De Brett Seafood Pty Ltd v Qantas Airways Limited (No 5)
[2012] FCA 1241
•9 November 2012
FEDERAL COURT OF AUSTRALIA
De Brett Seafood Pty Ltd v Qantas Airways Limited (No 5) [2012] FCA 1241
Citation: De Brett Seafood Pty Ltd v Qantas Airways Limited (No 5) [2012] FCA 1241 Parties: DE BRETT SEAFOOD PTY LTD (ACN 093 552 366) and J WISBEY & ASSOCIATES PTY LIMITED (ACN 001 959 851) v QANTAS AIRWAYS LIMITED (ACN 009 661 901), LUFTHANSA CARGO AKTIENGESELLSCHAFT, SINGAPORE AIRLINES LTD (ARBN 001 056 195), SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857), CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514), AIR NEW ZEALAND LTD (ARBN 000 312 685), AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569), JAPAN AIRLINES INTERNATIONAL CO LIMITED (ARBN 000 564 358) and BRITISH AIRWAYS PLC (ARBN 002 747 597) File number: VID 12 of 2007 Judge: TRACEY J Date of judgment: 9 November 2012 Catchwords: PRACTICE AND PROCEDURE – Applications for leave to file cross-claims against other airlines – whether requirements of rule 15.05 of the Federal Court Rules 2011 (Cth) complied with – inappropriate to rule on applications where application to amend statement of claim foreshadowed Legislation: Competition and Consumer Act 2010 (Cth)
Evidence Act 1995 (Cth), s 191
Federal Court Rules 2011 (Cth), r 15.04, 15.05
Trade Practices Act 1974 (Cth), s 45(2)Cases cited: Australian Competition and Consumer Commission v Emirates [2012] FCA 1108 – referred to
Australian Competition and Consumer Commission v Malaysian Airline System Berhad (No 2) [2012] FCA 767 – referred to
De Brett Seafood Pty Ltd v Qantas Airways Limited (No 3) [2011] FCA 1059 – referred to
De Brett Seafood Pty Ltd v Qantas Airways Limited (No 4) [2011] FCA 1426 – referred toDate of hearing: 26 October 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 29 Counsel for the First and Second Applicants: Dr K P Hanscome SC and Ms E A Bennett Solicitor for the Applicants: Maurice Blackburn Counsel for the First Respondent: Mr P Aathreya Solicitor for the First Respondent: Johnson Winter and Slattery Counsel for the Second Respondent: Mr B F Quinn Solicitor for the Second Respondent: Freehills Counsel for the Third and Fourth Respondents: Mr M O'Bryan SC and Mr N De Young Solicitor for the Third and Fourth Respondents: Minter Ellison Counsel for the Fifth Respondent: Mr P Rashleigh Solicitor for the Fifth Respondent: DLA Piper Australia Counsel for the Sixth and Seventh Respondents: Mr R Yezerski Solicitor for the Sixth and Seventh Respondents: Corrs Chambers Westgarth Counsel for the Eighth Respondent: Mr D Star Solicitor for the Eighth Respondent: Norton Rose Australia Counsel for the Ninth Respondent: Mr J Arnott Counsel for the Ninth Respondent: Mallesons Stephen Jaques Counsel for the First, Second and Third Cross-Respondents: Mr P Herzfeld Solicitors for the First, Second and Third Cross-Respondents: Allens Counsel for the Fourth Cross-Respondent: Mr C Evans Solicitor for the Fourth Cross-Respondent: Ashurst Counsel for Emirates: Mr C Scerri QC Solicitors for Emirates Allens Counsel for Malaysia Airlines Cargo SDN BHD: Mr P Brereton SC and Ms V Whittaker Solicitors for Malaysia Airlines Cargo SDN BHD: Gilbert & Tobin
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 12 of 2007
BETWEEN: DE BRETT SEAFOOD PTY LTD (ACN 093 552 366)
First ApplicantJ WISBEY & ASSOCIATES PTY LIMITED (ACN 001 959 851)
Second ApplicantAND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
First RespondentLUFTHANSA CARGO AKTIENGESELLSCHAFT
Second RespondentSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Third RespondentSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Fourth RespondentCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514)
Fifth RespondentAIR NEW ZEALAND LTD (ARBN 000 312 685)
Sixth RespondentAIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569)
Seventh RespondentJAPAN AIRLINES INTERNATIONAL CO LIMITED (ARBN 000 564 358)
Eighth RespondentBRITISH AIRWAYS PLC (ARBN 002 747 597)
Ninth RespondentAND BETWEEN DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT (ARBN 000 495 232)
Cross-Claimant on the First Cross-ClaimAND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
First Cross-Respondent on the First Cross-ClaimSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Second Cross-Respondent on the First Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Third Cross-Respondent on the First Cross-ClaimCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514)
