FEDERAL COURT OF AUSTRALIA

Blue Scope Steel (AIS) Pty Limited v Panathena Maritime Inc [2004] FCA 1525

ADMIRALTY AND MARITIME – practice and procedure – no point of principle.

Blue Scope Steel (AIS) Pty Limited AND ANOR v Panathena Maritime Inc

nsd 1837 of 2003

allsop j

23 november 2004

sydney

THE COURT ORDERS THAT:

1.         The directions hearing on 3 December 2004 be vacated.

2.         The matter be stood over for directions on 15 December 2004 at 9.30 am.

3.         On or before 10 December 2004, the defendant is to file and serve a statement of the issues it apprehends are to be involved in the case (a) on liability, and (b) on quantum.  That statement is to identify all factual and legal issues involved.  In addition to any other relevant issue, the defendant is to direct itself to how it says the non-delegable duty to exercise due diligence to make the ship seaworthy was discharged.  That issue is to encompass questions of (a) whether what was done as a matter of fact was an exercise of due diligence and (b) if not an exercise of due diligence, how what was said by way of instructions from the charterer absolves the defendant of its responsibilities.  As to quantum, the defendant is to set out what it understands the plaintiff’s case to be and what its answer to it is. 

4.         The parties give consideration as to whether, in light of the defendant’s asserted issues, the case or any part of the case is suitable for an order as to mediation or arbitration.

5.         The plaintiff’s costs of today be paid by the defendant in any event and the defendant pay its own costs of today in any event.

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

REASONS FOR JUDGMENT

1                     This matter was re-listed for directions by Mr Carter, who appears for the defendant, because of difficulty in meeting the timetable that had previously been ordered for statements because of the serious ill health of a member of the family of a proposed expert witness. 

2                     May I begin by saying that the defendant has had ample time thus far to put together a body of material in this case upon which it would seek to rely.  I do not, however, want to take any further time this morning dealing with the timetables in the past.

3                     The matter has been set down for hearing to commence on 18 April 2005 before Emmett J in a list with another matter.  This matter has been listed second.  The existing directions are that the defendant file its evidence by 22 November 2004.  The expert witness, a marine surveyor, whose family member is seriously ill, says he needs another month to complete his work which would take the matter up to the week or so before Christmas.

4                     I have expressed my concern today as to the definition of the issues in this matter.  To that end, I have made an order that on or before 10 December 2004 the defendant file and serve a statement of issues of some precision which is in the following terms:

On or before 10 December 2004, the defendant is to file and serve a statement of the issues it apprehends are to be involved in the case (a) on liability, and (b) on quantum.  That statement is to identify all factual and legal issues involved.  In addition to any other relevant issue, the defendant is to direct itself to how it says the non-delegable duty to exercise due diligence to make the ship seaworthy was discharged.  That issue is to encompass questions of (a) whether what was done as a matter of fact was an exercise of due diligence and (b) if not an exercise of due diligence, how what was said by way of instructions from the charterer absolves the defendant of its responsibilities.  As to quantum, the defendant is to set out what it understands the plaintiff’s case to be and what its answer to it is.

5                     I have stood the matter over until 15 December 2004 for a detailed directions hearing in which the primary burden of explanation will be upon the defendant to identify, with precision, the issues in the liability aspect of the case and in quantum.  The question of liability may raise a number of complex issues or, alternatively, there may be no real issue at all.

6                     The ship carrying fines still had residues of lead concentrate in the hold in which the fines were loaded and carried.  The hold was cleaned by the ship's crew upon instructions from the charterer.  The charterer was a related company of the shipper.  There was a non-delegable duty in the carrier to exercise due diligence to make the ship seaworthy for the carriage of the cargo.

7                     The important issues I want to understand on 15 December 2004 are whether it is said that due diligence was exercised, and if it is conceded that it wasn't, whether or not it is said that directions from the charterer should somehow exculpate the carrier, and on what basis.  Those issues of liability may conceivably be suitable for separate determination apart from quantum.

8                     As to quantum, the parties have not yet reached agreement as to what the issues are.  Mr Carter indicated that he expects some further material from the plaintiff.  If it is to be provided, that should be provided by the plaintiff as soon as possible.

9                     Ms Bazakas who appears for the plaintiff complains as to the fact that I am presently not minded to set another date for the filing of evidence by the defendant.  She says her client will not be happy.  I therefore have taken the time to explain to her and, through her, her clients, that the exercise of the judicial discretion is a matter of justice between the parties and not a matter of making one practitioner’s client happy.

10                  The reason that I have not made another date, as I explained to Ms Bazakas, was that I am having a directions hearing on 15 December 2004 at which I will ascertain with some precision from the defendant what the issues are alleged to be.  I have been at pains during the course of this year to attempt to extract that from the defendant and have not yet, with respect to Mr Carter, been provided with a final and coherent body of propositions.

11                  Given the ill health of a member of the expert witness’ family, which I accept as explained by Mr Carter, I think it would be inappropriate to make an order that something happen by a particular date given that time will be spent between Mr Carter and the expert, in any event, ensuring that the document to be filed and served by 10 December 2004 is as full and complete as possible.  Given the present circumstances, it may simply lead to the wastage of time and money to make further orders.

12                  There will be ample time after 15 December 2004 for the evidence to be filed so as not to prejudice the plaintiff for the hearing to commence on 18 April 2005.  The exercise of judicial discretion, in a case like this involves the balancing of the interests of the parties together with third parties who are involved.  There is absolutely no prejudice to the plaintiff in my view in not making a further order as to evidence.  It is not an indication that there has been some laxity on the part of either the Court or anyone else as to the preparation of the case by the defendant.  The defendant will, as I have explained, file its evidence in ample time for the plaintiff to deal with it.  But, at the moment, there is apparently an extremely ill member of the family of an expert witness and I do not propose to place a burden on that person and the witness that, in the circumstances, as I have explained, is unnecessary, beyond the burden of that expert witness consulting with the solicitor in question and counsel, if necessary, to identify with complete precision what the issues are in the document which I have ordered to be filed by 10 December 2004.

13                  The orders that I make are that:

1.         The directions hearing on 3 December 2004 be vacated.

2.       The matter be stood over for directions on 15 December 2004 at 9.30 am.

3.       On or before 10 December 2004, the defendant is to file and serve a statement of the issues it apprehends are to be involved in the case (a) on liability, and (b) on quantum.  That statement is to identify all factual and legal issues involved.  In addition to any other relevant issue, the defendant is to direct itself to how it says the non-delegable duty to exercise due diligence to make the ship seaworthy was discharged.  That issue is to encompass questions of (a) whether what was done as a matter of fact was an exercise of due diligence and (b) if not an exercise of due diligence, how what was said by way of instructions from the charterer absolves the defendant of its responsibilities.  As to quantum, the defendant is to set out what it understands the plaintiff’s case to be and what its answer to it is. 

4.       The parties give consideration as to whether, in light of the defendant’s asserted issues, the case or any part of the case is suitable for an order as to mediation or arbitration.

5.       The plaintiff’s costs of today be paid by the defendant in any event and the defendant pay its own costs of today in any event.

Associate:

Dated:              26 November 2004