Tooheys Ltd v J.L. Lennard P/L

[1994] FCA 711

JUDGMENT NO.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY	No. G 300 of 1993
GENERAL DIVISION

BETWEEN:	TOOHEYS LIMITED First Applicant J.L. LENNARD PTY LTD Second Applicant
AND :	ROHLIG & CO /GMBH & CO) First Respondent

RECEIVED	VESSEL "AUSTRALIAN VENTURE"
ANL LIMITED - OWNERS OF THE
FEDERAL CWRT OF	Second Respondent

AUSTRAUA

PRINCIPAL

W I S T R V	SCHAEFER FORDERANLAGEN- UND MASCHINENBAU GMBH
Third Respondent

C O W	:	Beaumont J
DATE:	4 October 1994

MINUTE OF ORDERS

The Court Orders that:

1.   Application for leave to amend the statement of claim by adding paragraph 4 in the terms of MFI 2 is refused.

Note:	Settlement and entry of orders is dealt with in
Order 36 if the Federal Court Rules.

2.   The applicants are to inform the respondents in writing within 28 days of any other amendments proposed to be made to the amended statement of claim, provided that this direction shall not be treated as the grant of leave to amend.

3.    Time for making an application for leave to appeal is extended up to and including 4 November 1994.

4 .    As between the third respondent and the applicants, the costs will be costs in the cause. As between the applicants and the first and second respondents, the applicants are to pay the first and second respondents' costs of the application.

THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY	No. G 300 of 1993
GENERAL DIVISION

BETWEEN:	TOOHEYS LIMITED First Applicant
J.L. LENNARD PTY LTD
Second Applicant
AND :
First Respondent
ANL LIMITED - OWNERS OF THE VESSEL "AUSTRALIAN VENTURE"
Second Respondent
SCHAEFER FORDERANLAGEN-
UND MASCHINENBAU GMBH
Third Respondent

C O W	:	Beaumont J
DATE:	4 October 1994

REASONS FOR JUDGMENT

Before the Court is an application to amend a

statement of claim which in its original form was filed on 17

May 1993. A relevant amendment is to replace the existing	paragraph 4 of the original statement of claim which reads as
follows:

" 4	At all material times a business relationship existed between the First Respondent and the Third Respondent and the First Respondent entered into an agreement with the Third Respondent as agent for the Applicants or one
of them under which the First Respondent
undertook to forward the said goods to the Applicant."

The reference to the said goods is a reference to goods described in paragraph 2 of the statement of claim, in

which it is pleaded that one of the applicants was the owner of a palletiser machine and certain other goods described in

the bill of lading, dated on or about 14 June 1992.

That date of 14 June 1992 subsequently has been
amended to 16 June by the consent of the parties. In

paragraph 3 of the statement of claim, it is alleged that the first respondent, through its subsidiary Rohlig Australia Pty Ltd, carried on business within this country and was a forwarding company. The amendment sought on behalf of the

applicants is to substitute a new paragraph 4 in the following

terms	:
" 4 The Applicants or one of them were/was a party to an agreement with the First Respondent evidenced by the said Rohlig Bill of Lading which agreement included an obligation to properly pack the said goods and/or became a party as aforesaid.

Particulars

i/ Rohlig Bill of Lading 16-6-92 ii/ facsimile communications dated	22/5/92 from Schaefer to Rohlig	and facsimile communications
dated 4 June 1992 from Rohlig to Schaef er"

It is apparent on the face of the pleading, whether in its original or proposed amended form, that the applicants rely on the bill of lading at least as a source of title. In the pleading in its original form, however, it is at least unclear, and perhaps a better view is that it is probable,

that what is being sued upon in paragraph 4 is an independent, freestanding contract of forwarding which, although comercially related to the bill of lading, is legally distinct from it.

When one reads the proposed new paragraph 4 , it appears that the applicants now wish to allege that they and the first respondent were parties to an agreement evidenced by the bill of lading; and it was a term of that agreement that there was an obligation to pack the goods properly, and so much is confirmed by the particulars in (i) of the proposed amended paragraph.

However, the particulars given in paragraph (ii) of the proposed amended paragraph 4 are not, at least on their face, clearly connected with any of the previous allegations, and by that I include the allegations in paragraphs 2 and 3 of the statement of claim.

