Associated Euro-Atlantic Shipping Corp v Maritime Union of Australia
[1997] FCA 827
•22 AUGUST 1997
FEDERAL COURT OF AUSTRALIA
COSTS - Federal Court of Australia Act 1976 (Cth), s 56 - application for security for costs - applicant not resident in jurisdiction - quantum of security - form in which security is to be provided.
PRACTICE AND PROCEDURE - O 11 r 16 Federal Court Rules - whether pleading “has a tendency to cause prejudice, embarrassment or delay in the proceeding”.
PRACTICE AND PROCEDURE - O 12 r 5 Federal Court Rules - whether Court should order applicant to provide particulars of pleadings.
Trade Practices Act 1974 (Cth), s 45DB
Federal Court of Australia Act 1976 (Cth), s 56
Federal Court Rules, O 4 r 4(a), O 11 r 16, O 12 r 1(1), O 12 r 5, O 28 r (3)(a)
P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321, applied.
Allstate Life Insurance Co v Australia & New Zealand Banking Group Limited (1995) 134 ALR 187, cited.
Brundza v Robbie & Co [No 2] (1952) 88 CLR 171, cited.
Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497, cited.
Equity Access Limited v Westpac Banking Corporation [1989] ATPR ¶40-972, cited.
Smail v Burton (1975) VR 776, cited.
Re Wilcox; ex parte Venture Industries (1996) 141 ALR 727, cited.
ASSOCIATED EURO-ATLANTIC SHIPPING CORPORATION v
MARITIME UNION OF AUSTRALIA & ORS
NG 41 OF 1997
BRANSON J
22 AUGUST 1997
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 41 of 1997
BETWEEN:
ASSOCIATED EURO-ATLANTIC SHIPPING CORPORATION
APPLICANTAND:
MARITIME UNION OF AUSTRALIA
FIRST RESPONDENTTREVOR CHARLES
SECOND RESPONDENTLAURENCE STEEN
THIRD RESPONDENTPORT WARATAH COAL SERVICES LIMITED (ACN 001 363 828)
FOURTH RESPONDENTJUDGE:
BRANSON J
DATE OF ORDER:
22 AUGUST 1997
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The applicant, within twenty one days of the date of this order, give security in the sum of $15,000 by way of cash, or an Australian bank bond or Australian bank guarantee in favour of the first respondent in a form acceptable to the first respondent or approved by the District Registrar, for the costs of the first respondent of and incidental to this proceeding up to the commencement of trial.
Subject to par 6 of this order, this proceeding be stayed as against the first, second and third respondents until the applicant gives security as required by par 1 of this order.
Each of the applicant and the first respondent has liberty to apply, on one week’s written notice to the other, for an order varying the amount of security ordered to be given by par 1 of this order.
The applicant, within twenty one days of the date of this order, give security in the sum of $30,000 by way of cash, or an Australian bank bond or Australian bank guarantee in favour of the fourth respondent in a form acceptable to the fourth respondent or approved by the District Registrar, for the costs of the fourth respondent of and incidental to this proceeding up to the commencement of trial.
Subject to pars 6 and 7 of this order, this proceeding be stayed as against the fourth respondent until the applicant gives security as required by par 3 of this order.
Each of the applicant and the fourth respondent has liberty to apply, on one week’s notice to the other, for an order varying the amount of security ordered to be given by par 4 of this order.
Paragraphs 20 and 28 of the statement of claim be struck out.
The applicant has leave, within twenty one days of the date of this order, to make amendments to the statement of claim consequential upon par 7 of this order.
The applicant, within twenty one days of today’s date, file and serve upon the fourth respondent particulars of the conduct of the fourth respondent referred to in pars 53, 54 and 55 respectively of the statement of claim.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 41 of 1997
BETWEEN:
ASSOCIATED EURO-ATLANTIC SHIPPING CORPORATION
APPLICANTAND:
MARITIME UNION OF AUSTRALIA
FIRST RESPONDENTTREVOR CHARLES
SECOND RESPONDENTLAURENCE STEEN
THIRD RESPONDENTPORT WARATAH COAL SERVICES LIMITED (ACN 001 363 828)
FOURTH RESPONDENT
JUDGE:
BRANSON J
DATE:
22 AUGUST 1997
PLACE:
SYDNEY
REASONS FOR DECISION
SECURITY FOR COSTS
Each of the first and fourth respondents has moved the Court for an order that the applicant provide security for its costs.
Section 56 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) provides as follows:
“56(1) The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him or her.
(2)The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs.
(3)The Court or a Judge may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given.
(4)If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed.
(5)This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security.”
