Stemcor (A/sia) Pty Ltd v Oceanwave Line SA

FEDERAL COURT OF AUSTRALIA

Stemcor (A/sia) Pty Ltd v Oceanwave Line SA [2004] FCA 391

Admiralty – practice – subpoena to party overseas

STEMCOR (A/SIA) PTY LTD v OCEANWAVE LINE SA
N 1151 of 2002

ALLSOP J
5 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1151 of 2002

BETWEEN:	STEMCOR (A/SIA) PTY LTD PLAINTIFF
AND:	OCEANWAVE LINE SA DEFENDANT
JUDGE:	ALLSOP J
DATE OF ORDER:	5 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave to issue subpoena to a party in Germany and not in Australia under Order 27 of the Federal Court Rules be declined.

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	N 1151 of 2002

BETWEEN:	STEMCOR (A/SIA) PTY LTD PLAINTIFF
AND:	OCEANWAVE LINE SA DEFENDANT

JUDGE:	ALLSOP J
DATE:	5 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The plaintiffs in matter N1151 of 2002 seek leave under Order 27 of the Federal Court Rules to issue a subpoena for production (as defined in Order 27 rule 1 of the Rules) to a foreign party present in Germany and not present in Australia.

2. The solicitors for the defendant in matter N 1151 of 2002, Norton White, did not oppose the issue of the subpoena.  There are related matters in the list in relation to other steel shipments on different vessels.  Ebsworth & Ebsworth, the solicitors for the carrier in the these matters did oppose the issue of the subpoenas.  The argument took place in relation to proceedings N 1151 of 2002.  Any reference to the defendant in these reasons is a reference to the defendants in these related proceedings who opposed the issue of the subpoena.

3. The plaintiffs sue the defendant for damage to galvanised steel coils said to have been sustained on the voyage of the Ocean Breeze 91261 from the port of Yokahama to the port of Sydney.  The voyage commenced in late October 2001.  Thus, the voyage was from northern latitude of 35º in late autumn, through the tropics and across the equator to southern latitude of almost 34º south in late spring.  The problems attending stowage, care and ventilation of such cargo from different temperatures and seasons across the humid tropics are or should be well known.  See for example Sparks, Steel: Carriage by Sea (4^th Ed, LLP), pp 257-76.

4. The plaintiffs apparently wish to obtain records from another vessel which they say will throw relevant light on the evidence in connection with the voyage of the Ocean Breeze 91261 and the lack of care said to have been exhibited by the defendants on the voyage in question.

5. The plaintiffs refer to s 38(1) of the Federal Court of Australia Act 1976 (Cth), Order 27 rule 2 of the Federal Court Rules and the Convention between the United Kingdom and Germany regarding Legal Proceedings in Civil and Commercial Matters done at London…