FEDERAL COURT OF AUSTRALIA
 FCA 1273
Commonwealth of Australia v Shenzhen Energy Transport Co Ltd (No 2)  FCA 1273
QUD 178 of 2013
Date of judgment:
18 November 2015
Convention on Limitation of Liability for Maritime Claims 1976, Article 2(1)(a), (f); Articles 6, 9 and 10
Commonwealth of Australia v Shenzhen Energy Transport Co Ltd  FCAFC 116 – cited and quoted
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 – cited
12 November 2015
Date of orders:
16 November 2015
Number of paragraphs:
Solicitor for the Applicant:
Australian Government Solicitor
Counsel for the Respondent:
Mr J Sexton SC
Solicitor for the Respondent:
Thynne & Macartney
IN THE FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
16 NOVEMBER 2015
THE COURT ORDERS THAT:
2. The applicant file the Amended Reply by 4.00pm on 17 November 2015.
3. On or before 4.00pm on 19 November 2015, the applicant file a document identifying the particular documents it requires the respondent to produce in respect of which, the respondent claims legal professional privilege.
4. On or before 4.00pm on 26 November 2015, the respondent file any further evidence and its written submissions in support of any claim for legal professional privilege over the documents in paragraph 3.
5. On or before 4.00pm on 3 December 2015, the applicant file any response to the respondent’s written submissions in paragraph 4.
6. The hearing of the respondent’s claims of privilege be listed for hearing on a date to be advised by the registry.
7. Costs be reserved.
8. Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
QUEENSLAND DISTRICT REGISTRY
QUD 178 of 2013
COMMONWEALTH OF AUSTRALIA
SHENZHEN ENERGY TRANSPORT CO LTD
18 NOVEMBER 2015
REASONS FOR JUDGMENT
1 These proceedings concern an interlocutory application made by the applicant (the “Commonwealth”) pursuant to r 16.53 of the Federal Court Rules 2011 for leave to amend the Commonwealth’s reply filed on 9 July 2014. On 16 November 2015, the Court made orders granting leave to amend the reply and other directions. The parties were advised that reasons would be published within a few days. These reasons are the reasons in support of the orders made on 16 November 2015.
2 It is necessary to say something about the background to the present application.
3 In the principal proceeding, the Commonwealth pleads a general maritime claim under s 4(3)(a) of the Admiralty Act 1988 (Cth) for damage done to the Great Barrier Reef by the ship Shen Neng 1 arising out of the grounding of the ship on the Douglas Shoal “on 3 April 2010, at about 1710 hours”: para 2, statement of claim.
4 The cause of action relied upon by the Commonwealth is the tort of negligence. The Commonwealth seeks to recover the loss and damage it says it has suffered (para 5, statement of claim) by reason of the extensive damage caused to the Douglas Shoal: para 4, statement of claim.
5 If the cause of action is made good, the Commonwealth seeks to recover all of the loss and damage flowing from the contended negligence of the respondent, the nature and extent of which is to be the subject of expert evidence at the trial: para 4, statement of claim.
6 The ship remained grounded for 12 days before ultimately being re-floated. The damage to the Great Barrier Reef is said to extend to an area between 80,000m2 and 400,000m2: para 4 of the statement of claim.
7 During the period of 12 days between the grounding and the re-floating, a number of steps were taken and things done in connection with the grounding and attempts to re-float the ship.
8 The respondent, by its amended defence filed on 23 June 2014, admits that the grounding was “caused solely by the negligent navigation of the Chief Officer of the vessel” but otherwise denies para 3 of the statement of claim which asserts that the said grounding was caused solely by the negligent navigation of the ship “by the servants or agents of the respondent”.
9 The respondent, by its amended defence, pleads that it does not know and cannot admit the matters pleaded at paras 4 and 5 of the statement of claim. As to the cause of action in negligence, as pleaded against the respondent, the amended defence limits the negligence for which the respondent is said to be liable to the negligence of the Chief Officer alone.
10 By the amended defence, the respondent also pleads that having regard to factual assertions pleaded at paras 6 to 8 of the amended defence, the respondent is entitled to avail itself of a limitation of liability under the Convention on Limitation of Liability for Maritime Claims 1976 (the “Convention”) adopted into the domestic law of Australia by the Limitation of Liability for Maritime Claims Act 1989 (Cth) (the “Limitation Act”), on the footing that Articles 2(1)(a) and (f), 6, 9(1) and 10 of the Convention and s 25 of the Admiralty Act 1988 (Cth) (the “Act”) are engaged with the result that the respondent’s liability is limited to the Convention limit as pleaded in the amended defence.
