Part 1 Preliminary
1 Name of Regulations
These Regulations are the Protection of the Sea (Supplementary Fund) Regulations 2009.
2 Commencement
These Regulations commence on the commencement of Schedule
1 to the Protection of the Sea Legislation Amendment Act 2008.
3 Interpretation
(1) In these Regulations:
Act means the Protection of the Sea (Oil
Pollution Compensation Funds) Act 1993.
amount payable under the judgment means the
amount that an original court has decided is payable in supplementary
compensation for pollution damage.
Court means a court that is invested or conferred
with jurisdiction under regulation 5.
judgment means a judgment or order:
(a) given or made by a court situated in a
country to which the 2003 Protocol applied at the time the judgment or order
was given or made; and
(b) in proceedings that are, in whole or in part,
for supplementary compensation for pollution damage.
judgment creditor, in relation to a judgment:
(a) means the person in whose favour a judgment
was given; and
(b) includes a person in whom the rights under a
judgment have become vested by succession, assignment or otherwise.
judgment debtor, in relation to a judgment:
(a) means the person against whom a judgment was
given; and
(b) includes a person against whom a judgment is
enforceable under the law of the country in which the original court is
situated.
original court, in relation to a judgment,
means the court by which the judgment is given.
registered means registered under
Part 2.
supplementary compensation for pollution damage
means compensation provided by Article 4 of the 2003 Protocol.
(2) Unless the contrary intention appears, an
expression used in these Regulations and in the 2003 Protocol has the same
meaning in these Regulations, as they relate to the 2003 Protocol, as in the 2003
Protocol.
Note Some terms used in these Regulations
are defined in the Act. For example, section 3 of the Act contains definitions
of the 2003 Protocol and the Supplementary Fund.
Part 2 Registration
and enforcement of judgments
Division 2.1 Overview of Part
4 Overview
For section 46H of the Act, this Part sets out the
provisions for, and in relation to, giving effect to Article 8 of the 2003
Protocol.
Division 2.2 Jurisdiction and Court fees
5 Jurisdiction
of Federal Court and State and Territory Supreme Courts
For section 46H of the Act:
(a) the Supreme Court of each State is invested
with federal jurisdiction; and
(b) federal jurisdiction is conferred on the
Supreme Court of each internal Territory; and
(c) the Federal Court of Australia is invested
with jurisdiction.
6 Court
fees
For section 46H of the Act, the fees to be paid to
a Court in respect of a matter under this Part are the fees prescribed in
relation to the matter in the Rules of the Court.
Division 2.3 How to apply to register judgment
7 Application
to register judgment
(1) A judgment creditor for a judgment may apply, in
writing, to a Court to have the judgment registered in the Court under
regulation 9 at any time within 6 years after:
(a) the date of the judgment; or
(b) if there have been proceedings by way of
appeal against the judgment — the date of the last judgment in those
proceedings.
(2) The application may be made for registration of only
so much of the judgment that relates to supplementary compensation for
pollution damage.
8 Evidence
in support of application to register judgment
(1) An application under regulation 7 must be supported
by an affidavit of the judgment creditor for the judgment.
(2) The following must be attached to the affidavit:
(a) a certified copy of the judgment of the original
court; and
(b) if the judgment is not in English — a
translation of the judgment into English that is authenticated by an affidavit
or certified by a notary public.