Fourth Cross-Respondent on the First Cross-ClaimAIR NEW ZEALAND LTD (ARBN 000 312 685)
Fifth Cross-Respondent on the First Cross-ClaimAIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569)
Sixth Cross-Respondent on the First Cross-ClaimBRITISH AIRWAYS PLC (ARBN 002 747 597)
Seventh Cross-Respondent on the First Cross-ClaimAND BETWEEN: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
Cross-Claimant on the Second Cross-ClaimAND: LUFTHANSA CARGO AKTIENGESELLSCHAFT
First Cross-Respondent on the Second-Cross ClaimSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Second Cross-Respondent on the Second Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Third Cross-Respondent on the Second Cross-ClaimCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514)
Fourth Cross-Respondent on the Second Cross-ClaimAIR NEW ZEALAND LTD (ARBN 000 312 685)
Fifth Cross-Respondent on the Second Cross-ClaimAIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569)
Sixth Cross-Respondent on the Second Cross-ClaimBRITISH AIRWAYS PLC (ARBN 002 747 597)
Seventh Cross-Respondent on the Second Cross-ClaimAND BETWEEN: CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514)
Cross-Claimant on the Third Cross-Claim
AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
First Cross-Respondent on the Third Cross-ClaimLUFTHANSA CARGO AKTIENGESELLSCHAFT
Second Cross-Respondent on the Third Cross ClaimSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Third Cross-Respondent on the Third Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Fourth Cross-Respondent on the Third Cross-ClaimAIR NEW ZEALAND LTD (ARBN 000 312 685)
Fifth Cross-Respondent on the Third Cross-ClaimAIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569)
Sixth Cross-Respondent on the Third Cross-ClaimJAPAN AIRLINES INTERNATIONAL CO LIMITED (ARBN 564358)
Seventh Cross-Respondent on the Third Cross-ClaimBRITISH AIRWAYS PLC (ARBN 002 747 597)
Eight Cross-Respondent on the Third Cross-ClaimAND BETWEEN: BRITISH AIRWAYS PLC (ARBN 002 747 597)
Cross-claimant on the Fourth Cross-ClaimAND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
First Cross-Respondent on the Fourth Cross-ClaimLUFTHANSA CARGO AKTIENGESELLSCHAFT
Second Cross-Respondent on the Fourth Cross-ClaimSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Third Cross-Respondent on the Fourth Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Fourth Cross-Respondent on the Fourth Cross-ClaimCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857)
Fifth Cross-Respondent on the Fourth Cross-ClaimAIR NEW ZEALAND LTD (ARBN 000 312 685)
Sixth Cross-Respondent on the Fourth Cross-ClaimAIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569)
Seventh Cross-Respondent on the Fourth Cross-ClaimAND BETWEEN: AIR NEW ZEALAND LTD (ARBN 000 312 685)
Cross-Claimant on the Fifth Cross-ClaimAND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
First Cross-Respondent on the Fifth Cross-ClaimLUFTHANSA CARGO AKTIENGESELLSCHAFT
Second Cross-Respondent on the Fifth Cross-ClaimSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Third Cross-Respondent on the Fifth Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Fourth Cross-Respondent on the Fifth Cross-ClaimCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857)
Fifth Cross-Respondent on the Fifth Cross-ClaimBRITISH AIRWAYS PLC (ARBN 002 747 597)
Sixth Cross-Respondent on the Fifth Cross-ClaimAND BETWEEN: AIR NEW ZEALAND (AUSTRALIA) PTY LTD
(ACN 084 974 569)
Cross-Claimant on the Sixth Cross-ClaimAND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
First Cross-Respondent on the Sixth Cross-ClaimLUFTHANSA CARGO AKTIENGESELLSCHAFT
Second Cross-Respondent on the Sixth Cross-ClaimSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Third Cross-Respondent on the Sixth Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Fourth Cross-Respondent on the Sixth Cross-ClaimCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857)
Fifth Cross-Respondent on the Sixth Cross-ClaimBRITISH AIRWAYS PLC (ARBN 002 747 597)
Sixth Cross-Respondent on the Sixth Cross-Claim
AND BETWEEN: SINGAPORE AIRLINES LTD (ARBN 001 056 195)
First Cross-Claimant on the Seventh Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Second Cross-Claimant on the Seventh Cross-ClaimAND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
