Elbe Shipping v Global Peace

[2006] FCA 1709

FEDERAL COURT OF AUSTRALIA

Elbe Shipping v Global Peace [2006] FCA 1709

ELBE SHIPPING SA v GLOBAL PEACE
NSD 124 OF 2006

SQ MARINE SA v GIANT MARINE SHIPPING SA BEING OWNERS OF THE SHIP ‘GLOBAL PEACE’
NSD 125 OF 2006

ALLSOP J
6 DECEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 124 OF 2006

BETWEEN:	ELBE SHIPPING SA Plaintiff
AND:	GLOBAL PEACE Defendant

JUDGE:	ALLSOP J
DATE OF ORDER:	6 DECEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The proceeding and the file be transferred to the Queensland District Registry.

2.The plaintiff serve an amended statement of claim on or before 4 pm on Saturday 9 December 2006 and file the same on or before Monday 11 December 2006.

3.The plaintiff serve on or before 4 pm on Saturday 9 December 2006 and file on or before 11 December 2006 particulars of the allegations of negligence in the amended statement of claim, particulars as to the Convention claim, particulars as to unseaworthiness, and particulars as to loss and damage.

4.The defendant file and serve a defence to the amended statement of claim by 22 December 2006.

5.Proceeding stand over to a date to be fixed by arrangement with the chambers of Dowsett J.

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 125 OF 2006

BETWEEN:	SQ MARINE SA Plaintiff
AND:	GIANT MARINE SHIPPING SA BEING OWNERS OF THE SHIP ‘GLOBAL PEACE’ Defendant

JUDGE:	ALLSOP J
DATE OF ORDER:	6 DECEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The proceeding and the file be transferred to the Queensland District Registry.

2.The plaintiff serve an amended statement of claim on or before 4 pm on Saturday 9 December 2006 and file the same on or before Monday 11 December 2006.

3.The plaintiff serve on or before 4 pm on Saturday 9 December 2006 and file on or before  11 December 2006 particulars of the allegations of negligence in the amended statement of claim, particulars as to the Convention claim, particulars as to unseaworthiness, and particulars as to loss and damage.

4.The defendant file and serve a defence to the amended statement of claim by 22 December 2006.

5.Proceeding stand over to a date to be fixed by arrangement with the chambers of Dowsett J.

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 124 OF 2006

BETWEEN:	ELBE SHIPPING SA Plaintiff
AND:	GLOBAL PEACE Defendant

JUDGE:	ALLSOP J
DATE:	6 DECEMBER 2006
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 125 OF 2006

BETWEEN:	SQ MARINE SA Plaintiff
AND:	GIANT MARINE SHIPPING SA BEING OWNERS OF THE SHIP 'GLOBAL PEACE' Defendant

JUDGE:	ALLSOP J
DATE:	6 DECEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In these matters a trial date has been fixed before the Honourable Justice Dowsett in Queensland commencing Monday, 5 February 2007.  I had previously indicated to the parties that I proposed to transfer the files to the Queensland District Registry.  I had not done so because the parties requested that Deputy Registrar Gilich and myself attempt to mediate a resolution of the case on Friday, 8 December 2006.

2. By reason of an unfortunate accident, senior counsel for the defendant, Mr Thompson, was injured some days ago.  He is unable to attend the mediation on 8 December.  The parties are agreed that it would be inappropriate and less than helpful to undertake the mediation without his presence.  He has been briefed in the matter from its commencement.

3. By reason of Mr Thompson needing to recover from the events that occurred and the exigencies of ordinary life in the holidays in January and the legitimate commitments of parties and practitioners it will not be possible to have the mediation until, at the earliest, late January.  The parties are anxious to retain the mediation if that can be done.  They would also like to have some period of time between the mediation and the trial to maximise the utility of the mediation and minimise trial costs, should a trial be necessary.

4. The matter has been fixed before Dowsett J and in my view it is appropriate for him, and him alone, to deal with questions of vacation of dates in his docket.  Therefore, it is appropriate that I now remit both matters, NSD124 and NSD125 to the Queensland District Registry.   

5. There are a number of matters that have occurred in relation to the preparation of the case that need to be mentioned.  The plaintiffs wish to plead the unseaworthiness of the tug which was involved in the accident.  Dr Derrington on behalf of the defendant has indicated that that should not cause a difficulty in relation to the conduct of the case as long as proper particulars are given.  Therefore a time for an amended statement of claim needs to be given.

6. Also order 1 made by the Court on 16 October 2006 has not been complied with.  This concerned the requirement to serve particulars of the allegations of negligence and of the Convention claim.  There were also particulars required of the quantum of the plaintiff.  Those have not been served either.  Mr Street says he needs until Friday week to deal with those matters.  They should have been dealt with over a month ago. I propose to give the plaintiffs until 4 pm this Saturday to provide all those particulars.  They should make arrangements with the solicitors for the defendants to provide them on Saturday.  The documents may be filed in the registry on Monday.

7. I expect this to be done. They should have been done over a month ago. 

8. I do not propose to make further directions about the filing of all evidence.  There has been slippage in the timetable in this regard as well, quite unconnected with Mr Thompson's difficulties.  The plaintiffs, through Mr Street, say that they will need until 19 January to file all their evidence.  This may cause a difficulty with a date in itself.  I think rather than give any direction as to further time for the plaintiffs to file their evidence this matter should be considered by the trial judge in the context of the joint application to vacate the date made by the parties because of the mediation.

9. There are difficulties in relation to the Australian Transport Safety Bureau (the “ATSB”). A subpoena has been issued to the ATSB. The ATSB has taken the view in correspondence with the solicitors for the plaintiffs that it does not propose to produce certain documents and that the Court has no power to order their production. Mr Street has indicated a constitutional question that might arise from this. He has indicated that notices under s 78B of the Judiciary Act1903 (Cth) are in preparation. They should be shown to the solicitors for the defendant so that any input, if there is any, from them can be made usefully before the matter is raised with the trial judge.

10. Finally, I have suggested to the parties that for the assistance of the trial judge the parties should as a matter of promptitude next week prepare a short paper, no longer than three pages, for the assistance of his Honour outlining the following matters:

    (1)a brief non-controversial description of the events in question;

    (2)a short procedural history of the matter;

    (3)the substance of previous directions, any slippage therein and the need for further directions;

    (4)the directions as to evidence and the need for any further evidence to be time tabled; and

    (5)the need of the parties for a vacation of the date.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop J.

Associate:
Dated:        7 December 2006

NSD 124 and 125 of 2006

Counsel for the Plaintiff:	Mr A W Street SC
Solicitor for the Plaintiff:	Norton White
Counsel for the Respondent:	Dr S Derrington
Solicitor for the Respondent:	Thynne & Macartney
Date of Hearing:	6 December 2006
Date of Judgment:	6 December 2006