FEDERAL COURT OF AUSTRALIA

Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955

WALTER RAU NEUSSER OEL UND FETT AG v Cross Pacific Trading LTD AND ORS

NSD 432 of 2005

ALLSOP J

18 JULY 2005

SYDNEY

THE COURT ORDERS THAT:

1.       Orders 3 to 24 made on 21 March 2005, to the extent that they have been extended and are operative, be discharged.

2.       Within fourteen days, the parties file brief submissions (no more than three pages) on the form of order as to costs.

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

REASONS FOR JUDGMENT

1                     In March 2005, I made orders in the nature of freezing orders against nine named parties.  One of these named parties, formerly identified as the ninth respondent, was a branch of the eighth respondent bank.  The orders were thus made against eight respondents.

2                     The position of the eighth respondent has been resolved by various amendments to the original orders, as has the position of the seventh respondent.

3                     The respondents have sought the discharge of the orders on the grounds of non-disclosure at the ex parte hearing in March.  These reasons deal only with that application. 

4                     On 21 March 2005, the applicant moved the Court for freezing orders based on a case that it had been defrauded of over USD1,000,000 by the first to seventh respondents.  There was no pleading brought forth, indicating a degree of urgency.  The papers handed up and relied upon included the affidavit of Mr Joseph Hurley, the applicant’s solicitor, sworn 21 March 2005 and the affidavit of Mr Norbert Horn, a senior officer of the applicant, sworn 19 March 2005.  Though there was no pleading, the matter was put to me on the basis that the applicant had been, in effect, defrauded in relation to the purchase of copra in the Solomon Islands for carriage by sea to Europe.  The orders were sought to maintain and retrieve assets and funds lost by the fraud.

5                     Before setting out the facts as they were disclosed in March, I should make this comment by way of prefatory averment.  What any given material shows by its objective presentation, after opportunity for mature and considered reflection, may be more than it reveals on first reading in the context of an urgent application.  That difference, reflective of the opportunity for absorption and consideration of material over time, is at the foundation of the heavy responsibility of parties and their legal advisers in relation to disclosure at the ex parte hearing.

6                     In March, the case was explained by senior counsel at the outset as one based on fraud (and s 52 of the Trade Practices Act 1974 (Cth) (the “TP Act”) by reason of the fact that the ‘entity described as the first respondent … that we now believe does not exist’.  The second and third respondents (Mr Wong and Mr Van Vlymen) were said to have signed contracts and issued invoices in the name of the non-existent company.  The fourth respondent, a corporation controlled by Mr Van Vlymen, had signed a letter of guarantee in relation to the obligation of the non-existent first respondent.  The fifth respondent (“ICS”) was the direct recipient of funds extracted from the applicant in connection with invoices issued on behalf of a non-existent entity.  The sixth respondent (“RIPEL”) was a company with which Mr Wong was associated and was said by senior counsel at the ex parte hearing to “appear to have potentially copra in its possession that might relate to the transaction.”

7                     That was the essence of the case as introduced: a fraud, involving a non-existent entity concerning the sale of copra.

8                     I then raised the question of the existence of the cargo.  The following was said:

‘HIS HONOUR: … Do we know whether there's a cargo actually been loaded

anywhere?

COUNSEL:  Your Honour, there was, and when we come to the matter of

disclosure, there were three attempts to collect cargo by my client.  The

contract was entered into on 4 September 2003.  The payments were made

from October 2003 until June 2004.  The discovery of the non-existent entity

only occurred approximately two weeks ago, as a result of coming out to

Australia, an unsuccessful endeavour to obviously explore resolution and it

emerging having retained solicitors that the entity doesn't exist.

HIS HONOUR:   Has any copra arrived in Europe?

COUNSEL:   No, your Honour, no copra has arrived in Europe.  What

happened was one ship loaded some seven tonnes of copra.

HIS HONOUR:   How much was the subject of the contract?

COUNSEL:   About 4500 tonnes.

HIS HONOUR:   Is the proposition that there's been a fraud perpetrated?