First Cross-Respondent on the Seventh Cross-ClaimLUFTHANSA CARGO AKTIENGESELLSCHAFT
Second Cross-Respondent on the Seventh Cross-ClaimCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857)
Third Cross-Respondent on the Seventh Cross-ClaimAIR NEW ZEALAND LTD (ARBN 000 312 685)
Fourth Cross-Respondent on the Seventh Cross-ClaimAIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569)
Fifth Cross-Respondent on the Seventh Cross-ClaimBRITISH AIRWAYS PLC (ARBN 002 747 597)
Sixth Cross-Respondent on the Seventh Cross-ClaimAND BETWEEN: CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514)
Cross-Claimant on the Eighth Cross-ClaimAND: SOCIÉTÉ AIR FRANCE (ARBN 000 489 074)
First Cross-Respondent on the Eighth Cross-ClaimKONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV (ARBN 000 067 916)
Second Cross-Respondent on the Eighth Cross-ClaimMARTINAIR HOLLAND NV (ARBN 069 862 862)
Third Cross-Respondent on the Eighth Cross-ClaimCARGOLUX AIRLINES INTERNATIONAL SA (ARBN 089 7O2 447)
Fourth Cross-Respondent on the Eighth Cross-ClaimAND BETWEEN: SINGAPORE AIRLINES LTD (ARBN 001 056 195)
First Cross-Claimant on the Ninth Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Second Cross-Claimant on the Ninth Cross-ClaimAND: SOCIÉTÉ AIR FRANCE (ARBN 000 489 074)
First Cross-Respondent on the Ninth Cross-ClaimKONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV (ARBN 000 067 916)
Second Cross-Respondent on the Ninth Cross-ClaimMARTINAIR HOLLAND NV (ARBN 069 862 862)
Third Cross-Respondent on the Ninth Cross-ClaimCARGOLUX AIRLINES INTERNATIONAL SA (ARBN 089 7O2 447)
Fourth Cross-Respondent on the Ninth Cross-ClaimAND BETWEEN: SINGAPORE AIRLINES LTD (ARBN 001 056 195)
First Cross-Claimant on the Tenth Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Second Cross-Claimant on the Tenth Cross-ClaimAND: KOREAN AIRLINES CO LTD (ARBN 003 938 261)
Cross-Respondent on the Tenth Cross-ClaimAND BETWEEN: CATHAY PACIFIC AIRWAYS LIMITED (ARBN 479514)
Cross-Claimant on the Eleventh Cross-ClaimAND: KOREAN AIRLINES CO LTD (ARBN 003 938 261)
Cross-Respondent on the Eleventh Cross-ClaimAND BETWEEN: LUFTHANSA CARGO AKTIENGESELLSCHAFT
Cross-Claimant on the Twelfth Cross-ClaimAND: KONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV (ARBN 000 067 916)
First Cross-Respondent on the Twelfth Cross-ClaimMARTINAIR HOLLAND NV (ARBN 069 862 862)
Second Cross-Respondent on the Twelfth Cross-ClaimSOCIÉTÉ AIR FRANCE (ARBN 000 489 074)
Third Cross-Respondent on the Twelfth Cross-ClaimCARGOLUX AIRLINES INTERNATIONAL SA (ARBN 089 702 447)
Fourth Cross-Respondent on the Twelfth Cross-Claim
AND BETWEEN: LUFTHANSA CARGO AKTIENGESELLSCHAFT
Cross-Claimant on the Thirteenth Cross-ClaimAND: AIR NEW ZEALAND LTD (ARBN 000 312 685)
First Cross-Respondent on the Thirteenth Cross-ClaimAIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569)
Second Cross-Respondent on the Thirteenth Cross-ClaimBRITISH AIRWAYS PLC (ARBN 002 747 597)
Third Cross-Respondent on the Thirteenth Cross-ClaimCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857)
Fourth Cross-Respondent on the Thirteenth Cross-ClaimQANTAS AIRWAYS LIMITED (ACN 009 661 901)
Fifth Cross-Respondent on the Thirteenth Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Sixth Cross-Respondent on the Thirteenth Cross-ClaimSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Seventh Cross-Respondent on the Thirteenth Cross-ClaimAND BETWEEN: LUFTHANSA CARGO AKTIENGESELLSCHAFT
Cross-Claimant on the Fourteenth Cross-ClaimAND: KOREAN AIR LINES CO LTD (ARBN 479514)
Cross-Respondent on the Fourteenth Cross-Claim
JUDGE:
TRACEY J
DATE OF ORDER:
9 NOVEMBER 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The further hearing of the application of the second respondent dated 1 October 2012 be adjourned to 8 February 2013.
2.The further hearing of the application of the third and fourth respondents dated 1 October 2012 be adjourned to 8 February 2013.
3.The further hearing of the application of the fifth respondent dated 2 October 2012 be adjourned to 8 February 2013.
4.The further hearing of the application of the sixth and seventh respondents dated 8 October 2012 be adjourned to 8 February 2013.
5.The further hearing of the application of the ninth respondent dated 28 September 2012 be adjourned to 8 February 2013.