The discretion of the Court to order security for costs under s 56 of the Federal Court Act is not limited by, but is exercised in the context of, O 28 of the Federal Court Rules.
Order 28 r (3)(a) of the Federal Court Rules provides as follows:
“(3)Where, in any proceeding, it appears to the Court on the application of a respondent -
(a)that an applicant is ordinarily resident outside Australia;
...
the Court may order that applicant to give such security as the Court thinks fit for the costs of the respondent of and incidental to the proceeding.”
The application in this matter does not comply with O 4 r 4(a) of the Federal Court Rules in that it does not contain the address of the applicant. However, par 1 of the statement of claim reads as follows:
“The Applicant is a foreign corporation as defined within section 4 of the Trade Practices Act 1974 (‘the 1974 Act’) and is entitled to sue and be sued in its corporate name in proceedings brought pursuant to the 1974 Act.
Particulars
The Applicant is a corporation with Articles of Incorporation pursuant to the Liberian Business Corporation Act and with a postal address of 80 Broad Street Monrovia, Liberia.”
The first respondent has by its defence pleaded that it does not know and cannot admit the matters alleged in the above paragraph. However, it pressed its application for security for costs on the basis that the applicant is a Liberian corporation. The fourth respondent has admitted the matters pleaded in the above paragraph. It is appropriate for these applications for security for costs to be considered on the basis that the applicant is resident out of the jurisdiction. It is accepted on all sides that the applicant does not have assets within the jurisdiction.
In P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321 at 323, McHugh J stated:
“To make or refuse to make an order for security for costs involves the exercise of a discretionary judgment. That means that the court exercising the discretion must weigh all the circumstances of the case. The weight to be given to any circumstance depends not only upon its own intrinsic persuasiveness but upon the impact of the other circumstances which have to be weighed. A circumstance which may have very great weight when only two or three circumstances have to be weighed may be of minor significance when many circumstances have to be weighed. However, for over 200 years, the fact that a party, bringing proceedings, is resident out of the jurisdiction and has no assets within the jurisdiction has been seen as a circumstance of great weight in determining whether an order for security for costs should be made. Indeed, for many years the practice has been to order such a party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction.”
No circumstance has been identified in this case which would suggest against the making of orders for security for costs in accordance with usual practice. In my view, orders for security for costs should be made. The real contest before me was as to the amounts for which the orders sought should be made and the manner in which security for the payment of such amounts should be provided.
On behalf of the applicant it was contended that the orders should provide for the provision by the applicant of security in a form approved by the Registrar. It would appear that if orders are made in such terms, the applicant will urge upon the Registrar that he should approve a “P & I Club” letter of undertaking as an appropriate form of security. No evidence was placed before me to enable me to form a view as to the appropriateness of the provision of security by such a letter of undertaking. However, I was informed by counsel for the applicant that such letters of undertaking are regularly used in the admiralty jurisdiction of this Court when furnishing security on behalf of foreign ship owners. Each of the first and fourth respondents indicated that they would wish to be heard by the Registrar as to the appropriateness of the provision of security by way of a “P & I Club” letter of undertaking.
I am not aware of a case in the general jurisdiction of this Court in which security for costs by way of “P & I Club” letter of undertaking has been accepted. I see no reason for the usual practice in such cases of requiring security to be provided by way of cash, bank guarantee or bank bond to be departed from in this case. A further hearing before the Registrar at which the appropriateness of different forms of security is debated, ought, in my view, to be avoided.
The first respondent has sought security for its costs in the sum of $57,625.00. Its notice of motion for security for costs was filed on 14 July 1997. It had by letter dated 20 May 1997 placed the applicant on notice that it sought security for its costs.
In support of the first respondent’s application for security for costs, reliance was placed on an affidavit of Peter Bruce Wilson (“Mr Wilson”), the solicitor for the first, second and third respondents. In his affidavit Mr Wilson estimates “that the properly recoverable party and party costs for the First, Second and Third Respondents would be $57,625.00”. No point was taken on behalf of the applicant that the second and third respondents have not sought security for their costs. Presumably, it is accepted that their joint representation with the first respondent will not add to the first respondent’s costs.
As to the amount of $57,625.00, Mr Wilson’s affidavit indicates that this sum does not include any amount referable to the January 1997 interlocutory hearing in this matter; it is, as counsel for the first respondent pointed out, calculated from the date of the filing of the statement of claim on 26 March 1997.
