Compagnie Maritime D'Affretement v Uniflag Shipping Pty Ltd

[1997] FCA 758

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA  DISTRICT REGISTRY	)   VG 377 of 1997
)
GENERAL DIVISION	)

BETWEEN:             

COMPAGNIE MARITIME D'AFFRETEMENT
First Plaintiff

CGM TOUR DU MONDE (ARBN 000 077 458)
Second Plaintiff

COMPAGNIE GENERALE MARITIME
Third Plaintiff

  AND:             

UNIFLAG SHIPPING PTY LTD
First Defendant

PAUL HOGG
(TRADING AS EAST WEST SHEEP SKINS)
Second Defendant

NET-TRANS PTY LTD
(TRADING AS NAVTRANS)
Third Defendant

YAVUZ PTY LTD
Fourth Defendant

JUDGE:	RYAN J
PLACE:	MELBOURNE
DATE:	5 AUGUST 1997

REASONS FOR JUDGMENT

This application for interpleader and interlocutory relief was instituted on 15 July 1997.  On 16 July 1997 I made the following orders:

Upon the first and second defendants by their Counsel undertaking that until further order they will not by way of enforcing any claim in respect of the ownership or right to possession of the goods packed in containers numbered CGMU 2071032 and GSTU 3717520 and shipped under Bills of Lading numbered SDN000631 and SND000628 respectively apply for a warrant for the arrest of or otherwise seek to arrest the “CGM Racine” or any other vessel owned or operated by the plaintiffs or any of them IT IS ORDERED:

1.        That the time for service of the application herein be abridged to the extent necessary to have allowed the hearing today to proceed as the first directions hearing.

2.        That the further hearing of the application including a further directions hearing be adjourned to 5 August 1997 at 10.15am before Ryan J.

3.        That any further affidavit or affidavits on which any party intends to rely at the adjourned hearing of the application be filed and served by 31 July 1997.

4.        That liberty be reserved to any party to apply to Ryan J on not less than 24 hours notice in writing to the other parties.

5.        That the costs of all parties of this day be reserved.

In the light of the further affidavits which have been filed, as contemplated by that order, it has become clear that none of the defendants intends to pursue a claim in this Court asserting ownership of the goods described in the bills of lading referred to in my earlier order.  In those circumstances, I consider that the appropriate course is to dismiss the application.

The plaintiff obtained some benefit from the institution of the present proceedings in the sense that it gained interlocutory protection in the form of the undertaking recited in the preface to my order of 16 July 1997.  The precise terms of the threat or foreshadowed action which prompted the plaintiffs to apply for that relief are unclear.  In paragraph 28 of the affidavit of Hugh Warwick Saunders, sworn on 15 July 1997, it was deposed:

On 11 July 1997 Mr Tony Lynn, a director of the firstnamed defendant, asked me verbally which vessel was next due in Australian waters.  I confirmed that the “CGM Racine” was scheduled to arrive at Melbourne on or around 17 July 1997.  Mr Lynn then informed me that the “CGM Racine” would be arrested upon her arrival.

The detail of that paragraph has not been contradicted on behalf of the first and second defendants.  Mr Lynn, a director of the first defendant, in an affidavit of 31 July 1997 has deposed:

5.        In particular I refer to paragraph 28 of the Plaintiff’s Affidavit, wherein it is alleged by Mr Saunders that, having been informed by Mr Saunders that the next ship associated with the First Defendant due in Australian waters was the “CGM Racine”, that I informed Mr Saunders that the “CGM Racine” would be arrested upon her arrival.

6.        On 11 July 1997, I did have a conversation with Mr Saunders, but at no time during that conversation did I say that the “CGM Racine” would be arrested.  In fact, what I said was that an option that may be open to the Second Defendant in the circumstances could be the arrest of a ship.

In my view, Mr Lynn’s enquiry of Mr Saunders and his reference to arrest, in whatever terms it was cast, was capable of exciting an apprehension in the mind of the plaintiffs, which reasonably led them as a matter of urgency to seek the protection of this Court.  However, that circumstance, I consider, only operated up to the hearing of 16 July 1997, and any fear which may reasonably have been excited by Mr Lynn’s enquiry should have been assuaged by the undertaking given by Counsel on behalf of the first and second defendants on that day and by the subsequent events.

There is considerable force in the submission of Mr Lacava for the first and second defendant, that the interpleader proceedings should properly have been instituted after the plaintiffs had notice of the claim of the first and second defendants and before they issued the bills of lading.  In the circumstances, as between the plaintiffs and the first and second defendants, I consider that the appropriate order as to costs is that the first and second defendants pay the plaintiffs’ costs of the application up to and including the hearing on 16 July 1997, such costs to be taxed.  I make no order as to the subsequent costs as between the plaintiffs and the first and second defendants.

In my view, the third and fourth defendants, having, in effect, succeeded in resisting the application and not at any stage having indicated an intention to pursue in this Court a claim in respect of the goods or a claim adverse to the interest of the plaintiffs, should have their costs.  However, I consider in the circumstances, as I intimated in the course of argument, that only one set of costs should be provided for the third and fourth defendants.  Accordingly, I shall order that the fourth defendant’s costs of the application be taxed and the plaintiffs pay half of the costs so taxed, as are referable to this day’s hearing to each of the third and fourth defendants and that the plaintiffs pay the balance of such costs to the fourth defendant.

Consistently with the views that I have indicated about the institution of the proceedings, I shall order that the first and second defendants indemnify the plaintiffs for the costs payable by the plaintiffs to the fourth defendant, as being referable to the proceedings up to and including the hearing on 16 July 1997.  These orders as to costs will be formulated as an order of the Court, and made available to the parties.  I shall also reserve liberty to apply.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of the Honourable Justice Ryan

Associate:

Dated:            5 August 1997

Counsel for the First Plaintiff:	Mr S Horgan
Solicitors for the First Plaintiff:	Middletons Moore & Bevins
Counsel for the Second Plaintiff:	Mr S Horgan
Solicitors for the Second Plaintiff:	Middletons Moore & Bevan
Counsel for the Third Plaintiff:	Mr S Horgan
Solicitors for the Third Plaintiff:	Middletons Moore & Bevan
Counsel for the First Defendant:	Mr P Lacava
Solicitors for the First Defendant::	Stephen Maule & Company
Counsel for the Second Defendant:	Mr P Lacava
Solicitors for the Second Defendant:	Stephen Maule & Company
Counsel for the Third Defendant:	Mr A Monichino
Solicitors for the Third Defendant:	Symons & Company
Counsel for the Fourth Defendant:	Mr M Thompson
Solicitors for the Fourth Defendant:	Dickson Fisher Macansh
Date of Hearing:	5 August 1997
Date of Judgment:	5 August 1997