6.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 12 of 2007
BETWEEN: DE BRETT SEAFOOD PTY LTD (ACN 093 552 366)
First ApplicantJ WISBEY & ASSOCIATES PTY LIMITED (ACN 001 959 851)
Second ApplicantAND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
First RespondentLUFTHANSA CARGO AKTIENGESELLSCHAFT
Second RespondentSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Third RespondentSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Fourth RespondentCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514)
Fifth RespondentAIR NEW ZEALAND LTD (ARBN 000 312 685)
Sixth RespondentAIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569)
Seventh RespondentJAPAN AIRLINES INTERNATIONAL CO LIMITED (ARBN 000 564 358)
Eighth RespondentBRITISH AIRWAYS PLC (ARBN 002 747 597)
Ninth RespondentAND BETWEEN DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT (ARBN 000 495 232)
Cross-Claimant on the First Cross-ClaimAND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
First Cross-Respondent on the First Cross-ClaimSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Second Cross-Respondent on the First Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Third Cross-Respondent on the First Cross-ClaimCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514)
Fourth Cross-Respondent on the First Cross-ClaimAIR NEW ZEALAND LTD (ARBN 000 312 685)
Fifth Cross-Respondent on the First Cross-ClaimAIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569)
Sixth Cross-Respondent on the First Cross-ClaimBRITISH AIRWAYS PLC (ARBN 002 747 597)
Seventh Cross-Respondent on the First Cross-ClaimAND BETWEEN: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
Cross-Claimant on the Second Cross-ClaimAND: LUFTHANSA CARGO AKTIENGESELLSCHAFT
First Cross-Respondent on the Second-Cross ClaimSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Second Cross-Respondent on the Second Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Third Cross-Respondent on the Second Cross-ClaimCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514)
Fourth Cross-Respondent on the Second Cross-ClaimAIR NEW ZEALAND LTD (ARBN 000 312 685)
Fifth Cross-Respondent on the Second Cross-ClaimAIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569)
Sixth Cross-Respondent on the Second Cross-ClaimBRITISH AIRWAYS PLC (ARBN 002 747 597)
Seventh Cross-Respondent on the Second Cross-ClaimAND BETWEEN: CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514)
Cross-Claimant on the Third Cross-ClaimAND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
First Cross-Respondent on the Third Cross-ClaimLUFTHANSA CARGO AKTIENGESELLSCHAFT
Second Cross-Respondent on the Third Cross ClaimSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Third Cross-Respondent on the Third Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Fourth Cross-Respondent on the Third Cross-ClaimAIR NEW ZEALAND LTD (ARBN 000 312 685)
Fifth Cross-Respondent on the Third Cross-ClaimAIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569)
Sixth Cross-Respondent on the Third Cross-ClaimJAPAN AIRLINES INTERNATIONAL CO LIMITED (ARBN 564358)
Seventh Cross-Respondent on the Third Cross-ClaimBRITISH AIRWAYS PLC (ARBN 002 747 597)
Eight Cross-Respondent on the Third Cross-ClaimAND BETWEEN: BRITISH AIRWAYS PLC (ARBN 002 747 597)
Cross-claimant on the Fourth Cross-ClaimAND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
First Cross-Respondent on the Fourth Cross-ClaimLUFTHANSA CARGO AKTIENGESELLSCHAFT
Second Cross-Respondent on the Fourth Cross-ClaimSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Third Cross-Respondent on the Fourth Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Fourth Cross-Respondent on the Fourth Cross-ClaimCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857)
Fifth Cross-Respondent on the Fourth Cross-ClaimAIR NEW ZEALAND LTD (ARBN 000 312 685)
Sixth Cross-Respondent on the Fourth Cross-ClaimAIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569)
Seventh Cross-Respondent on the Fourth Cross-Claim
AND BETWEEN: AIR NEW ZEALAND LTD (ARBN 000 312 685)
Cross-Claimant on the Fifth Cross-ClaimAND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
First Cross-Respondent on the Fifth Cross-ClaimLUFTHANSA CARGO AKTIENGESELLSCHAFT
Second Cross-Respondent on the Fifth Cross-ClaimSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Third Cross-Respondent on the Fifth Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Fourth Cross-Respondent on the Fifth Cross-ClaimCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857)
Fifth Cross-Respondent on the Fifth Cross-ClaimBRITISH AIRWAYS PLC (ARBN 002 747 597)
Sixth Cross-Respondent on the Fifth Cross-ClaimAND BETWEEN: AIR NEW ZEALAND (AUSTRALIA) PTY LTD
(ACN 084 974 569)