11 The pleaded matters at paras 6 to 8 are these:
Limitation of liability under the Limitation of Liability for Maritime Claims Act 1989
6. The Respondent was at all material times the owner of the Shen Neng 1.
7. The Shen Neng 1 is a seagoing ship.
8. The claim made in the Statement of Claim is:
a. a claim in respect of loss of or damage to property occurring in direct connection with the operation of the Shen Neng 1 and/or consequential loss resulting therefrom; and/or
b. a claim in respect of loss resulting from infringement of rights (other than contractual rights) occurring in direct connection with the operation of the Shen Neng 1; and/or
c. a claim in respect of measures taken in order to avert or minimise loss of the type referred to in sub-paragraph (a) and/or sub-paragraph (b) above and/or further loss caused by such measures.
12 By paras 10 and 11, the respondents plead that the tonnage of the ship is 36,575 tonnes and that any liability of the respondent is limited to the value of 14,172,500 Special Drawing Rights as defined by the International Monetary Fund.
13 The effect of the relevant Articles and the Act is that the “limits of liability” for relevant “claims” arising on any distinct occasion are to be calculated in the manner described in Article 6 of the Convention, and the limits of liability so determined are to apply to the aggregate of all claims which arise on any distinct occasion as contemplated by Article 9(1)(a) of the Convention.
14 The Commonwealth filed a reply on 9 July 2014 by which it admitted two things, the respondent having sought to engage a defence of limitation of liability as just described in partial answer to the claim. First, that the Shen Neng 1 is a seagoing ship and, second¸ that the tonnage of the ship is 36,575 tonnes.
15 Subject to those two admissions, the Commonwealth joined issue with the respondent as to all other matters.
16 As the Full Court observed, the question of whether the respondent can establish a right, as pleaded, to limit its liability for all of the loss or damage claimed by the Commonwealth to simply those acts, neglects or defaults that resulted in the original grounding (as the only distinct occasion) is, ultimately, a question of fact the examination of which was not foreclosed by the qualified admission by the respondent that the acts, neglects or defaults of the Chief Officer of the ship, on or prior to 17:05 (as now seems to be the time of grounding) on 3 April 2010, was the only cause of the grounding: Commonwealth of Australia v Shenzhen Energy Transport Co Ltd  FCAFC 116 at .
17 By its reply, the Commonwealth joined issue with the respondent and put the respondent to proof of the factual matters which would make good the engagement of the limitation of liability. Should the respondent fail to make good the limitation, the Commonwealth, subject to proof of all elements of its claim, would be entitled to recover the loss and damage flowing from the pleaded negligence.
18 Mr Scott QC for the Commonwealth accepted before the Full Court that the Commonwealth by its reply was “just putting them to proof as to how it happened”: T, p 12, lns 16-19. Mr Scott QC also accepted (at T, p 11, lns 45-47; T, p 12, lns 1-8) that the point or logic of the matter of putting the respondent to proof on the limitation defence may properly be put this way:
… once [the vessel was] stuck on the reef, then everything else that flowed was so interconnected with trying to get off it in a safe way when you’ve got partial holing, you’ve got oil leaks, you’ve got stability problems and the like. But you can’t distinguish, factually, any of those acts as being anything other than perfectly well connected to the original grounding that - … it’s all one event. But on the other hand, there may have been some decision taken at one point or other during the course of the grounding that aggravated particular damage, that did something that was particularly egregious, that changed that to a second occasion, a second series of events.
19 Mr Scott QC also accepted (at T, p 12, lns 10-14) that if the Commonwealth is going to run a positive case that claims made arise on more than one occasion (thus attracting distinct applicable caps), the Commonwealth would need leave to amend its reply to make a positive case.
