, r 6 of the Federal Court Rules and Order 11 of those Rules. Mr Walker was directed to file an amended application and statement of claim by 8 October 2009. 6 The Federal Court Rules 2011 (the "2011 Rules") commenced on 1 August 2011. Those Rules apply to a proceeding commenced in the Court on or after that date. Those Rules also apply to a step in a proceeding that was commenced before 1 August 2011 if the step is taken on or after 1 August 2011. 7 It follows that the Federal Court Rules (which I will call the "earlier Rules") operating prior to the commencement of the 2011 Rules apply to the proceeding commenced by Mr Walker. However, the 2011 Rules will apply to any step taken in the proceeding on or after 1 August 2011. 8 On 5 October 2009, Mr Walker filed a document he describes as an "Amended Application in Personam". Mr Walker also filed on that date a statement of claim in the proceeding. 9 By the amended application, Mr Walker recites this: The application is for damages and other relief for breach of a contract for salvage operations under which the Applicant was engaged as Salvage Master and/or for breach of duty and/or in tort in relation to the unlawful exercise of powers by governmental authorities in Vanuatu resulting in the seizure, arrest and conversion of property including the ship MV RETRIEVER 1 in respect of which the Applicant was bailee and/or to which the Applicant was beneficially entitled. 10 The amended application continued to recite a wide range of legislation, statutory instruments and other references as the source of jurisdiction. 11 In the amended application, Mr Walker recited these matters: A. DETAILS OF CLAIM On the grounds stated in the accompanying Statement of Claim and the attached schedule to the Statement of Claim the Applicant claims: 1. Damages in the sum of USD 17 million (or such other sum as the Court thinks fit) for breach of a salvage operation contract between the Applicant and the Second Respondent [Mr Hatcher] and/or for 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. 2. Damages pursuant to ss 82 and 87 of the Trade Practices Act 1974. 3. Punitive damages in such amount as the Court shall see fit. 4. An indemnity against any liability the Applicant and/or Sub Ocean Salvage SA may be found to have to third parties in connection with equipment on board MV Retriever 1 at the time of its seizure and/or transfer. 5. Declaratory relief [described below]. 6. [Further or other relief as may be necessary]. 7. [Interest] 8. Costs 12 The declarations at para 5 concern matters relating to the beneficial ownership of the ship and matters directed to the liability of the first respondent described as "The Government of the Republic of Vanuatu". 13 The first part of para 1 seems to be a claim in the nominated amount made against Mr Hatcher for breach of contract. The second part of Claim 1 seems to be directed to conduct on the part of officers of relevant agencies of the Republic of Vanuatu. 14 On 25 March 2011, the Court made orders setting aside service of the proceeding upon the Republic of Vanuatu. Orders were also made on that day dismissing the proceeding against the nominated first respondent on the footing that no justiciable controversy within the Court's jurisdiction as against that party was raised on the face of the originating application as amended and the pleading: see the orders made on 25 March 2011 and the reasons for judgment in Walker v Government of the Republic of Vanuatu [2011] FCA 364 (the "earlier judgment"). Mr Walker's appeal from those orders was dismissed: Walker v Government of the Republic of Vanuatu [2011] FCAFC 138. 15 The claims recited in the amended application do not clearly identify the precise claims for relief asserted against Mr Hatcher. The claims are recited at Claim 1 in a rolled up aggregated way. Nevertheless, Mr Walker sought to give content to the claims by reference to the statement of claim filed on 5 October 2009. 16 In the earlier judgment, I described aspects of the pleaded claim against Mr Hatcher, in these terms: 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 ex-navy 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. … 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. 17 As I mentioned at [19] of the earlier judgment, the remaining section of the statement of claim describes the general sequence of events which occurred after the ship sailed to Fiji and then to Vanuatu. 18 In Mr Walker's interlocutory application he applies for an order that summary judgment be entered against Mr Hatcher for "costs and Interest in this matter [and] [t]hat Summary Judgment is entered against the Second Respondent, Michael Hatcher for the amount of US$17 million on the following grounds …": para 1 of the application. 19 At paras 2 to 8 inclusive of the interlocutory application, Mr Walker recites a sequence of contentions which are, no doubt, intended to be the basis upon which summary judgment ought to be entered against Mr Hatcher. These paragraphs do not assert further relief sought by the interlocutory application but simply seek to provide support for the order sought. For example, these other paragraphs assert that Mr Hatcher was served with "the Application, Claim and Statement of Claim"; Mr Hatcher was otherwise served; Mr Hatcher has "refused, failed, omitted to file an appearance or defence in an attempt to stall the proceedings and deny due process"; and other matters. 