COUNSEL:   Yes, your Honour, that is the centre of the applicant's case.’

9                     At this point, I was taken to a document prepared by counsel and entitled “Outline of Submissions in Support of Ex Parte Orders”.  The document relevantly set out the following.  (I will ignore the submissions dealing with jurisdiction under the TP Act and the Corporations Act 2001 (Cth)).  The submissions described the entry into a contract on 4 September 2003 under seal of “an entity bearing that of the first respondent”.  The further documents in the performance of the contract were described.  Invoices were sent until June 2004 in the name of the first respondent for various tonnages of copra.  These invoices were paid.  The case in fraud was explained “based on the non-existence of the first respondent”.  The risk of dissipation of assets was said to arise, amongst other things, from the dishonest deception practised concerning the “non-existence of the first respondent”.  One part of the submissions contained the following:

the fifth respondent has facilitated and assisted in the said fraud as well as engaging (in) the knowing receipt of payments obtained by fraud.

10                  In relation to full and frank disclosure the arbitration clause in the contract was referred to and discussed.  The further following matters of disclosure were raised in the written submission:

There may be an issue as to whether the FOSFA 4 contract is in the form as identified by the applicant as a slightly different version of an earlier date has been raised by solicitors for the third respondent.

There may be a potential issue as to the applicant’s knowledge of circumstances that, with hindsight, might be alleged to have been capable of raising concern as to the existence of the first respondent.

There may be a potential argument that in some way title to the copra may have passed from whoever had title and/or that because of the partial loading of some 7 tonnes, this in some way impacts on the applicant’s right to avoid the agreement or to the relief claimed.

There may be a potential issue as to whether the 20 May 2004 agreement was a separate contract or a variation of the original sale contract.

11                  It is to be noted that these paragraphs referred to ‘the copra’.

12                  The affidavit of Mr Hurley, the solicitor for the applicant, dealt with, amongst other things, the following matters:

(a)                The lack of registration in Australia of a company under the first respondent’s name and style was set out.

(b)               On the basis of a belief that the first respondent may be a Cook Islands company, a solicitor of the High Court of the Cook Islands was engaged to make enquiries of the relevant Cook Islands authorities.  She was told by those authorities that there was no company on the register under that name as a domestic company.  The following information was known of it as an international company, according to the solicitor:

Having made further inquiries in regard to the existence of Cross Pacific Trading Limited with the Registrar of International and Foreign Companies and all existing trustee companies on Rarotonga, it appears that Cross Pacific Trading Limited was registered as an international company in the Cook Islands at some point and was administered by TrustNet (Cook Islands) Limited (“TrustNet”).  I spoke with Ronnie Summers, Senior Legal Counsel, of TrustNet who confirmed that Cross Pacific Trading Limited had been registered in the Cook Islands and administered by TrustNet as an international company.  However, Ms Summers told me that Cross Pacific Trading Limited had been struck off the register at the International and Foreign Companies Office some time in October 2003.

(c)                RIPEL at some point produced or owned copra “which was purportedly to be sold and title transferred to the applicant”.

(d)               There was an asserted failure of a solicitor acting for Mr Wong and Mr Van Vlymen to provide details of the first respondent’s incorporation and status.  Mr Hurley did annex a letter from that solicitor, Mr Alexander, which included the following:

‘It would appear from our brief discussion with Mr Patrick Wong that your client’s claim is misconceived as ownership in the goods the subject of your client’s demand has already been transferred and is held by your client in its leased storage shed in Yandina Solomon Islands.’

13                  Mr Hurley’s affidavit did not deal with these matters mentioned by Mr Alexander nor did it otherwise explain the reference to “the goods”.

14                  The affidavit of Mr Horn, recounted his early contact with Mr Wong and the communications leading up to the entry into the contract.  In paragraph 12 of his affidavit he stated that at all times he thought that ‘Cross Pacific Trading’ was a bona fide company registered and carrying on business in Australia.

