FEDERAL COURT OF AUSTRALIA

CSL Ltd v P & O Nedloyd Ltd [2004] FCA 1456

CSL LTD (ACN 051 588 348) v P & O NEDLLOYD LTD

NSD 1682 of 2001

ALLSOP J

8 NOVEMBER 2004

SYDNEY

THE COURT ORDERS THAT:

1.    The claim of the second plaintiff in these proceedings be dismissed.

2.      There be no order as to costs of this notice of motion.

3.      The first plaintiff and the defendant send these orders and the settled reasons for judgment to the second plaintiff to its address on the notice of motion by airmail post and also to Messrs Aval, Polish lawyers, by facsimile or email.

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

REASONS FOR JUDGMENT

1                     This is a notice of motion brought jointly by the first plaintiff and the defendant.  That rather unusual circumstance is simply explained by a short description of how the motion has come before the Court.  The first plaintiff and the second plaintiff sued the defendant carrier for damage to cargo said to have been caused on a voyage from Europe to Australia.  The cargo claim concerned blood plasma.  As is usual in these sorts of cargo claims, both the consignor and consignee were joined as plaintiffs lest there be a dispute about title to sue and the proper identity of the party who had suffered loss.  The second plaintiff, a Polish entity, was the consignor.

2                     Some time ago in May 2004 the solicitors who presently act for the first plaintiff ceased to act for the second plaintiff on the basis that they were unable to obtain instructions.  Since then, the first plaintiff and the defendant have been able to commercially resolve the matter and wish for some finality to the position of the second plaintiff.

3                     To this end a joint notice of motion was filed seeking dismissal of the proceedings against the second plaintiff.  This was on the basis that the second plaintiff had shown no interest in the proceeding since May of this year and on the basis that it had and has no real interest in the proceedings by reason of it being, in effect, a fully paid consignor.

4                     The motion has been served informally by delivery to a firm of lawyers in Poland by email and facsimile, done only under two weeks ago.  The evidence discloses that those lawyers have delivered the papers to the second plaintiff earlier this month.  In all the circumstances and in an attempt to avoid unnecessary costs and to allow the finalisation of this matter and also to do justice to all the parties, I propose to make the following orders:

(a)   that the claim of the second plaintiff in these proceedings be dismissed; and

(b)   that there be no order as to costs of this notice of motion.

5                     There should be, however, some conditions to these orders.  I order that these orders and the settled reasons for judgment when they are available in the next few days, be sent to the second plaintiff to its address on the notice of motion by airmail post and also to Messrs Aval, the Polish lawyers, by facsimile or email.

6                     I do that because the motion has been taken out, heard and orders made in the absence of the second plaintiff.  Order 35 rule 7(2)(a) would provide the second plaintiff with an opportunity to apply to have the orders set aside should it wish.  If it does so wish it will need to do so on evidence and explaining its failure since May to take any interest in the proceedings.

7                     In those circumstances, there will be a third order that the first plaintiff and defendant jointly take responsibility for forwarding a copy of these orders and reasons to the second plaintiff by airmail post to the second plaintiff at its address, last understood to be the address where it carries on business and also by email or facsimile to Messrs Aval, the lawyers apparently acting for, or who had previously acted for the second plaintiff.  I make those orders.

8                     In those circumstances, I dismiss the proceedings against the second plaintiff.

Associate:

Dated:              12 November 2004