FEDERAL COURT OF AUSTRALIA

Tiezone Pty Ltd v Schenker Stinnes Logistics [2004] FCA 847

ADMIRALTY AND MARITIME -  practice and procedure – delay in service using diplomatic channels – alternative method of service ordered.

Federal Court of Australia 1976 (Cth)   s 23

Federal Court Rules Order 1 rule 8, Order 7 rule 2,  Order 8

TIEZONE PTY LTD & ANOR v SCHENKER STINNES LOGISTICS & ORS

N1112 of 2002

ALLSOP J

30 JUNE 2004

SYDNEY

THE COURT ORDERS THAT:

1.                  That the plaintiffs be permitted to serve the first defendant by

(a)      serving the following documents upon the first defendant at its principal office in France by a French process server on or before 2 August 2004:

(i)             copies in English of the amended application and amended statement of claim;

(ii)           copies in English of the  reasons for judgment of Allsop J of 26 March 2003 and these reasons;

(iii)          copies in French of the amended application and amended statement of claim; and

(b)      serving the documents referred to in 1.(a)(i) and (ii) above on Schenker Australia Pty Limited addressed to the managing director of that company at 72-80 Bourke Road Alexandria 2015 on or before 16 July 2004.

2.                  Leave be granted to the plaintiffs to amend the return date in the amended application in respect of the first defendant to Monday, 6 September 2004 at 9.30 am.

3.                  The directions hearing fixed for 13 August 2004 be vacated and the proceedings be stood over for directions to 6 September 2004 at 9.30 am.

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

REASONS FOR JUDGMENT

1                     On 26 March 2003, I made orders granting leave to the plaintiffs to serve the application and amended statement of claim on the first, third and fourth defendants.  I gave reasons for those orders:  [2003] FCA 281.  I do not repeat what I said there about the nature of the case.  A difficulty has arisen with the service of the first defendant in France.  All other parties whom the plaintiffs wish to serve are present.  The disposition of the case is being held up by the absence of the first defendant who issued the primary contractual document (a house bill) on which the plaintiffs sue.

2                     The first defendant is a French company, part of the worldwide Schenker freight forwarding and transport group.  As I understand it, the parent company is located in Germany.  There is an Australian subsidiary trading as a freight forwarder and transport logistics service provider.

3                     Mr O’Reilly, who acts for the plaintiffs, told me at the hearing of the application for service out of the jurisdiction that he had contacted the Australian Schenker subsidiary in an effort to have the French organisation appear without the time and expense involved in serving through diplomatic channels.  This was to no avail, somewhat surprisingly.

4                     In any event, he brought his application.  It was granted.  He then obtained relevant translations and documents in order to satisfy Order 8 of the Federal Court Rules.

5                     On 30 July 2003, the amended process, the necessary request, undertaking and translations were filed with the Court as required by Order 8 of the Rules.

6                     On 30 July 2003, Deputy District Registrar Kavallaris transmitted to Deputy Registrar Kellow in the Court’s Principal Registry in Sydney in accordance with the protocol in place within the Court between District Registries and the Principal Registry for these matters, the request, undertaking, amended application and amended statement of claim in order that the seal of the Court could be affixed and the documents could be forwarded to the Secretary of the Attorney-General’s Department.

7                     On or before 4 August 2003, the seal of the Court was affixed to the documents and they were sent to the Attorney-General’s Department.

8                     On or shortly prior to 15 September 2003, Deputy Registrar Kellow received advice from the Attorney-General’s Department that the documents had been forwarded to the Department of Foreign Affairs and Trade (DFAT) to arrange service pursuant to the relevant convention regarding legal proceedings in civil and commercial matters. 

9                     Prior to 16 April 2004, Deputy Registrar Kellow contacted the Attorney-General’s Department to ascertain the progress of the service.  The Attorney-General’s Department apparently contacted DFAT which said it had no response from the Australian diplomatic mission in France. 

10                  On 7 June 2004 Deputy Registrar Kellow requested the following information from the Attorney-General’s Department in Canberra:

The Court would be grateful for your advice on when it might expect to receive the following information from the Department of Foreign Affairs and Trade:

1.             Whether the documents have been provided to the relevant French Authorities and, if so, the date when this occurred.

2.             Whether the Department of Foreign Affairs and Trade has obtained a progress report from its overseas Mission on the service of the documents and, if so, when that report (or its contents) will be provided to the Court.

11                  In answer to this letter on 15 June 2004 an officer of the Attorney-General’s Department replied as follows:

The Department of Foreign Affairs and Trade (DFAT) have advised that the French Ministry of Foreign Affairs forwarded the documents to the French Ministry of Justice for service in October 2003.