Mr Wilson has estimated costs under four heads - costs to date, costs of future preparation by a solicitor, costs of future preparation by counsel and costs for a five day hearing. In my view, it is not appropriate to order that the applicant now provide security for the costs of the hearing of this matter, should there be such a hearing. Moreover, it would be very difficult now to estimate the costs of a hearing in this case. Pre-trial procedures have not been completed and, in particular, the time for the filing of evidence by affidavit has not yet expired. The appropriate course, in my view, is to make an order in a sum designed to take the matter up to the time when it is set down for hearing and to reserve to the parties liberty to apply at that time, or earlier should circumstances materially change, to vary the amount for which security for costs has been given. Such course is, I consider, consistent with the intent of s 56 (3) of the Federal Court Act.
As to the time from which costs should be calculated, it was incumbent on the first respondent to move promptly to seek security for costs (Smail v Burton (1975) VR 776; Equity Access Limited v Westpac Banking Corporation [1989] ¶ATPR 40-972). The statement of claim was filed on 26 March 1997. The first respondent requested the applicant to provide security for its costs by letter dated 20 May 1997. It would appear from an examination of the Court’s file that only limited costs would have been incurred by the parties between 26 March 1997 and 20 May 1997. I am satisfied that it would be appropriate for the applicant to provide to the first respondent security for its costs calculated from the date of the filing of the statement of claim.
As to the amount of such costs, as Lindgren J pointed out in Allstate Life Insurance Co v Australia & New Zealand Banking Group Limited (1995) 134 ALR 187 at 197, neither s 56 of the Federal Court Act nor O 28 r 3 of the Federal Court Rules gives any guidance as to the amount of security to be ordered in any case. I agree with his Honour that:
“The amount is in the discretion of the court and should be such sum as the court thinks just, having regard to all the circumstances of the case. Obviously, a factor of prime importance will be the amount of the respondent’s costs which an applicant, if unsuccessful, will be ordered to pay to the respondent if the proceeding continues to a determination by the court. But the estimation of that amount involves many factors, some of these imponderable.”
The applicant places reliance on affidavit evidence of Michelle Castle (“Ms Castle”), who has deposed to having extensive experience in relation to the taxing of costs in this Court in complex commercial litigation. Ms Castle challenges the estimate made by Mr Wilson of the taxable costs of the first respondent. So far as her challenge is based on the rates at which solicitors’ and senior counsel’s costs are calculated, I accept the validity of the challenge. So far as she challenges the claim for research time, I accept that such a claim may not be allowed on taxation, but, if it were disallowed, I consider that in a matter of this kind, a commensurate allowance for general care and conduct would be allowed. As to the amount of conference time which might be allowed on a taxation of costs in this matter, this can only be a matter of speculation at this stage of the proceeding.
The Court on an application of this kind does not set out to give a complete and certain indemnity to a respondent (Fullagar J in Brundza v Robbie & Co [No 2] (1952) 88 CLR 171 at 175). The best that the Court can do at this early stage in the life of the proceeding is to calculate the sum which it thinks just to order to be secured, having regard primarily to a reasonable estimate of the likely taxable costs of the first respondent. Such estimate should, in my view, be a conservative one; first, because the Court can be moved to vary the amount under s 56(3) of the Federal Court Act and secondly, because at this early stage in the proceeding, the possibility of settlement before the matter is fully prepared for trial may be taken into account (French J in Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 at 515).
In my view, the amount for which it would be just to require the applicant to provide security for the costs of the first respondent on the present motion is $15,000.
The fourth respondent has sought security for its costs in the sum of $132,716.65. Such amount is calculated having regard to all of the fourth respondent’s costs to date, including its costs of the interlocutory hearing in January of this year, and is calculated up to the commencement of trial but not so as to include the costs of trial. The calculation has been made not on the basis of taxed costs, but on the basis of indemnity costs reduced by 25% “to reflect the possibility that an order for costs in favour of the Fourth Respondent may be on a party/party rather than indemnity basis”.
The Full Court of this Court has recently affirmed that the discretion to depart from the ordinary rule in favour of party and party costs is not to be exercised unless the justice of the particular case so requires or some special or unusual feature arises (Re Wilcox; ex parte Venture Industries Pty Ltd (1996) 141 ALR 727). The fourth respondent did not contend that I should be satisfied, at this early stage in the life of the proceeding, that this would necessarily be a case in which, if an order for costs were ultimately made in its favour, the order would provide for costs on an indemnity basis. I am not so satisfied. In my view, the appropriate basis on which an estimate of the likely costs of the fourth respondent should be made is that provided for by O 62 r 4(1) of the Federal Court Rules, namely costs taxed on a party and party basis.
