FEDERAL COURT OF AUSTRALIA

Moet Hennessy Australia Pty Ltd v Hanjin Shipping Co Ltd [2015] FCA 1153

THE COURT ORDERS THAT:

1.    The second defendant file and serve its defence to the plaintiffs’ claim by 1 November 2015.

2.    The proceedings stand over to 19 November 2015.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an application under r 10.43 of the Federal Court Rules 2011 (Cth) to serve the first defendant, the owner of Hanjin Aqua, in the Republic of Korea (known as South Korea). The plaintiffs are companies related to the producer of the champagne Moët & Chandon. The second plaintiff, Moët Hennessy Asia Pacific Pte Limited, caused a cargo of alcohol products and advertising material to be loaded on board Hanjin Aqua in Singapore on 1 August 2014, including a 40-foot container said to contain 1760 packages of what the plaintiffs allege to have been Moët champagne. The first plaintiff, Moët Hennessy Australia Pty Limited, was the consignee named in the bill of lading and the notify party.

2    The statement of claim alleges that on or about 14 August 2014, the shipment was discharged from the ship at Port Botany, landed at the international container terminal of Hutchison Ports and stored there. On about 21 August 2014, while the container was still at the terminal, the plaintiffs were advised that the container had been damaged.

3    I am satisfied by the evidence in the affidavit of James Tuite of 2 September 2015 that there is a prima facie case that:

    the bill of lading recorded that the cargo was received on board Hanjin Aqua in Singapore in apparent good order and condition;

    the cargo was discharged and was received by the first plaintiff at Sydney in a severely damaged condition;

    the cargo inside the container was completely destroyed; and

    the plaintiffs claim to have lost about $265,000 by reason of property damage to the cargo and other associated costs.

4    The ordinary duty of a bailee for reward and of a carrier under Art 3 r 2 of the Amended Hague Rules in Schedule 1A to the Carriage of Goods by Sea Act 1991 (Cth) is to keep, care for and discharge the goods properly and carefully. On the basis of the damage apparently done to the cargo after it was received at Singapore in the apparent good order and condition referred to in the bill of lading, I am satisfied that there is a prima facie case that the first defendant breached its duty as bailee and under Art 3 r 2 by delivering the cargo to the first plaintiff in Sydney in a damaged condition.

5    The requirements for service out of the jurisdiction under r 10.43 are well settled and I restated them as follows in Fuk Hing Steamship Co Ltd v Shagang Shipping Co Ltd [2014] FCA 1200 at [10]-[11]:

10    The requirements for service out of the jurisdiction under the Rules are well settled: Beluga Shipping GmbH & Co KS “Beluga Fantastic” v Headway Shipping Limited (No 2) (2008) 251 ALR 620 at 627-628 [32]-[33] per myself. Finn, Weinberg and Rares JJ in Ho v Akai Pty Limited (In Liq) (2006) 24 ACLC 1526 at 1529 [10] summarised these as:

As has been observed on many occasions, the prima facie case requirement has to be met at the outset, usually on an ex parte basis, and without the advantage of discovery and other procedural aids to the making out of a case: see e.g. Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 at 390. It “should not call for a substantial inquiry”: WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 at 476; see also Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549. For present purposes it is sufficient to say that a prima facie case for relief is made out if, on the material before the court, inferences are open which, if translated into findings of fact, would support the relief claimed: Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 at 110. Or, to put the matter more prosaically as Lee J did in Century Insurance (in provisional liquidation) v New Zealand Guardian Trust [1996] FCA 376:

“What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court’s processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified.”

11    Thus, it is sufficient that there be a prima facie case for relief made out on material before the Court based on inferences that are open that, if translated into findings of fact, would support the relief claimed in respect of one of the causes of action relied on by the plaintiff.

6    Mr Tuite stated that the first defendant is a company registered in South Korea and that that country is a party both to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 (the Hague Convention) and to a bilateral treaty with Australia, the Treaty on Judicial Assistance in Civil and Commercial Matters between Australia and the Republic of Korea done at Canberra on 17 September 1999 ([2000] ATS 5).

7    The plaintiffs wish to serve the shipowner under the bilateral treaty and are making arrangements to have the relevant documents, being the originating application, statement of claim, genuine steps statement and the orders that I will make, to be translated into Korean so that they can be served in accordance with the requirements of the bilateral treaty. I am satisfied that the treaty makes provision for service abroad by the Central Authority in Australia, being the Attorney-General’s Department, requesting the Central Authority of the Republic of Korea to serve the documents in South Korea.

8    The first directions hearing as against the second defendant, Sydney International Container Terminals Pty Limited, occurred today and I have stood those proceedings over to 19 November 2015. It is appropriate that, at this stage, I return the proceedings generally against both defendants on that day.

Associate:

Dated:    27 October 2015