IN THE FEDERAL COURT OF AUSTRALIA

 

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1613 OF 2006

 

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:

COMANDATE MARINE CORP

Appellant

 

AND:

PAN AUSTRALIA SHIPPING PTY LTD

Respondent

 

 

JUDGE:

ALLSOP J

DATE OF ORDER:

13 OCTOBER 2006

WHERE MADE:

SYDNEY

 

THE COURT ORDERS THAT:

 

 

1.         In accordance with paragraph 9 of the Orders of the Honourable Justice Rares made on 6 September 2006, the amount that the Respondent is to provide as security is $21,221.42.

2.         Each party is to bear its own costs of the Appellant’s notice of motion filed in Court on 6 October 2006.

3.         If the Respondent’s undertaking to provide security is not met by 10.00 am on 25 October 2006, the Respondent to the appeal, by someone who has personal knowledge of the facts, provide affidavit evidence as to the reasons why its undertaking to the Court has not been complied with.

 


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

NSD 1613 OF 2006

 

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:

COMANDATE MARINE CORP

Appellant

 

AND:

PAN AUSTRALIA SHIPPING PTY LTD

Respondent

 

 

JUDGE:

ALLSOP J

DATE:

13 OCTOBER 2006

PLACE:

SYDNEY


REASONS FOR JUDGMENT

1                     Because the parties and their lawyers cannot agree the combined total of two past applications and two possible future applications, all by consent, and none either complex or unusual, it has been necessary for the Court to sit for a substantial part of a morning in hearing senior counsel for both sides to determine this issue.

2                     The issue is the proper sum for paragraph 9 of the orders of Rares J on 6 September 2006.

United States costs

3                     In relation to the United States' costs there is agreement that the appropriate sum for past costs of USD1,145.03. There are contending sums of USD3,625 put forward by Mr Sullivan and USD1,600 put forward by Dr Bell for the possible future consent application. Having read the material from the respective New York attorneys and using my own experience, though not American experience, to understand the steps involved, I think in all the circumstances the sum of USD3,625 is reasonable and that is the sum that should be taken and calculated to create the sum for the purpose of paragraph 9 of the orders. I think it is a more detailed estimate; and I give it more weight because it is of the firm that is likely to incur the costs, though that is not determinative.

United Kingdom costs

4                     I propose to estimate GBP2,000 for the costs of the discharge. The reasons for the need to estimate is the unsatisfactory nature of the material from the London firm which undertook the application on behalf of the plaintiff. I do not make any personal criticism of the solicitors in this respect. I reject the premise in their estimate that the costs include reading and understanding Rares J’s judgment. The costs assume a sound understanding of the orders. I think there was, however, legitimate room for debate about the terms of the consent order that required a certain degree of correspondence between dutiful and co-operative solicitors in London and with their Australian agents and correspondents. There was also the need to take documents to court and the like and a modest amount of consultation with counsel. And I think £2000 is more than adequate to cover all that.

Applicant’s costs on an indemnity for all steps necessary for reinstatement

5                     Reading the orders against a background of common understanding of the nature of Anglo-Australian courts’ approach to orders of a kind made by the High Court of Justice, by way of worldwide freezing orders, it seems to me that it is implicit within the words of the undertaking that the indemnity is for the security for costs which are at the time necessary for the reinstatement of orders, which are of their very nature exhorbitant.

6                     It is clear from the terms of orders 1(c) and paragraph 9, that Pan is obliged to consent to the reinstatement of the orders, if it loses the appeal. It is entirely likely, however, and indeed, I would expect it to be the case, that something more than a minute of order be filed. It would not be the discharge of the exercise of judicial power that would be dealt with. It would be the reinstatement of the exercise of judicial power. If reinstatement is to occur, there will need to be a collection of material in order to apprise the Court of the state of the matter and the appropriateness of the granting, by way of reinstatement, of worldwide freezing orders.

7                     The estimate of one London firm of solicitors, on pages 4 and 5 of Mr Wilson's affidavit of the 13th of October 2006, is that this will cost in the order of GBP9,825. Set against that, is the estimate of another London firm of solicitors of GBP500 which I take to be an estimate based really upon an administrative task of the preparation and filing of orders. Though, I do not pretend to be an English practitioner, an English judge or an English taxing master, and I must work on the evidence, I have some difficulty in coming to the conclusion, that it will be necessary in an application of a kind that I have identified, for something in the order of GBP10,000 to be spent. I also have difficulty in accepting that GBP500 will be sufficient. Doing the best I can in assessing that evidence, and recognising that there will be need to inform the High Court of Justice of the state of the litigation, and possibly to brief counsel on that short consent application, I would have thought something in the order of GBP4,000 was more than adequate.

8                     Mr Sullivan does not wish to say anything against that. Therefore, my conclusion is that the sum of GBP4,000 is a reasonable and appropriate sum for the securing of the application on an indemnity basis for the reinstatement of the orders, recognising that it is security, and not payment of those costs in advance.

Costs of today

9                     The parties were unable to agree as to what should happen with the costs of this argument. At the hearing I gave extempore reasons which were critical of, the London solicitors for not having agreed to the relevant costs. I invited Australian solicitors to communicate with me if they thought I had been unfair. Ebsworth & Ebsworth have indicated to me that they thought my comments were unfairly critical of, at least one firm. I therefore, withdraw my remarks about both London firms and replace them with the following.

10                  The reason why the Court was required to hear argument about a matter that the parties, through their lawyers (London and Sydney), should have been able to agree was either the failure of the lawyers to put forward what I regard as reasonable estimates or the failure to resolve in a sensible fashion the differences between the two estimates. It was therefore necessary for the Court to deal with the issue. Each party should therefore pay its own costs.

