North Broken Hill Holdings Pty Ltd v The Ship Nandu Arrow

[1989] HCATrans 142

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane	No 21 of 1988
In Admiralty In Rem
NORTH BROKEN HILL HOLDINGS PTY LTD

Plaintiff

and

THE SHIP 11 NANDU ARROW"

Defendant

Contested remitter

BRENNAN J

Broken

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 26 JUNE 1989, AT 2.20 PM

Copyright in the High Court of Australia

B2T 1/ 1/ JM 1 26/6/89

MR H.G. FRYBERG, QC:  May it please the Court, I a~~ear

with my learned friend, MR B.J. CLARKE,for

the anolicant who is the nlaintiff. (instructed

by Mur~ell Stephenson) .

MR I.V. GZELL, QC: If Your Honour pleases, I appear

with my learned friend, MR D.G. RYAN for

the respondent and cross-applicant,

Shipping Company, the owner of the shin.

(instructed by Thynne & Macartney)

HIS HOOOUR:  There are two matters, I gather, one is

the question of the title of the plaintiff, and the second is the question of remitter. Is that right?

MR FRYBERG:  Yes, Your Honour. I read the summons

filed on 22 May this year, an affidavit of

Peter Arnold Morrell filed on 22 May and

an affidavit of Derek Victor Holiman. The

original of that has not yet been received

from Sydney. It was due in at 2 o'clock

but I understand a facsimile copy of the signed

affidavit has been lodged with the Court and

we have an unsigned copy available and we will

undertake to file the sworn copy as soon as it

arrives in Brisbane.

HIS HONOUR:  I do not seem to have any copy of that

affidavit, Mr Fryberg.	When was it lodged
with the Court?

MR FRYBERG:  I cannot tell Your Honour that. I understood

a facsimile copy was transmitted to the Court

in recent times, but I cannot tell Your Honour

the date of that.

HIS HONOUR:  In all events, this is a copy of it here,

is it?

MR FRYBERG:	Yes, Your Honour.
HIS HONOUR: What do you have to say about this, Mr Gzell?
MR GZELL:	I have got no objection, Your Honour.
HIS HONOUR:	Very well. Is that your material?
MR FRYBERG:	That is our material, Your Honour.
HIS HONOUR:	And your's, Mr Gzell?
MR GZELL:	I would ask that Your Honour deal with both

anplications together. It would seem annropriate

since they both-relate to the same matter ..

HIS HONOUR:	Yes.
B2Tl/2/JM	2
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MR GZELL:	In which event, Your Honour, I read the summons

filed on 21 June 1989 and the affidavit of

Francis Grant Turner, also filed on that day.

HIS HONOUR:  Is there any objection to the application in

relation to the change of name of the plaintiff?

MR GZELL:  No, Your Honour. We consent to the name of

the plaintiff being_ substituted by the correct

company.

HIS HONOUR:  Yes. Mr Fryberg, what is the name which

you seek to have substituted?

MR FRYBERG:  We seek an order, Your Honour, that the name

"North Broken Hill Limited" be substituted for

the name "North Broken Hill Holdings Pty Ltd".

HIS HONOUR:  Very well, then, by consent,that order will

be made.

MR FRYBERG:  Thank you, Your Honour. Your Honour, the

second part of the application relates to the

question of remitter and that application is

made pursuant to section 44 of the JUDICIARY ACT

and in particular subsection (1) of that section.
Materially it provides that the matter may be
remitted to any court which has jurisdiction

with respect to the subject-matter and the parties.

The contest in the present case seems to

be between the Supreme Court of Queensland

for which our learned friend contends and the

Supreme Court of New South Wales for which we

contend. There would, it would seem, be no

distinction between the two courts in terms of

the Act in relation to the question of subject-

matter. Both those courts would seem to have

jurisdiction in respect of a claim such as the

present which is a claim against a shi?owner
by the owner of goods carried on that ship.

The claim is in bailment for delivery up of the

goods in a damaged condition with the requirement,

of course, implied in that of disproof of

negligence by the defendant.

The question of parties, in our submission,

is also satisfied, at least in relation to the

Supreme Court of New South Wale~ by the

proposition that that court is one which,

within the meaning of the section, is a court

which has jurisdiction.	The question was
considered - - -

HIS HONOUR: Let us assume jurisdiction until I hear

argument to the contrary. The question then

is one of convenience, is it?

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MR FRYBERG:  It does become one of those, Your Honour,

but we feel obliged just in relation to the parties

to draw one aspect of that to Your Honour's

attention expressly.