15                  Mr Horn dealt with his belief in, and reliance upon, the first respondent as a ‘genuine Australian registered company’.  He did, however, depose to a conversation that he had with Mr Van Vlymen in September 2003 in which he said that the applicant had found no information about “Cross Pacific Trading” and would not advance any money without further security.  That was the genesis of the guarantee from Orbis.

16                  Various other matters are referred to by Mr Horn including the regular invoicing of the applicant, the payment of over USD 1,000,000, the sending of ships to the Pacific to attempt, unsuccessfully, to load cargo, the incurring of charges, including deadfreight, in relation to those voyages.  At paragraphs 39 and 40, Mr Horn said, amongst other things, the following:

‘I now believe that Walter Rau was the subject of a fraud as to the existence of Cross Pacific Trading …

I also believe that Cross Pacific Trading did not have title to the copra at the time of entering into the Contracts of sale dated 4 September 2003 and 20 May 2004, or at the time of invoicing or payment thereunder …

17                  Before turning to the surrounding relevant facts some aspects of the contract entered on 4 September 2003 should be noted.  It was originally  for 3,000 metric tonnes in bulk +/-10% seller’s option of South Seas Copra at USD 220 per tonne, FOB Yandina for shipment between October 2003 and March 2004.  Buyers (the applicant) were to provide a loan of USD 100,000.  Delivery and ownership were dealt with by the following clause:

Seller’s option to deliver cargo into buyers shed in Yandina.  In such cases the cargo/goods shall be deemed transferred from sellers to buyers.  Despite the change of ownership in this above special condition, sellers shall still transport and load the cargo into vessel, equal to FOB terms.  Sellers may deliver on a weekly basis.

18                  The contract was subject to the standard terms of the Federation of Oils, Seeds and Fats Association Ltd (“FOSFA”) which included a strikes and force majeure and arbitration clauses in the following terms:

25.  STRIKES, ETC/FORCE MAJEURE:

(a)  For delivery from United States of America or Canada:-

…

(b)  For delivery from any other origins:-

Should Sellers be prevented from loading the goods on board Buyers’ ship or should Buyers be prevented from taking delivery by reason of fire, strikes, lockouts, riots, civil commotion or any cause comprehended in the term Force Majeure, at the port/s of loading or elsewhere preventing transport of the goods to such port/s, the contract delivery period shall be extended by 60 days.  If the Force Majeure event made less than 21 days before the end of the extended delivery period, then a further 21 days shall be allowed after the termination of the Force Majeure event.  Should loading or delivery not be possible within this extended delivery period, contract to be void.

19                  Mr Horn also swore in his affidavit that in May 2004 he had a conversation with Mr Van Vlymen in which the contract period was extended, the price increased and the tonnage increased.  Mr Horn deposed to the following conversation:

Van Vlymen:   Our contract was for delivery of 3,000 mt until end of March 2003 and we have supplied further tonnage since then at the contract price which does not reflect increase of market price between September 2003 and today.  It would be fair to adjust the price and extend the delivery period until mid June.  By then we would be able to supply additional 1,500 tons, bringing total volume to 4,500 tons.  Until mid of June we can also decide whether to conclude a further contract or not.

Horn:              Extension of delivery period until mid June is okay with me.  Agree to adjust contract price from USD 220 per metric tonne to USD 270 per metric tonne in line with price movement of coconut oil at the Rotterdam market.’

20                  There was no explanation or elaboration in the evidence or addresses in March as to what the clause ‘we have further tonnage’ referred to.

21                  During an exchange with counsel in March, in dealing with the invoices, I asked whether the invoices were said to be fraudulent.  I was told that they were said to have been fraudulent.  Shortly thereafter, in relation to the relationship between the invoices and the reality of cargo, the following exchange took place:

‘HIS HONOUR:   How do you know they are fraudulent?

MR STREET:   Well, your Honour, we say there is no such entity as the first

respondent.

HIS HONOUR:   No copra has ever arrived?

