Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd
[2010] FCA 1365
FEDERAL COURT OF AUSTRALIA
Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd [2010] FCA 1365
Citation: Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd [2010] FCA 1365 Parties: AQUA-MARINE MARKETING PTY LTD v PACIFIC REEF FISHERIES (AUSTRALIA) PTY LTD File number: QUD 195 of 2010 Judge: DOWSETT J Date of judgment: 1 November 2010 Date of hearing: 1 November 2010 Place: Brisbane Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 6 Solicitor for the Applicant: Mr RT Cowen of Tucker & Cowen Counsel for the Respondent: Mr R King-Scott Solicitor for the Respondent: Ruddy Tomlins & Baxter
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 195 of 2010
BETWEEN: AQUA-MARINE MARKETING PTY LTD
ApplicantAND: PACIFIC REEF FISHERIES (AUSTRALIA) PTY LTD
Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
1 NOVEMBER 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.On or before 15 November 2010, the respondent provide the following particulars of para 18(d)(ii) of its defence filed 2 August 2010:
(a)full particulars of the allegation of the “inappropriate handling and/or storage” of the prawns by the Applicant, including;
(i)each fact, matter or circumstance by which it is alleged that the handling by the Applicant was inappropriate;
(ii)state in what way it is alleged that the handling was inappropriate;
(iii)each fact, matter or circumstance by which it is alleged that the storage by the Applicant was inappropriate;
(iv)state in what way the storage of the prawns by the Applicant was inappropriate or in any way affected the quality of the prawns or led to their deterioration, as alleged.
(b)full particulars of the allegation of the “Applicant’s delay in on-selling” the prawns by the Applicant, including:
(i)provide the facts, matters and circumstances by which it is alleged that the Applicant delayed in on-selling the prawns to third parties; and
(ii)the period of the alleged delay, by reference to duration and dates.
2.On or before 8 November 2010, the parties file any application for Third party discovery.
3.On or before 8 November 2010, the Applicant and Respondent disclose all documents in their possession or control that fall within the following classes of documents:
(a)All written communications, including letters, emails and facsimiles, in the period 1 June 2007 to 5 November 2008 between:
(i)the Applicant and the Respondent;
(ii)the Applicant and Woolworths Supermarkets; and
(iii)the Respondent and Woolworths Supermarkets,
relating to the supply or potential supply by the Respondent to the Applicant and/or Woolworths Supermarkets of prawns from the Respondent’s 2006/2007 season.
(b)All telephone records of each phone used by the Applicant and the Respondent or their respective Officers or employees, in conducting their respective businesses for the period 1 June 2007 to 5 November 2008, including records in respect of calls between the following individuals:
(i)Warren Lewis;
(ii)Con Mitris
(iii)Nick Mitris
(iv)Con Alex
(v)Rob McPherson; and
(vi)Any Woolworths Supermarket’s employee
with detail of calls to or from other entities masked.
(c)All documents of the Applicant relating to its claimed loss and damage.
(d)All documents of the Respondent relating to its 2006/2007 season harvest, including without limitation:
(i)documents relating to each pond for the period from stocking through to harvest, including the biomass and partial harvesting of each stocked pond;
(ii)documents relating to the harvest of each pond and the processing of the prawns from each harvested pond, including:
(A)documents relating to the assessment and inspection of prawns as they came to the production/processing facility from the drain harvest of the ponds;
(B)documents relating to the grading of prawns;
(C)the log form for each harvest bin when it arrives from the pond to the production/processing facility;
(D)the testing forms for the 100 prawn samples for each pond;
(E)the cook test forms;
(F)documents relating to the inspection of prawns at the Marel grading machine; and
(G)the post-independent quick freeze system tests.
(iii)memoranda, notes or reports made by the Respondent’s staff; and
(iv)complaints handling procedures, including corrective action reports.
(e)All documents of the Applicant, excluding its Expert’s Report, in relation to the handling, storage and on-sale of the prawns purchased from the Respondent, including but not limited to:
(i)All records relating to the transportation of the prawns purchased from the Respondent including collection and delivery times and temperature checks of the prawns and transportation facilities;
(ii)All records relating to the storage and handling of the prawns from the Respondent including timing of storage, location of storage facilities and temperature checks of the prawns, storage and display facilities;
(iii)All records in relation to the Applicant’s on-sale of the prawns including with reference to the batch number and dates purchase from the Respondent; and
(iv)Any reports on the condition of the prawns.