11                  It is the duty of parties and advisers in litigation to limit the call upon court resources to matters truly necessary for decision: Ashmore v Corporation of Lloyds [1992] 1 WLR 446, 453 and see the notice to practitioners for the conduct of Admiralty and maritime work in the Federal Court of Australia dated 21 December 2005, especially the parts emphasised in the relevant portion of such notice, a copy which is annexed hereto. These obligations should be borne in mind and adhered to especially in what might be referred to as hard-fought litigation.

 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.


Associate:

Dated: 23 October 2006



Counsel for the Appellant:

Mr A J Sullivan QC

 

 

Solicitor for the Applicant:

Norton White

 

 

Counsel for the Respondent:

Dr A S Bell SC

 

 

Solicitor for the Respondent:

Ebsworth & Ebsworth

 

 

Date of Hearing:

13 October 2006

 

 

Date of Judgment:

13 October 2006



Annexure A



FEDERAL COURT OF AUSTRALIA

 

CONDUCT OF ADMIRALTY AND MARITIME WORK IN

THE FEDERAL COURT OF AUSTRALIA

NOTICE TO PRACTITIONERS

IN ALL STATES AND TERRITORIES

 

 

The purpose of this notice is to set out the new arrangements that the Court has put in place for the conduct of Admiralty and maritime matters. This notice deals with: the new national arrangement, the identification of Admiralty and maritime work covered by the new arrangements, in personam proceedings, in rem proceedings, assisted or alternative dispute resolution, Court annexed arbitration, and the proper approach to Admiralty and maritime litigation.

 

National Arrangement

A national arrangement has been established whereby nominated Judges in each Registry will undertake the Admiralty and maritime work of the Court (defined below) at first instance and, as far as practicable, on appeal. They will be assisted in undertaking the work by nominated Registrars, skilled Registry officers and Admiralty Marshals. A National Convening Judge and Registry Convening Judges will co-ordinate the work and harmonise practice and procedure in accordance with this notice to practitioners.

 

… [unnecessary parts omitted]

 

Approach of Practitioners and Litigants to Admiralty and Maritime litigation

Parties are urged to agree upon short minutes of order sufficiently prior to any scheduled directions hearing such that they can be sent, where agreed, by email to the judge’s associate. Where possible, a directions hearing will be vacated if the parties can agree upon an appropriate regime prior to the nominated time and date of the directions hearing. An exception to this convenient method of procedure is where one (or more) of the parties is or has been, in significant default of existing orders, or where there are difficult issues which need, sooner rather than later, to be ventilated. It is inappropriate for one party to send submissions, letters and partisan documents to the judge. The facsimile machine and the email system are not to be used for private or unilateral filing of submissions or complaints without the leave of the Court, but if all parties agree on a communication being sent to the judge it may be forwarded, without leave, to the associate.

 

At some early point in the procedural conduct of the matter, the Court will wish to understand the nature of the dispute, the real issues in dispute, how the real issues are to be proved and whether or not there are technical issues, whether there are particular evidential difficulties, whether because of expert or overseas witnesses. The Court appreciates that in Admiralty and maritime matters both the plaintiff and the defendant may, on occasions, need extended periods of time to obtain instructions from overseas clients and to ascertain what did or did not happen in places or on ships which may be both far away and inaccessible. Nevertheless, due allowance being made for such matters, the Court expects the parties and their legal representatives promptly to ascertain, as far as is reasonably possible, the nature and extent of the facts which pertain to any particular case. This is not limited to the particular points which the party wants to prove. It is not an acceptable way of conducting litigation to 'put the other side to proof' on all issues. The parties are expected to identify the real and genuine issues in dispute, whether of fact or law, after due investigation. It is the duty of the profession to assist the Court in the performance of its duty to resolve disputes by reference to what truly is, or should be, in dispute: see generally Ashmore v Corporation of Lloyds [1992] 1 WLR 446, 453, and see the speech by Hayne J 'Judicial Case Management and the Duties of Counsel', Wednesday 24 February 1999 to the Readers of the Bar Practice Course, Brisbane, contained on the High Court Website under the link 'publications'. In this context, parties should expect that the Court will be ready to use s 190(3) of the Evidence Act 1995 (Cth) in appropriate circumstances to lessen the cost of proving matters not bona fide in dispute.

 

How the parties co-operate to identify the issues in dispute, and to agree on facts that are not truly in dispute is a matter for the profession and their commercial clients.

An aspect of this co-operation between the parties’ representatives that the Court expects, however, is the provision of information and documentation in a prompt and timely fashion. Where legal practitioners make reasonable requests for documents or information (whether strictly 'particulars' or not) those requests should generally be met without the delay. In some cases, for various reasons, the formality (and cost) of a verified list of documents is necessary.

 

These matters should be made plain to clients. This could be achieved by providing this Notice to Practitioners to them. In dealing with questions of costs the Court will presume that clients have been made aware of the general approach and the expectations of the Court reflected in this Notice to Practitioners.

 

Aim of the new arrangements

The underlying idea of this new arrangement is the provision by the Court of the full range of its facilities, including mediation, early neutral evaluation, arbitration and judicial hearing to bring matters flexibly, cheaply and speedily to resolution. The Court encourages the use of external mediation and arbitration. Equally it is able, should parties and the profession desire it, to provide specialised, skilled Judges and Registrars who can deal with matters in a variety of ways best suited to the particular maritime dispute.

 

This notice to practitioners can be found on the Court’s Admiralty and maritime website: www.fedcourt.gov.au/how/admiralty.html

 

 

Dated: 21 December 2005

M. E. J. BLACK Chief Justice