Cross-Claimant on the Sixth Cross-ClaimAND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
First Cross-Respondent on the Sixth Cross-ClaimLUFTHANSA CARGO AKTIENGESELLSCHAFT
Second Cross-Respondent on the Sixth Cross-ClaimSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Third Cross-Respondent on the Sixth Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Fourth Cross-Respondent on the Sixth Cross-ClaimCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857)
Fifth Cross-Respondent on the Sixth Cross-ClaimBRITISH AIRWAYS PLC (ARBN 002 747 597)
Sixth Cross-Respondent on the Sixth Cross-Claim
AND BETWEEN: SINGAPORE AIRLINES LTD (ARBN 001 056 195)
First Cross-Claimant on the Seventh Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Second Cross-Claimant on the Seventh Cross-ClaimAND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
First Cross-Respondent on the Seventh Cross-ClaimLUFTHANSA CARGO AKTIENGESELLSCHAFT
Second Cross-Respondent on the Seventh Cross-ClaimCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857)
Third Cross-Respondent on the Seventh Cross-ClaimAIR NEW ZEALAND LTD (ARBN 000 312 685)
Fourth Cross-Respondent on the Seventh Cross-ClaimAIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569)
Fifth Cross-Respondent on the Seventh Cross-ClaimBRITISH AIRWAYS PLC (ARBN 002 747 597)
Sixth Cross-Respondent on the Seventh Cross-ClaimAND BETWEEN: CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514)
Cross-Claimant on the Eighth Cross-ClaimAND: SOCIÉTÉ AIR FRANCE (ARBN 000 489 074)
First Cross-Respondent on the Eighth Cross-ClaimKONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV (ARBN 000 067 916)
Second Cross-Respondent on the Eighth Cross-ClaimMARTINAIR HOLLAND NV (ARBN 069 862 862)
Third Cross-Respondent on the Eighth Cross-ClaimCARGOLUX AIRLINES INTERNATIONAL SA (ARBN 089 7O2 447)
Fourth Cross-Respondent on the Eighth Cross-ClaimAND BETWEEN: SINGAPORE AIRLINES LTD (ARBN 001 056 195)
First Cross-Claimant on the Ninth Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Second Cross-Claimant on the Ninth Cross-ClaimAND: SOCIÉTÉ AIR FRANCE (ARBN 000 489 074)
First Cross-Respondent on the Ninth Cross-ClaimKONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV (ARBN 000 067 916)
Second Cross-Respondent on the Ninth Cross-ClaimMARTINAIR HOLLAND NV (ARBN 069 862 862)
Third Cross-Respondent on the Ninth Cross-ClaimCARGOLUX AIRLINES INTERNATIONAL SA (ARBN 089 7O2 447)
Fourth Cross-Respondent on the Ninth Cross-ClaimAND BETWEEN: SINGAPORE AIRLINES LTD (ARBN 001 056 195)
First Cross-Claimant on the Tenth Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Second Cross-Claimant on the Tenth Cross-ClaimAND: KOREAN AIRLINES CO LTD (ARBN 003 938 261)
Cross-Respondent on the Tenth Cross-ClaimAND BETWEEN: CATHAY PACIFIC AIRWAYS LIMITED (ARBN 479514)
Cross-Claimant on the Eleventh Cross-ClaimAND: KOREAN AIRLINES CO LTD (ARBN 003 938 261)
Cross-Respondent on the Eleventh Cross-ClaimAND BETWEEN: LUFTHANSA CARGO AKTIENGESELLSCHAFT
Cross-Claimant on the Twelfth Cross-ClaimAND: KONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV (ARBN 000 067 916)
First Cross-Respondent on the Twelfth Cross-ClaimMARTINAIR HOLLAND NV (ARBN 069 862 862)
Second Cross-Respondent on the Twelfth Cross-ClaimSOCIÉTÉ AIR FRANCE (ARBN 000 489 074)
Third Cross-Respondent on the Twelfth Cross-ClaimCARGOLUX AIRLINES INTERNATIONAL SA (ARBN 089 702 447)
Fourth Cross-Respondent on the Twelfth Cross-ClaimAND BETWEEN: LUFTHANSA CARGO AKTIENGESELLSCHAFT
Cross-Claimant on the Thirteenth Cross-ClaimAND: AIR NEW ZEALAND LTD (ARBN 000 312 685)
First Cross-Respondent on the Thirteenth Cross-ClaimAIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569)
Second Cross-Respondent on the Thirteenth Cross-ClaimBRITISH AIRWAYS PLC (ARBN 002 747 597)
Third Cross-Respondent on the Thirteenth Cross-ClaimCATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857)
Fourth Cross-Respondent on the Thirteenth Cross-ClaimQANTAS AIRWAYS LIMITED (ACN 009 661 901)
Fifth Cross-Respondent on the Thirteenth Cross-ClaimSINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857)
Sixth Cross-Respondent on the Thirteenth Cross-ClaimSINGAPORE AIRLINES LTD (ARBN 001 056 195)
Seventh Cross-Respondent on the Thirteenth Cross-ClaimAND BETWEEN: LUFTHANSA CARGO AKTIENGESELLSCHAFT
Cross-Claimant on the Fourteenth Cross-ClaimAND: KOREAN AIR LINES CO LTD (ARBN 479514)
Cross-Respondent on the Fourteenth Cross-Claim
JUDGE:
TRACEY J
DATE:
9 NOVEMBER 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This class action was commenced in the Court in 2007. The respondents are international carriers of air-freight. It is alleged that they engaged in cartel conduct in contravention of the provisions of s 45(2) of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)).