The proposed amended reply
20 The Commonwealth now seeks leave to amend its reply to plead the following matters (underlining omitted):
1A. As to paragraph 8:
(a) it says that at 1705 on 3 April 2010, the Shen Neng 1 ran aground at position [coordinates quoted] due to the admitted negligence of the Chief Officer and thus gave rise to a claim for loss or damage within the meaning of art 6 of the Convention (the First Distinct Occasion);
(b) it says further that at 1711 on 3 April 2010, the Master ordered the vessel’s starboard anchor to be lowered to two shackles in the water;
(c) it says further that notwithstanding the vessel had run aground, the main engine was not stopped until 1713 on 3 April 2010;
(d) it says further that at 2010 on 3 April 2010, the vessel was at position [coordinates quoted] and so had moved about 0.53 miles (981 metres) in a west, north-westerly direction, and towards shallower waters, since the initial grounding;
(e) it says further that had the Master been monitoring the vessel’s positional changes, as he ought to have been doing, then by reason of the matters alleged in sub-paragraphs (a), (b) and (d), he would have known that her anchor was dragging and that he should pay out more cable on the starboard anchor to arrest the movement of the vessel across Douglas Shoal and that his negligent failure to do so or to arrest the movement of the vessel by 2010 on 3 April 2010 was an act of improper seamanship that gave rise to a separate claim for loss or damage arising on a distinct occasion within the meaning of art 6 of the Convention (the Second Distinct Occasion);
(f) it says further at 0024 on 4 April 2010, Mr Andre Winkler, the casualty co-ordinator appointed by the Australian Maritime Safety Authority [AMSA] boarded the vessel;
(g) it says further that at some time between 0024 and 0138 on 4 April 2010, Mr Winkler attended the engine room and engine control room and observed there was considerable flooding of oil and water and that he did not observe any steps being taken to stop or slow the ingress of oil and water;
(h) it says further that at some time between 0024 and 0138 on 4 April 2010, the Master told Mr Winkler that he had been told to drive the vessel off the reef in response to which Mr Winkler asked whether stability calculations had been made;
(i) it says further that at no time before 0230 on 4 April 2010 were stability calculations made;
(j) it says further that at 0138 on 4 April 2010, the Master was told that the main engine was disabled;
(k) it says further that at 0200 on 4 April 2010, Mr Winkler told the Master that the vessel was still moving across Douglas shoal, told the Master the vessel had to be stabilised and, when told by the Master that there were two shackles of cable out, recommended the Master let out more cable;
(l) it says further that at 0225 on 4 April 2010, the Master was instructed by the vessel’s manager to weigh the starboard anchor and to attempt to float the vessel off the reef;
(m) it says further that the vessel’s starboard anchor was heaved at 0230 and aweigh at 0238 on 4 April 2010 at which time the vessel was at position [coordinates quoted];
(n) it says further that the Master’s decision to weigh anchor alleged in sub-paragraph (m) above, in the circumstances alleged in paragraphs (b), (d) and (f) to (k) above, was negligent and an act of improper seamanship that gave rise to a separate claim for loss or damage arising on a distinct occasion within the meaning of art 6 of the Convention (the Third Distinct Occasion);
(o) it says further that at 0255 on 4 April 2010, Mr Winkler asked the Master why he had weighed anchor and told him that the Master would make the situation worse if he attempted to refloat the vessel;
(p) it says further that at some time between 0300 and 0400, the Master, after having spoken to the ship’s manager, decided to abort the attempt to refloat the vessel;
(q) it says further that at 0438 on 4 April 2010, the vessel’s port anchor was lowered to three shackles in around 14 metres of water while the vessel was at position [coordinates quoted], having moved 0.153 miles (282.8 metres) in a west north-west direction since 0238;
(r) it says further that a tug arrived at the site at 1530 on 4 April 2010 while the vessel was at position [coordinates quoted];
(s) it says further that the vessel was successfully refloated at 0748 on 12 April 2010 when it was at position [coordinates quoted]; and
(t) it otherwise denies the allegations in paragraph 8.
1B. As to paragraph 9:
(a) the Applicant says that, by reason of the matters alleged in the preceding paragraph, any entitlement the Respondent has under the Limitation of Liability for Maritime Claims Act 1989 (Cth) to limit its liability in respect of the Applicant’s claim is by reference to the loss and damage which arose in respect of each of the three distinct occasions alleged respectively; and
(b) it otherwise denies the allegations in paragraph 9.
2. The Applicant admits paragraph 10.
3. As to paragraph 11:
a. the Applicant refers to and repeats paragraph 1B above, and
b. it otherwise denies the allegations in paragraph 11.