Although I accept that the Court has power to order security for past costs (Bryan E Fencott v Eretta Pty Ltd at 515; Hill J in Equity Access Limited v Westpac Banking Corporation at 50,638), I am not persuaded that it would be appropriate in this case now to order the applicant to provide security for costs in respect of the interlocutory hearing of January of this year. An application for security for the costs of that hearing ought, in my view, to have been brought promptly after the application for interlocutory relief was served upon the fourth respondent (Smail v Burton; Equity Access Limited v Westpac Banking Corporation). That the applicant was a corporation which did not have a registered office in Australia was recognised on all sides at that time. Yet, on the evidence before me on this application, it appears that it was not until 29 May 1997 that the applicant was put on notice that the fourth respondent sought security for its costs of the proceeding. Although, for the reasons given above in respect of the first respondent, I am persuaded that the applicant should provide security for the fourth respondent’s costs from the date of the filing of the statement of claim, I am not satisfied that the interests of justice require that such security should now extend to the fourth respondent’s costs of the interlocutory hearing.
I have given careful consideration to the estimates made by a solicitor acting for the fourth respondent, Claire Marie Ingles (“Ms Ingles”), of the fourth respondent’s legal costs to date and of its future legal costs up to the commencement of trial. I accept the affidavit evidence of Ms Castle that such estimates well exceed the amounts likely to be awarded to the fourth respondent as taxed costs (O 62 r 4).
Without going through Ms Ingles’ affidavit evidence in detail, I note, by way of example, a claim for 49 hours of solicitors’ time in respect of the present application for security for costs, with the costs of a partner’s time calculated at $400 per hour and the costs of a senior solicitor calculated at $270 per hour. On a taxation of the costs of this relatively uncomplicated application, neither that number of hours nor those rates of remuneration would be allowed. As to the legal costs to date, it is plain that a significant proportion of such costs relates to the interlocutory hearing.
The manner in which the fourth respondent has sought to estimate its legal costs for the purpose of this application makes it necessary for me to adopt a relatively broad brush approach to the making of a reasonable estimate of its likely taxable costs.
Having regard to the circumstances of the case, I have formed the view that justice will be done by an order fixing the amount for which the applicant is to provide security for the costs of the fourth respondent on the present application at $30,000.
PLEADING ISSUES
The fourth respondent moved pursuant to a notice of motion dated 8 August 1997 for orders as follows:
“1.That pursuant to Order 11 rule 16, paragraphs 20, 28, 45, 49, 51, 53, 54 and 55 in the Applicant’s Statement of Claim be struck out.
2.That pursuant to Order 20 rule 2, the proceedings against the Fourth Respondent be dismissed.
3.That the Applicant pay the costs of the proceedings.
4.In the alternative, pursuant to Order 12 rule 5, the Applicant provide particulars of its claim within 7 days.
5.That the Applicant pay the Fourth Respondent’s costs of this motion.
6.Such further or other orders as the Court thinks fit.”
Order 11 rule 16 of the Federal Court Rules provides as follows:
“Where a pleading -
(a)discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b)has a tendency to cause prejudice, embarrassment or delay in the proceeding;
(c)is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.”
The claims made by the applicant against the fourth respondent are based on s 45DB of the Trade Practices Act 1974 (Cth) (“the TPA”). Mr Foster SC, senior counsel for the fourth respondent, drew attention to the terms of s 45DB(1) of the TPA which are as follows:
“A person must not, in concert with another person, engage in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person (who is not an employer of the first person) from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia.”
The statement of claim pleads breaches of the TPA by the respondents in pars 48 to 55. Paragraphs 48 to 52 are concerned with alleged conduct of the first, second and third respondents; pars 53 and 54 are concerned with alleged conduct of the fourth respondent. Paragraph 55 pleads that the applicant has suffered loss and damage arising from conduct of all respondents.
The fourth respondent’s application to strike out pars 49 and 51 is based upon a misreading of those paragraphs. They contain no allegations against the fourth respondent. They will not be struck out.
Paragraphs 53 to 55 read as follows:
“53.Further and in the alternative, the Fourth Respondent has engaged in conduct referred to herein and in concert with any or all of the First, Second or Third Respondents such conduct having had the effect of preventing or substantially hindering the Applicant from engaging in trade and commerce between Australia and places outside Australia and was engaged in for the purpose and has had the effect or was likely to have had such effect upon the Applicant in contravention of section 45DB of the Trade Practices Act 1974.
54.Further and in the alternative the Fourth Respondent has engaged in conduct referred to herein and in concert with certain of its servants and agents such conduct having had the effect of preventing or substantially hindering the Applicant from engaging in trade and commerce between Australia and places outside Australia and was engaged in for the purpose and had the effect or was likely to have had such effect upon the Applicant in contravention of section 45DB(1)(a) of the Trade Practices Act 1974.