20 The interlocutory application was filed on 11 March 2013 and is thus a step governed by the 2011 Rules. 21 In support of the application, Mr Walker relies upon an affidavit of service sworn and filed by him on 3 September 2009. 22 In that affidavit, Mr Walker says that on or about 15 August (which, having regard to para 4 of the affidavit must necessarily be a reference to 2009), he left a copy of "the Application" with the second defendant's wife at a restaurant called the "My Tai" restaurant in Tedder Avenue, Main Beach, Queensland at approximately 9.30pm. Mr Walker says that on 21 August 2009, he left a copy of the same document with the "Second Defendant's Solicitor's receptionist, Rachel". Mr Walker says that the second defendant's solicitor then had the conduct of a matter on behalf of Mr Hatcher in connection with steps taken by Queensland police officers concerning a particular motor vehicle. Mr Walker also says in his affidavit that on 31 August 2009 he caused "the Application" to be sent to the second respondent by Registered Post to "his home address". 23 The references to "the Application" are necessarily references to the originating application as filed prior to the amended application filed on 5 October 2009. 24 Mr Walker also relies upon an affidavit sworn and filed by him on 18 December 2009. 25 In that affidavit, Mr Walker says that on or about 17 December 2009 he caused "the Original Application" to be "served personally on Michael Hatcher at 2104 hrs outside his [Hatcher's] restaurant on the corner of an unnamed laneway behind Tedder Avenue [Main] Beach Gold Coast that runs parallel to Tedder Avenue". Mr Walker says that at all times he was in the company of Robert James Kennedy who was standing "at the vehicle about 10 metres away" from the events described below. Mr Walker says this in his affidavit: 2. I walked up to Hatcher and said how are you going Mike? He said "good". I said I have some documents for you and touched him on the arm with the documents. He said [Mr Walker could deal with the documents in a particular way]. With that I pulled open his shirt front and stuck them inside his shirt. 3. Hatcher, [threw] a punch at me and missed, pulled the documents from the front of his shirt and [threw] them on the ground and said [an expletive]. 4. A short time later, about 35 minutes or [thereabouts] I returned to where the incident took place to see if the document remained on the ground. They were missing. 5. We drove the laneway and around the block to see if the laneway had a name. There were no names marked on the laneway. … 9. At all times material to this affidavit I was in the company of Robert James Kennedy who witnessed the service and heard the conversations. 26 In this affidavit, Mr Walker refers to "the Original Application". 27 In other paragraphs he makes reference to "some documents" and "the documents". However, Mr Walker does not annex or exhibit to the affidavit a copy of the document or documents he says he served on Mr Hatcher that day. The reference to "the Original Application" presumably means the originating application as amended and filed on 5 October 2009. Mr Walker is presumably not making reference to the original application as filed by him on 13 August 2009. Nevertheless, there is no mention of the statement of claim and there is no express reference to the amended application filed on 5 October 2009 and, as mentioned, no document is annexed or exhibited to the affidavit. 28 The relevance of these events, of course, is that if Mr Hatcher was personally served with the originating application (being the amended originating application filed on 5 October 2009) in the way described and if such service is sufficient for the purposes of the Federal Court Rules governing service of originating process at that time, then Mr Hatcher has been personally served in Australia and within the jurisdiction of the Federal Court of Australia. Thus, it would not have been necessary for the applicant to serve Mr Hatcher out of the jurisdiction under Order 8 of the earlier Rules or invoke the processes contemplated by Order 8 or Order 8A of the earlier Rules. 29 Mr Walker also relies upon an affidavit of Robert James Kennedy. 30 Mr Kennedy swore an affidavit on 18 December 2009 in which he says that on or about 17 December 2009 at "2104 hrs" he was present "when Kell Walker served Michael Hatcher with [the] Originating Application outside his restaurant on the corner of an unnamed laneway behind Tedder Avenue Main Beach, Gold Coast that runs parallel to Tedder Avenue". Mr Kennedy says at para 2 of his affidavit that: "I have read the Affidavit sworn on the 18th of December 2009, and agree that the contents of the said affidavit are true and correct". Mr Kennedy is presumably referring to the affidavit of Mr Walker sworn on 18 December 2009. Mr Kennedy also refers to the "Originating Application". He does not annex or exhibit to his affidavit a true copy of the document he is referring to or any other document. Mr Kennedy does not refer to "documents" or anything other than the "Originating Application". Although Mr Kennedy says that the contents of the affidavit of 18 December 2009 are true and correct, Mr Kennedy's affidavit as to service rises no higher than the content of Mr Walker's affidavit. I am willing to infer that Mr Kennedy is referring to Mr Walker's affidavit at para 2 of his own affidavit.