The discovery application
21 The application for leave to amend evolved in the following way.
22 On 7 May 2015, the Commonwealth was granted leave to file an application for further discovery of documents relevant to the respondent’s pleaded entitlement to limit its liability to one event of grounding in the way earlier described. Other directions orders were made that day for the completion of a sequence of interlocutory steps including the filing of evidence-in-chief by the applicant (including expert evidence) and the filing of such evidence by the respondent. The orders also provided for a particular protocol in relation to expert evidence and a joint report.
23 As to the trial, Order 12 of the orders made that day listed the proceedings for trial for 15 days commencing on 4 April 2016.
24 On 30 June 2015, the Australian Government Solicitor (“AGS”), representing the Commonwealth, retained a navigational expert, Paul Davidson (a Master Mariner and Partner in Brookes Bell Singapore) to provide an opinion on navigational issues relevant to the period immediately following the grounding at 17:05 on 3 April 2010 up to the moment in time when the vessel was re-floated, 12 days later.
25 In relation to the Commonwealth’s application for further discovery the subject of the order for leave of 7 May 2015, the Commonwealth filed an affidavit in support of that application sworn by Ms Jane Lye on 17 July 2015. That affidavit annexed a document provided to AGS by the Great Barrier Reef Marine Park Authority (the “Authority”) (AGS’s primary instructor in the proceedings on behalf of the Commonwealth) entitled Casualty Co-ordinator’s Report from 3rd to 5th April 2010. The document is a report prepared by Mr Winkler. At the time of the grounding of the Shen Neng 1, Mr Winkler was an employee of the Australian Maritime Safety Authority (“AMSA”). He was appointed by AMSA on 3 April 2010 to be the casualty co-ordinator for the grounding. Mr Winkler’s report was primarily prepared for AMSA.
26 On 20 August 2014, the Federal Court made orders requiring the Authority to give standard discovery. The Authority provided Mr Winkler’s report to the AGS although it is not clear when. Ms Lye had not seen Mr Winkler’s report until it was provided to her by the Authority. In May 2015, Ms Lye made particular enquiries about the report as to its source and date.
27 On 23 July 2015, the Commonwealth filed an amended application for discovery of documents described at paras 1.1 to 1.5 of the amended application. The respondent resisted the application. The documents sought by the Commonwealth were relevant to the issue of whether there was more than one “distinct occasion” for the purposes of the Convention and the Limitation Act. The amended discovery application was made by the Commonwealth consequent upon information provided by Mr Davidson to AGS that the documents sought were of a kind commonly created and kept on board vessels such as the Shen Neng 1; such documents would be informative about actions taken or proposed to be taken or not taken immediately after the initial grounding, the state of the vessel, her engines and equipment in the period after the initial grounding; and were documents relevant to forming an opinion about whether there were acts of bad seamanship which had caused additional damage after the initial grounding.
28 On 23 July 2015, Collier J dismissed the Commonwealth’s amended application. On 4 August 2015, the Commonwealth filed an application for leave to appeal from the orders of Collier J. The Commonwealth’s application was supported by an affidavit sworn by Ms Lye on 4 August 2015. In that affidavit (at para 27), Ms Lye deposed to her understanding that Mr Davidson would require approximately six weeks from the date on which he was provided with the documents to express an opinion about whether there were acts of bad seamanship which had caused additional damage after the initial grounding. Ms Lye also said this: “Assuming the applicant seeks leave to amend its reply to expand its present joinder of issue on the respondent’s claimed right to limit, I expect the respondent would then need about six weeks to obtain an opinion from a master mariner”.
The Full Court’s orders of 24 August 2015
29 On 24 August 2015, the Full Court of this Court granted the Commonwealth leave to appeal and heard and determined the appeal in favour of the Commonwealth. The Full Court set aside the orders of the primary Judge and ordered (apart from the costs of the appeal) that:
(a) the respondent give discovery of the categories of documents in paras 1.1 to 1.5 of the amended interlocutory application e-filed on 27 July 2015 on or before 1 September 2015; other than the VDR itself referred to in 1.1.3 [“The voyager data recorder (S-VDR) including the recorder itself”];
(b) if the respondent seeks any extension of time in accordance with Order 3(a) in respect of any particular documents in para 1 of the amended interlocutory application, it do so before the docket judge on 28 August 2015.