HIS HONOUR:	Yes, very well.
MR FRYBERG:	In the light of what Your Honour said, I

will not refer Your Honour to JOHNSTONE's case

which Your Honour no doubt is familiar with.

But I should refer Your Honour to a passage

in WEBER V AIDONE, (1981) 55 ALJR 657. In connection

with the issue of parties in the judgment of the

Court it was said at pages 658 and 659 in the

South Australia:

context of a contest between a remitter to resided in

with respect to a defendant who resides

in South Australia, if that defendant

is served within the jurisdiction, or,

if served outside the jurisdiction,

enters an unconditional appearance, or if

the case is one in which the plaintiff

under the SERVICE AND EXFCUTION OF

can obtain leave to proceed under the or

PROCESS ACT 1901.

Those are the three conditions which seem to

allow the matter to proceed in the Supreme Court

of Victoria in respect of a South Australian

resident.

In the present case the company, the defendant is a

Hong Kong company and there is no suggestion

that it has any presence in Australia which

would enable it to be served in Australia in

any part of Australia, New South Wales or

Queensland. It could not, of course, be

served under the SERVICE AND EXECUTION OF

PROCESS ACT - I will come back to the question of

the rules - and it could, as indeed could anyone,

enter an appearance voluntarily, thereby submitting

to the jurisdiction.

It may be a matter of doubt whether the

rules of either the Supreme Court of Queensland
or the Supreme Court of New South Wales would
permit service out of the jurisdiction in the

present case - in a case such as the present, that

is. So one would be left with the only nexus

in relation to persons, the fact that the nerson

might come into-the jurisdiction and enter.an

unconditional appearance. In our submission,

on WEBER V AIDONE, that is enough and the Court

would be empowered merely on that basis to make an

order of renitter to any court in which the person

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might voluntarily submit. We appreciate,

Your Honour, that that would in effect render

the words in the Act nugatory, that is the

words "jurisdiction with respect to the parties",

because it is difficult to imagine anybody in

the world who could not become the subject of

jurisdiction by submission. But that is as may

be; we would submit that that is enough.

If any further requirement is needed

we would submit that it is to be found in the
New South Wales Rules of Court and this is a

are founded on a cause of action

factor which favours New South Wales over proceedings

arising in the State. We would submit that

failure to deliver up bailed goods in a

proper condition gives rise to a cause of

action in the State. In the present case the

material shows that delivery was supposed to occur

at Port Kembla. Delivery did occur in relation

to most of the consignment at Port Kembla, albeit

at different times, and the goods were damaged

when delivered. We therefore submit the Court

has jurisdiction.

In relation to the discretion, we would

submit to Your Honour that the correct choice is case which although there appears to be no

material difference in the law which would be

applied whether the matter were remitted to

Queensland or New South Wales, the action arose

in New South Wales. The law that would be

applied is New South Wales law, or possibly

overseas law, but probably New South Wales law

and although the content of the law may be the

same it is better, in our submission, that the

New South Wales law be applied by the New South Wales

court rather than by the Queens land court.

The second aspect in relation to Your Honour's

discretion is that the subject-matter of the action

has the closest connection with New South Wales.

The delivery was supposed to take place at

Port Kembla; the owner's place of business - the

owner of the goods has his place of business in

New South Wales. Your Honour will no doubt be

familiar with the passage in POSNIAK, which

adopted what Your Honour had to say in

ROBINSON V SHIRLEY. ·wi11 it assist Your Honour if

I read that passage?

HIS HONOUR: I think I am familiar with it, Mr Fryberg.

MR FRYBERG: - - - In relatim to the question of connection

with the jurisdiction. As far as convenience is

concerned, it ought to be considered only in the

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broadest jurisdictional sense at this stage

of the proceedings. It would be premature, in

our submission, to start trying to determine a

city for trial. We are concerned here with the

question of convenience of jurisdictions.

No doubt, if there were at this stage clear

evidence that one city in one jurisdiction were

more convenient than another, that would be a

material factor but at the present time all that

can be said on the evidence is that most of

the witnesses come from either overseas, Melbourne

or various parts of New South Wales, though it

seems on the defendant's material that he

wishes to raise some issues by way of defence
in respect of which the defendant has some

witnesses in Queensland. It is clear that there

is no great preponderance one way or the other.

It is probably premature - pleadings have not yet
been exchanged in the matter - to start trying

to determine venue and, in our submission, there

is no clear oreoonderance in favour of Queensland.