MR STREET:   There were three ships; there was one ship that berthed in the Solomon Islands and loaded some 7 tonnes of cargo which was copra cargo but it wasn't able to continue because of strikes so we say - - -

HIS HONOUR:   What was the destination for each?  Antwerp?

MR STREET:   The contract, your Honour - - -

HIS HONOUR:   The first contract says Yandina to Antwerp.  Has any copra

ever turned up in Antwerp?

MR STREET:   No.

HIS HONOUR:   Do you know of any vessels part from this one with 7 tonnes

that have supposedly been loaded with copra?

MR STREET:   No, no other vessels have been loaded with cargo.  We've

made two other efforts to pick up the cargo.

HIS HONOUR:   What is the purported explanation by any of the respondents to the receipt of nearly $US1 million and no copra to Europe?  Is there an explanation actually given?

MR STREET:   Their explanation appears to be, well, it's your cargo, it's your problem to pick it up, and, we've paid for it, we've done everything we're supposed to.

HIS HONOUR:   What ships do they say it was on and when did they sail?

MR STREET:   The terms of the contract only required them to deliver it to

the ship.

HIS HONOUR:   What ships do they say it was delivered to?

MR STREET:   They haven't specified that.  We've had three ships attend.

That incurred dead freight of about 150,000.

HIS HONOUR:   And there was no copra at the - - -

MR STREET:   Other than the 7 tonnes I've identified on one vessel, that's so.

HIS HONOUR:   What was the nature of the - what, in a sense, FOB on your

ship or what?

MR STREET:   It was supposed to be FOB.  If your Honour goes to the

contract which appears relevantly at page 14 your Honour will see

"delivery/ownership" at the bottom:

    Seller's option to deliver cargo into buyers shed at Yandina. In such

    cases the cargo goods shall be deemed transferred ...(reads)... weekly

    basis.

HIS HONOUR:   Have you got a shed in Yandina?

MR STREET:   No, there's been no shed that we've ever paid for.  There are sheds that I think are obviously asserted to be sheds to which the cargo has been delivered but there's no - - -

HIS HONOUR:   What, they say they've delivered cargo to sheds in Yandina?

MR STREET:   That's what these delivery notes purport to record.

HIS HONOUR:   I see.

MR STREET:   But they are self-generated by the first respondent.

HIS HONOUR:   Does the evidence disclose what searches were made and

what inquiries were made in the Solomons as to the existence of this cargo?

MR STREET:   Yes, your Honour, there was a step taken to try and identify

the existence of the cargo by a survey of it but the survey went to there being

cargo loaded in sheds, that is quantity not title so someone inspected from an accountants firm a number of sheds and identified in terms of volume there being a substantial quantity of copra in a number of sheds but no identification of any record was engaged in to try and identify title or - - -‘

[emphasis added]

22                  It will be necessary to come back to the purport of these passages, especially those emphasised.  It is sufficient to say at this point that the reference to a survey was not explained.  It was unclear what was being referred to.  The matter was not brought forward in a context of setting out matters by way of full disclosure.  It was raised in answer to a question about searches.

23                  The following appear to be further facts, which do not appear to be in dispute.

24                  The first respondent was a registered company in the Cook Islands as at 4 September 2003.  It was struck off the register pursuant to s 197 of the International Companies Act 1981 of the Cook Islands in October 2003.

25                  The solicitors for the respondents in April 2005 produced a letter to the solicitors for the applicant, which was an earlier letter to an entity, Trustnet (which I take to be responsible for the administration of the first respondent’s affairs) from the ‘Financial Supervisory Commission’ of the Government of the Cook Islands, dated 6 August 2005.  This letter stated the following:

We note from a review of the above company file that registration expired on the 04 July 2003.

Please accept this letter as notice pursuant to Section 197 of the International Companies Act 1981-82 that upon expiration of two months from the date of this letter, that the company will be struck off from the register unless it is renewed.

Your assistance and cooperation on this matter will be very much appreciated.