(c) the respondent pay the applicant’s costs of the interlocutory application.
The directions orders of 28 August 2015
30 On 28 August 2015, the parties appeared before Rares J for directions concerning the further conduct of the principal proceeding. The programming Orders 5 to 11 made by the Court on 7 May 2015 were vacated. Orders were made, put simply, for the listing on a date to be fixed of an interlocutory hearing of any disputed claims to privilege made by either party and whether particular documents ought to be produced to the applicant. Orders were also made that the respondent give discovery of the categories of documents in paras 1.5.3 and 1.5.5 of the Commonwealth’s amended interlocutory application filed on 27 July 2015 on or before 11 September 2015 and also the categories of documents in paras 1.2.8, 1.2.10 and 1.2.14 of that application on or before 18 September 2015.
31 By Order 4 of the orders made that day, the Commonwealth was given leave to file any application for leave to amend its reply on or before 4.00pm on 26 October 2015.
32 The Commonwealth was also ordered to file and serve on or before 26 October 2015 any additional evidence upon which it intends to rely including evidence going to the respondent’s limitation defence.
33 The respondent is required to file and serve on or before 15 February 2016 any additional evidence upon which it intends to rely.
34 The expert witnesses are to hold conferences in their respective disciplines and prepare joint experts’ reports on or before 14 March 2016. On or before 21 March 2016, joint reports prepared by the experts are to be provided to the parties. The Commonwealth is to file the joint reports on or before 28 March 2016.
35 No change was made to Order 12 of the orders made on 7 May 2015 listing the proceeding for trial for 15 days commencing 4 April 2016.
36 As to the orders made on 28 August 2015, those orders contemplated the dates as identified above for the production of further documents by the respondent to the Commonwealth relevant to the brief provided by it to Mr Davidson to examine the question of whether, in Mr Davidson’s opinion, there were acts of bad seamanship which had caused additional damage after the initial grounding on 3 April 2010. The orders made on 28 August 2015 also contemplated the date by which Mr Davidson’s expert report was required to be filed by the Commonwealth and a date, following receipt of Mr Davidson’s report by the Commonwealth, by which it had leave to file an application for leave to amend its reply in the proceeding.
37 In the course of the directions hearing on 28 August 2015, counsel for the Commonwealth, Mr Young, made reference to the possible requirement on the part of the Commonwealth to amend its reply.
38 On 2, 3 and 18 September 2015, the respondent produced additional documents to the Commonwealth in response to the orders made on 28 August 2015. Ms Lye says in her affidavit sworn 26 October 2015 in support of the application for leave to amend the reply that these additional documents were briefed by the AGS to Mr Davidson on 2, 3, 4, 12 and 18 September 2015 respectively.
39 On 26 October 2015, the Commonwealth filed an affidavit of Mr Winkler affirmed on 26 October 2015.
40 On 26 October 2015, Mr Davidson provided his expert report to the Commonwealth dated 26 October 2015.
41 The Commonwealth now seeks leave to amend its reply to reflect the pleading of material facts as set out at  of these reasons.
42 In response to the application and to the matters referred to by Ms Lye in her affidavit sworn 26 October 2015 and the chronology of events, the respondent relies upon the affidavit of Mr Michael Fisher affirmed on 11 November 2015. Mr Fisher is a principal of Thynne & Macartney, the solicitors for the respondent. Mr Fisher says that notwithstanding that the matter was listed for trial for 15 days commencing on 4 April 2016, the respondent was not served with any evidence on behalf of the Commonwealth in the period 7 May to 14 August 2015. Those dates represent the period from the directions orders of 7 May 2015 to the date on which the applicant was then ordered to file and serve any further evidence-in-chief including expert evidence upon which it intended to rely.
The overtaking of the timetable
43 However, as the chronology makes clear, the timetable was overtaken by the question of further discovery and the proposed interlocutory application to be made by the Commonwealth for orders for discovery by the respondent of documents going to the question of “separate occasions” as earlier described in these reasons. The application was made by the Commonwealth. The application was resisted by the respondent. The application was dismissed. The Full Court made orders setting aside the orders of the primary Judge and made the orders described at  of these reasons. Documents were to be produced pursuant to those orders. Subsequently, orders were made by Rares J for a variation to the timetable in respect of particular documents.