55.Arising from the conduct of the First, Second, Third and Fourth Respondents referred to herein as pleaded the Applicant has suffered loss and damage.
Particulars
Particulars of damage cannot be provided at this time but will be provided prior to trial.” (emphasis in original)
As Mr Foster pointed out, s 45DB(1) of the TPA identifies three separate persons; the person whose conduct is proscribed by the section (person one), the person in concert with whom person one engages in conduct (person two) and the person whose capacity to engage in trade or commerce of the relevant kind is, or is likely to be, prevented or hindered (person three). Mr Foster submitted that pars 53 and 54 of the statement of claim “do not make it clear, even at the level of ... allegation, who it is said fulfils each of the three persons required”. I do not accept this submission. The paragraphs are, in my view, lacking in particularity as to the precise conduct relied upon, but they do, in my view, identify each of persons one, two and three in the sense discussed above. The reference to “... any or all of the First, Second and Third Respondents ...” is, I consider, inelegant, but plainly intended to be read as “... one or more of the first, second and third respondents”. Paragraph 55 suffers from the same lack of particularity as to the conduct relied upon as pars 53 and 54. It is otherwise, in my view, unexceptionable. I deal below with the issue of the provision of particulars of these paragraphs. They will not be struck out.
The fourth respondent further seeks that pars 20, 28 and 45 of the statement of claim be struck out. Such paragraphs read as follows:
“20.On or about 1600 hours on January 14, 1997 the Fourth Respondent contacted Oceanic Coal to advise that it expected industrial problems in relation to the ‘MV Hunter’ and that the Fourth Respondent would not allow the vessel to enter unless certain written guarantees were given by Oceanic to the Fourth Respondent.
Particulars
This contact was made by telephone to Raymond Juno of Oceanic Coal.
...
28.On January 17, 1997 the Fourth Respondent advised the Charterer’s Agent who in turn advised the Owner’s (Applicant’s) Agent that the vessel was scheduled to berth at 0900 hours on January 19, 1997.
...
45.The corporation thereafter agreed to provide pilotage services to the ‘MV Hunter’.”
As to par 20 of the statement of claim, the fourth respondent by letter dated 23 April 1997 requested particulars as follows:
“3. Paragraph 20
3.1Identify the person said by the Applicant to have contacted Oceanic Coal on or about 1600 hours on January 14 1997, on behalf of the Fourth Respondent.
3.2Specify whether the advice said by the Applicant to have been given to Raymond Juno was:
(a)written; or
(b)oral; or
(c)partly written and partly oral.
3.3If the advice was written, provide a copy of that written advice.
3.4If the advice was oral, specify:
(a)by whom it was made;
(b)to whom the advice was given;
(c)the substance of any such advice;
(d)the form of the advice (for example; directly in conversation, by telephone, or otherwise); and
(e)when the advice is alleged to have been made.
3.5If the advice was partly written and partly oral;
(a)in so far as the advice was written, in respect of the written part please answer paragraph 3.3
(b)in so far as the advice was oral, in respect of the oral part please answer paragraph 3.4.”
The applicant responded by letter dated 5 May 1997 as follows:
“3. Paragraph 20:
3.1 Person unknown at this time.
3.2 Oral
3.3 Not applicable
3.4 (a) unknown at this time;
(b) Raymond Juno;(c)That PWCS [ie the fourth respondent] expected industrial problems and the ‘MV Hunter’ would not be permitted to enter unless written guarantees were given by the principal shipper, Oceanic Coal, that the Hunter would not be delayed.
(d)Unknown at this time;
(e)1400 hours January 14, 1997.
3.5Not applicable.”
Subsequently, by letter dated 29 July 1997, the applicant provided “additional information” concerning par 20 as follows:
“Paragraph 20
‘On or about the 14 January 1997 at approximately 1651 hours Bloomfield Collieries Pty Limited (Michael Thomson) contacted Chilgener (Guillermo Noriega) by fax with copy to Oceanic Coal (Ray Juno). The fax was to the effect that the Fourth Respondent was seeking assurances from Bloomfield that there would be no industrial problems if the vessel berthed nor would there be any delay to other vessels.’ ”
This “additional information” is in conflict with the allegation made by par 20 of the statement of claim; it is not a particular of the pleading in that paragraph. Following the provision of the “additional information”, par 20 may, in my view, be regarded as having a tendency to cause embarrassment within the meaning of O 11 r 16(b). It is appropriate for par 20 to be struck out, but on the basis that the applicant has consequential leave to amend the statement of claim.