26                  This was said by senior counsel for the applicant in argument concerning the discharge of the orders to be “absolutely essential to part of our case”.  It was said that it revealed a continuing dishonesty that this document had to be dragged out of the respondents’ possession by interlocutory orders of the Court after March 2005.

27                  Thus, after 4 July 2003, the first respondent was not registered on, but had not been struck off, the relevant company register in the Cook Islands.  It remained in existence, at least, until October 2003.

28                  Mr Wong has sworn an affidavit in which he has said that he became aware of the August and October letters.  He said that he inadvertently overlooked dealing with them.

29                  The facts, as they have now been fully disclosed, reveal the following.  Copra in quantity and description was delivered in a fashion, and at times, in accordance with the contract.  The copra was placed into sheds at Yandina.  The applicant did not take a formal lease of the sheds, however, the position was as explained to me in June 2005 by senior counsel for the applicant as follows, in the context of a discussion of the contractual provisions about delivery, ownership, title and shipments:

HIS HONOUR:  No.  So the delivery and ownership if the copra is delivered into your shed in Yandina and, as I understand it, you took a lease of some sheds; is that right?

MR STREET:  No.  That is my learned friend’s case.  We say we accept that there was copra in sheds.  We accept that there was copra physically located in sheds.  We believed that it was our copra.  We acted as if it was our copra up until we discovered the non-existence of the first respondent.  What we say though is there is no evidence that identifies whose copra that was.  We did not lease the sheds, we did not make any payment for the lease of the sheds.  During the time until we discovered existence we certainly thought it was ours.

30                  The full contractual quantity of copra was placed into sheds at Yandina timeously under the terms of the contract.  The respondents say that they were the applicant’s sheds.  The applicant says that it did not pay for the sheds.  However, at all relevant times the applicant knew that all the copra that it had apparently purchased was there, believed it to be owned by it and, as will be seen, treated it as owned by it.  It was not, however, collected by ship.  No explanation has been given why it did not send ships by March 2004, as provided for under the original contract.  When ships were sent in June 2004, civil unrest in the Solomons prevented berthing and made Yandina an unsafe port.

31                  There is a dispute about some events in September 2003 concerning the USD100,000 loan.  There were communications between Mr Horn and Mr Van Vlymen about a guarantee from Orbis and about Orbis’ assets.  The respondents say that in this body of communication it was agreed that the USD100,000 loan would be repaid in copra.  That is denied by Mr Horn.  It is not appropriate that I enter that debate at this stage of the litigation.  It does, however, explain the failure by the respondents (on their case) to repay the USD100,000.

32                  There was apparently no contractual documentation drawn up evidencing the sale of copra from RIPEL to the first respondent.  There are said to be minutes and resolutions which can be seen to evidence same.  However, there is no party identified who has ever contested the applicant’s right to deal with the copra in the sheds at Yandina.  No one else claims or has claimed the copra in the relevant Yandina sheds.

33                  A Mr Whiteside has sworn an affidavit as to the regular delivery of the copra into the sheds at Yandina.

34                  In February 2004, Mr Robert Goh an accountant in the Solomon Islands, was retained by the applicant to undertake a stock verification audit at the storage sheds in Yandina.  There was apparently no doubt (at least for his purposes) about which sheds contained the cargo intended to be collected by the applicant.  The cargo was there, in full.  The only reference to this event at the ex parte hearing was the remark of counsel in the passage emphasised above and to which I have referred, and the use from time to time of the phrase “the cargo”.

35                  Later in 2004, after Mr Goh’s inspection of the copra in the sheds at Yandina, the applicant sold and repurchased the copra at Yandina to and from an arm’s length third party, for a small profit.  The applicant says that it was a futures contract, and not one that dealt with the title to the goods.  Nevertheless, the applicant entered in those contracts under a belief that they owned the copra, which they knew to be at Yandina, in the expectation of meeting delivery obligations by use of that Yandina copra.

36                  This is a sufficient background to begin a discussion of what the respondents claimed were non-disclosures on 21 March 2005.