44 Mr Fisher says that by operation of the orders made on 28 August 2015, the Commonwealth filed and served a substantial body of evidence upon the respondent. However, on 26 October 2015 Mr Fisher received a letter from the AGS advising, among other things, that the Commonwealth was awaiting executed copies of affidavits from Dr Thomas Christian Stieglitz and Laise Harris. On 4 November 2015, the AGS advised Mr Fisher that it was experiencing difficulties in finalising the affidavits of Stieglitz and Harris and that the Commonwealth also intended to file an affidavit of Mr Peter Speare. A sealed copy of Mr Speare’s affidavit was provided to Mr Fisher on 9 November 2015. Mr Fisher has not yet received a copy of the affidavits of Stieglitz and Harris.
The respondent’s contended difficulties in obtaining evidence
45 As to the timing of the respondent’s lay and expert evidence, Mr Fisher says that he is informed by Mr Darsan/Tu Shengda of the respondent that at the time of the incident the subject of the proceedings, the ship was managed by Tosco Keymax International Ship Management Co. Ltd (“Tosco”) and that Tosco employed the crew on board the Shen Neng 1 at the relevant time.
46 Mr Fisher is informed by Mr Darsan/Tu Shengda that the respondent ended its business relationship with Tosco in May 2011. Mr Fisher says that on 11 November 2015 he was informed by Captain Li of Tosco that about half of the members of the crew who are likely to be required to give evidence in the proceeding are currently serving on board vessels and the other half are not now contracted to Tosco.
47 Mr Fisher says that based on his experience international seafarers typically work on a particular ship continuously for a period of many months (usually six months) before having a few weeks of shore leave and then undertake a further long period at sea on the same or a different ship. Mr Fisher says that communication with seafarers while they are working on board an international trading ship is usually difficult and notwithstanding that ships have modern telecommunications systems, seafarers typically have no access to such systems except for the ship’s business purposes, or personal matters of an emergency nature. He also says that although seafarers obtain periods of shore leave when the vessel is in port, this is typically only for a few hours at a time and typically seafarers are reluctant to spend that time on communications relating to matters that are of no personal concern to them.
48 Mr Fisher says that it follows, having regard to his experience, that obtaining the evidence of the crew concerning the allegations raised by the Commonwealth’s proposed amended reply is likely to be a “highly protracted process”. He says that while it is likely, in his experience, that the respondent will be able to obtain co-operation from the crew of the ship, that co-operation will be at the convenience of the crew and the convenience of the crew’s current employer.
49 Mr Fisher also says that arrangements to interview such witnesses are likely to take several months to organise.
50 Mr Fisher says that in his experience the number of experts who are capable of providing an opinion on the issues discussed and raised by the Commonwealth’s proposed amended reply and the report of Mr Paul Davidson dated 26 October 2015 is “limited, even internationally”. He says that experts having the appropriate expertise tend to be in high demand and require at least several months to produce a report. He also says that until lay witness evidence from the crew is obtained, it will not be possible to brief an expert to the extent sufficient to enable the expert to properly consider the issues in full and prepare and submit a report.
51 These matters at  to  of these reasons reflect apprehended prejudice on the part of the respondent should leave be granted.
52 However, the respondent is not able to say that it cannot obtain co-operation from the crew of the Shen Neng 1. The apprehended difficulty is that co-operation is likely to be a matter of convenience for the crew and the convenience of the current employers of those members of the crew who are no longer employed by Tosco. Nor is the respondent able to say that its enquiries made of nominated experts has resulted in actual difficulty in retaining an expert having the relevant skills in the discipline to deal with the matters proposed to be introduced by the amended reply.
The respondent’s contentions on the leave question
53 The way in which the respondent puts its objection to leave being granted to the Commonwealth to amend the reply is as follows.
54 First, the respondent says that the Commonwealth necessarily recognises that, consistent with principles of modern case management, the applicant cannot raise positive assertions at the trial concerning the number of “distinct occasions” which occurred (including by calling expert evidence on that topic) without prior notice to the respondent of the factual and legal issues involved in such a contention. It is one thing to put the respondent to proof that there was one “distinct occasion” but it is quite another matter, the respondent says, to positively assert distinct and separate acts of negligence giving rise to claims and to adduce evidence in support of those claims.
