Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 1309 (19 September 2005)

Last Updated: 19 September 2005

FEDERAL COURT OF AUSTRALIA

Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 1309

WALTER RAU NEUSSER OEL UND FETT AG v CROSS PACIFIC TRADING LTD AND ORS
NSD 432 of 2005

ALLSOP J
19 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 432 of 2005

BETWEEN:	WALTER RAU NEUSSER OEL UND FETT AG APPLICANT
AND:	CROSS PACIFIC TRADING LTD FIRST RESPONDENT PATRICK SHUNG WONG SECOND RESPONDENT WILLEM JOHAN VAN VLYMEN THIRD RESPONDENT ORBIS COMMODITIES PTY LIMITED FOURTH RESPONDENT INTERNATIONAL COMTRADE & SHIPPING LIMITED FIFTH RESPONDENT RUSSELL ISLAND PLANTATION ESTATES LIMITED SIXTH RESPONDENT KAY LITTLE JOHN SEVENTH RESPONDENT AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED EIGHTH RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	19 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	Order five made on 22 August 2005 be amended to permit application for leave to cross-appeal in the form of the draft notice of cross-appeal provided to the chambers of Allsop J on 26 August 2005.

2.	Leave be granted to the respondents to appeal substantially in the form of the said draft notice of cross-appeal.

3.	Leave be granted to the applicant to file and serve within seven days a notice of cross-appeal substantially in the form of the said draft notice of cross-appeal.

4.	Leave to file and serve any notice to produce be refused.

5.	The costs of the application to cross-appeal be costs in the cross-appeal.

6.	The applicant to the proceedings pay the costs of the respondents in respect of the application for leave to issue a notice to produce.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 432 of 2005

BETWEEN:	WALTER RAU NEUSSER OEL UND FETT ADG APPLICANT
AND:	CROSS PACIFIC TRADING LTD FIRST RESPONDENT PATRICK SHUNG WONG SECOND RESPONDENT WILLEM JOHAN VAN VLYMEN THIRD RESPONDENT ORBIS COMMODITIES PTY LIMITED FOURTH RESPONDENT INTERNATIONAL COMTRADE & SHIPPING LIMITED FIFTH RESPONDENT RUSSELL ISLAND PLANTATION ESTATES LIMITED SIXTH RESPONDENT KAY LITTLE JOHN SEVENTH RESPONDENT AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED EIGHTH RESPONDENT

JUDGE:	ALLSOP J
DATE:	19 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 22 August 2005 I made orders in this matter granting leave to appeal to the first to seventh respondents in relation to orders that I made on 15 August 2005. (In order 1 of the orders made on 22 August 2005 the number "22" should be "15" on the second line of the order.)

2 One of those orders, order 5, was in the following terms:

Any application by the applicant to cross appeal to be filed and served on or before Friday 26 August 2005.

3 In purported compliance with this the solicitors for the applicant sent to my chambers on 26 August 2005 a draft notice of cross-appeal and applicant’s submissions in support of leave to cross-appeal. This was not in compliance with the orders. An application by way of notice of motion should have been filed. However, notwithstanding the written submissions of the first to seventh respondents that I should not accept this as compliance I propose to amend order five made on 22 August 2005 to permit the application to be made in the way I have identified. Therefore, I propose to proceed on the basis that I have a legitimate application for leave to cross-appeal before me.

4 I indicated on 22 August 2005 that I propose to deal with this application on the papers. The parties have filed submissions.

5 The respondents have filed detailed submissions as to the inadequacy or likely failure of the grounds of the proposed cross-appeal. I do not propose to deal with these matters in detail. By reason of my having granted leave to the respondents to appeal there is significant force in the proposition that the applicant should be free to run the related, though distinct, arguments put forward by it before me at the time of the hearing of the arbitration and stay applications.

6 Given that in significant respects the orders that I made will operate as practical final orders as to important aspects of the conduct of the proceedings and relate to the interpretation of an important piece of Commonwealth legislation, I propose to grant leave to the applicant to file and serve within seven days a notice of cross-appeal substantially in the form of the draft notice of cross-appeal provided to my chambers under cover of letter of Ebsworth & Ebsworth dated 26 August 2005.

7 The applicant also seeks the issue of a notice to produce. Given that one of the primary issues of contention between the parties on appeal is whether this Court should order a stay of the proceedings entirely I think the parties should direct their attention, energy and resources to the resolution of this issue. I do not propose to permit the interlocutory processes of the Court to be carried on on two fronts given my view that leave to appeal should be given to the parties to raise their various contentions as to the future direction of this case.

8 Thus, I do not propose to permit the filing or sealing of any notice to produce at this time. I refuse leave for the issue of the notice to produce.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 19 September 2005

Written submissions were filed on behalf of the parties
Date of Judgment:	19 September 2005