Coopers Brewery Ltd v Columbus Line Australia Pty Ltd No. Scciv-02-1873

COOPERS BREWERY LTD V COLUMBUS LINE AUSTRALIA PTY LTD
[2004] SASC 1

JUDGE BURLEY. The defendant has applied pursuant to SCR 25.04 for judgment in its favour in respect of the plaintiff’s claim and pursuant to SCR 25.02 for judgment in its favour in respect of its counterclaim against the plaintiff. I shall deal firstly with the defendant’s application pursuant to SCR 25.04.
Both parties accept that, on such an application, the defendant has the onus of establishing that, on any view of the facts or law, the plaintiff’s claim cannot succeed: Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572 at 588 per Lander J. This concept was explained by Doyle CJ in Coombes and Barei Pty Ltd v Lincolne Scott Australia Pty Ltd and Anor, an unreported decision of the South Australian Full Court delivered on 28 February 1997, Judgment No S6045, where his Honour said (at p 4):
“It is not sufficient that the Court might think it is likely that at the end of the day the party who invokes r25.04 will succeed, or even that the Court thinks success for that party is more than likely. The requirement of the Rule is more demanding than that. The Rule performs an important function, particularly these days where there is an emphasis upon efficiency in the conduct of litigation, in enabling the Court to dispose promptly and economically of claims entirely lacking in merit. But at the same time the Court must be careful not to dispose of claims in this way unless they really are lacking in merit.”
Both parties also accept that if there are any material disputes of fact which are required to be resolved in order to make the determination sought by the applicant, the summary process envisaged by SCR 25.04 may not be invoked: Wicklow Enterprises Pty Ltd v Doysal Pty Ltd and Anor (1985) 124 LSJS 225.
The defendant asserts that the plaintiff’s claim has been extinguished by operation of either or both of the provisions of the Carriage of Goods by Sea Act 1991 (Cth) which gives effect to rules referred to as the Hague-Visby amendments and Clause 18 of the Bill of Lading admitted into evidence. Article 3, Rule 6 of those rules provides that “the carrier ... shall ... be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered”.
Clause 18 of the Bill of Lading, which contains the terms and conditions of the contract of carriage between the parties provides that “the Carrier ... shall be discharged from all liability of whatsoever nature unless suit is brought within 1 year after delivery of the Goods or date when Goods should have been delivered ...”. The defendant asserts that these proceedings were not commenced by the plaintiff within the relevant one year period. The plaintiff accepts that if the time limitation does apply, it operates to extinguish any claim that might be maintained by the plaintiff. Consistently with that approach, the plaintiff has not argued that even if the time limit does apply, it is entitled to an extension of time.
The defendant relies upon the two affidavits of Mr Maitland, the defendant’s solicitor, sworn respectively on 12 June 2003 and 11 August 2003. Exhibited to the second affidavit is a copy of the Bill of Lading and the terms thereof. The authenticity of the document is not in dispute. Exhibit ILM3 to the affidavit comprises copies of shipment details, the content of which has been admitted by the plaintiff in response to a notice to admit.
The defendant accepts that it may not raise factual matters which, if raised, would give rise to material disputes of facts between the parties. It follows that the arguments raised by the defendant must be determined against a factual background as set out in the amended statement of claim and any other admission that the plaintiff may make. I have adverted to this consequence so that it is made clear that I do not rely upon any “evidence” which has been given by either party from the bar table.
The following narrative is based on the plaintiff’s statement of claim.
By an agreement made between the plaintiff and the defendant in about May 2001, the defendant agreed to transport six containers of grape juice concentrate (the goods) from Adelaide to Vancouver by sea and then by rail to Montreal. The agreement was partly oral, partly in writing and partly implied. The written part of the agreement constituted the Bill of Lading to which I have referred. The plaintiff asserts that an oral term of the agreement was that the goods, being sensitive to heat, were not to be left exposed and unrefrigerated for an extended period of time. The plaintiff also asserts that it was an implied term of the agreement that the defendant would take all reasonable steps to ensure the prompt arrival of the goods in Montreal and would promptly notify the plaintiff or its agent of the arrival of the goods in Montreal.
The plaintiff accepts that four of the containers were delivered to Montreal in accordance with the agreement. As to the other two containers, the plaintiff says that by email dated 9 July 2001, the plaintiff was notified by the defendant that the two containers were leaking and a request was made for confirmation that the plaintiff would bear the cost of securing such containers.
The plaintiff next asserts that there was a subsequent agreement entered into between the plaintiff and the defendant to the effect that the defendant would arrange for the two containers to be secured and delivered to the consignee of the goods in Montreal as soon as possible, that the defendant would notify the consignee of the arrival of the two containers in Montreal and that, subject to the plaintiff accepting a quotation for the cost of securing the two containers, the plaintiff would bear such costs.
The plaintiff has pleaded that once it received a quotation for securing the two containers, which was received in or about July or August 2001, the plaintiff confirmed that it would pay those costs.
Later, on dates unknown to the plaintiff, the defendant secured the two containers.
The plaintiff asserts that in breach of the agreement and the subsequent agreement the defendant left the two containers exposed and unrefrigerated on the wharf at Vancouver and subsequently transferred the two containers by rail to Montreal where they were left exposed and unrefrigerated at a depot. The plaintiff asserts that, again in breach of the agreement and subsequent agreement, the defendant did not promptly notify the plaintiff or the consignee of the arrival of the two containers in Montreal.
In December 2001, the plaintiff was notified by the defendant that the balance of the goods remained uncollected and unrefrigerated. The plaintiff claims damages in respect of the alleged breaches of agreement and subsequent agreement because, it is alleged, due to their prolonged exposure unrefrigerated, the content of the two containers were damaged to the extent that they are now useless to the plaintiff.