(3) The affidavit mentioned in subregulation (1) must
contain the following information:
(a) a statement as to whether the amount
payable under the judgment of the original court has been satisfied, including:
(i) if the amount payable under the
judgment has been satisfied in whole — the amount that has been satisfied
in relation to supplementary compensation for pollution damage; or
(ii) if the amount payable under the
judgment has been partly satisfied — the amount that has not been
satisfied in relation to supplementary compensation for pollution damage; or
(iii) if the judgment has not been
satisfied — the amount that has not been satisfied in relation to
supplementary compensation for pollution damage;
(b) a statement as to whether costs (if any)
were awarded by the original court and, if so, the amount of costs awarded by
the original court, including:
(i) if the amount of costs payable
under the judgment has been satisfied in whole — the amount of costs that
has been satisfied in relation to supplementary compensation for pollution
damage; or
(ii) if the amount of costs payable
under the judgment has been partly satisfied — the amount of costs that
has not been satisfied in relation to supplementary compensation for pollution
damage; or
(iii) if the judgment has not been
satisfied — the amount of costs that has not been satisfied in relation to
supplementary compensation for pollution damage;
(c) a statement as to whether the judgment of
the original court is enforceable by the judgment creditor under the law of the
country in which the original court is situated;
(d) a statement as to whether the judgment of the
original court is no longer subject to ordinary forms of review under the law
of the country in which the original court is situated;
(e) a statement as to whether the judgment was
given by a court having jurisdiction of the kind mentioned in Article 7 of
the 2003 Protocol;
(f) a statement as to whether the judgment of
the original court was given for an incident that occurred after both Australia
and the country in which the original court is situated became countries to
which the 2003 Protocol applies;
(g) a statement of the matters relied on by the
judgment creditor as evidence of the matters mentioned in paragraphs (d) and
(e);
(h) a statement that specifies the rate at which
interest (if any) accrues on the judgment under the law of the country in which
the original court is situated;
(i) if the judgment of the original court sets
out the amount payable under the judgment in the currency of a foreign
country — the equivalent amount to the amount payable under the judgment,
calculated in Australian currency;
(j) the rate of interest (if any) that is
payable under the judgment under the law of the country in which the original
court is situated;
(k) if the judgment of the original court relates
to supplementary compensation for pollution damage and other matters — the
provisions of the judgment that relate to supplementary compensation for
pollution damage.
(4) If, under this regulation, an amount is to be
calculated in Australian currency, the amount must be calculated using the
exchange rate determined by the Reserve Bank of Australia for the date on which
the judgment of the original court was made.
Division 2.4 Enforcement of judgment
9 Requirement
to register judgment
(1) A Court must make an order to register a judgment
if:
(a) the judgment was given by a court having
jurisdiction of the kind mentioned in Article 7 of the 2003 Protocol; and
(b) the judgment was given for an incident that
occurred after both Australia and the country in which the original court is
situated became countries to which the 2003 Protocol applies; and
(c) the judgment is enforceable under the law of
the country in which the original court is situated; and
(d) the judgment is no longer subject to ordinary
forms of review under the law of the country in which the original court is
situated; and
(e) the application is in accordance with
regulations 7 and 8.
(2) The order must:
(a) state the effect of regulation 15; and
(b) specify a period within which the judgment
debtor for the judgment may make an application under regulation 17 to set
aside the order.
10 Judgment
in respect of pollution damage and other matters
A Court may order a judgment to be registered under
regulation 9 only in so far as the judgment relates to supplementary
compensation for pollution damage.
11 Amount
for which judgment may be registered
The amount for which a Court may order a judgment to
be registered is the total of the following:
(a) either:
(i) the amount payable under the
judgment that relates to supplementary compensation for pollution damage; or
(ii) if the judgment has been partly
satisfied — the unsatisfied amount payable under the judgment that relates
to supplementary compensation for pollution damage;
(b) the amount of any costs awarded to the
judgment creditor for the judgment by
the original court that:
(i) has not been satisfied; and
(ii) relates to supplementary
compensation for pollution damage;
(c) the amount of any interest that is payable
to the judgment creditor:
(i) under the law of the country in
which the original court is situated; and
(ii) on the date the judgment is
registered by the Court;
(d) the amount of any reasonable costs of, and
incidental to, the application for registration by the Court, including the
cost of obtaining a certified copy of the judgment from the original court.
12 Amount
to be expressed in Australian currency
(1) This regulation applies if an amount mentioned in
regulation 11 is expressed in the currency of a foreign country.
(2) The amount for which the judgment may be registered
must:
(a) be an amount that is equivalent to the
currency of the foreign country; and
(b) be expressed in Australian currency; and
(c) use the exchange rate determined by the
Reserve Bank of Australia:
(i) if the amount is an amount
mentioned in paragraph 11 (a) or (b) — on the date of the
judgment of the original court; and
(ii) if the amount is an amount
mentioned in paragraph 11 (c) or (d) — on the date the judgment
is registered by the Court.
13 Security
for costs
A Court may order a judgment creditor for a
judgment who applies for registration of a judgment to give security for the
costs for:
(a) the application to register the judgment in
the Court; and
(b) any proceedings that may be brought to set
aside the registration of the judgment.
