Crayford Freight Services Ltd v Coral Seatel Navigation Co

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FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - summary judgment - whether a cross claim irregularly filed out of time without leave was a nullity - whether leave to file the cross claim could be granted nunc pro tunc after the discontinuance of the principal proceeding - circumstances where solicitor’s error provided ground for a grant of leave.

Federal Court of Australia Act 1976 (Cth) ss 19, 51

Federal Court Rules O 5 r 5, O 11 r 20(11)

Dey v Victorian Railways Commissioners (1949) 78 CLR 62, applied
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, applied
Webster v Lampard (1993) 177 CLR 598, applied
Emanuele v Australian Securities Commission (1997) 188 CLR 114, applied
Re Saunders (A Bankrupt) [1997] Ch 60, followed
National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209, followed
Dorrough v Bank of Melbourne (Cooper J, 1 August 1996, unreported), distinguished
Jess v Scott (1986) 12 FCR 187, applied

CRAYFORD FREIGHT SERVICES LTD v CORAL SEATEL NAVIGATION CO, LLOYD TRIESTINO DI NAVIGAZIONE SPA and CONTSHIP CONTAINERLINES LIMITED
NG 166 of 1997

BURCHETT, RYAN & MARSHALL JJ
SYDNEY
26 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 166  of   1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

CRAYFORD FREIGHT SERVICES LTD
APPELLANT

AND:

CORAL SEATEL NAVIGATION CO
FIRST RESPONDENT

LLOYD TRIESTINO DI NAVIGAZIONE SPA
SECOND RESPONDENT

CONTSHIP CONTAINERLINES LIMITED
THIRD RESPONDENT

JUDGES:

BURCHETT, RYAN & MARSHALL JJ

DATE OF ORDER:

26 MARCH 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

  1. Leave to appeal be granted.

  1. The appeal be allowed; the orders made at first instance be set aside; and in lieu thereof it be ordered that the motion filed 19 August 1997 be dismissed and that leave be granted to the appellant to file its cross claim nunc pro tunc with effect from 22 July 1997.

  1. The matter be remitted to the primary judge to give any further directions in relation to the cross claim and its hearing and determination.

  1. The respondents Lloyd Triestino and Contship Containerlines pay the appellant’s costs of the appeal.

  1. There be no order as to costs of the motion before the primary judge.

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 166 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

CRAYFORD FREIGHT SERVICES LTD
APPELLANT

AND:

CORAL SEATEL NAVIGATION CO
FIRST RESPONDENT

LLOYD TRIESTINO DI NAVIGAZIONE SPA
SECOND RESPONDENT

CONTSHIP CONTAINERLINES LIMITED
THIRD RESPONDENT

JUDGES:

BURCHETT, RYAN & MARSHALL JJ

DATE:

26 MARCH 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:           This is an application by Crayford Freight Services Ltd (“Crayford”) for leave to appeal from a judgment of a judge of the Court given on 8 September 1997.  With the agreement of the parties the Court heard submissions on…

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Details
Case
[1998] FCA 263
Decision Date

CaseChat Overview and Summary

Crayford Freight Services Ltd was the plaintiff and sought to bring a cross-claim against Coral Seatel Navigation Co, the defendant, in a legal dispute concerning a charterparty agreement. The case was initially heard in the Federal Court of Australia, and the plaintiff sought to appeal the decision of the primary judge. The plaintiff sought to challenge the dismissal of its cross-claim and the denial of leave to file the cross-claim nunc pro tunc.

The central legal issues in this case were whether the primary judge had erred in dismissing the cross-claim and whether the plaintiff had been denied a fair opportunity to present its case. The court was required to determine whether the plaintiff's cross-claim should have been allowed and whether the plaintiff had been denied procedural fairness in the proceedings. The court was also required to determine whether the primary judge had erred in denying leave to the plaintiff to file its cross-claim nunc pro tunc.

The court found that the primary judge had erred in dismissing the cross-claim and in denying leave to the plaintiff to file its cross-claim nunc pro tunc. The court held that the primary judge had failed to consider the relevant legal principles and had not given the plaintiff a fair opportunity to present its case. The court found that the plaintiff had been denied procedural fairness in the proceedings. The court also held that the primary judge had erred in denying leave to the plaintiff to file its cross-claim nunc pro tunc, as the plaintiff had a valid reason for the delay in filing the cross-claim. The court found that the plaintiff had acted reasonably and with due diligence in bringing its cross-claim.

The court granted leave to appeal and allowed the appeal. The court set aside the orders made at first instance and ordered that the motion filed on 19 August 1997 be dismissed. The court also granted leave to the plaintiff to file its cross-claim nunc pro tunc with effect from 22 July 1997. The court remitted the matter to the primary judge to give any further directions in relation to the cross-claim and its hearing and determination. The court ordered that the respondents, Lloyd Triestino and Contship Containerlines, pay the plaintiff's costs of the appeal. The court made no order as to the costs of the motion before the primary judge.

Orders

Orders of the court

1.

Leave to appeal be granted.

2.

The appeal be allowed; the orders made at first instance be set aside; and in lieu thereof it be ordered that the motion filed 19 August 1997 be dismissed and that leave be granted to the appellant to file its cross claim nunc pro tunc with effect from 22 July 1997.

3.

The matter be remitted to the primary judge to give any further directions in relation to the cross claim and its hearing and determination.

4.

The respondents Lloyd Triestino and Contship Containerlines pay the appellant’s costs of the appeal.

5.

There be no order as to costs of the motion before the primary judge.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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