As to par 28 of the statement of claim, the fourth respondent by letter of 23 April 1997 requested particulars as follows:
“4 Paragraph 28
4.1Identify the person or persons on behalf of the Fourth Respondent, said by the Applicant to have advised the Charterer’s Agent on 17 January 1997, that the vessel was scheduled to berth at 0900 hours on January 19 1997.
4.2Specify whether the advice said by the Applicant to have been given by or on behalf of the Fourth Respondent was:
(a)written; or
(b)oral; or
(c)partly written and partly oral.
4.3If the advice was written, provide a copy of that written advice.
4.4If the advice was oral, specify:
(a)by whom it was made;
(b)to whom the advice was given;
(c)the substance of any such advice;
(d)the form of the advice (for example; directly in conversation, by telephone, or otherwise); and
(e)when the advice is alleged to have been given.
4.5If the advice was partly written and partly oral;
(a)in so far as the advice was written, in respect of the written part please answer paragraph 4.3
(b)in so far as the advice was oral, in respect of the oral part please answer paragraph 4.4.
4.6Identify the person or persons on behalf of the Charterer’s Agent, said by the Applicant to have advised the Owner’s Agent on 17 January 1997, that the vessel was scheduled to berth at 0900 hours on January 19 1997.
4.7Specify whether the advice said by the Applicant to have been given by or on behalf of the Charterer’s Agent was:
(a)written; or
(b)oral; or
(c)partly written and partly oral.
4.8If the advice was written, provide a copy of that written advice.
4.9If the advice was oral, specify:
(a)by whom it was made;
(b)to whom the advice was given;
(c)the substance of any such advice;
(d)the form of the advice (for example; directly in conversation, by telephone, or otherwise); and
(e)when the advice is alleged to have been given.
4.10If the advice was partly written and partly oral;
(a)in so far as the advice was written, in respect of the written part please answer paragraph 4.8
(b)in so far as the advice was oral, in respect of the oral part please answer paragraph 4.9.”
The applicant responded by the letter of 5 May 1997 as follows:
“4. Paragraph 28:
4.1 Unknown
4.2 Unknown
4.3 Unknown
4.4 Unknown
4.5 Unknown
4.6 Graham Schutt
4.7 Oral
4.8 Not applicable
4.9
(a) Graham Schutt
(b) Alana Hering(c)That the ‘MV Hunter’ was now rescheduled to berth at Dyke 4 owned and operated by PWCS at 0900 hours on January 19, 1997 with an estimated time of departure at 1700 hours on January 20, 1997.
(d)By telephone;
(e)On January 17, 1997 at approximately 1600 hours.
4.10Not applicable.”
Subsequently, by the letter of 29 July 1997, the applicant provided “additional information” concerning par 28 as follows:
“Loading stem from Fourth Respondent issued to all Coal shippers and other interested parties.”
In answer to a question from me as to what the applicant now says about its plea in par 28 of the statement of claim that, on 17 January 1997, the fourth respondent advised the charterer’s agent who in turn advised the applicant’s agent that the vessel was scheduled to berth at 0900 hours on 19 January 1997, Mr Oslington QC, senior counsel for the applicant, responded:
“Well, we say that loading stems are sent to shippers and the Newcastle Port Corporation listing ships expected by the fourth respondent for coal loading, and on the basis of that schedule the Newcastle Port Corporation makes arrangements for ships to enter port. I doubt whether that is seriously in issue.”
Having regard to that answer, and the “additional information” concerning par 28, I consider that par 28 of the statement of claim may also be regarded as having a tendency to cause embarrassment within the meaning of O 11 r 16(b) of the Federal Court Rules. Paragraph 28 will be struck out, but on the basis that the applicant has consequential leave to amend the statement of claim.
The fourth respondent by letter of 23 April 1997 also sought detailed particulars of par 45 of the statement of claim. The applicant by the letter of 5 May 1997 responded that the particulars sought were unknown. The response went on:
“In answer to the request what is known to the Applicant is that on or about 1525 hours on Saturday January 25, 1997 the Corporation advised interested parties that PWCS had indicated that it would accept the ‘MV Hunter’ and that the vessel was booked to enter port at 0600 on Sunday January 26, 1997.”
Subsequently, by letter of 29 July 1997, the applicant provided “additional information” concerning par 45 as follows:
“‘Hand written memorandum by Ray Juno dated 25.1.96’ (see copy attached).”
The hand written memorandum referred to in such “additional information” does not strictly amount to a particular of par 45 of the statement of claim.