14 Notice
of registered judgment
(1) If a Court makes an order under regulation 9,
the Court must give the judgment debtor for the judgment written notice of the
order in accordance with the Court’s practice and procedure for serving a writ
of summons.
(2) The notice must include the following information:
(a) the details of the registered judgment;
(b) the details of the order to register the
judgment;
(c) the name and address for service of:
(i) the judgment creditor for the
judgment; or
(ii) if a solicitor is acting on behalf
of the judgment creditor — the solicitor; or
(iii) if an agent is acting on behalf
of the judgment creditor — the agent;
(d) the rights of the judgment debtor for the
judgment to apply to set aside the order to register the judgment;
(e) the period within which the judgment debtor
may apply to the Court;
(f) the right of the judgment debtor to apply to
the Court for an extension of the period within which the judgment debtor may
apply to the Court.
15 When
order to register judgment takes effect
An order under regulation 9 to register a judgment
takes effect:
(a) if no application is made to set aside the
order:
(i) on the day after the end of the
period specified by the Court under paragraph 9 (2) (b) in relation
to the application; or
(ii) if the Court determined under
subregulation 17 (5) an extension of the period specified by the Court
under paragraph 9 (2) (b) in relation to the application — on
the day after the end of the extended period; or
(b) if an application is made to set aside the
order and the application is not successful — immediately after the
application has been determined.
16 Effect
of order to register judgment
(1) An order to register a judgment has effect as a
judgment of the Court in which it is registered as if the judgment had been
entered in that Court on the date of registration.
(2) Interest on the amount for which the judgment is
registered accrues from the date of registration of the judgment as if it were
a judgment of the Court in which it is registered.
Division 2.5 How to set aside registered judgment
17 Application
for order to set aside registered judgment
(1) The judgment debtor for a registered judgment may
apply, in writing, to a Court to set aside an order made under
regulation 9.
(2) Subject to subregulation (4), the application
must be made before the end of the period specified in the order.
(3) Before the end of the period specified in the order,
the judgment debtor may, in writing, apply to the Court for an extension of the
period.
(4) If the Court grants the extension, an application
under subregulation (1) must be made before the end of the extended
period.
(5) If an application is made under this regulation, the
Court must determine the application.
18 Order
on application to set aside registered judgment
(1) The Court may set aside an order under regulation 9
if:
(a) the rights under the judgment are not vested
in the person who made the application for registration; or
(b) the person against whom the judgment was ordered
to be registered is not the person subject to the obligations under the
judgment; or
(c) at the date of the application to have the
judgment registered in the Court:
(i) the amount for which the judgment
was registered had been paid in whole or in part; or
(ii) the judgment was not enforceable
under the law of the country in which the original court is situated; or
(iii) the judgment was subject to an
ordinary form of review under the law of the country in which the original
court is situated; or
(d) the order relates to supplementary
compensation for pollution damage and other matters; or
(e) the judgment was obtained by fraud; or
(f) the judgment debtor for the judgment was not
given reasonable notice of the proceedings, or a fair opportunity to defend the
proceedings, in the original court; or
(g) before the date of the judgment in the
original court, the matter in dispute in the proceedings in the original court was
the subject of a judgment of an Australian court exercising jurisdiction in the
matter; or
(h) the judgment was not registered in accordance
with these Regulations.
(2) The Court may also set aside an order made under
regulation 9 if:
(a) before the date of the judgment of the
original court, the matter in dispute in the proceedings in the original court was
the subject of a judgment of another court; and
(b) the other court was not an Australian court.
19 Stay
of execution of order for registered judgment
(1) This regulation applies if:
(a) a Court, under regulation 18, is
dealing with an application to set aside an order made under regulation 9;
and
(b) the Court finds that the only reason the
order may be set aside is because at the date of the application to register
the judgment, the judgment was:
(i) not enforceable under the law of the country in which the
original court is situated; or
(ii) subject to an ordinary form of
review under the law of the country in which the original court is situated.
(2) The Court may, instead of setting aside the order,
order a stay of execution in relation to the registration of the judgment on
such terms as it thinks just.
Division 2.6 Other applications to the Court
20 Further
applications to register judgment
(1) This regulation applies if:
(a) a judgment creditor for a judgment has made
an application to register a judgment under regulation 7; and
(b) either:
(i) the application was not granted by
a Court under regulation 9; or
(ii) an order made under
regulation 9 was set aside by a Court under regulation 18.