If anything,-th~ preponderance is in fa;our of the

jurisdiction in which the matter arose and where

the original survey of the goods was carried out,

that is to say, Port Kembla where the surveyors

for both parties carried out their work and where

they are to be found. Those are our submissions,

Your Honour.

HIS HONOUR:  Yes. Mr Gzell?

MR GZELL:  Your Honour, we submit that there is no

problem associated with the jurisdiction of

either New South Wales or Queensland. There has

been an unconditional appearance entered on

behalf of the defendant and we would have thought

that that was sufficient to ground a remitter to

Queensland as well as to New South Wales.

T2 HIS HONOUR: I take it then,Mr Gzell, I need not trouble

myself with regard to the question of jurisdiction

as between the two supreme courts?

MR GZELL:	We would submit not, Your Honour.
HIS HONOUR:	And for whatever problem there may be it is

cured by an unconditional entry of a9pearance in

this Court?

MR GZELL:	That is our submission, Your Honour.
HIS HONOUR:	Very well.

MR GZELL: We also make the submission that there is

no essential difference between the laws of

New South Wales or Queensland in relation to	the
resolution of this matter and in consequence

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HIS HONOUR:	What is the law which will be applicable?
MR GZELL:	Your Honour, I would have - - -

HIS HONOUR: Is it governed by The Hague Rules?

MR GZELL:  I am going to come to that, Your Honour.

It may be that it is simply a matter which

arises under the ADMIRALTY ACT OF 1988 and

if that is right, then that law is vested

in the State courts under sections 9 and 10 of

that Act.

HIS HONOUR: That is federal law?

MR GZELL: Federal law. It may be that this action was

commenced before the coming into operation

of the 1988 Act and if that is so, it may

be that the 1988 Act has no application, in

which event it is the COLONIAL COURTS

ADMIRALTY ACT.

HIS HONOUR: ..... jurisdiction, does that say anything

about the governing law?

MR GZELL:  I would have thought not, Your Honour.

But, Your Honour, so far as the resolution

of the matter is concerned, in our submission,

that will fall to be determined in accordance

with whether or not the defences that are

likely to be raised on the material that the affidavits thus far disclose are successful,

those defences arising under The Hague Rules.

The reason for that is contained in the bill of lading which is exhibited to both

affidavits.

HIS HONOUR:  I have not read the bill of lading. Does

that contain a ..... clause?

MR GZELL:  It contains a clause paramount which is a

bit indistinct so far as the exhibit is concerned

and we have actually typed out that clause more

legibly for Your Honour and I pass Your Honour

a copy of it.

There is no material before Your Honour

as to whether Finland or Norway as the country
of shipment, and by that - I say the country

of shipment, either Finland or Norway because

two ships were involved. There was a shipment

from Finland to Norway and then from Norway to

Australia. Your Honour does not know whether, on the material before you, the legislation of

either of those countries incorporates the rules

in respect of the carriage.But that does not

matter. If either of those countries comr.1its

those rules then the defences are alive. If

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neither country incorporates those rules as

a matter of legislation then that provision
of the bill of lading will operate according
to its tenor, the Australian legislation not
applying since it relates to carriages out of

Australia rather than into Australia. In

consequence, it is open to the defendant to

raise a number of defences under the 1924

Hague Rules.

Your Honour, on the material that is

currently before you, it would appear that

three defences at least under the rules are

open, the first one being the exception in

article IV paragraph 2(c) and I will read that

provision: "Neitner the carrier nor the ship

shall be responsible for loss or damage arising

or resulting from ..... (c) perils, dangers and

accidents of the sea or other navigable waters".

A second defence which appears on the material to be open is under paragrah 2 (n)

":insufficiency of packing", and a third defence

which appears to be open is under paragraph 2(p)

"latent defects not discoverable by due diligence".

In respect of the first of those defences it

would appear that any relevant witnesses are likely

to come from overseas. In respect of the latter

two defences the witnesses are in Brisbane and

the witnesses involved are basically Uniquest

or persons associated with Uniquest which carried

out the analysis of the wires and that appears

in Mr Turner's affidavit at paragraph 10.

Your Honour, in addition to that aspect

the question of causation of damage and indeed
the fact of damage will depend upon evidence

emanating from Queensland. By that I - - -

HIS HONOUR:	Why do you say that, Mr Gzell?
MR GZELL:	By that I mean that there is,as set out in

paragraph 9(3) of Mr Turner's affidavit,

that the consignment to Brisbane as distinct

from the consignment to Port Kembla which was

contained in the same hold was undamaged upon

its discharged in Brisbane.