In the circumstances of this case, in which it is accepted by all parties that the Newcastle Port Corporation, which is not an entity whose conduct is pleaded to be relevant to the applicant’s claims pursuant to s 45DB of the TPA, did at a time after the events pleaded in par 44 of the statement of claim provide pilotage services to the “MV Hunter”, I am not satisfied that par 45 of the statement of claim has a tendency to cause embarrassment or that it ought for any other reason to be struck out.
The claim that the proceedings against the fourth respondent be dismissed pursuant to O 20 r 2 of the Federal Court Rules was not pressed.
I turn to the claim pursuant to O 12 r 5 of the Federal Court Rules that the applicant provide particulars of its claim.
Order 12 r 1(1) of the Federal Court Rules provides, so far as is here relevant, as follows:
“A party pleading shall state in the pleading or in a document filed and served with it the necessary particulars of any claim ... pleaded by him.”
Order 12 r 5(1) provides, so far as is here relevant, as follows:
“The Court may order a party to file and serve on any other party -
(a) particulars of any claim ...”
The fourth respondent has sought detailed particulars of the claims in pars 53 and 54 of the statement of claim. The response of the applicant to the request for particulars of pars 53 and 54 of the statement of claim included the following statement:
“It is not possible to specify each and every act and/or omission [said to constitute conduct by the fourth respondent]. However, it is possible to describe a course of conduct undertaken by the Fourth Respondent through its servants officers and agents which gives rise to the view of the Applicant that the Fourth Respondent acted in concert with any or all of the First, Second and/or Third Respondents in order to hinder or prevent the Applicant from acquiring services from the Fourth Respondent. This course of conduct is set out below and within the Statement of Claim is set out in paragraphs 20, 29, 31, 33, 35, 41, 42, 43 and 44:
(a)That between January 14, 1997 and January 17, 1997 the Fourth Respondent was made aware by a servant, officer or agent of the First and/or Second and/or Third Respondent or by the Second and/or Third Respondent personally that industrial action was likely in relation to the ‘MV Hunter’ and that the nature of this action would in all likelihood result in the ‘MV Hunter’ remaining on the berth of the Fourth Respondent’s premises after loading. Further, the Fourth Respondent was in all likelihood advised by the person or persons that the dispute concerned the payment of wages and conditions on board the vessel.
(b)That this knowledge of the Fourth Respondent through its servants agents and officers allowed certain of them to state, such as Bencke to Juno on January 18, 1997 and Cordingly at such other times such as on January 18, 1997 in conversation with Hering, that the source of the information was variously the First Respondent or the First and/or Second and/or Third Respondent or their servants officer or agents acting as agent for the ITF.
(c)That as a result of the information received and contrary to the contracts for the supply of services to the ‘MV Hunter’ entered into between the Fourth Respondent and Oceanic Coal and Bloomfield, respectively, the Fourth Respondent thereafter sought to apply unreasonable and/or unlawful conditions upon Oceanic Coal by way of the guarantees sought in the facsimile transmission dated January 17, 1997 from Bencke to Juno;
(d)That these guarantees were first sought in writing from the Fourth Respondent at a time after Ray Juno acting on behalf of Oceanic Coal advised Frank Cordingly a servant and/or agent of the Fourth Respondent on January 17, 1997 that all problems on the ‘MV Hunter’ would be ‘sorted out on berthing’;
(e)That between this communication from Juno to Cordingly and the discussion between Bencke and Juno at 1415 hours on January 17, 1997 unknown officers servants and agents of the Fourth Respondent had conversations with any or all of the First, Second or Third Respondents and/or their servants officers and agents to confirm the position of the First, Second and/or Third Respondent;
(f)That as a result of these conversations, Bencke was able to advise Juno that the ‘MV Hunter’ would not be allowed to berth at PWCS until the guarantees sought were given thereby further in the interests of the First and/or Second and/or Third Respondent as against the Applicant;
(g)That the Fourth Respondent through its servants, officers and agents continued to maintain this position from approximately 1415 hours on January 17, 1997 until approximately 1524 hours on January 25, 1997 despite assurances from the First, Second and Third Respondents that no industrial action was taking place;
(h)That in reliance upon the failure of Oceanic Coal to give such guarantees, the Fourth Respondent through its servant and agent Vic Duggan on January 18, 1997 did cancel the scheduled entry time of the ‘MV Hunter’ and that the Fourth Respondent thereafter did not indicate to the Corporation that it would accept the vessel until January 25, 1997 at approximately 1524 hours thereby delaying the berthing of the ‘MV Hunter’ until January 26, 1997 at 0925 hours;
(i)That the Fourth Respondent did not supply the services to the ‘MV Hunter’ as it already had knowledge that the assurances given by the First and/or Second and/or Third Respondents were untrue and/or would not be abided by once the ‘MV Hunter’ was berthed;
(j)That upon the premises outlined above the Fourth Respondent was at all times in the period from January 14, 1997 to January 25, 1997 inclusive acting in concert with any or all of the First, Second and Third Respondents as is evidenced by the contact from Cordingly to the MUA immediately prior to the decision to advise that services now would be provided to the ‘MV Hunter’ without any guarantees from Oceanic Coal on January 25, 1997.”