37                  The first matter identified was the failure to identify, at the forefront of the case, the facts about the clear existence of cargo, inspected by Mr Goh, and available for collection at all times in accordance with the contract.  In answer to this, it was submitted in June, that at no time was it said in March that there was no cargo.  I do not propose to go through all the submissions of the respondents.  I have carefully reviewed the transcript and the material put before me in March.  I do not think that I had disclosed to me, in a manner consistent with the obligation of uberrima fides, all matters concerning the cargo – its existence, its satisfactory state in quantity (there is no complaint as to quality), its survey by the applicant, its sale and repurchase and its continuing availability. 

38                  In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application: Thomas A Edison Ltd v Bullock (1912) 15 CLR 678 at 681-82 per Isaacs J.  That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not mis-stating the position.  It means squarely putting the other side’s case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders.  It is not for the Court to search out, organise and bring together what can be said on the respondents’ behalf.  That is the responsibility of the applicant, through its representatives.

39                  The following was not put to me in any ordered and coherent way:

(i)                  To the knowledge of the applicant all copra apparently the subject of the contract had been delivered to sheds in Yandina timeously, or at least, in apparent compliance with the agreed terms.

(ii)                Those sheds were understood in 2003 and 2004 by the applicant as their sheds or at least Mr Goh, its agent, felt sufficiently confident of that to inspect and report on the copra in those sheds in February 2004.

(iii)               The applicant was told by its agent, Mr Goh, that all copra was present in the sheds in question.

(iv)              The applicant entered sale and repurchase contracts (at a profit) on the basis of the knowledge of the existence of the copra.

(v)                No other party had even made any claim whatsoever to the copra.

(vi)              There was no commercial or other reason why the copra, available at the nominated port of loading, could not have been loaded if, prior to the civil disturbances from mid-2004 in the Solomon Islands, the applicant, if it desired to do so, had complied with the terms of the original contract.

(vii)             The whole contractual quantity of copra remains available for collection.

40                  Instead, there was a concentration on the asserted fraud in relation to the existence and place of business of the first respondent.  I was left with an impression that the non-existent entity had defrauded the applicant of over USD1,000,000 leaving it without funds and without copra.  In the exchanges set out earlier, it was plain that I was searching for a relationship between the fraud alleged as to the non-existence of the first respondent and the existence or non-existence of copra.  I was told:

(a)               in answer to the question: “No copra has ever arrived?”, that three ships were sent and seven tonnes loaded; and

(b)               in answer to a question as to any purported explanation by any of the respondents to receipt of USD 1,000,000 and no copra to Europe, I was told that they “appear” to say “it’s your cargo, it’s your problem, pick it up.”

(c)               Then when I began to ask “there was no copra at the …”, counsel said “other than 7 tonnes I’ve identified on one vessel, that’s so.”

(d)               I then asked “Have you got a shed in Yandina?” I was told “No, there’s been no shed that we’ve ever paid for.  There are sheds that I think are obviously asserted to be sheds to which the cargo has been delivered but there’s no …”

(e)               I then asked “What, they say they’ve delivered cargo to sheds in Yandina?”  The answer to this was “That’s what these delivery notes purport to record.”  (In fact, all the contracted cargo had been delivered to sheds in Yandina, which the applicant, through its agent, inspected and found to be satisfactory and ready for collection.)

(f)                 This survey was then referred to obliquely, but only in the context of “trying to identify the existence of the cargo”, and not in the context of full disclosure.  In fact, the cargo was inspected; it was reported on; and no one else has ever claimed it.

41                  This lack of clarity was highlighted in another exchange in March:

‘HIS HONOUR: ….You say, not to put too fine a point on it, you have been hoodwinked into parting with $900,000 and there’s probably no copra there.

MR STREET:  Even if there is it’s not copra we own.

HIS HONOUR:  And even if it is it is not copra you own.’

