Austal Ships Sales Pty Ltd v Stena Rederi Aktiebloag [2007] FCA 1309 (2 August 2007)

Last Updated: 27 August 2007

FEDERAL COURT OF AUSTRALIA

Austal Ships Sales Pty Ltd v Stena Rederi Aktiebloag

[2007] FCA 1309

AUSTAL SHIPS SALES PTY LTD (ACN 079 160 651), AUSTAL SHIPS PTY LTD (ACN 079 160 679) AND AUSTAL LIMITED (ACN 009 250 266) v STENA REDERI AKTIEBOLAG
NSD 1332 OF 2007

RARES J
2 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1332 OF 2007

BETWEEN:	AUSTAL SHIPS SALES PTY LTD (ACN 079 160 651) First Applicant AUSTAL SHIPS PTY LTD (ACN 079 160 679) Second Applicant AUSTAL LIMITED (ACN 009 250 266) Third Applicant
AND:	STENA REDERI AKTIEBOLAG Respondent

JUDGE:	RARES J
DATE OF ORDER:	2 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT:

1. Grants leave to the respondents to the proceedings before Tamberlin J to amend their notice of motion filed on 11 July 2007.

2. Amends prayer 1 of the motion by adding the words, ‘the orders made by Tamberlin J on 20 July 2007 giving effect to’ after the word ‘from’.

3. Grants the respondents (applicants on the motion for leave to appeal) leave to appeal from the orders made by Tamberlin J on 20 July 2007.

4. Orders that the costs of the application for leave to appeal be the parties’ costs in the appeal.

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 1332 OF 2007

BETWEEN:	AUSTAL SHIPS SALES PTY LTD (ACN 079 160 651) First Applicant AUSTAL SHIPS PTY LTD (ACN 079 160 679) Second Applicant AUSTAL LIMITED (ACN 009 250 266) Third Applicant
AND:	STENA REDERI AKTIEBOLAG Respondent

JUDGE:	RARES J
DATE:	2 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for leave to appeal a decision of Tamberlin J made on a separate issue ordered to be tried under O 29 r 2.

2 The notice of motion which was filed by the respondents to the original application (who seek leave to appeal) claimed only leave to appeal from the judgment his Honour gave on 21 June 2007: Stena Rederi Aktiebloag v Austal Ships Sales Pty Ltd [2007] FCA 864. However, the notice of motion in its original form could not have been granted because all that his Honour did in that judgment was to order the applicant to file draft short minutes of orders in respect of the precise form of orders, costs and directions for future conduct of the proceedings which gave effect to his reasons for judgment. Questions of damages and quantum had been ordered to be tried after the decision on liability. However, on 20 July 2007 his Honour made orders reflecting the conclusions at which he had arrived in his reasons.

3 It seems to me that the appropriate order is that I treat the notice of motion as having been amended so as to seek leave to appeal against the orders made by his Honour on 20 July 2007.

4 In support of the motion for leave to appeal the solicitor for the applicants for leave (who were the respondents below) noted that by letter from the applicant’s solicitors to the respondents’ solicitors dated 10 July 2007 the applicant had advised that it did not intend to oppose the grant of leave to appeal. In those circumstances, his Honour having made orders that substantially disposed of the liability issues, including dismissing the cross-claim of the respondents, I am persuaded that substantial savings of time and costs would be potentially occasioned if leave to appeal were granted and an appeal succeeded. The parties had already chosen to ventilate their dispute in this bifurcated way and both sets of parties seem content for the matter to be dealt with again in this way by permitting an appeal on liability to go forward as an efficient means of conducting this litigation.

5 I am of opinion in those circumstances that I should make orders granting leave to appeal.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated: 22 August 2007

Solicitor for the Applicants:	PJ Finch of Griffith Hack
Date of Hearing:	2 August 2007
Date of Judgment:	2 August 2007