Federal Court of Australia

Aeronautical Resource and Consultancy Pty Ltd trading as ARC Helicopters v CMA-CGM Société Anonyme au Capital de 234 988 330 Euros [2025] FCA 1156

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth) and r 19.01 of the Federal Court Rules 2011 (Cth), the plaintiff give security for the defendant’s costs in the amount of $50,000.00.

2.    The security ordered pursuant to Order 1:

(a)    be paid by the plaintiff into Court pursuant to r 2.42 of the Federal Court Rules 2011 (Cth) by 19 October 2025; or

(b)    be given by way of an irrevocable bank guarantee issued by 19 October 2025 by an Australian authorised deposit-taking institution (as defined in s 5 of the Banking Act 1959 (Cth)) in a form acceptable to the defendant.

3.    Subject to Order 4, pursuant to r 19.01(1)(b) of the Federal Court Rules 2011 (Cth), the proceeding be stayed until security is given in accordance with Orders 1 and 2.

4.    If the plaintiff fails to comply with Orders 1 and 2, an application may be made, returnable on 20 October 2025, for an order that the proceeding be dismissed pursuant to s 56(4) of the Federal Court of Australia Act 1976 (Cth) and/or r 19.01(1)(c) of the Federal Court Rules 2011 (Cth).

5.    The costs of and incidental to the amended interlocutory application dated 2 May 2025, insofar as they pertain to the application for security for costs, be costs in the cause.

6.    The amended interlocutory application dated 2 May 2025 be otherwise dismissed.

7.    The interlocutory application dated 26 March 2025 be dismissed.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

1    Aeronautical Resource and Consultancy Pty Ltd trading as ARC Helicopters (ARC), the plaintiff, shipped an Airbus H225 Super Puma Helicopter of which it was the lessee, on board the vessel APL Detroit, which had been chartered by the defendant, CMA-CGM Société Anonyme au Capital de 234 988 330 Euros, pursuant to a Sea Waybill (number MBE0436663) dated 2 June 2023. The Waybill named CMA-CGM as the Carrier. The Helicopter was to be carried from Melbourne to Freeport Malta.

2    In its amended statement of claim filed pursuant to orders made on 6 March 2025 (ASOC), ARC alleges that it was an express term of the contract of carriage (which it particularises as being partly written and partly to be implied, and partly oral) that CMA-CGM would deliver the cargo to Freeport on 9 July 2023, as to which time was of the essence (albeit that condition is alleged to have been subsequently waived by ARC to permit delivery no later than 11 July 2023).

3    In the event, the Helicopter was not delivered at Freeport until 8 August 2023 and then in a damaged condition. In its Defence to the ASOC filed on 15 April 2025, CMA-CGM admits that ARC is the lessee of the Helicopter and was entitled to its possession. It also admits that the Helicopter sustained damage to the rotor tail during transhipment at the Port of Valencia, Spain on or about 29 July 2023 and that the damage occurred as a result of its breach of Art 3 r 2 of the Australian Rules (being Schedule 1 to the Carriage of Goods by Sea Act 1991 (Cth) (COGSA)). CMA-CGM pleads that it is entitled to limit its liability to 13,000 units of account pursuant to Art 4 r 5(a) of the Australian Rules.

4    ARC filed a Reply on 23 June 2025 in which, inter alia, it denies that the Australian Rules apply to the Waybill but pleads that if they do apply, the package limitation does not apply and in any event is of no application because of Art 4 r 5(e) of the Australian Rules.

5    By an interlocutory application filed on 26 March 2025, ARC now seeks to join Mr Timothy Chibs to the proceeding as second plaintiff, pursuant to r 9.02(1), or alternatively r 9.05(1), of the Federal Court Rules 2011 (Cth).

6    By an amended interlocutory application dated 2 May 2025, filed pursuant to orders made on 6 June 2025, CMA-CGM seeks three orders:

1.    that ARC provide security for costs in the sum of A$130,000 within 30 days, in default of which the proceeding be stayed;

2.    pending compliance with an order for security, that there be summary judgment for CMA-CGM on paragraph 4 of the ASOC (being a determination that the Australian Rules do apply to the contract of carriage); and

3.    further or alternatively to the order for summary judgment, the question of whether ARC’s claim is limited to 13,000 units of account be determined separately as a separate question pursuant to Pt 30, Div 30.2 of the Court Rules.

Should Mr Chibs be joined to the proceeding?

7    It is appropriate to deal first with the question of joinder.

8    Rule 9.02 of the Court Rules provides:

Joinder in proceedings involving common questions etc.

(1)     Two or more persons may be joined (as applicants or respondents) in any proceeding:

(a)     if separate proceedings by or against each of them would give rise to a common question of fact or of mixed fact and law; or

(b)     if all rights to relief claimed in the originating application are in respect of, or arise out of, the same transaction or series of transactions; or

(c)     by leave of the Court.

(2)     Leave under paragraph (1)(c) may be granted before or after the originating application is filed.

(3)     If 2 or more persons are joined under subrule (1), the Court may at any stage of the proceedings order that proceedings by or against any party or parties be conducted separately.

9    Rule 9.05 of the Court Rules provides:

Joinder of parties by Court order

(1)     A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person:

(a)     ought to have been joined as a party to the proceeding; or

(b)     is a person:

(i)     whose cooperation might be required to enforce a judgment; or

(ii)     whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or

(iii)     who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.