HIS HONOUR:  That could be the evidence of Captain Pearson,

could it?

MR GZELL:  It could be the evidence of Captain Pearson;

it could also involve evidence from other

persons who could swear to the discharge and

also by the consignee in Brisbane as to the

state and condition of that consignment when

delivery was accepted.

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HIS HONOUR:	Mr Gzell, as I read the affidavits, the

affidavit of Mr Turner tends in favour of

convenience being remitted to the Supreme

Court of Queensland because the evidence of
Captain Pearson and of the Uniquest people,

whoever they might be, would be locally situated.

But if one looks at the affidavit of

Mr Morrell, I gather that those who were

involved in the surveying of the cargo at

Port Kembla would come come primarily from the New South Wales area.

MR GZELL:	Yes, and I would not cavil with that, Your Honour.
HIS HONOUR:	No.
MR GZELL:	What I am saying to Your Honour is that in
addition to Captain Pearson and Uniquest
there is a notential for other witnesses
from Queensiand, those other witnesses from
Queensland being the consignee of the bales
directed to Brisbane,  Mr Turner's affidavit
suggesting that those bales arrived in good order and condition. In addition,
Your Honour, there is evidence which may emanate from the discharge in Townsville and the road transport back to Brisbane
because Mr Turner's affidavit at paragraph 9(9)
indicates that the consignment which was
over carried to Townsville, which was destined for Brisbane, arrived back in Brisbane in good
order and was accepted by the consignee.
HIS HONOUR:	No, that - I am not sure whether the
-	affidavit that has been produced today says anything about that, but it is - - -
MR GZELL:	Can I take Your Honour to paragraph 9(9)?

HIS HONOUR: Yes. 'Wh.at puzzled me about paragraph 9(9)

is that it was "accepted by the consignee".

MR GZELL:  Yes, that is in the context, Your Honour,

of the goods which were carried to Townsville,

discharged from Townsville and brought back

to Brisbane by road transport. Part of the

plaintiff's claim is that the bales which were

discharged in Townsville and brought by road

transport back to Port Kembla were in a damaged

condition.

HIS HONOUR:	Yes.
MR GZELL:	So that there is a potentiai in our submission,

for further evidence being necessary for the
resolution of the prospective issues in this matter

relating to that question of whether or not

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there was damage done in respect of the bales

which were, firstly, discharged in Townsville,

and secondly, road transported back from

Townsville to Port Kembla.

In addition to that, Your Honour, there

would appear to be a need on the present state

of the matter for a resolution of factual issues

which are likely to include evidence from

Queensland. That is because there is a considerable difference in the plaintiff's allegation as to the

number of bales damaged and in location and

the defendant's evidence on that issue.	The
plaintiff says that there were	9525 bales

discharged at Port Kembla of which 1760 were

damaged. That appears in Mr Morrell's affidavit

at paragraph 13.	The defendant says that there
were 10,584 bales discharged at Port Kembla.	So

that there is a discrepancy of the order about about

1000 bales in relation to that discharge. The way

in which one gets to the 10,584 I should exnlain

to Your Honour.

HIS HONOUR: Well, do not take too much time.

MR GZELL: All right, Your Honour. Suffice it to say that

one can, by a combination of what was in hold number 5, what was in hold number l, how many

bales to a unit, work out the figure of 10,584.

I will not take Your Honour through the mathematics.

HIS HONOUR:  hbat it comes to is this, does it not: in so far as the

evidence of the damaged condition of the consigrm:Ent

goes, the plaintiff says, "We have witnesses

in New South Wales who say with respect

to the major part of the consignment that it

was damaged on arrival in Port Kembla.

MR GZELL:	Yes.
HIS HONOUR:

There will be evidence as to the condition,

the ships in Brisbane and Townsville, the
Queensland evidence.

perhaps of the bales that were unloaded from

MR GZELL:	Yes.
HIS HONOUR:	And there may be evidence about the condition of some of the bales when they arrived in
Brisbane by road transport from Townsville?
MR GZELL:	Yes.
HIS HONOUR:	In addition to that you have evidence

from Uniquest and perhaps from Captain Pearson

with regard to the·condition of the goods here.

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MR GZELL: Plus some evidence from overseas.

HIS HONOUR: Plus the evidence from overseas, which

seems to me to be fairly neutral.