55 Second, the respondent says that having regard to the reasons of the High Court in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (“AON v ANU”), the issue on the application for leave is whether, given the history of the proceedings and the imminent hearing date of 4 April 2016 (a 15 day trial), the Commonwealth should be now permitted to raise positive allegations of multiple negligent acts when it did not do so in the reply filed in July 2014.
56 As to that question, the respondent says that there was nothing in the reply as filed to indicate that multiple “occasions” would be put in issue and that it was not until May 2015 that the applicant asserted an entitlement to discovery of documents on the basis of distinct occasions. The respondent says that even then, there was no indication of the factual basis upon which multiple occasions were alleged. Thus, it follows for the respondent that there was no forensic need for it to engage in any process of making enquiries of crew members or of qualifying experts to consider events after the initial contact of the ship with the reef.
57 Moreover, the respondent says that it was not until late October 2015 that any indication emerged of the specific enquiries that would need to be made or the expert evidence that would be required. The respondent says that even if it is necessary for the respondent to call the Master of the ship in order to succeed in its Limitation Convention defence, there was nothing in the material (until late October 2015) to indicate what accusations the Master would have to face and answer at trial.
58 Third, the respondent says that the following circumstances are material to the exercise of the discretion to grant or withhold the granting of leave to amend:
(a) Dr Kettle’s report dated June 2011 annexed to the affidavit of Ms Jane Lye sworn 28 March 2013 in support of the statement of claim refers to the anchor dragging and also to repeated groundings.
(b) On 7 May 2015, counsel for the Commonwealth informed the Court that the applicant always intended to argue that there was more than one “distinct occasion”.
(c) The Commonwealth ought reasonably to have been aware, before the reply was filed, of the matters now sought to be pleaded. In that regard, the factual circumstances in the report of Paul Davidson dated 26 October 2015 derive principally from the report of Mr Andre Winkler of 27 July 2010, rather than from recently discovered documents by the respondent pursuant to the various orders.
(d) The Commonwealth’s evidence in support of the application for leave does not disclose when Mr Winkler’s report was provided to the AGS but nevertheless it was in the possession of the Authority and it ought to have been obvious to the AGS and those in the Authority giving instructions to the AGS at the time the defence was served that an AMSA officer had been on board the ship.
(e) It will be impossible for the respondent to meet the factual case raised by the proposed amendment before the April 2016 hearing.
(f) It appears that the Commonwealth’s expert was involved in the litigation earlier than 30 June 2015 having regard to Ms Lye’s observations that the discovery application in May 2015 was filed consequent upon information provided by Mr Davidson to the AGS. Thus, the AGS and therefore the Commonwealth could have foreshadowed the factual foundation for the “distinct occasions” positive case to be put by means of the reply.
(g) Even if Mr Davidson did not commence work until 30 June 2015, he nevertheless took four months to deliver his report and that report was based upon factual instructions in the form of Mr Winkler’s report.
(h) Before the respondent can request expert opinion evidence, it will be necessary for the respondent to locate and obtain instructions from a number of Chinese nationals including ordinary seamen working on deck and in the engine room, and then obtain expert evidence by April 2016.
(i) As the respondent no longer has a commercial relationship with Tosco, there may well be additional actual prejudice as a result of the delay in raising these issues.
59 Fourth, the respondent says that having regard to all of these matters and especially the matters set out at  of these reasons, the critical issue is whether, having regard to the Commonwealth’s delay in pleading issues which the respondent contends the Commonwealth knew or ought to have known before it filed its reply in August 2014, it ought to be permitted now to raise issues “which will result in the hearing being vacated”. The respondent further says that the practical difficulties “which must now result in the hearing date being vacated if the application is granted” mean that the application is closely analogous to the amendment application at the hearing in AON v ANU. The respondent says that for practical purposes, there is no difference between raising the issues now in a proposed amended reply and raising the issues at the hearing in April 2016.
60 Fifth, the respondent says that since the applicant has not provided a satisfactory explanation for not raising issues in the litigation which were identified in the reports of Mr Winkler and Dr Kettle long before these proceedings were commenced and which could and should have been pleaded in the reply filed in July 2014, the application for leave to amend the reply ought to be refused with costs.
61 Notwithstanding the submissions of the respondent noted at , I do not have any application before me to vacate the trial dates. That is no doubt so, having regard to the matters mentioned at . Mr Sexton SC does not say that the trial needs to be adjourned to later dates should leave be granted. Mr Sexton SC says that for all the reasons mentioned at  to  which properly inform the exercise of the discretion, leave should be refused.