…

10    As deposed to in the affidavit of Edward John Maitland filed on 26 March 2025 (March Aff-Maitland), Mr Chibs is the Director and CEO of ARC, who consents to being joined. Most unhelpfully, several versions of a further amended statement of claim were before the Court. The first was that annexed to the March Aff-Maitland, which comprised 58 paragraphs. The second was that annexed to the affidavit of Edward John Maitland filed on 27 June 2025 (June Aff-Maitland), which comprised 87 paragraphs. A third version was handed up during the hearing, also comprising 87 paragraphs, but amending in some minor respects the version annexed to the June Aff-Maitland. It is referred to as the revised further amended statement of claim [with mark ups] (Revised FASOC).

11    The Revised FASOC pleads claims said to arise under s 4(3) of the Admiralty Act 1988 (Cth) being: a claim (including for loss of life or personal injury) arising out of an act or omission of, inter alia, the owner or charterer of a ship (s 4(3)(d)); a claim arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charterparty or otherwise (s 4(3)(f)); and a claim for interest in respect of a claim referred to in one of the preceding paragraphs (s 4(3)(w)). It also pleads a claim arising under s 12 of the Admiralty Act and/or s 32 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), invoking the associated jurisdiction of the Court.

12    The Revised FASOC pleads that Mr Chibs suffered nervous shock on being told on 4 July 2023 that the APL Detroit was delayed and, on 6 July 2023, was admitted to hospital for 65 days during which he was placed into a medically-induced coma. Mr Chibs claims damages for negligence, and orders pursuant to ss 236, 237, 243, 243A, and 217 of the Australian Consumer Law (Victoria) (ACLVic), enacted by the Australian Consumer Law and Fair Trading Act 2012 (Vic).

13    Mr Chibs submits that his proposed claims raise common questions of fact, or of mixed fact and law, and that all rights arise out of the same transaction or series of transactions. Again, unhelpfully, those are the factors identified as grounds for joinder in r 9.02(1)(a) and (b) of the Court Rules. Mr Chibs’ interlocutory application relies only on r 9.02(1)(c). Nevertheless, no real prejudice to CMA-CGM flows. The written submissions for Mr Chibs dated 27 June 2025, filed on 2 July 2025, make no mention of r 9.02(1)(c) and clearly rely on r 9.02(1)(a) and (b).

14    Mr Chibs identifies the common questions as:

(1)    the common matrix of facts arising out of the contract of carriage by sea of the Helicopter between ARC and CMA-CGM;

(2)    incidents occurring during and arising out of the voyage of the APL Detroit from Melbourne to Freeport, in particular deviation, delay, and damage to the Helicopter;

(3)    whether ARC holds any compensation it recovers on behalf of Mr Chibs under the principle in The Albazero [1977] AC 774;

(4)    the representations alleged in the Australian Consumer Law (ACL) claim brought by ARC against CMA-CGM and the similar case under the ACLVic brought by Mr Chibs;

(5)    causation and loss.

15    Mr Chibs contends that the same transaction, or series of transactions, which give rise to the rights claimed by both him and ARC are:

(1)    the negotiations and representations antecedent to the contract of carriage;

(2)    the contract of carriage by sea of the Helicopter;

(3)    the deviation, delay, and loss, damage and injury, arising from incidents occurring during the voyage of the APL Detroit from Melbourne to Freeport.

16    Mr Chibs contends that, in any event, as the sole Director and shareholder of ARC and the person who made relevant decisions for the company, he should have been joined as a party because his joinder is necessary to ensure that all issues in dispute are able to be heard and finally determined, and/or to enable determination of a related dispute, so as to avoid a multiplicity of proceedings. Mr Chibs also contends that his claim against CMA-CGM is reasonably arguable, as to which he cited Murdoch v Private Media Pty Ltd (No 4) [2023] FCA 114 in which, at [32], Wigney J said:

Where the reason for joinder is to enable a related dispute involving another person to be determined in the existing proceeding and thereby avoid a multiplicity of proceedings, it must generally be demonstrated that the case against the other person in the other dispute is reasonably arguable and that the other dispute is related to the dispute in the existing proceeding: see Crocker v Toys ‘R’ Us (Australia) Pty Ltd [2015] FCA 588 at [37]-[39]; Australian Mud Co Pty Ltd v Boart Longyear Australia Pty Ltd [2022] FCA 1224 at [32].

(Emphasis added.)

17    In considering the predecessor to r 9.05 in Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654; 270 ALR 13, Greenwood J (at [153]) agreed with the observations of Jessup J in Comcare v John Holland Rail [2009] FCA 660; 109 ALD 508 at 514 [13] that it is not sufficient for an applicant seeking joinder merely to show that he or she has claims against the proposed respondent which could not be dismissed as unarguable in the General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 sense. His Honour observed, at [152], that the General Steel test would require an applicant to show that it has a case which is not so obviously untenable that it cannot possibly succeed; is not manifestly groundless; is not so manifestly faulty that it does not admit of argument; whether the claim is based on a cause of action which under no possibility could be good; and whether the case advanced on the current state of the pleadings would be manifestly useless. As Greenwood J said at [153], “those tests are no substitute for the language of [O6 r8].” Similarly, they have no application to the language of r 9.05. Nevertheless, I agree with Jessup J that an applicant seeking joinder under this rule must demonstrate that there are matters in dispute between the existing parties which, if determined in a particular way, would result in a finding that another person, in this case Mr Chibs, may also have a claim against an existing party, in this case CMA-CGM, for which it should be called to account in this proceeding so as to avoid multiplicity of proceedings.