MR GZELL:	Yes, quite, Your Honour.
HIS HONOUR:	Then so far as the nlaintiff is concerned, they will give evidence relating to the
salvaging of the cargo and negotiation there on ..... of the damaged goods .....
MR GZELL:	Yes.
HIS HONOUR:	It seems to be closely balanced .....
MR GZELL:	Yes, quite, Your Honour, very closely

balanced indeed. We would have - - -

HIS HONOUR:  Let me put the proposition which at

the moment is..... _ in my mind in favour

of the plaintiff on this, Mr Gzell .....

and that is that at the moment one can

see very clearly how the plaintiff's case

has got to be made out and the evidence

..... On the other hand I have affidavit

evidence that ..... Captain Pearson and

some people from Uniquest there is nothing
more substantial than those .....

So that marginally the balance at the moment seems to me to be in favour of New South Wales.

MR GZELL:  Your Honour, that is so in the sense that this

is a very early stage of the proceedings and

indeed one course that Your Honour might
contemplate is treating the application as

premature, leaving it in this Court until

pleadings have been delivered and then
entertaining the cross-applications at the

conclusion of pleading when the issues will be

defined and this Court might then more appropriately

judge the balance of convenience. If that course

does not appeal to Your Honour, then we would

submit that it is a little more balanced

in favour of the defendant notwithstanding that

no named witnesses are yet forthcoming because

. the nature of what has been deposed to in relation to the bales which were differently strapped in

both the number 1 and number 5 hold which were

adequately delivered is a matter which is likely

to involve Queensland evidence. One would not

imagine it involving evidence from anywhere else

since the consignee was in Brisbane and the
discharge was in Brisbane and in Townsville.

That being so, we would invite Your Honour to take

account of the notion particularly in the context

where there is quite a division in relation to

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the number of bales discharged in Brisbane and

Townsvill~ that evidence is likely to be

necessary at this stage from both those venues.

That being so, we would submit that it is evenly more poised than the proposition

Your Honour nut to me. If that is so, the

matter was initiated in Queensland, out of
the Brisbane office of this Court and we would
invite Your Honour, in those circumstances, to

remit it to Queensland.

HIS HONOUR:  Yes. I need not trouble you, Mr Fryberg.

In this matter an application and

cross-application are made under section 44 of
the JUDICIARY ACT for remitter of an action
arising out of the carriage of goods by sea.

Although the matter is at an early stage of

the proceedings and, as Mr Gzell rightly points out,

future pleadings may define issues in such a

way as to make it clearer as to where the balance

of convenience may lie, I do not think that it

is desirable that an application of this sort

should be adjourned pending the clarification of

those issues. Better that the court of trial

should have control of the proceedings from

an early stage.

Although the matter is finely balanced

and although there is, I think, a likelihood

that will be more Queensland evidence than that which is specifically notified in the affidavit

of Mr Turner, nonetheless I think that the

balance of convenience, however slightly poised,

is in favour of remitter of this action to

New South Wales. Accordingly, I propose

to order that the proceedings be remitted to

the Supreme Court of New South Wales.

MR FRYBERG:  We have a draft which vtould, we hope, give

effect to what Your Honour has just indicated.

May we hand that up? It is very much a draft

in the sense that it has got, in ink, amendments

to it, but it may be of some assistance.

HIS HONOUR:	Has Mr Gzell only now an opportunity -
MR FRYBERG:	Only now; it is a fairly short draft,

Your Honour. We would ask for costs.

MR GZELL:	I could not resist that, Your Honour.
HIS HONOUR:	Mr Gzell?
MR GZELL:	I have no objection to those orders, Your Honour.
MR FRYBERG:	The words "this application" on the last line of paragraph 7 should be "both applications",
Your Honour, I have just noticed.

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HIS HONOUR:	Do ;rou agree with that, Mr Gzell?
MR GZELL:	Yes, Your Honour.
HIS HONOUR:

Does this deal with the change of the name?

MR FRYBERG:  No, Your Honour, it does not. I had

taken Your Honour to - already have ordered

that.

HIS HONOUR:	In that case the title should be ..... ?
MR FRYBERG:	Yes, Your Honour.
HIS HONOUR:	So it should be ''North Broken Hill"?

MR FRYBERG: "Limited".

HIS HONOUR:  Subject to those amendments that .....

in accordance with the draft marked by me

and placed with the papers.

AT 2.53 PM THE MATTER WAS ADJOURNED SINE DIE

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