(2) The judgment creditor may make a further application
to register the judgment under regulation 7 unless the Court has ordered
otherwise.
21 Circumstance
in which judgment amount has been paid in part
(1) This regulation applies if:
(a) an order made under regulation 9 was
set aside by a Court under regulation 18; and
(b) the only reason the order was set aside is
because part of the total amount payable in relation to the judgment had been
paid.
(2) The Court must, on further application by the
judgment creditor for the judgment to register the judgment, make an order
registering the judgment for the balance remaining payable up to the date of
further application.
22 Circumstance
in which order relates to supplementary compensation for pollution damage and
other matters
(1) This regulation applies if:
(a) an order made under regulation 9 was
set aside by a Court under regulation 18; and
(b) the only reason the order was set aside by
the Court is because the order relates to supplementary compensation for
pollution damage and other matters.
(2) The Court must, on further application by the
judgment creditor for the judgment to register the judgment, make an order
registering the judgment for the provisions of the judgment that relate to
supplementary compensation for pollution damage.
23 Issue of Court documents
(1) This regulation applies if:
(a) a judgment has been entered in an Australian
court for a claim for compensation under the applied provisions of the Protocol;
and
(b) a person, in whose favour such judgment has
been entered, decides to enforce the judgment in a country, other than
Australia, in which the 2003 Protocol applies; and
(c) the person has applied to the court for the
issue of any of the following court documents:
(i) a certified copy of the judgment;
(ii) a certified copy of any document
filed with the court in the proceedings;
(iii) a certificate giving details of
an order made by the court in the proceedings;
(iv) a certificate giving details of an
act or thing done in the proceedings that is recorded in a document forming
part of the record kept by the court.
(2) The Registrar, or other proper officer, of the court
must, on application by the person, issue the person with the court document that
the person has applied for under paragraph (1) (c).
(3) The person must pay the court fee for the issue of
a court document mentioned in paragraph (1) (c) if:
(a) the person has applied to the court for the
issue of the court document; and
(b) the court charges a fee for the issue of the
court document.
Part 3 Contributions and late payment penalties
24 Recovery of contributions
and late payment penalties
For section 46Q of the Act, a contribution, or
late payment penalty, must be paid:
(a) by a cheque for the amount of the
contribution or late payment penalty that is drawn in:
(i) Australian currency; or
(ii) the currency of the place where
the 2003 Fund is located; or
(b) by electronic transmission of the amount of
the contribution or late payment penalty in:
(i) Australian currency; or
(ii) the currency of the place where
the 2003 Fund is located.
Part 4 Record
keeping and returns
25 Records to be kept
(1) A person to whom Article 10 of the 2003 Protocol
applies must keep records for each calendar year of the matters that will
enable the person to make a return under regulation 26.
Penalty: 10 penalty units.
(2) A person who is required to keep records under
subregulation (1) must retain the records at the principal place of business of
the person in Australia for 5 years after the year to which the records relate.
Penalty: 10 penalty units.
26 Copies
of records to be given to Authority
(1) On or before 1 April in a year, a
person to whom Article 10 of the 2003 Protocol applies must give to the
Authority a return that relates to the preceding calendar year, in accordance
with the form in the Schedule.
Penalty: 10 penalty units.
(2) The return must:
(a) be signed by the person who makes the
return; and
(b) specify the date on which the return was
completed by that person; and
(c) show the name, and any telephone number, fax
number, or email address, of the person.
(3) For subregulation (1), strict liability
applies to:
(a) whether the person is a person to whom Article
10 of the 2003 Protocol applies; and
(b) whether the form of the return is in
accordance with the requirements of the form in the Schedule.
27 Authority
may require documents
(1) If a document is relevant to ascertaining the
liability of a person to make a contribution to the 2003 Fund, the Authority
may, by notice in writing, require the person:
(a) to produce the document to the Authority; or
(b) to make a copy of the document and give the
copy to the Authority.
(2) A person must comply with a notice issued by the
Authority under subregulation (1) within 30 days of receiving the notice.
Penalty: 10 penalty units.
(3) An offence against subregulation (2) is an
offence of strict liability.