18    It is necessary at the outset to understand the claim that has been made by ARC against CMA-CGM by the ASOC. It is two-fold, comprising a carriage claim and claims under the ACL. In addition to these claims, Mr Chibs seeks to advance a common law claim in negligence for personal injury and a statutory claim (under the ACLVic) for damages or compensation arising from CMA-CGM’s alleged contraventions of the ACL.

The carriage claim

19    As to the carriage claim, ARC pleads in the ASOC that:

(1)    CMA-CGM is a “carrier” for the purposes of COGSA and the Australian Rules ([2(a)]);

(2)    a Waybill issued ([3]);

(3)    the Australian Rules do not apply to the contract of carriage by operation of ss 8 and 10 of COGSA and Art 10 of Sch 1A ([4]);

(4)    further or alternatively, the contract of carriage contained in or evidenced by the Waybill was subject to and incorporated the COGSA ([12]);

(5)    further and alternatively, CMA-CGM breached its duty under the COGSA to properly and carefully carry, keep, handle, care for and discharge the Helicopter (Art 3 r 2) ([30]-[31]).

20    The inconsistency in pleas is just one of the curiosities of this matter.

21    ARC pleads, and it is not disputed, that it is in the business of providing firefighting support to PA firefighting services in Australia and internationally. In the course of that business, ARC entered into a Helicopter Operating Lease Agreement dated 22 September 2021. ARC pleads that CMA-CGM took possession of the Helicopter at the Port of Melbourne (either on 29 May 2023 or 2 June 2023) as carrier for reward pursuant to an “Agreement” comprised of the terms of the Waybill, a booking confirmation form dated 22 May 2023, and conversations and statements of Mr Chibs and Mr Steve Smith of NGL Melbourne for CMA-CGM and its registered port agent in Melbourne, CMA-CGM Group Agencies (AU) Pty Ltd. CMA-CGM admits that CMA-CGM Group Agencies (AU) Pty Ltd acted at all relevant times as its ship’s agent in Australia but denies that Mr Smith and/or NGL acted as agent in any capacity in respect of the shipment of the Helicopter.

22    ARC pleads that the Helicopter sustained damage on 29 July 2023 during transhipment at the Port of Valencia and that CMA-CGM delivered the Helicopter in damaged condition without explanation or excuse in breach of its duty as bailee. It is uncontroversial that the Helicopter was delivered damaged and CMA-CGM admits it breached its duty under Art 3 r 2 of the Australian Rules.

23    ARC pleads that it was an express or implied term of the contract that CMA-CGM would undertake the voyage with reasonable dispatch, without unjustified deviation, and by a vessel that was seaworthy including having competent crew and manager and sound port discharge equipment and operators. Each implication is said to arise from the operation of the common law and the nature of the contract to deliver firefighting equipment to NATO to support services in Greece in summer with an extreme risk of fires. ARC pleads that the APL Detroit was due at the Malta Freeport no later than 11 July 2023.

24    It is uncontroversial that the APL Detroit arrived at the Port of Gioia Tauro, Italy on 11 July 2023. ARC pleads that this was a deviation from the agreed voyage and that, contrary to its directions and requests, CMA-CGM refused to offload the Helicopter. ARC pleads that CMA-CGM again caused the APL Detroit to deviate and proceed to the Port of Valencia where it arrived on 20 July 2023.

25    ARC pleads that CMA-CGM unreasonably refused its request to discharge the Helicopter and/or to repair the Helicopter in Spain to enable ARC to fly the Helicopter to Greece to honour its contracts and to save life and property. It is uncontroversial that the Helicopter was transhipped at Valencia to the CMA CGM Iguacu for carriage to Freeport where it arrived, damaged, on 8 August 2023.

26    ARC pleads that it suffered substantial damage, including the loss of its contracts. The said contracts have not been particularised nor adduced in evidence.

27    ARC pleads that CMA-CGM breached the contract of carriage and its duty in bailment by wilfully and deliberately deviating while knowing the commercial necessity of ARC to discharge in Malta, by refusing to cooperate or work with ARC to ameliorate or minimise or mitigate the loss, by wilfully and deliberately transhipping the Helicopter in Valencia, by wilfully and deliberately arriving in Malta extremely late on 8 August 2023 thereby frustrating the purpose and object of the voyage, and by committing fundamental breach in deviating on at least two occasions. It is also pleaded as a particular of the alleged breaches that CMA-CGM is unable to rely on any limitation or contractual defence.

28    Critical to ARC’s case as pleaded is the allegation that NGL was the agent of CMA-CGM in negotiating the contract of carriage. As I have already said, any agency on the part of NGL is denied by CMA-CGM.

29    In his affidavit of 8 July 2025, Mr Drew James, solicitor for CMA-CGM, has deposed, albeit on information and belief, that he is informed by his client’s in-house legal counsel that CMA-CGM did not appoint NGL or Mr Smith to act as its agent in any capacity in respect of the shipment of the Helicopter, nor did it hold out NGL or Mr Smith as its agent. Mr James was not required for cross-examination, although objection was made to what was described as the “double-hearsay” in the relevant paragraph of his affidavit.

