Panda Ranch (Trading) Pty Ltd v China Shipping Container Lines (Hong Kong) Co Ltd

[2006] FCA 1647

FEDERAL COURT OF AUSTRALIA

Panda Ranch (Trading) Pty Ltd v China Shipping Container Lines (Hong Kong) Co Ltd [2006] FCA 1647

PANDA RANCH (TRADING) PTY LTD ACN 086 694 251 v CHINA SHIPPING CONTAINER LINES (HONG KONG) CO LTD & ANOR

NSD2369 OF 2005

EMMETT J
23 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2369 OF 2005

BETWEEN:

PANDA RANCH (TRADING) PTY LTD ACN 086 694 251
Applicant

AND:

CHINA SHIPPING CONTAINER LINES (HONG KONG) CO LTD
First Respondent

CHINA SHIPPING AUSTRALIA AGENCY CO PTY LTD ACN 085 663 154
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	23 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The matter be stood over for hearing on Monday, 27 November 2006 at 10:15am.

2.The costs of today be reserved.

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	NSD2369 OF 2005

BETWEEN:

PANDA RANCH (TRADING) PTY LTD ACN 086 694 251
Applicant

AND:

CHINA SHIPPING CONTAINER LINES (HONG KONG) CO LTD
First Respondent

CHINA SHIPPING AUSTRALIA AGENCY CO PTY LTD ACN 085 663 154
Second Respondent

JUDGE:	EMMETT J
DATE:	23 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The plaintiff has brought this proceeding, claiming damages in respect of damage to a shipment of fruit from Australia to Taiwan.  The plaintiff relies on an oral contract, rather than a written bill of lading, as to the terms of the contractual arrangement between itself, as shipper, and one or other of the defendants, as carrier. 

2. The defendants have intimated that they wish to rely on affidavit evidence of Ms Wu, who is a resident of the People’s Republic of China. The evidence is directed to two questions.  One is the rebuttal of some evidence concerning acceptance of the alleged oral terms.  The other question concerns an assertion that an estoppel arises in some fashion, which is not, at present, totally clear to me.  When the affidavit of Ms Wu was filed and served, the plaintiff indicated that it required Ms Wu to attend for cross-examination.  After some correspondence between the parties, the effect of which may be debatable, an application was made during this week for the evidence of Ms Wu to be taken by video-link with China.

3. The plaintiff does not consent to such an order.  The plaintiff says that questions of credit concerning Ms Wu’s evidence will arise. The plaintiff also complains that there has been inadequate discovery, despite a request for provision of access to files of Ms Wu that has not been complied with for some weeks.  Again, there may be some question as to the merits of that complaint. 

4. Generally, the plaintiff says it is entitled to have a witness in Court to be cross-examined.  Specifically, it is more convenient if questions arise as to the contents of documents for those documents to be put before the witness in person.

5. For whatever reason Ms Wu is not able to travel from China to Australia in time to be able to give evidence in person at the hearing of the proceeding, which is fixed for three days commencing next Monday.  In those circumstances, the application for Ms Wu’s evidence to be taken by video-link has been renewed. 

6. I am not persuaded at present that the pursuit of an application for Ms Wu’s evidence to be given by video-link has been attended with sufficient expedition to justify making the orders sought by the defendants. On the other hand, I am concerned that the evidence of Ms Wu is, on one view, of marginal relevance to the issue in the proceeding and the cost of bringing her to Australia for the purpose of giving evidence on that relevantly minor issue is not insignificant.  In the circumstances, I do not consider that it is appropriate, on the material before me, to order that the evidence may be taken by video-link.  On the other hand, I am mindful of the interests of all parties in ensuring that all relevant evidence be before the Court. 

7. I therefore consider it is appropriate that the evidence of Ms Wu be taken by video-link on the voir dire, at a time that is convenient to the Court and the parties.  Having received that evidence, I will then hear both parties on the question of whether or not it is appropriate that the evidence be admitted.  The defendants will be given the opportunity of adducing such oral evidence as they wish from Ms Wu, subject to any appropriate objection on the behalf of the plaintiff. The plaintiff will be given the opportunity of cross-examining Ms Wu on any matter that is relevant to the issues in the proceeding.  After that evidence has been given and the parties have had an opportunity of considering it, I will then hear any application that the defendants wish to make for that evidence to be admitted as evidence in the proceeding.  If the evidence is rejected, so be it.  If it is admitted then it will be treated as part of the evidence upon which the parties may then make submissions after all the other evidence is complete. 

8. At present, I refuse the defendant’s application.  However, as I have said, I will make arrangements for the evidence of Ms Wu to be taken at a convenient time.  Such evidence will be taken on the voir dire only at this stage.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       28 November 2006

Counsel for the Applicant:	Mr PE King
Solicitor for the Applicant:	Hicksons Lawyers
Counsel for the Respondent:	Mr EGH Cox
Solicitor for the Respondent:	Ebsworth & Ebsworth
Date of Hearing:	23 November 2006
Date of Judgment:	23 November 2006