The respondents filed their defences in February 2011. Procedural directions were given on 15 July 2011 pursuant to which any cross-claims by any of the respondents were to be filed and served on or before 29 July 2011.
Notwithstanding these directions, Singapore Airlines Limited and Singapore Airlines Cargo Pty Ltd (“Singapore Airlines”) and Cathay Pacific Airlines Limited (“Cathay Pacific”) sought, on 15 August 2011, to file cross-claims against five other airlines seeking contribution or indemnity from those proposed cross-respondents in respect of the claims made by the applicants against Singapore Airlines and Cathay Pacific in the proceeding. I granted leave to Singapore Airlines and Cathay Pacific to file a notice of cross-claim against Korean Airlines Company Limited (“Korean Airlines”) pursuant to Rule 15.05 of the Federal Court Rules 2011 (Cth) (“the Rules”) on 14 September 2011: see De Brett Seafood Pty Ltd v Qantas Airways Limited (No 3) [2011] FCA 1059 (“De Brett (No 3)”). On 17 September 2011 I granted leave to Singapore Airlines and Cathay Pacific to proceed against the other four proposed cross-respondents.
In December 2011, Air New Zealand Limited and Air New Zealand (Australia) Pty Ltd (“Air New Zealand”) and British Airways Plc (“British Airways”) also applied to file cross-claims against these five cross-respondents. I granted these applications on 13 December 2011: see De Brett Seafood Pty Ltd v Qantas Airways Limited (No 4) [2011] FCA 1426.
There are now before the Court a series of further applications by some of the respondents to file cross-claims against Malaysian Airlines Cargo SDN BHD (“Malaysian”) and Emirates (ARBN 073 569 696) (“Emirates”). The respondents who have made the applications are the second (“Lufthansa”), Singapore Airlines, Cathay Pacific, Air New Zealand (only in respect of Emirates) and British Airways.
Each of the applications was opposed by Malaysian and Emirates who contended that they should either be refused or adjourned until February 2013 when the applicants had foreshadowed the filing of an eighth further amended statement of claim (“8FASOC”).
These applications have been provoked by certain admissions made in the course of proceedings brought against Malaysian and Emirates by the Australian Competition and Consumer Commission (“the ACCC”).
The first of these other proceedings related to Malaysian. It was determined by Emmett J on 14 June 2012: see Australian Competition and Consumer Commission v Malaysian Airline System Berhad (No 2) [2012] FCA 767.
Malaysian made a number of admissions which his Honour summarised as follows (at [3]):
“Malyasia Airlines Cargo admits that it engaged in conduct in contravention of s 45 of the Act, by reason of s 45A, by arriving at and giving effect to understandings in relation to a fuel surcharge, a security surcharge and a customs fee, on freight carried internationally by air from Indonesia to other countries, including Australia. The conduct in relation to the fuel surcharge took place from April 2002 to September 2005. The conduct in relation to the security surcharge took place from October 2001 to October 2005. The conduct in relation to the customs fee took place from May 2004 to October 2005.”
The second proceeding was brought against Emirates. It was determined by Katzmann J on 11 October 2012: Australian Competition and Consumer Commission v Emirates [2012] FCA 1108. Before her Honour’s decision was published Emirates had made certain statements which foreshadowed the making of admissions with a view to it settling the proceeding. Some of the present applications were made on the basis of these anticipated admissions and before those admissions were formally made.
Emirates made various admissions for the purposes of the proceeding pursuant to s 191 of the Evidence Act 1995 (Cth). Her Honour records the admissions in her reasons at [9]-[16]:
“[9] The admissions are confined to the carriage of outbound freight from Indonesia to numerous countries including Australia. The conduct is described in some detail in the agreed facts. It is unnecessary to repeat all that detail here. I accept the truth of the facts as stated. It is sufficient to note the following matters.