30    The documents annexed to Mr Chibs’ affidavit of 25 July 2025 (25 July Aff-Chibs) do not contradict the assertion that neither NGL nor Mr Smith was the agent of CMA-CGM. The first is a tax invoice from NGL addressed to ARC dated 20 June 2023, purportedly in respect of the freight costs for the shipment. The account into which the balance of the invoice was to be remitted was named as Norwest Group Logistics, with the remittance advice to be emailed to accounts@nglprojects.com. Nothing on the face of that document suggests that NGL was acting as agent for the carrier. To the contrary, the Shipper’s Letter of Instruction dated 22 May 2023 strongly suggests that NGL was acting as agent for ARC. The document states:

The shipper or his Authorised Agent hereby Authorises NGL Projects (NGL), to prepare any export documents, to sign and accept any documents relating to said shipment and forward this shipment in accordance with the conditions of carriage and the tariffs of the carriers employed. The shipper guarantees payment of all collect charges in the event of the consignee refusing payment. Hereunder, the sole responsibility of NGL is as indirect carrier subject to its conditions of carriage and the sole responsibility of NGL is as agent for the direct carrier after issuance of NGL’s house waybill.

(Emphasis added.)

To the extent that the last phrase might be thought to convey a contrary position, no house waybill was ever issued by NGL.

31    Further, the booking confirmation dated 22 May 2023 was sent by CMA-CGM to NGL.

32    On 1 June 2023, Mr Smith of NGL prepared a Report about the loading of the Helicopter. Having described the loading process, it concluded with a “Lessons Learned” section which, it may be inferred, was for continuous improvement of NGL’s logistics service. The Report gives no indication of having been prepared for CMA-CGM as its principal.

33    Finally, the Waybill issued on 2 June 2023 states that the Helicopter was shipped on board by “CMA-CGM Group Agencies (AU) Pty Ltd As agents for the Carrier” and the Waybill is similarly signed for the Carrier, CMA-CGM by “CMA-CGM Group Agencies (AU) Pty Ltd as agents for the carrier”. No reference to NGL can be found on the Waybill.

34    On the evidence currently before the Court, it is difficult to conclude that NGL was acting as agent for CMA-CGM. Nevertheless, that is a matter to be determined at trial. For the purposes of the application for joinder, I will assume that the determination of that issue is common to the existing claim and the proposed claims by Mr Chibs. The question then becomes whether, even with that assumption, Mr Chibs’ claims are reasonably arguable.

Jurisdiction

35    Mr Chibs pleads that his claims are general maritime claims under ss 4(3)(d), (f) and (w) of the Admiralty Act. In written submissions, Mr Chibs also relied on s 4(3)(c). He relies further on s 12 of the Admiralty Act and s 32 of the FCA Act, which extend the jurisdiction of this Court to a matter associated with a matter in which the jurisdiction of the Court is invoked. It is unnecessary to consider whether Mr Chibs’ proposed claims fall within s 4(3) of the Admiralty Act. The Court’s jurisdiction has been regularly invoked by ARC. If Mr Chibs’ claims are related such as to warrant joinder, this Court clearly has jurisdiction to deal with them.

The common law claim for negligence

36    Mr Chibs pleads that CMA-CGM owed him a duty of care not to cause him injury or loss, including physical harm and mental distress. The basis for the duty is not pleaded. As best can be gleaned from the Revised FASOC, Mr Chibs seeks to make a case that the duty arose because Mr Smith, as the alleged agent of CMA-CGM, was told by Mr Chibs that he was at financial risk if the Helicopter was not delivered to Greece in time and so CMA-CGM knew that a deviation in the voyage would cause economic loss and damage to Mr Chibs (and consequently his nervous shock). Given that the APL Detroit did not in fact deviate until after it had missed its call at Freeport on 9 or 11 July 2023, by which time Mr Chibs had been in an induced coma since 6 July 2023, it is unclear on the face of the pleading whether the breach of duty relied upon is the fact of telling Mr Chibs the APL Detroit would deviate, or the fact of the deviation itself.

37    Whether or not Mr Smith was the agent of CMA-CGM, it is difficult to understand how this claim can be maintained. Mr Chibs pleads that he suffered shock on 4 July 2023 when told by Mr Smith merely that “there has been a major disruption to the service carrying your helicopter” and that “APL Detroit may have to omit Malta WB due to heavy delays”. He says he told Mr Smith that he was “devastated and distressed” and “felt unwell” as a result of that information. He pleads that the vessel was, at that time, “no more than a day or two delayed.”

38    Mr Chibs pleads that he suffered “further nervous shock” on 5 July 2023 on being told that the APL Detroit would not be delivering the Helicopter to Freeport. The email from Mr Smith, which is exhibited to the 25 July Aff-Chibs, stated that the updated route had an ETA of 18 July 2023 in Valencia and an ETA of 26 July 2023 in Malta following transhipment. Mr Smith’s email said:

We have obviously contacted the shipping line and met with state manager, who has arranging the cargo to instead be discharged in Italy at Port di Gioia Tauro.

This vessel will be due in on the 16th.

… assuming we fly out of port area or local airfield, you would have a 650km flight from there to Athens. +/-.

