K S Textiles Pty Ltd v Portir Transitarios LDA
[2017] FCCA 2335
•26 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| K S TEXTILES PTY LTD v PORTIR TRANSITARIOS LDA & ANOR | [2017] FCCA 2335 |
| Catchwords: PRACTICE AND PROCEDURE – Service pursuant to the Hague Convention – service outside of Australia. |
| Legislation: Federal Circuit Court of Australia Act 1999, ss.8(3), 10, 14, 15, 17, 18 |
Cases cited:
Owners of the Ship “Sin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54
Mitsui Osk Lines (Thailand) Co Ltd v Jack Fair Pty Ltd [2015] FCCA 558
| Applicant: | K S TEXTILES PTY LTD |
| First Respondent: | PORTIR TRANSITARIOS LDA |
| Second Respondent: | IBERGLORY LDA |
| File Number: | MLG 126 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 28 August 2017 |
| Date of Last Submission: | 28 August 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 26 September 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Colin Biggers & Paisley Pty Ltd |
| The Respondents did not appear |
ORDERS
Leave be granted to the Applicant to discontinue the proceedings against the First Respondent.
Pursuant to r.10.42 of the Federal Court Rules 2011 (Cth) the Applicant be granted leave to serve the originating application filed in these proceedings on the Second Respondent in Portugal.
The proceedings be adjourned to 26 February 2018 at 10.00am for Directions.
Costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 126 of 2017
| K S TEXTILES PTY LTD |
Applicant
And
| PORTIR TRANSITARIOS LDA |
First Respondent
| IBERGLORY LDA |
Second Respondent
REASONS FOR JUDGMENT
On 19 January 2017, the applicant issued proceedings in the Federal Circuit Court of Australia seeking damages, interest and costs against the first and second respondents.
The claim is brought as a result of damage to 75 roles of fabric shipped from Leixões, Portugal, through Barcelona, Spain and then to Melbourne. The first part of the carriage was undertaken upon the vessel Maersk Kobe, and the second part of the carriage aboard the vessel MSC Panama. The fabric was within a container numbered GLDU7315464. The first respondent issued a forwarders Bill of Lading in Portugal, and the second respondent acknowledged receipt of the 75 rolls of fabric in apparent good order in Barcelona.
The applicant claims damages for the loss suffered to the fabric, which is particularised as contamination of the fabric as a result of having been shipped together with a chemical cargo whose vapour had escaped, causing a chemical odour to permeate within the container. The fabric was not salvageable. The claim for damages is in excess of $27,000.
The lawyers for the applicant set out attempts that they have made to arrange for informal service of the proceedings so as to avoid the cost of arranging service in Portugal. Whilst some responses have been received from the respondents, no agreement has been received to accept informal service or for the respondents to enter an appearance without formal service in these proceedings. The applicant, therefore, seeks leave to serve the proceedings out of the jurisdiction.
In order to determine such an application, I must consider whether or not the material before me shows:
a)a prima facie case against the respondents;
b)that the case is one that the Court has power to determine;
c)that the case is within the Court’s subject matter jurisdiction; and
d)that the defendants are within the Court’s in personam or extended jurisdiction.
The material annexed to the affidavit shows a prima facie case against the second respondent for the relief claimed, as set out in the statement of claim filed with the proceedings. The applicant seeks to discontinue against the first respondent, having satisfied itself that the first respondent is not liable in respect of this claim. Leave to discontinue the proceedings against the first respondent is therefore granted.
The power of the Parliament to confer admiralty jurisdiction on the Court is well accepted: see Owners of the Ship “Sin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; Mitsui Osk Lines (Thailand) Co Ltd v Jack Fair Pty Ltd [2015] FCCA 558; ss.8(3), 14, 15 and 17 of the Federal Circuit Court of Australia Act 1999 (“FCCA Act”). There is no question that this Court has sufficient power to deal with a claim involving less than $30,000.
The Court’s subject matter jurisdiction may be conferred by Act of Parliament (see s.10 of the FCCA Act), and in this case the Admiralty Act 1988 (“the Act”) confers jurisdiction on this Court in respect of proceedings commenced as action in personam on maritime claims: see s.9 of the Admiralty Act 1988. Maritime claims are defined in s.4 of the Act and relevantly include claims “for loss of, or damage to, goods carried by a ship”: see s.4(3)(e), and claims “arising out of an agreement that relates to the carriage of goods… by a ship”: see s.4(3)(f). The jurisdiction of the Court extends to associated matters: s.18 of the FCCA Act provides that this Court is a court of record and a court of law and equity.
The Court has jurisdiction over persons and companies within the territory of the state (the Commonwealth of Australia): s.10(3) of the FCCA Act. However, the second respondent is not within Australia. The Court has extended personal jurisdiction over persons outside of the geographic jurisdiction of the Court as result of statutory extensions to the Court’s jurisdiction, which go beyond the common law in personam jurisdiction of the Court. Schedule 3, Part 2, Item 4 of the Federal Circuit Court Rules 2001 (“the Rules”) adopts rr.10.41 to 10.52 of the Federal Court Rules 2011 (“the FC Rules”). These rules provide for an extended jurisdiction of the Court in cases where damage is suffered in Australia as a result of a tort or breach of contract: see rule 10.42(5) of the FC Rules. I am therefore persuaded that the Court has prima facie jurisdiction over the second respondent with respect to this particular claim.
Rule 10.43 of the FC Rules provides for the use of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965) for service of the court’s process. I note that Portugal has ratified the Hague Convention and that therefore service under that convention can be effected into Portugal.
To use the procedures provided by the Convention the applicant must obtain leave from the Court under r.10.43. In this case, the affidavit in support of the application fulfils the requirements of r.10.43(3), in that it names the country in which the person is likely to be served and sets out the proposed method of service, which is a method permitted by the Hague Convention. The material also demonstrates that the Court has jurisdiction (as set out above), in that the claim is within the scope of r.10.42 (in this case rr.10.42(5) and 10.42(3)(f)).
I have had regard to the reference in the FC Rules that have been adopted by this Court, to Part 10 of the FC Rules. It appears to me that in the process of adopting the FC Rules, those references should be read as a reference to Part 6 of the Federal Circuit Court Rules 2001 (both Parts referring to service in the respective Courts).
In this case I am satisfied that the applicant has fulfilled all of the requirements under the Rules, that, prima facie, the applicant has a claim that is within the subject matter jurisdiction of this Court with respect to which this Court has power to determine, and that the second respondent is subject to the extended in personam jurisdiction of the Court.
Having regard to the steps that have been taken by the applicants to date in attempting to effect service informally, by requesting that the second respondent to submit to the proceedings, it appears appropriate for formal service within the Rules to be effected in these proceedings by relying upon the Hague Convention.
I therefore grant leave for the applicant to serve the originating application in these proceedings on the second respondent in Portugal pursuant to r.10.43 of the FC Rules (as adopted by the FCCR) and declare that such service will be taken as personal service pursuant to Part 6 of the Federal Circuit Court Rules 2001.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 26 September 2017
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