62 As to the exercise of the discretion to either grant or withhold leave to amend the reply, I have had regard to r 16.53 of the Federal Court Rules 2011, ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) and the principles governing the exercise of the discretion set out in the observations of their Honours in AON v ANU. In particular, I note the overarching purpose of provisions governing civil practice and procedure in this Court set out in s 37M and the obligation of the parties to the proceeding to act consistently with the statutory overarching purpose: s 37N. I note the observations of Gummow, Hayne, Crennan, Kiefel and Bell JJ in AON v ANU at  and  to , and generally.
63 I have had the benefit of reading all of the material annexed to the affidavit of Ms Jane Lye sworn 26 October 2015 in support of the application and especially the report of Mr Winkler for the period 3 April 2010 to 5 April 2010 (ending at 18:13 on that day), Mr Winkler’s affidavit affirmed 26 October 2015 which addresses the same period and the expert report of Mr Paul Davidson dated 26 October 2015. I have also had the benefit of reading Mr Fisher’s material.
64 It seems to me that the position is this.
65 First, whilst it is true that Mr Winkler’s report for the period 3 April 2010 to 5 April 2010 (which was in the hands of the AGS, I infer, at least by early May 2015), identified a number of the factual matters that are now reflected in the proposed amended reply, not all matters sought to be pleaded and relied upon by the Commonwealth in the amended reply were identified in that report. In that regard, I accept the submissions of Mr Scott QC on behalf of the Commonwealth.
66 Second, had the Commonwealth pleaded by its reply (in say, May 2015) the facts going to second, third or more “occasions” based solely on the facts identified in the casualty co-ordinator’s report, the debate as to discovery of documents in the possession, power or control of the respondent would undoubtedly have turned into a sterile and time-wasting debate about whether this entry or that document, note or record under the control of the respondent was relevant to the then pleaded fact of, for example, the Master’s order to lower the starboard anchor to two shackles in the water; the main engine continuing to run until 17:13 on 3 April 2010; the movement of the vessel; the dragging of the anchor; and other such matters.
67 Rather, the Commonwealth put its position on the basis that it wanted to see all of the documents in the possession, power or control of the respondent relevant to the question of things done or not done and steps taken or not taken from the moment in time that the Shen Neng 1 struck the reef to the moment of its re-floating, 12 days later, going to what was then a live issue of whether there was one occasion or multiple occasions notwithstanding that no positive case was then being asserted by the Commonwealth on the reply at that moment in time. Those documents of the respondent, taken in conjunction with Mr Winkler’s report and ultimately the advice of Mr Paul Davidson, were to be the basis for the formulation of an amended pleading by which the Commonwealth would plead the material facts giving content to the positive case it would run on the limitation issue at trial (whether a broad or narrow case).
68 Third, that was the position of the Commonwealth as early as May 2015 when the question of whether the claims concerned a single occasion was a live issue in the sense that the Commonwealth was already putting the respondent to proof on the limitation defence. Had the respondent not resisted discovery of the documents as described at paras 1.1 to 1.5 of the amended interlocutory application, the pleading of the Commonwealth’s positive case would have emerged much earlier. Unfortunately, some time was lost in addressing the appellate question reflected in the reasons of the Full Court in Commonwealth of Australia v Shenzhen Energy Transport Co Ltd  FCAFC 116 which resulted in the orders set out at  of these reasons.
69 Fourth, one of the significant considerations which needs to be weighed in the balance together with the principles reflected in s 37M and s 37N of the Federal Court Act is whether the achievement of justice in the present proceeding favours allowing the amendment having regard to the history of the proceedings, the trial dates allocated for the hearing and the way in which the issue of discovery emerged in the context of what was at that time a question in issue and one which was foreshadowed as being likely to be the subject of an amended reply to plead the material facts going to the positive case the Commonwealth intended to run.
70 Having regard to all of those factors, I am satisfied that leave ought to be granted to amend the reply. I see nothing inconsistent between granting leave and the principles set out in AON v ANU and s 37M and s 37N of the Federal Court Act.
71 Accordingly, leave is granted to amend the reply in the way identified in  of these reasons. Further directions orders will be made. The costs will be reserved for later determination.