39    Mr Chibs pleads that he was hospitalised the next day and was admitted for 65 days on account of hypertension, nervous shock and mental distress. No other physical injuries are pleaded to have occurred at the time when he was told of the deviation; his physical injuries seem to have manifested during or after the induced coma and associated medical procedures. The matters pleaded in paragraph [60](c)-(g) of the Revised FASOC as particulars of the breach of duty occurred after Mr Chibs was placed into an induced coma and could not, as a matter of logic, have contributed to his personal injuries.

40    Mr Chibs’ case therefore appears to be that, on telling Mr Smith that he was “devastated and distressed” and “felt unwell”, CMA-CGM should have continued to sail the APL Detroit to Malta, regardless of the terms of the Waybill relating to deviation and delay (in particular additional cl 358), regardless of the provisions of COGSA, regardless of the “heavy delays”, and regardless of its commitments to other shippers, because it knew from that statement by Mr Chibs that he was at risk of suffering nervous shock if they did not.

41    I have grave doubts as to whether the law recognises a duty of care in circumstances such as this. Counsel for Mr Chibs did not refer to any relevant authority.

42    Further, any claim for personal injuries sustained because of the alleged negligence of CMA-CGM, occurring as alleged in Victoria, is governed by the Wrongs Act 1958 (Vic). The Revised FASOC does not plead a claim pursuant to that Act. For example, Mr Chibs does not plead that a reasonable person in the position of CMA-CGM would have taken certain precautions against an alleged foreseeable risk that he would suffer acute kidney injury, pancreatitis, diabetes, tracheal stenosis post tracheostomy and abdominal compartment syndrome.

43    There is an additional difficulty with respect to Mr Chibs’ claim for nervous shock and mental distress. Although Mr Chibs pleads that the conduct of CMA-CGM was reasonably likely to cause mental harm in a person of normal fortitude (Revised FASOC at [57]), s 72(1) of the Wrongs Act provides that there is no duty to take care not to cause a person pure mental harm unless the defendant foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. The circumstances contemplated by the section are specified in s 72(2) to include – whether the harm was the result of a sudden shock, whether the plaintiff witnessed at the scene a person being killed, injured or put in danger, the nature of the relationship between the plaintiff and the person killed, injured or put in danger, and whether there was a pre-existing relationship between the plaintiff and the defendant. Section 75 provides, in any event, that a court cannot make an award of damages for economic loss for mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness. No such illness has been pleaded.

44    Further, the question of causation does not appear to be straightforward, both as to factual causation and scope of liability. Section 51 of the Wrongs Act provides:

51     General principles

(1)     A determination that negligence caused particular harm comprises the following elements—

(a)    that the negligence was a necessary condition of the occurrence of the harm (factual causation); and

(b)     that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

(2)     In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3)     If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.

(4)     For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

45    As to factual causation, the “Lease Contract #FF2023-1” dated 20 April 2023 between ARC and European Finance & Aerospace Ventures Single Member S.A. (EFA Ventures), which is annexed to Mr Chibs’ affidavit of 3 June 2025, provided at cl 3.1 that the duration of works under the contract was “minimum 120, maximum 150 consecutive calendar days between 1st May and 31st October”. Clause 3.2 provided that “Positioning of the helicopters for 2023 season is estimated to be between 15-30 June”. Even on Mr Chibs’ best case, given that the Helicopter was to be delivered no later than 9 July 2023, it does not seem that ARC could have met its contractual obligations to EFA Ventures. No doubt that will be a matter for trial.

46    Scope of liability is, as I have alluded to earlier, a difficult hurdle for Mr Chibs. The question is whether the scope of a carrier’s liability should be extended to liability in negligence for personal injuries sustained by the sole Director and shareholder of the corporate shipper caused by being informed that the delivery of the shipper’s goods would be delayed, in the context of a well-settled international scheme regulating the rights and responsibilities of shippers and carriers. An affirmative answer to that question is not obvious.

47    For these reasons, even assuming in Mr Chibs’ favour that Mr Smith was acting as an agent for CMA-CGM in his conversations with him, I do not consider that Mr Chibs’ claim for damages for personal injuries, in the circumstances as pleaded in the Revised FASOC, is reasonably arguable. Consequently, it should not be joined to the existing proceeding.

The ACL claims

48    Mr Chibs pleads under the ACLVic on the basis that CMA-CGM, by its servants or agents, carried on business in Victoria. Section 217 of that Act provides that a person who suffers loss, injury or damage because of a contravention of a provision of the ACLVic (which includes the ACL by virtue of s 8) may recover the amount of the loss or damage or damages in respect of the injury.

49    Mr Chibs pleads that Mr Smith acted as “introduction agent” of CMA-CGM within the meaning of Part 5.1 and/or s 81 of the ACLVic, or as its go-between or dealer within the meaning of Part 3.1 and/or s 27.

50    Mr Chibs relies on the equivalent provisions of the ACLVic to those ARC has pleaded against CMA-CGM under the ACL. He also pleads breach of the fitness for purpose guarantee in s 61(1) of the ACL.

Misleading or deceptive conduct

51    Prima facie, the question of agency would seem central to the claim by both ARC and Mr Chibs that CMA-CGM or CMA-CGM Group Agencies (AU) Pty Ltd engaged in conduct that was misleading or deceptive – being that, by Mr Smith acting as agent, it represented:

(a)    that CMA-CGM had the capacity and intention to carry and deliver the Helicopter on the APL Detroit from Melbourne to Freeport on or before 9 July 2023;

(b)    that time was of the essence of the contract and the strict time requirements would be observed;

(c)    that ARC would be informed in a timely manner if any objection or difficulty or risk to achieving the outcome arose and CMA-CGM would work with ARC to promptly resolve any such difficulty or risk;

and, in breach of s 18, deliberately deviated on and after 9 July 2023 with knowledge that such deviation would cause loss or damage to ARC, to EFL [I interpolate – an undefined entity] and with the risk of serious injury which eventuated to Mr Chibs.