42                  I was left with the impression that the applicant had been defrauded of a large sum of money in circumstances when there may not be any cargo and, even if there was, it was not the applicant’s (and implicitly, therefore, someone else’s).  In fact, there was cargo.  There was a full contractual load of cargo.  It had been inspected by the applicant’s agent and found relevantly to be complete and apparently satisfactory.  All concerned had always treated it as the applicant’s cargo.  No party ever said that the identified, nominated and extant cargo was owned by anyone else.  Rather, the claim was that, as a matter of law, the contracting party had ceased to exist and there was an issue as to whether title in law to the known cargo had vested in the applicant, and an issue was whether this was a result of a knowing falsehood.  There was also an issue as to whether the first respondent had been represented to be an Australian company, as opposed to a Cook Islands company.

43                  What was not put to me at the ex parte hearing was that there was apparently no falsity in any statement or conduct as to the production, delivery into the sheds and making available of the cargo.

44                  It was put to me in argument in June 2005 that it would have been plain to the Court from the case presented by the applicant ex parte that the copra it purported to purchase from the first respondent was and had been in the sheds in Yandina ready for collection.  It was not.   Worldwide freezing orders were sought.  On the basis of what I was told, I was left with the impression that over USD 1,000,000 had been extracted from the applicant for copra that probably did not exist, and even if it did, it was not the applicant’s copra (implicitly someone else’s) and that this fraud had been perpetrated by a use of a non-existent entity which the respondents dishonestly put forward as a contracting party.

45                  It may be one way of looking at the matter to emphasis the representations about the existence, corporate status and place of business of the first respondent.  However, at least one aspect of the defence of the respondents, which was not clearly and coherently put to me, was, and is, that the cargo was always at Yandina, was delivered to sheds, was inspected by the applicant, was found to be satisfactory and was thereafter the subject of a sale and repurchase transaction; and that the cause of the predicament of the applicant (and thus its loss) was, and is, only the civil disturbances in the Solomon Islands and their timing, and that if the applicant had lifted the cargo according to the contractual terms originally agreed (and so prior to the commencement of the civil unrest) it would have had the full benefit of the contract.

46                  I take the relevant principles of ex parte disclosure to be as discussed by Isaacs J in Thomas Edison and to be in the discussion by Mahoney AP in Gerrard v Email Furniture P/L (1993) 32 NSWLR 662 at 676-77 and in the cases there referred to by his Honour.

47                  The high standard of candour and the heavy responsibility on those who seek ex parte orders is especially the case where (as it was here, and as will often be the case) a discretion is involved.  The judge must be given the opportunity of analysing the facts from the perspective of any available case which can be put, or anticipated to be put, by the absent party.  That was not done here.  Facts were identified, but not in a fashion which illuminated with any clarity the known facts and not in a coherent and ordered way as plainly would have been done by the absent party.

48                  As the Full Court said in Town & Country v Partnership Pacific (1998) 20 FCR 540 at 543:

The rationale behind the principle is clear; it is of the utmost importance in the due administration of law that the Courts and the public are able to have confidence that an ex parte order has been made only after the party obtaining it has complied with its duty to disclose all relevant facts.

49                  The respondents are entitled to think that these orders were made against them without the high standard of disclosure required.  They could reasonably take the view that the facts were not clearly put to the Court which would have enabled the Court to view the matter from the perspective that they would have put to the Court had they been present.

50                  For these reasons, the orders made on 21 March 2005 should be discharged.  I will hear the parties on costs.  Prima facie, the respondents are entitled to their costs of seeking to set the orders aside.  It may be that such costs are difficult to identify with precision at the moment.  Costs have been expended in the proceedings to date which may not be properly referable to the ex parte orders.  Subject to hearing the parties, I would propose that an appropriate way of approaching the question of costs is to order the applicant to pay the costs caused by the making of the ex parte orders, including the costs of seeking to set aside those orders.

51                  The orders that I make are:

1.         Orders 3 to 24 made on 21 March 2005, to the extent that they have been extended and are operative, be discharged.

2.         Within seven days, the parties file brief submissions (no more than three pages) on the form of order as to costs.

Associate:

Dated:              18 July 2005