[10] Between October 2001 and September 2005 a representative of Emirates attended meetings of the Air Cargo Representative Board-Indonesia (“ACRB-Indonesia”) of which it and other major airlines operating in Indonesia were members and which were also attended by representatives of Emirates’s competitors in Indonesia including Singapore Airlines, Garuda, Cargolux, Malaysia Airlines, Lufthansa, Cathay Pacific, Korean Air Lines and Thai Airways. At those meetings the airlines discussed, amongst other things, the fuel and security surcharges and customs fees they intended to impose on the carriage of freight from Indonesia to various other countries including Australia.
[11] At those meetings Emirates’s cargo sales managers in Indonesia communicated with employees of the freight divisions of other airlines in order to ensure in the case of fuel and security surcharges and customs fees for the carriage of air freight, that the airlines would move to the same amount or substantially the same amount at around the same time. This was not only the purpose of the discussions; it was also the effect of the understandings reached as a result of them.
[12] Emirates admits that between October 2001 and September 2005 Emirates arrived at fuel surcharge understandings with competitors who were members of the ACRB-Indonesia on ten occasions and gave effect to seven of them between September 2002 and May 2006. Four of those understandings were reached between August 2003 and September 2005. The understandings provided, in relation to Australia, for each of the ACRB-Indonesia members to impose a minimum fuel surcharge levied per kilogram on the supply of air freight services from Indonesia to Australia. The initial understanding, reached by September 2002, was for a minimum surcharge of US$0.05 per kg. That was reviewed in January and May 2003, September 2004, April 2005, July 2005 and September 2005. On each occasion with the exception of the last, ACRB-Indonesia, including Emirates, decided to maintain or impose the same minimum surcharge. In September 2005 they decided to double it to US$0.10 per kg.
[13] Similarly, in October 2001 and following reviews in January and May 2003, September 2003 and July 2005, understandings were reached between members of the ACRB-Indonesia, including Emirates, about minimum security surcharges of US$0.05 per kg on the supply of air freight services from Indonesia to certain other countries including Australia. Emirates admits and I find that it gave effect to those understandings in the period October 2001 to October 2005, though I repeat that the relevant period is from August 2003.
[14] Emirates also admits that in May 2004 it arrived at an understanding with other members of the ACRB-Indonesia to charge a fee on all airway bills effective 16 May 2004 for exports from Indonesia to certain other countries including Australia and that it gave effect to this understanding by imposing a charge of US$5.00 on all airway bills for exports from Indonesia as a customs fee from on or about 16 May 2004 to October 2005.
[15] Emirates admits that reaching the Indonesia Understandings and giving effect to their provisions constituted the arriving at and giving effect to an understanding containing provisions to which s 45A of the Act applies in that it had the purpose, effect and likely effect of fixing, controlling or maintaining the price charged by competitors for the carriage of freight by air and that therefore it is deemed to have had the purpose, effect and likely effect of substantially lessening competition between Emirates and its competitors for the carriage of freight by air in the relevant markets.
[16] Further, Emirates admits that (by reason of s 45A), by arriving at the Indonesia Understandings and by giving effect to their provisions by charging on airway bills fuel and security surcharges and a customs fee in accordance with the Indonesia Understandings, it contravened s 45(2)(a)(ii) and (b)(ii) of the Act. On the basis of the agreed facts, I am satisfied that Emirates’s admissions were properly made and that the airline contravened the Act in these ways.”
The determination of the applications is governed by the terms of Rules 15.04 and 15.05 of the Rules. These provide that:
“15.04 Time for bringing cross-claim
A notice of cross-claim must be filed at the same time as the filing of:
(a) the respondent’s defence; or
(b)the respondent’s affidavit in reply to the applicant’s affidavit in the principal proceeding.
15.05 Application for extension of time to file cross-claim
(1) A respondent who wants to file a notice of cross-claim, but has not complied with rule 15.04, must apply to the Court for leave to file a notice of cross-claim.
(2)An application under subrule (1) must be accompanied by:
(a)an affidavit stating:
(i)briefly but specifically, the nature of the cross-claim and its relationship to the subject matter of the proceeding; and
(ii)why the notice of cross-claim was not filed in accordance with rule 15.04; and
(b)a draft notice of cross-claim that complies with rule 15.02.”
The respondents have failed to comply with Rule 15.04. They have, therefore, been required to apply for leave pursuant to Rule 15.05.
There was no dispute that each respondent had complied with the requirements of Rule 15.05(2) apart from sub-paragraph (a)(ii).
The respondents appeared to treat their applications as mere formalities. They seemed to have assumed that, whenever another alleged cartel member makes admissions in proceedings brought by the ACCC seeking pecuniary penalties and other relief for contraventions of s 45 of the Act, they were entitled to add these companies as additional cross-respondents in this proceeding.
The affidavits sworn in support of the applications made by Lufthansa, Singapore Airlines and Cathay Pacific made no attempt to explain why the notice of cross-claim was not filed in accordance with the Rules or my earlier order.