52    However, even assuming the question of agency be decided in favour of Mr Chibs, I do not consider his claim to have suffered personal injury because of the alleged misleading or deceptive conduct on the part of CMA-CGM to be reasonably arguable.

53    As the High Court said in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8; 277 CLR 186 at [80]:

Determining whether a person has breached s 18 of the ACL involves four steps: first, identifying with precision the “conduct” said to contravene s 18; second, considering whether the identified conduct was conduct “in trade or commerce”; third, considering what meaning that conduct conveyed; and fourth, determining whether that conduct in light of that meaning was “misleading or deceptive or … likely to mislead or deceive”.

54    Mr Chibs will need to establish precisely what “conduct” is said to contravene s 18. Neither the ASOC, nor the Revised FASOC, pleads the making of any representation (the conduct) as a material fact. At its highest, the pleading identifies as “particulars” of contraventions of s 18 between 23 May 2023 and 2 June 2023 (or between April 2023 and 11 July 2023 in the case of the proposed claim by Mr Chibs):

(a)    a representation that CMA-CGM had the capacity and intention to carry and deliver the Helicopter safely and securely to Freeport on or before 9 July 2023 (ASOC at [36(a)]; Revised FASOC at [36(a)], [64(a)]);

(b)    a representation by CMA-CGM to Mr Chibs that time was of the essence of the Agreement with ARC (Revised FASOC at [64(b)]);

(c)    a representation that “the strict requirements for the provision of services” set out in the contract documents, “namely delivery to Malta Freeport on or before 9 July 2023”, applied to the carriage arrangements and would be observed by CMA-CGM (ASOC at [36(b)]; Revised FASOC at [36(b)]); and

(d)    a representation that CMA-CGM would inform ARC in a timely manner if any objection or difficulty or risk to achieving the outcome of the services arose during performance and would “work with [ARC] promptly to resolve any such difficulty or risk” (ASOC at [36(b)]) / “and resolve any such difficulty or risk within the agreed time frame” (Revised FASOC at [36(c], [64(c)]).

55    Even allowing for the pleading transgressions, the difficulties with the matters particularised are these. First, ARC has pleaded (Revised FASOC at [5]) that it waived the requirement that the Helicopter be delivered on or before 9 July 2023. Second, on 22 May 2023, the booking confirmation recorded the ETA of the APL Detroit at Malta Freeport as 11 July 2023. The contractual documents never provided for delivery on or before 9 July 2023. Third, it is inconceivable that an ocean-going carrier, faced with the usual vicissitudes of a voyage from Australia to Europe, would represent to a shipper that the time for delivery of the cargo was of the essence of the contract. Fourth, the Revised FASOC pleads, at [53], that Mr Chibs was informed of a major disruption to the service on 4 July 2023. The Revised FASOC does not plead an alternative date by which Mr Chibs alleges he should have been informed.

Unconscionable conduct

56    Similarly, neither the ASOC nor the Revised FASOC pleads any material facts sufficient to establish a contravention of s 21 of the ACL.

57    I am not satisfied that Mr Chibs’ claims pursuant to s 217 of the ACLVic, as they rely on contraventions of ss 18 and 21 of the ACL as currently pleaded, are reasonably arguable.

The consumer guarantees

58    The pleas by ARC and Mr Chibs that CMA-CGM breached the consumer guarantees in s 60 (by failing to supply transport and logistics services with due care and skill) and s 62 of the ACL (by failing to supply transport and logistics services within a reasonable time), and by Mr Chibs alone that CMA-CGM breached the consumer guarantee in s 61 of the ACL (by failing to supply services reasonably fit for purpose) are simply unarguable. The consumer guarantees do not apply to services supplied under a contract for the transportation of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported (s 63(1)(a)). ARC pleads that it is “in the business of providing helicopter firefighting support” (ASOC at [1]; Revised FASOC at [1]). Just as ARC will, on the present state of the material, be unable to maintain the current pleas in paragraphs [43]-[49] of the Revised FASOC, so will Mr Chibs be unable to succeed on any derivative claim through s 217 of the ACLVic.

59    For these reasons, Mr Chibs’ interlocutory application to be joined to the proceeding as the second plaintiff must be dismissed.

The separate question

60    By its amended interlocutory application of 2 May 2025, CMA-CGM seeks inter alia an order that the question of whether ARC’s claim is limited to 13,000 units of account be determined separately as a preliminary issue. The proposed separate questions are:

    Question 1: Do the Australian Rules apply to the plaintiff’s claim under the contract of     carriage?

    Question 2: If the answer to Question 1 is “Yes”, is the plaintiff’s claim limited to     13,000 units of account, or some other amount?

    Question 3: Do the answers to Questions 1 and 2 apply to the plaintiff’s claim in     bailment and under the ACL?