I have already determined that par 20 of the statement of claim is to be struck out with liberty to the applicant to re-plead. Paragraphs 29, 31 and 35 of the statement of claim plead, in effect, that, on 17 January 1997, the fourth respondent advised Oceanic Coal Australia Limited (“Oceanic Coal”) that it would not provide services to the “MV Hunter” until certain guarantees were given to it by Oceanic Coal, and that such advice was repeated the next day to the applicant’s agent. Paragraph 33 pleads that, on 18 January 1997, the fourth respondent requested the Newcastle Port Corporation to cancel the scheduled entry of the “MV Hunter”. Paragraphs 41 and 42 plead that the fourth respondent’s refusal to provide services to the “MV Hunter” continued throughout the course of the application in this Court for interlocutory relief until 25 January 1997, and that, as a consequence, the Newcastle Port Corporation, over the same period of time, continued to decline to provide pilotage services to the “MV Hunter”. Paragraphs 43 and 44 plead that, on 25 January 1997, the fourth respondent accepted the “MV Hunter” for entry into port at 0600 hours on 26 January 1997 and that, on 25 January 1997, the fourth respondent advised the “Charterer’s Agent” [ie the agent of the charterer of the “MV Hunter”] that it had spoken to both “AMSA” and the first respondent and that no further problems would occur in relation to the “MV Hunter”.
In my view, identification of the conduct which it is alleged that the fourth respondent engaged in in concert with another person is a necessary particular of each of the applicant’s claims, contained in pars 53 and 54 of the statement of claim, that the fourth respondent acted in contravention of s 45DB of the TPA. It is not sufficient, in my view, for the applicant to state, as in effect it has stated, that it cannot identify the conduct which is a material element of its cause of action against the fourth respondent, but that it will, instead of providing particulars of such conduct, explain why it has formed the view that the fourth respondent acted in some unspecified way in concert with one or more of the other respondents. Nor is it sufficient, in my view, for the applicant to suggest that it may obtain leave, pursuant to O 16 of the Federal Court Rules, to serve interrogatories on the fourth respondent and that it may learn from the answers to such interrogatories the nature of the conduct which it asserts the fourth respondent has engaged in, in contravention of s 45DB of the TPA. The pleadings in this matter are closed; discovery has been given; directions have been made for the evidence of the parties to be given by affidavit and a timetable set for the filing of such affidavits. Proper particulars of pars 53 and 54 of the statement of claim should be provided now.
Similarly, the applicant should provide particulars, possibly by reference to the particulars provided in respect of pars 53 and 54, of the conduct of the fourth respondent referred to in par 55 of the statement of claim.
SUMMARY
The applicant will be ordered to provide security for costs in favour of the first respondent in the sum of $15,000 and security for costs in favour of the fourth respondent in the sum of $30,000. Such securities are to be provided by way of cash or by way of Australian bank bond or Australian bank guarantee. There will be liberty to apply to vary the amount of the security to be provided.
Paragraphs 20 and 28 of the statement of claim will be struck out and the applicant will be granted leave to make consequential amendments to the statement of claim.
The applicant will be ordered to file and serve upon the fourth respondent particulars of the conduct of the fourth respondent referred to in pars 53, 54 and 55 respectively of the statement of claim.
I will hear counsel as to the costs of the motions heard by me on 18 August 1997.
I certify that this and the eighteen (18) pages
are a true copy of the Reasons for Decision
of the Honourable Justice Branson.
Associate:
Date:
Counsel for the applicant: Mr B.C. Oslington QC with Mr R. Moore
Solicitors for the applicant: Norton Smith & Co.
Counsel for the 1st, 2nd, 3rd respondents: Mr B. Hodgkinson
Solicitors for the 1st, 2nd, 3rd respondents: Taylor & Scott
Counsel for the 4th respondent: Mr L.G. Foster SC
Solicitors for the 4th respondent: Freehill Hollingdale & Page
Date of hearing: 18 August 1997
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