The plaintiff also pleads in the alternative damages for negligence on the part of the defendant.
I have had the benefit of both written and oral submissions from Mr M Manetta, counsel for the defendant, and from Mr M Crawley, counsel for the plaintiff. It is apparent from their respective submissions that there are two overlapping matters which are decisive of this application. The first is whether or not the matters in dispute between the parties may be determined summarily and the second is whether or not the subsequent agreement referred to in the statement of claim constituted either a separate and distinct agreement or was merely a variation of the original agreement. If it was a separate and distinct agreement, the plaintiff argued that the relevant time limit did not apply and that, consequently, any claim that it may have has not been extinguished. If it was an agreement which merely varied the original agreement, the defendant argued that the time limit applied either by force of the relevant legislation or by virtue of the fact that Clause 18 of the Bill of Lading imposed such a time limit.
As to the first point, since the decision on this application is to be made by reference to the defendant’s affidavits, the facts as alleged in the statement of claim and any admissions made by the plaintiff in subsequent pleadings and in respect of the notice to admit, it is difficult to see how the matters in dispute may be resolved in a summary manner. The most obvious difficulty relates to the contention on the part of the defendant that the proceedings were commenced outside the one year time period. The defendant asserts that the goods arrived at Montreal (and were therefore delivered) on 2 August 2001. There is no proof of that assertion other than documents referred to in the notice to admit in respect of each of the two containers. Each document is headed “Shipment Details” and for each of the two containers there is a date, 2 August 2001, described as “Charge Start Date”. The authenticity and admissibility of each of those two documents is admitted by the plaintiff and it is also admitted that the containers referred to are two of the containers referred to in the Bill of Lading. The plaintiff does not otherwise admit that those two containers arrived at Montreal on 2 August 2001.
In my view, the acceptance of the two “Shipment Details” documents does not constitute proof of the arrival of the two containers at Montreal on that date, let alone proof of delivery on that date.
There is also a further complication that the plaintiff asserts that as a matter of law delivery did not take place until notification. The only evidence of notification is that contained in paragraph 11 of the amended statement of claim which says that such notification took place in December 2001. These proceedings were commenced on 19 December 2002. If the plaintiff is correct in contending that delivery did not take place until there was notification at least to the consignee if not to the plaintiff, there is no evidence before me that the proceedings were commenced more than one year after the date of delivery.
Mr Manetta argued that the position taken by the plaintiff was tantamount to arguing that there had been no delivery and he submitted that on the authority of Trafigura Beheer BV v Golden Stavraetos Maritime Inc, an unreported decision of the English Court of Appeal, Judgment No [2003] EWCA Civ 664, the time runs from when delivery should have taken place. Whilst I accept that principle, the defendant’s contention begs the question as to whether or not there has been a delivery. It seems to me at least arguable by the plaintiff that delivery was not effected until notification took place in December 2001. In any event, the concept of delivery for these purposes involves an examination of legal principles and the factual basis to which they are to be applied. It is not possible for me given the scanty facts that are available to me, to make an informed determination of this point. As such it would be inappropriate for me to attempt to do so. For this reason alone the defendant’s application for a summary determination of the claim cannot succeed.
In case I am wrong in that view, I intend to deal briefly with the second point that arises for determination.
It was argued by Mr Crawley, on the facts pleaded in the statement of claim, that the so-called subsequent agreement was a separate and distinct agreement from the original agreement and that as such, it did not take with it the terms and conditions contained in the Bill of Lading, including Clause 18, because it was not a contract for the carriage of goods by sea. If he is right in that regard, no time limit can arise either by force of the legislation or by force of Clause 18 of the Bill of Lading. Mr Manetta argued that on any view of the facts or law, it could not be contended by the plaintiff that the subsequent agreement was other than a variation of the original agreement. He relied in particular upon an apparent lack of consideration. However, given the limited extent of the facts before me on this application, I consider that it would be most unwise to attempt to embark upon a determination as to whether or not the subsequent agreement was a separate agreement or merely constituted a variation of the original agreement. For that reason, there is a second basis for refusing the plaintiff’s application.
I mention briefly that part of the application which related to the counterclaim pursued by the defendant. It was argued that, because the plaintiff’s defence to the counterclaim consisted merely of a set-off of the damages recoverable under the plaintiff’s claim, judgment should be entered on the counterclaim because there was no arguable defence to it. Because I have concluded that it is not possible on this application to make a determination leading to judgment for the defendant on the claim, the defendant’s contention that there is no substance to the defence to counterclaim must also fail.
I have not adverted specifically to all of the detailed arguments put respectively by counsel both in support of and in opposition to the two applications maintained by the defendant. It has not been necessary for me to do so because each of the arguments put by the defendant, in addition to those which I have specifically dealt with, have depended upon the court being able to make appropriate findings of fact and conclusions of law which, for the reasons I have given, it is not appropriate to embark upon.
The defendant’s applications pursuant to SCR 25.04 and SCR 25.02 for judgment respectively on the claim and counterclaim will be dismissed.
I will hear the parties as to costs.

[2004] SASC 1

13 January 2004