61    ARC resists the application for a separate question, primarily on the basis that determination of the limitation amount involves contested questions of fact, namely the cause of the delay in the delivery of the Helicopter. Although CMA-CGM has admitted breach of Art 3 r 2 of the Australian Rules, ARC also pleads breach of Art 4A r 1. The latter breach is one in respect of delay under the Australian Rules, a provision which has received very little, if any, judicial consideration to date. The facts underlying that claim are contested. In particular, the issue of whether an agency relationship existed between CMA-CGM and NGL/Mr Smith is central to that claim. Similarly, the question of whether an agency relationship existed is material to ARC’s claims under the ACL. I have already said that that issue needs to be tried.

62    Further, ARC has pleaded facts and circumstances which, on its case, give rise to the possibility of breaking the limitation under Art 4 r 5(e). Those are facts and circumstances which will need to be interrogated at trial.

63    Although Question 1 is amenable to separate determination, there is little utility to doing so when the answer to that question will not necessarily provide an answer to Questions 2 and 3 on the facts of this case.

64    For these reasons, I am not prepared to order that the questions proposed by CMA-CGM be determined separately as a preliminary issue.

Should security for costs be ordered?

65    CMA-CGM has also by its amended interlocutory application applied for an order that ARC give security for costs in the amount of A$130,000, or such other sum as fixed by the Court. The application was supported by the affidavit of Mr James filed on 8 April 2025 (April Aff-James).

Relevant principles

66    The power to order security for costs as provided by s 56 of the FCA Act (and r 19.01 of the Court Rules) confers a broad and unfettered discretion on the Court. That section relevantly provides:

56     Security

(1)     The Court or a Judge may order an applicant in a proceeding in the Court, or an appellant in an appeal under Division 2 of Part III, to give security for the payment of costs that may be awarded against him or her.

(2)     The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs.

(3)     The Court or a Judge may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given.

67    The factors to which an applicant for security is expected to depose in the affidavit in support of the application include whether there is reason to believe that the party against whom the order is sought will be unable to pay the respondent’s costs if so ordered: Court Rules r 19.01(3)(a). This factor is however just one, albeit important, consideration in the exercise of the discretion: All Class Insurance Brokers Pty Ltd (in liq) v Chubb Insurance Australia Ltd [2020] FCA 840 at [41] per Allsop CJ. In Madgwick v Kelly [2013] FCAFC 61; 212 FCR 1 at [6], Allsop CJ and Middleton J endorsed the comments of the primary judge, who had reiterated that the discretion to award security for costs is broad and unfettered. The only limitation is that it must be exercised judicially according to the merits of each case and without any particular predisposition.

68    Section 1335 of the Corporations Act 2001 (Cth) is directed specifically at circumstances in which a corporation is the plaintiff in a proceeding. It provides:

1335     Costs

(1)    Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given.

(1A)    Subsection (1) does not apply to a corporation that is an Aboriginal and Torres Strait Islander corporation.

(2)    The costs of any proceeding before a court under this Act are to be borne by such party to the proceeding as the court, in its discretion, directs.

(Emphasis added.)

69    Both s 56 of the FCA Act and s 1335(1) of the Corporations Act have been regarded as conferring a discretion that is broad and essentially unfettered, albeit that it must be exercised judicially: Chopsonion Pty Ltd (Controllers Appointed) v Watts Meat Machinery Pty Ltd [2022] FCA 1309 at [22] per O’Sullivan J.

70    Section 1335(1) differs from s 56, however, in establishing a threshold of “credible testimony” that there is “reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence”. The substantive onus is on the party seeking security for costs to satisfy the threshold. However, once that threshold has been satisfied, whether security for costs will be ordered is determined on discretionary grounds. In Beach Petroleum NL v Johnson (1992) 7 ACSR 203 at 205, von Doussa J explained:

In my opinion the power of the court under s 1335 arises if credible evidence establishes that there is reason to believe there is a real chance that in events which can fairly be described as reasonably possible the plaintiff corporation will be unable to pay the costs of the defendant on service of the allocatur, if judgment goes against it. This will be so even if in other events which can also be fairly described as reasonably possible the plaintiff corporation would be able to pay the costs. The degree of likelihood of the plaintiff corporation being unable to pay the costs along with all the circumstances, actual and possible, about its financial position, would be then taken into account in the exercise of discretion, and in framing the orders of the court if the decision is to order security.

71    There is, at this point, an evidentiary burden on the party resisting the order for security for costs to establish a reason why security should not be granted. As Edelman J said in Concrete Mining Structures Pty Ltd v Cellcrete Australia Pty Ltd (No 2) [2016] FCA 360 at [12], relying on the observations of Gleeson J in Austcorp Project Number 20 Pty Ltd v LM Investment Management Ltd (in liq) [2014] FCA 1371 at [25]-[28] in turn relying on the observations of Macfarlan JA in Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301; [2014] NSWCA 65 at [18]-[20]:

That requires only that [ARC] raise (with some basis to do so) the matters that it wishes to be taken into account in determining whether the order for security for costs should be made.

72    Somewhat surprisingly, ARC submitted that different principles applied in admiralty proceedings and that “the public interest leans against security for costs” in such matters. No authority was cited for that proposition. This proceeding was not commenced in rem (contra Tisand Pty Ltd v MV Cape Moreton [2004] FCA 1191; 141 FCR 29, where Allsop J did in fact order limited security for costs whilst expressing reservations about imposing additional requirements on plaintiffs in the context of such proceedings). There is no reason to depart from ordinary principles.

