Brazin Limited v Transarea China Ltd
[2007] FCA 610
•27 April 2007
FEDERAL COURT OF AUSTRALIA
Brazin Limited v Transarea China Ltd [2007] FCA 610
BRAZIN LIMITED v TRANSAREA CHINA LTD AND CHINA SHIPPING CONTAINER LINES CO LTD
NSD 730 OF 2007ALLSOP J
27 APRIL 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 730 OF 2007
BETWEEN:
BRAZIN LIMITED
PlaintiffAND:
TRANSAREA CHINA LTD
First DefendantCHINA SHIPPING CONTAINER LINES CO LTD
Second DefendantJUDGE:
ALLSOP J
DATE OF ORDER:
27 APRIL 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.On or before Wednesday 9 May 2007, the first defendant file and serve an affidavit setting out the nature of its defence in these proceedings. That affidavit may be sworn by and under the law of Hong Kong and may be filed in the Federal Court of Australia and served upon the plaintiff by sending by facsimile to the Sydney Registry of the Federal Court of Australia (ph 61 2 9230 8535) and to the solicitor for the plaintiff, DLA Phillips Fox.
2.If that affidavit is not served on the plaintiff on or before 9 May 2007, on Friday 11 May 2007 I will hear the applicant for orders under Order 35A of the Federal Court Rules.
3.Any application for orders under Order 35A rules be adjourned to Friday 11 May 2007 at 2.00 pm.
4.To the extent necessary documents filed in the Federal Magistrates proceedings stand filed in the Federal Court of Australia.
5.The requirements to file a formal notice of motion for orders under Order 35A by the plaintiff is dispensed with.
6.The plaintiff serve these reasons for judgment and these orders on the first defendant at its office and at the office of the solicitor last handling the matter in Hong Kong by Wednesday 2 May 2007, such service may be by facsimile.
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
NSD 730 OF 2007
BETWEEN:
BRAZIN LIMITED
PlaintiffAND:
TRANSAREA CHINA LTD
First DefendantCHINA SHIPPING CONTAINER LINE CO LTD
Second Defendant
JUDGE:
ALLSOP J
DATE:
27 APRIL 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
In this matter the plaintiff began an in personam claim under the Admiralty Act 1998 (Cth) for cargo loss against, amongst other defendants, Transarea China Ltd, a Hong Kong corporation. The proceeding was begun in the Federal Magistrates Court of Australia. Pursuant to recent amendments to the Admiralty Act, the Federal Magistrates Court of Australia has been given in personam jurisdiction to hear general maritime claims as contained in section 4(3) of the Admiralty Act. Notwithstanding the inference from its name, using the word "Magistrates," the Federal Magistrates Court is an inferior court of record exercising the judicial power of the Commonwealth.
The first defendant has not appeared in the Federal Magistrates Court. From affidavit material which is read on this application, that is, the affidavits of Mr Troy Duncan Anderson sworn April 2007 and 12 October 2006, the affidavit of Ho Wai Yan Raymond affirmed in Hong Kong on 10 January 2007, and the affidavit of Alexandra Lamont sworn 26 April 2007, it is clear that the first defendant has been notified of the claim. An order for service and of the jurisdiction was made by the Federal Magistrates Court. The first defendant has indicated that it thinks that the Australian courts have no jurisdiction because of an exclusive Hong Kong jurisdiction clause.
Section 11 of the Carriage of Goods by Sea Act 1991 (Cth) plainly avoids such as exclusive jurisdiction clause and ensures that courts in Australia have authority to hear cargo claims of this kind if brought by the plaintiff in Australia. The law governing the carriage appears to have been that of the People's Republic of China and therefore Section 2 of the maritime code of that country applies. It is clear from the evidence that the first defendant has not taken any step in the proceeding, notwithstanding service. The Federal Magistrate in whose docket the matter was being heard has transferred the proceedings to the Federal Court of Australia.
The claim is a small one, in the order of $20,000. The plaintiff in this Court seeks default judgment by reason of the non-appearance of the first defendant and the failure of the first defendant to take any step in the proceeding. The matter has, of course, only just been transferred to this Court. There has been no default as yet in this Court, though there has been default in the Federal Magistrates Court.
Given the small size of the claim, the satisfaction I have as to the service of the first defendant and the satisfaction I have that the first defendant full well knows of the nature of the claim, I propose to make an order for the conduct of the proceeding and have that order served upon the first defendant. If that order is not complied with, then I will entertain an action for default judgment under Order 35A of the Federal Court Rules.
Thus against that background I make orders in the following terms:
1.On or before Wednesday 9 May 2007, the first defendant file and serve an affidavit setting out the nature of its defence in these proceedings. That affidavit may be sworn by and under the law of Hong Kong and may be filed in the Federal Court of Australia and served upon the plaintiff by sending by facsimile to the Sydney Registry of the Federal Court of Australia (ph 61 2 9230 8535) and to the solicitor for the plaintiff, DLA Phillips Fox.
2.If that affidavit is not served on the plaintiff on or before 9 May 2007, on Friday 11 May 2007 I will hear the applicant for orders under Order 35A of the Federal Court Rules.
3.Any application for orders under Order 35A rules be adjourned to Friday 11 May 2007 at 2.00 pm.
4.To the extent necessary documents filed in the Federal Magistrates proceedings stand filed in the Federal Court of Australia.
5.The requirements to file a formal notice of motion for orders under Order 35A by the plaintiff is dispensed with.
6.The plaintiff serve these reasons for judgment and these orders on the first defendant at its office and at the office of the solicitor last handling the matter in Hong Kong by Wednesday 2 May 2007, such service may be by facsimile.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate:
Dated: 30 April 2007
Solicitor for the Applicant: DLA Phillips Fox No appearance for the First Defendant No appearance for the Second Defendant Date of Hearing: 27 April 2007 Date of Judgment: 27 April 2007
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