4.Discovery of documents pursuant to the above order be by way of each party delivering to the other a List of Documents.
5.On or before 29 November 2010, the Applicant file and serve its Expert Witness Report.
6.The time for compliance with Order 4 of the Orders made on 9 July 2010 be extended until 22 November 2010.
7.The time for compliance with Order 5 of the Orders made on 9 July 2010 be extended until 7 January 2011.
8.On or before 14 January 2011, the Respondent file and serve any Expert Witness Report in reply.
9.The parties’ costs of and incidental to the Applicant’s Notice of Motion filed 21 October 2010 be costs in the cause.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 195 of 2010
BETWEEN: AQUA-MARINE MARKETING PTY LTD
ApplicantAND: PACIFIC REEF FISHERIES (AUSTRALIA) PTY LTD
Respondent
JUDGE:
DOWSETT J
DATE:
1 NOVEMBER 2010
PLACE:
BRISBANE
REASONS FOR JUDGMENT
The application in this matter was filed on 3 June 2010. At a directions hearing in July the matter was listed for hearing at Brisbane in December of this year. Pleadings have been delivered, the defence being delivered on 3 August 2010 and the reply and defence to cross-claim on 18 August 2010. The claim relates to allegedly defective prawns, supplied by the respondent to the applicant pursuant to a contract. The sum claimed is in excess of $300,000. The cross-claim is for outstanding amounts allegedly payable pursuant to the contract. Those amounts total a few thousand dollars.
I am presently considering an application for security for costs. The applicant and the respondent are, in some respects, in competition as wholesale suppliers of prawns to the large food chains, Coles and Woolworths. The evidence led by the respondent in support of the application for security for costs is of a negative kind in the sense that it demonstrates that the applicant has no real estate, and that there are charges over chattels, apparently motor vehicles. There is also evidence that Mr Lewis, who is the principal of the applicant, owns a house over which there are two mortgages. There is virtually no other evidence. The respondent asks me to infer that it may not be able to recover its costs in the event that it is successful in the action.
The applicant has provided no further information in connection with its assets. However it has been trading in its present area of operations for some 12 years and has supply arrangements with Woolworths. I note also that the respondent was willing to enter into a very substantial contract with it. It is curious that the applicant has not condescended to provide particulars of its financial position. On the other hand, Mr Lewis has offered to give a guarantee in the amount of $50,000, which is the amount sought by way of security in the present proceedings. That application has been rejected in the absence of any further evidence as to his assets. However there appears to be little reason to conclude that he is unable to pay his debts as they fall due.
The applicant submitted that its unwillingness to provide information concerning its financial position or that of Mr Lewis is to some extent motivated by the competitive relationship which exists between the parties. There is no direct evidence of this, but it seems reasonable to infer that it is so.
Other relevant factors include the apparent delay in bringing this application. Given that the matter was set for trial in July of this year, one would reasonably expect that the question of security would have been addressed shortly thereafter, and before the parties had incurred further expense in preparing for trial. Even if it be accepted that the respondent could reasonably have waited until the issues had been clarified by pleadings, the application ought still to have been made shortly after 18 August 2010. Given the relatively short time between the date of setting down for trial and the trial dates, expedition was obviously necessary. In the circumstances, I conclude that justice will best be served by dismissing the application, conditional upon Mr Lewis providing the offered undertaking in the sum of $50,000.
I order that Warren Lewis undertake to pay to the respondent the amount of $50,000, representing the respondent’s estimated costs of these proceedings or part thereof, in the event that the applicant is unsuccessful in these proceedings, such undertakings to be provided within 14 days. In default thereof the matter is to be re-listed for further hearing. Insofar as the application for security for costs is concerned, the costs of the motion will be costs in the cause. The respondent is to pay the applicant’s costs thrown away by the adjournment. I extend time for compliance with order 5 of the orders made on 9 July 2010 until 7 January 2011.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 7 December 2010
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