Consideration

73    ARC does not seriously challenge its impecuniosity. It says that it “is in no way able to use the limited resources earmarked for its recovery from the disaster caused by the defendant, to pay for any security [for] costs” (June Aff-Chibs at [57]). The company’s Financial Accounts for the year ending 30 June 2024 show a loss of $2,184,369 and a negative equity position of $2,489,232. It has a paid-up share capital of $20. Mr Chibs deposed to new contracts having been signed in Indonesia and Australia for helicopter aerial firefighting services (June Aff-Chibs at [56]) but did not depose to the value of those contracts or their consequences for cash flow. Nor were the contracts exhibited to Mr Chibs’ affidavit. In these circumstances, I am satisfied that there is reason to believe that ARC will be unable to pay a costs order in the event that CMA-CGM succeeds in its defence.

74    Nevertheless, ARC submits that it is inappropriate for security to be ordered in this case, in circumstances where CMA-CGM has admitted liability for breach of Art 3 r 2 and where it claims its impecuniosity has been caused by CMA-CGM. It also submits that there was undue delay on the part of CMA-CGM in bringing the application for security.

75    As to the latter submission, the application was first filed on 8 April 2025 and was subsequently amended on 2 May 2025 (albeit, for reasons unknown, not filed until 10 June 2025). ARC has, however, been on notice since 14 February 2025 that an application for security for costs would be brought.

76    In terms of the case brought against CMA-CGM, it is much broader than a mere claim for breach of duty under Art 3 r 2 of the Australian Rules. It is a case that challenges whether the Australian Rules apply in any event and, if they do, the prospect of limiting liability and/or breaking limitation. The case also prosecutes claims under the ACL and the common law of bailment. It is, therefore, an expansive case and one that is not without difficulty in significant respects.

77    Mr Chibs, the person who stands behind ARC, has not proffered any security. He has not given any evidence of his financial position, except for two tax returns for the years ending 30 June 2023 and 30 June 2024, which were annexed to the affidavit of Mr Chibs filed on 4 July 2025. In that affidavit, at [6], he deposed to having “recently secured a position as a helicopter pilot offshore in Indonesia”, but did not depose to his pay or conditions.

78    As to the cause of its impecuniosity, ARC says (June Aff-Chibs at [51]) that on 8 August 2023, it was issued with a notice of termination for the lease of the Helicopter due to arrears in rent payable under the lease agreement with Global Rotorcraft Leasing. The notice, which is exhibited to that affidavit, states, “The termination is due to a number of outstanding Events of Default, including failure to pay the Rent amounts due on 30 June 2023 and 31 July 2023” (emphasis added). The nature of the other events of default is not disclosed. It cannot be the case that outstanding rent due on 30 June 2023 was caused by CMA-CGM, given that the APL Detroit sailed from Melbourne on 2 June 2023 with the Helicopter on board and Mr Chibs’ evidence that he was first told of a possible delay on 4 July 2023.

79    Also exhibited to the affidavit is a letter from GDAT dated 24 October 2023 detailing outstanding charges payable by ARC for the periods December 2021 to December 2022 and January 2023 to July 2023 in the aggregate sum of $576,300. The 2022 invoice of $360,000 was said to have been sent on 6 June 2023 but had received no response or payment from ARC.

80    By letter dated 9 August 2023, also exhibited to the affidavit, EFA Ventures terminated its agreement with ARC for failure to deliver on time “the contracted helicopters” (emphasis added). The letter demanded repayment of USD1,302,000 which had been advanced pursuant to the agreement on 26 April 2023 and 16 May 2023. Article 1.1 of the agreement provided that ARC would provide three helicopters, with registration numbers VH-HGM, VH-8GD, and VH-8GH, only one of which (VH-HGM) was the subject of the contract of carriage with CMA-CGM. ARC has not given any explanation in respect of the failure to deliver the other two helicopters. It is reasonable to infer that the failure to deliver those helicopters may have contributed to ARC’s precarious financial position.

81    Mr James, a practising solicitor in shipping law for over 40 years, has deposed to the legal costs likely to be incurred by CMA-GGM in preparation for the conduct of the trial and to completion of the final hearing. He estimates those costs to be between $106,940 and $157,270 (April Aff-James at [21]).

82    ARC did not adduce any evidence to contradict Mr James’ estimate.

83    I accept Mr James’ estimate. Nevertheless, I am conscious that the matter is still at a relatively early stage and that the airing of some of the issues in the course of the hearing of these interlocutory applications may have the consequence of narrowing the scope of aspects of the dispute. There has also, as far as I am aware, been no attempt to mediate the dispute.

84    Consequently, in the exercise of my discretion, I will order security for costs in the sum of $50,000 by way of payment into Court or by bank guarantee.

Disposition

85    For these reasons, ARC’s interlocutory application to join Mr Chibs as second plaintiff will be dismissed. So too will CMA-CGM’s interlocutory application for a separate determination on certain questions of law. ARC will be ordered to provide security for CMA-CGM’s costs in the sum of $50,000. Such sum is to be paid into Court, or a bank guarantee in that amount is to be provided to CMA-CGM in a form acceptable to it, within 30 days of the making of these orders, pending which the proceeding will be stayed.

86    In the circumstances, there will be no order as to costs with respect to the unsuccessful interlocutory applications. The costs of and incidental to the amended interlocutory application for security for costs will be costs in the cause.

Associate:

Dated:    19 September 2025