The affidavit supporting Air New Zealand’s application did make some attempt to comply with the sub-rule. The solicitor who swore the affidavit deposed that:
“Air New Zealand did not file a cross-claim against Emirates in these proceedings at the time it filed its defence because it did not wish to add additional parties to the proceeding, or to multiply the issues for determination, particularly where Emirates was defending the [proceedings against it].”
The affidavit supporting British Airways’ application also made some attempt at compliance. The solicitor who affirmed the affidavit deposed that:
“My client has not previously applied for leave to file a notice of contribution against [Malaysian] and Emirates because I was aware that all the companies were fully contesting liability in the ACCC proceedings and I so informed my client.”
None of the respondents who wished to join Malaysian sought to explain why they had allowed over three months to elapse between the time that Emmett J handed down his decision and the making of their respective applications.
The respondents making the present applications sought to rely on some observations which I had made in De Brett (No 3) where, in granting leave to some respondents to file cross-claims out of time, I said (at [20]) that:
“The applications presently under consideration were made only a matter of weeks after the previous grant of leave expired. They were made at a time which will allow the proposed cross-claims to be accommodated with minimal difficulty within the existing pre-trial arrangements. The efficient and just conduct of the proceeding will not be impeded by grants of leave.”
They argued that the discovery process was still ongoing and that pleadings had not closed. The applicants had advised that they proposed to file and serve their 8FASOC by 1 February 2013. Amended defences would thereupon become necessary. In these circumstances, they submitted, their applications were made at a time which would allow the cross-claims “to be accommodated with minimal difficulty within the existing pre-trial arrangements.”
The applicants did not suggest that they would suffer any detriment were the applications to be granted.
Malaysian and Emirates emphasised the confined scope of admissions which had been made in their settlements with the ACCC. They related to but a small part of the worldwide market which is pleaded in the present proceeding. They only related to the Indonesia-Australian route. They also pointed to the limited period of operation of their anti‑competitive arrangements.
Malaysian and Emirates submitted that the respondents had failed to satisfy the requirements of Rule 15.05 and, in the alternative, that further consideration of the applications should await the filing of the 8FASOC in February. This was because of the possibility that the revised pleading might make changes such as the narrowing of the market definition such that their admissions may not relate to any material matter in the ongoing proceeding.
The respondents opposed the granting of any adjournment. The only basis advanced for this objection was the possibility that they may face statute of limitations defences if their applications were not granted until early in 2013. No specific parts of their cross-claims which might be vulnerable to such defences were identified.
There is some force in the respondents’ submissions that they should not be prejudiced by the unilateral action of the applicants in seeking to file a further amended statement of claim. I do, however, not place any great weight on these concerns over statute of limitation defences. The existence of such potential defences was well known to the respondents in July 2011 when they could have filed cross-claims against Malaysian and Emirates, but determined not to do so.. The admissions made by Malaysian and Emirates in the ACCC proceedings relate to periods which concluded in 2005. It is, therefore, unlikely that any problems that they may have with statute of limitation defences pleaded by the cross‑respondents will be exacerbated by a delay of a few months in resolving their applications.
Each of the respondents filed a draft notice of cross-claim: see Rule 15.05(2)(b). These notices were, unsurprisingly, replete with references to the current version of the applicants’ statement of claim. Numerous allegations were made which seek to associate Malaysian and Emirates with conduct alleged against particular respondents in the statement of claim. Given the imminence of a revised 8FASOC, it is possible that some of these allegations will either be withdrawn or revised in material ways. As a result, even if leave were to be granted at this stage, it would not be appropriate to require Malaysian and Emirates to file defences to the cross-claims. The respondents accepted this and did not seek such orders. The possibility remains, however, that, given the limited scope of the admissions made by Malaysian and Emirates, their conduct may fall outside the reach of the claims levelled against the respondents in the 8FASOC. In such circumstances it would be unlikely that a grant of leave to cross-claim would be appropriate.
In my view it would be premature to rule on the applications at the present time. The appropriate course is to adjourn the further hearing of the applications until after the filing of the 8FASOC.
Before making any further similar applications the respondents should bear in mind a number of important procedural considerations. The first is that the leave sought is necessary, not only because of the requirements of the Rules, but also because of an order of the Court. The second is that the requirements of Rule 15.05 must be complied with. The third relates to the qualification which I placed on the observations I made in DeBrett (No 3) and which are quoted above at [20]. The quoted paragraph continued:
“The further the case proceeds towards trial the less will be the weight that this consideration will bear. It cannot, therefore, be assumed that any future applications by the respondents to file cross-claims against other cartel participants will be treated in the same manner.”
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 9 November 2012
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