FEDERAL COURT OF AUSTRALIA

 

Kent v SS "Maria Luisa" [2002] FCA 629

 

 



PRACTICE & PROCEDURE – discovery.


Admiralty Act 1988 (Cth) s 19


GREGORY DAVID KENT v THE FISHING VESSEL “MARIA LUISA” AS SURROGATE FOR THE VESSELS “MONIKA” AND “BOSTON BAY”

 

NO. N 467 OF 2001

 

 

 

 

 

BEAUMONT J

7 MAY 2002

SYDNEY




IN THE FEDERAL COURT OF AUSTRALIA

 

NEW SOUTH WALES DISTRICT REGISTRY

N 467 OF 2001

 

BETWEEN:

GREGORY DAVID KENT

PLAINTIFF

 

AND:

THE FISHING VESSEL “MARIA LUISA” AS SURROGATE FOR THE VESSELS “MONIKA” AND “BOSTON BAY”

DEFENDANT

 

JUDGE:

BEAUMONT J

DATE OF ORDER:

7 MAY 2002

WHERE MADE:

SYDNEY

 

THE COURT ORDERS THAT:

 

  1. The hearing dates currently set down for 3rd and 4th June 2002 be vacated and a hearing date be fixed on 30th and 31st May 2002 at 10.15 am for both  the Notice of Motion filed by the Defendant on 25 May 2001 and the Notice of Motion filed by the Plaintiff on 1 June 2001.

  1. Everdene Pty Ltd file and serve a verified Supplementary List of Documents giving discovery of the documents falling within the categories set out in the Schedule (except for par 10) by 21 May 2002.

  1. Everdene Pty Ltd make the documents referred to in the Supplementary List available for inspection by 23 May 2002.

  1. Leave be granted to the Plaintiff to administer a Notice to Answer Interrogatories in the form of the draft amended and initialled Notice filed in court on 7 May 2002.

  1. Everdene Pty Ltd file and serve verified answers to interrogatories by 21 May 2002.

  1. The matter be stood over to 24 May at 9.45 am.

  1. Costs reserved.

  1. Reserve liberty to Plaintiff, if so advised, to apply on 24 May 2002 for an order for further discovery in the terms of par 10 in the Schedule as amended.

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 467 OF 2001

 

BETWEEN:

GREGORY DAVID KENT

PLAINTIFF

 

AND:

THE FISHING VESSEL “MARIA LUISA” AS SURROGATE FOR THE VESSELS “MONIKA” AND “BOSTON BAY”

DEFENDANT

 

 

JUDGE:

BEAUMONT J

DATE:

7 MAY 2002

PLACE:

SYDNEY


REASONS FOR JUDGMENT

beaumont j:

1                     Before the Court is a notice of motion filed on behalf of the plaintiff, dated 19 April 2002, seeking, amongst other things, an order for supplementary discovery.  The parties have agreed on all matters save one particular paragraph of the schedule to the notice of motion, which seeks by way of supplementary discovery:

“(10)  All documents evidencing the terms of any loan or financial accommodation and repayment of same between the company and Australian Fishing Enterprises Pty Limited from 1 January 1993 to date.”

2                     The principal proceedings are brought under the Admiralty Act 1988 (“the Act”) and the statement of claim alleges relevantly:

“3.       At all material times, Australian Fishing Enterprises Pty Limited (“AFE”) was the owner or charterer of, or in possession or control of, the vessels:

(i)                 ‘Monika’;  and

(ii)               ‘Boston Bay’

4.         At the time of the commencement of these proceedings, AFE was the owner of the vessel ‘Maria Luisa’.”

3                     By notice of motion dated 24 May 2001, the applicant, Everdene Pty Limited (“Everdene”), has given notice of its intention to move, amongst other orders, for the following:

“3.       that the service of the Writ in Rem be set aside for want of jurisdiction;

4.         that the Writ in Rem be set aside alternatively that the proceedings herein be dismissed for want of jurisdiction;”

4                     Everdene’s notice of motion is listed for hearing at the end of this month.  The claim is made in the principal proceedings that it has a right to proceed in rem against the surrogateship by virtue of the provisions of s 19 of the Act and, in support of that claim, which is said to provide the foundation for the Court’s jurisdiction, the plaintiff seeks the documents in paragraph 10 of the schedule to its notice of motion, which paragraph is set out above.  As mentioned, the parties have sensibly agreed on the production of a number of documents by way of supplementary discovery.