On 2 March 2004 the overseas mission advised DFAT that the French Ministry of Foreign Affairs had not received a certificate of service from the French Ministry of Justice.  The overseas mission did not provide advice about whether the French Ministry of Justice had attempted to serve the documents.  I have asked DFAT to seek new advice from its overseas mission about the progress of this matter and will provide the Court with this information as soon as it becomes available.

[emphasis added]

12                  It is thus apparent that the relevant French authority to undertake service, the French Ministry of Justice, received the documents to serve on Schenker SA in France in October 2003.  Thus, up to October 2003 all parties to that point, the plaintiffs, the Court, the Attorney-General’s Department, DFAT, the Australian diplomatic mission in France and the French Ministry of Foreign Affairs had acted with reasonable and commendable despatch.  This cannot be said, unfortunately, for the French Ministry of Justice.

13                  Notwithstanding the requests that have been made it has not been ascertained what has been done with those documents by the Ministry of Justice. 

14                  I have difficulty in expressing a comment about this in terms which are appropriately moderate.

15                  These proceedings represent a complaint about a commercial transaction between an Australian company and a French company arranged through the medium of a French freight forwarder for carriage of the goods by sea.  The efficient, fair and just disposition of disputes about carriage of goods by sea is a matter of international importance to all concerned.  Delay and cost is a constant concern of the international commercial community in the resolution of such disputes.

16                  The notion that the entirely administrative act of service of documents on a well- known and easily located company should be held up for eight months is a circumstance which does not reflect well on those responsible for the delay. 

17                  This delay not only has delayed proceedings in Australia to the disadvantage of the plaintiffs, but also it has worked to the disadvantage of other parties in the proceedings.  The proceedings cannot go forward until all relevant parties are present.  The international parties who undertook the carriage must wait, until the French authorities choose to serve, and choose to notify the service of the litigation documents, on the French freight forwarder.  The plaintiffs suffer detriment by waiting for the disposition of their matter in this commercial jurisdiction in Australia.  Also, the French freight forwarder may ultimately be disadvantaged.  The longer these kinds of commercial matters remain unattended and undisposed of the more difficult it tends to be to prove matters one way or the other.  Delay enhances the likelihood of caprice in litigation, which is to no party’s predictable advantage.

18                  It is most regrettable that this has occurred.  It is even more regrettable that I have had to write this judgment.

19                  The plaintiffs seek orders in effect for substituted service.  The plaintiffs wish to get on the with the matter.  The prospective first defendant is, as I have said, part of a well known worldwide transport and logistics group.  The choice I have is either to wait for the French authorities to get around in their own time to serving the first defendant and to notifying the Australian authorities that they have completed their task, or, alternatively, to make an order for substituted service notwithstanding the terms of Order 8 by, to the extent necessary, dispensing with the rules under Order 1 rule 8, and to the extent available invoking Order 7 rule 2 of the Rules and s 23 of the Federal Court of Australia Act 1976 (Cth) and ordering that the first defendant be served in a method different from that contemplated by Order 8 of the Rules and by the relevant convention.

20                  This application was made ex parte with the knowledge of the other defendants to the proceedings already served or present.  I have had no contradictor.

21                  Given the delay in this matter, and given the growing prejudice to all parties, including the first defendant, in the further delay of this matter, I propose to take the second course referred to above and to make the following orders:

1.         That the plaintiffs be permitted to serve the first defendant by

(a)      serving the following documents upon the first defendant at its principal office in France by a French process server on or before 2 August 2004:

(i)             copies in English of the amended application and amended statement of claim;

(ii)           copies in English of my reasons for judgment of 26 March 2003 and these reasons;

(iii)          copies in French of the amended application and amended statement of claim; and

(b)     serving the documents referred to in 1.(a)(i) and (ii) above on Schenker Australia Pty Limited addressed to the managing director of that company at 72-80 Bourke Road Alexandria 2015 on or before 16 July 2004.

2.         Leave be granted to the plaintiffs to amend the return date in the amended application in respect of the first defendant to Monday, 6 September 2004 at 9.30 am.

3.         The directions hearing fixed for 13 August 2004 be vacated and the proceedings be stood over for directions to 6 September 2004 at 9.30 am.

22                  Mr O’Reilly asked for orders that service be only on the Australian subsidiary.  Without knowing more about the corporate structure of the group, I think that that would be inappropriate.  He also asks for costs.  I will deal with costs in due course.

Associate:

Dated:              30 June 2004