On their face the particulars in paragraph (ii) purport, and are expressed to be, allegations of	appear to be free-standing allegations. They certainly
communications between parties other than the applicants. Moreover, one can infer, I think, that as the communications were between two German companies, there is at least some foreign element involved in this connection. If that were so, the pleading would need to address the complications of the kind described in Allstate Life Insurance Co. v Australia &
Pew Zealand Bankins G~OUD Ltd. (unreported, 13 September 1 9 9 4 ,
Federal Court) at pages 20 and following. But putting aside for the moment the inevitable complications of the introduction of a foreign element, if the matter is viewed entirely from the standpoint of the domestic forum and the application of the law of the forum (that is to say, without any conflicts of laws complications at all), the reference to the facsimile communications is in no way related to the text of the allegations in the proposed paragraph 4 .
Although they are expressed to be particulars of that allegation, there is no reason, on their face at least, why they should constitute particulars of an allegation of an agreement evidenced by a bill of lading made between the applicants and the first respondent. There are, of course, a number of possibilities. One would be that although the bill of lading evidences an agreement, the agreement itself was formed at an anterior point of time in negotiations made between Schaefer and Rohlig in which, for example, Schaefer was acting as agent for the applicants, or one of them.
There are a number of other possibilities, no doubt, but it is not necessary for present purposes that one speculate about these matters. However many interpretations of these particulars may be open, it is not appropriate that the Court, or an opposing party, speculate as to their meaning and as to their possible application to the text of the allegations made in the proposed paragraph 4 .
In the course of argument, it was suggested that it may be possible to sever the particulars contained in paragraph (ii) from the text of the allegation and the particulars in (i) . In my opinion, it would only be appropriate to undertake an exercise of this kind if one first knew the meaning and significance of the particulars in paragraph (ii) for present purposes.
As I have said, that meaning and that significance remain mysterious at least on the face of the allegations. That being so, it is not appropriate in my opinion to attempt any exercise of severance. For those reasons, I am of the view that it would not be proper to permit an amendment of this kind to be made, and I refuse leave to make the amendment. In the ordinary course, it would be appropriate to grant a party in the position of the applicants leave to re- plead. However, there is a further complication in the present matter which makes that course not suitable.
On behalf of the first respondent it is said that permitted because, amongst other reasons, the Court would lack the introduction of any new course of action should not be
jurisdiction to entertain such a claim, leave to serve out of the jurisdiction not having been granted; and secondly, that in any event, the forum is inconvenient. In my view, there is force in that submission for present purposes, and it would be better if instead of granting the usual leave to re-plead as the party may be advised if the Court were to direct that any proposed amendments be communicated by the applicants to the respondents so that the matter may then go forward in such manner as may be then appropriate.
In this way the onus will rest with the applicants, if the matter remains contentious, to demonstrate that leave to amend should be granted as a matter of substance. I propose then to refuse leave, but to give that direction. The formal orders of the Court are as follows: First, application for leave to amend the statement of claim by adding paragraph 4 in the terms in MFI 2 is refused. Second, I direct that the
applicants inform the respondents in writing within 2 8 days of any other amendments proposed to be made to the amended statement of claim, provided that this direction shall not be treated as the grant of leave to amend. Further, I extend the time for making an application for leave to appeal up to and including 4 November 1 9 9 4 .
As between the third respondent and the applicants the costs will be costs in the cause. As between the
applicants are to pay the first and second respondentst costs applicants and the first and second respondents, the
of this application.

I certify that this and the preceding five

(5) pages are a true copy of the Reasons

for Judgment herein of his Honour Mr.

Justice Beaumont.

,- L 7?*ly.

Associate:  z ' 1 (0 U;

4 October 1 9 9 4

APPEARANCES

Counsel for Applicants:	Mr. A.W. Street
Solicitors for Applicants:	Thomson Rich OtConnor
Counsel for First and
Second Respondents:	Mr. J. Gleeson
Solicitors for First and
Second Respondents:	Ebsworth & Ebsworth
Counsel for Third Respondent:	Mr. D. Ryan
Solicitors for Third Respondent:	Gadens Ridgeway