5                     It is not necessary to specify any detail of this agreement.  Everdene has agreed to the making of an order for the production of a number of documents, including documents relating to the creation of a unit trust known as the “Maria Luisa Unit Trust”, certificates given in that connection, income tax returns and certain accounting records and lease and charter documents. 

6                     Turning then to the terms of paragraph 10 in the first instance.  It seems to me that on any view, the reference in that paragraph to “financial accommodation”, is too broad and uncertain.  As mentioned in the course of argument, that language could pick up the most informal arrangement, and I think it would be oppressive to compel a party to search for documents under the umbrella of such a vague description.  Accordingly, I would not, on any view, order the production of documents described in such terms.

7                     That leaves paragraph 10, as expressed, to a call for documents evidencing the terms of any loan and repayment between the company and Australian Fishing Enterprises, between the dates mentioned.  I accept that it is conceivable that a loan document could, for instance, in a recital, mention something which would illuminate the question of ownership of the vessel but, at the moment, this is sheer speculation on my part.  Without more, I would not be prepared to assume the existence of any such recital.  However, by Practice Note 14 and by the terms of O 15 r 2(3) – (5), the Court is not only obliged to manage discovery in complex proceedings, as these are, but to do so in way that restricts discovery to what is seen to be really necessary for the fair resolution of the dispute.

8                     In my opinion, viewing the matter from an interlocutory perspective only at this stage, fairness requires that the call for documents in the terms of paragraph 10, limited as I have done, should be deferred until the plaintiff has had the benefit of inspection of the other documents to be produced by 21 May 2002.  It is true that the hearing of Everdene’s notice of motion is fixed to commence some nine days later than 21 May 2002, but, in my view, there is no real prejudice for either side by directing that the call be deferred pending the inspection of those further documents.

9                     In those circumstances, I will now make formal orders as follows.

ORDERS

10                   

1.                  That the hearing dates currently set down for 3rd and 4th June 2002 be vacated and a hearing date be fixed on 30th and 31st May 2002 at 10.15 am for both  the Notice of Motion filed by the Defendant on 25 May 2001 and the Notice of Motion filed by the Plaintiff on 1 June 2001.


2.                  Everdene Pty Ltd file and serve a verified Supplementary List of Documents giving discovery of the documents falling within the categories set out in the Schedule (except for par 10) by 21 May 2002.


3.                  Everdene Pty Ltd make the documents referred to in the Supplementary List available for inspection by 23 May 2002.


4.                  Grant leave to the Plaintiff to administer a Notice to Answer Interrogatories in the form of the draft amended and initialled Notice filed in court on 7 May 2002.


5.                  Everdene Pty Ltd to file and serve verified answers to interrogatories by 21 May 2002.


6.                  Stand matter over to 24 May at 9.45 am.


7.                  Costs reserved.


8.                  Reserve liberty to Plaintiff, if so advised, to apply on 24 May 2002 for an order for further discovery in the terms of par 10 in the Schedule as amended.


I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.



Associate:


Dated:              May 2002



Counsel for the Plaintiff:

Mr R Gye



Solicitor for the Plaintiff:

Conway Leather Shaw



Counsel for the Defendant:

Mr G Nell



Solicitor for the Defendant:

Norton White



Date of Hearing:

7 May 2002



Date of Judgment:

7 May 2002