Hilditch Pty Ltd v Dorval Kaiun KK [2007] FCA 999 (2 July 2007)

HILDITCH PTY LTD v DORVAL KAIUN KK
NSD 360 OF 2007

ALLSOP J
2 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 360 OF 2007

BETWEEN:	HILDITCH PTY LTD Plaintiff
AND:	DORVAL KAIUN KK Defendant

JUDGE:	ALLSOP J
DATE OF ORDER:	2 JULY 2007
WHERE MADE:	SYDNEY

1. On or before Monday 9 July 2007 the plaintiff file and serve a consolidated final bundle of material enclosing in one paginated volume:

2. The matter stand over for a pre-trial directions hearing before Rares J on Friday 27 July 2007, at which time subject to the view of the trial judge, the parties can expect a hearing date to be given for a hearing estimated to be for 2 days.

3. Costs of the plaintiff and defendant of the motion filed on 1 May 2007 be costs in the cause, subject to those costs being the subject of a specific order by the trial judge, if in the trial judge’s view, such is warranted given the issues that ultimately arise on the hearing of the cause.

4. The plaintiff provide particulars to paragraph 2 of its issues document within any redrafting of the issues document.

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 360 OF 2007

BETWEEN:	HILDITCH PTY LTD Plaintiff
AND:	DORVAL KAIUN KK Defendant

JUDGE:	ALLSOP J
DATE:	2 JULY 2007
PLACE:	SYDNEY

1 In this matter, the difficulties of case management have been identified in my reasons for judgment of 11 May 2007. On that day, I made orders which are set out in the judgment of that day. Since 11 May 2007, the defendant has accepted that it is the party to the bill. Therefore, it has accepted that it was the contractual carrier. I do not understand why that issue took so long to resolve itself. When this matter comes on for hearing, subject to what evidence is led, the difficulty and time and expense of extracting that admission might be the subject of investigation.

2 Pursuant to order 5(b) of the orders made on 11 May 2007, the plaintiff has filed and served a clear and helpful document entitled "Explanation of the Plaintiff’s Case". Given that I have suspended the orders for pleading, I was initially inclined to require the defendant to, in effect, plead to that document. However, for the reasons that I will now identify, I do not think that that is necessary.

3 The orders of 11 May 2007 also contemplated the parties engaging in a case management conference with either Deputy District Registrar Gilich or Acting Registrar Cremean, the specialist Admiralty Registrars used by the Court in the functions of case management, mediation and arbitration. The parties and their solicitors met with Deputy District Registrar Gilich, to some effect.

4 The parties have prepared three other documents. The first two are said to be agreed statement of issues likely to arise. The parties are, apparently, still engaged in some attempts to agree for those documents to create one document. I am keen not to see any expenditure of funds or time by either party over matters which do not need further attention. The two agreed statements of issues, in their current form, are so similar as not to require, in my view, any further deliberation. They adequately set out each party’s views as to the likely issues in the case.

5 The third document is a statement of agreed relevant facts and issues, which has been agreed between the parties. Counsel for both sides today are of the view that those four documents taken together, being the explanation of the plaintiff’s case, the agreed statement of relevant facts and issues, and the agreed statement of issues likely to arise, filed by both parties, are adequate to substitute for pleadings in the case. I am content to agree with that proposition, in particular in the light of a desire to minimise the amount of costs spent on this claim.

6 There are some typographical errors in the documents, and the agreed statement of issues should be re-entitled the plaintiff’s and defendant’s proposed statement of issues. For that reason, I will hand back the three documents to which I have made reference.

7 There is still an issue as to title to sue. The basis for the plaintiff’s contention that it has title to sue under the Sea-carriage Documents Act 1997 (NSW), or any other relevant applicable law, appears, on its face, to be clear. Perhaps I have misunderstood something. I am not the trial judge. Rares J is the trial judge. Mr Fairfield indicated that there was an issue about title to sue because of the inter-position of the shipper’s bank. I have difficulty understanding that point, with respect.

8 Once again, this appears to me to be an issue which sensible commercial parties and their skilled advisors should be able to have sorted out sensibly much more quickly than has been done. I do not know who is to blame for that. This is commercial litigation and the parties should approach it on a basis of litigating only issues that are of such character that require the significant expenditure of private and public funds for their resolution. It is an obligation on the parties and their solicitors. The use of the Court system to resolve issues that are not truly in dispute, or which are such as should not be truly in dispute, is something to be strongly discouraged.

9 I will only say, at this point, that the question of the title to sue, and the amount of time and cost that has been expended in relation to it, may be such as to necessitate the trial judge in examining with some care whether or not an order for indemnity costs on that issue, in any event, should be made.

10 The defendant has raised a question of particulars of the implied contract referred to in [2] of its statement of agreed issues. Mr Hancock, who is counsel for the plaintiff, said that the particulars will be given and are, in effect, a Brandt v Liverpool [1924] 1 KB 575 contract. If that is the case, particulars should be given promptly within seven days, and should direct themselves, also, to the question of whether freight was pre-paid and as to whether any other step, by way of payment for any charges was made, such that the implied contract could be founded on steps other than the mere presentation of the bill to the ship.

11 With those comments, it seems to me that the matter should go to hearing as soon as possible. The matter is in the docket of Rares J. I propose now to hand the matter over to him for the finalisation of the question of trial preparation.

12 The orders that I propose to make are that on or before Monday 9 July the plaintiff file and serve a consolidated bundle enclosing, in one paginated volume, an explanation of the plaintiff’s case, a finalised agreed statement of facts and a plaintiff’s issues document and defendant’s issues document.

13 Secondly, that the matter stand over for a pre-trial directions hearing for Rares J on Friday 27 July at which date, subject to the views of the trial judge, the parties should anticipate a hearing date being given for a hearing, in my estimation at the moment, of two days plus, and the parties should, before 27 July, make preparation, including the identification of any witnesses, their whereabouts, and if there is a need for video link evidence. Inquiries should be made with the Attorney-General’s Department and/or the Department of Foreign Affairs and Trade as to the diplomatic status of the use of video link evidence in any relevant country.

14 I think it appropriate at this stage, also, to deal with the question of costs on the motion, rather than leave that to the trial judge. I think the plaintiff’s costs of the motion should be its cost in the cause. I do not think I am in a position to make any order otherwise in relation to the defendant. Therefore, both parties’ costs of the motion will be costs in the cause.

15 However, I have made the comments that I have about the issues of title to sue, and the parties to the bill. Depending upon what issues really do arise in the harsh glare of a hearing, I will make the orders as to costs in relation to the motion specifically reviewable by the trial judge upon application by the parties. Therefore, the orders that I make are as follows:

1. On or before Monday 9 July 2007 the plaintiff file and serve a consolidated final bundle of material enclosing in one paginated volume:

4. The plaintiff provide particulars to paragraph 2 of its issues document within any redrafting of the issues document.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Counsel for the Plaintiff:	Mr T Hancock

Solicitor for the Plaintiff:	DLA Phillips Fox

Counsel for the Defendant:	Mr C Fairfield

Solicitor for the Defendant:	Ambrose Rajadurai & Associates

Date of Hearing:	2 July 2007

Date of Judgment:	2 July 2007

Federal Court of Australia

Hilditch Pty Ltd v Dorval Kaiun KK [2007] FCA 999 (2 July 2007)