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Federal Court of Australia |
Last Updated: 19 September 2008
FEDERAL COURT OF AUSTRALIA
Elbe Shipping SA v Giant Marine Shipping SA (No 2) [2008] FCA 1409
ELBE
SHIPPING SA v GIANT MARINE SHIPPING SA, BEING THE OWNERS OF THE SHIP "GLOBAL
PEACE" and ADSTEAM HARBOUR PTY LIMITED
NSD 124 OF
2006
SQ MARINE SA v GIANT MARINE SHIPPING SA, BEING THE OWNERS OF
THE SHIP "GLOBAL PEACE" and ADSTEAM HARBOUR PTY LIMITED
NSD 125 OF
2006
DOWSETT J
26 AUGUST 2008
PERTH
(VIA VIDEO LINK TO SYDNEY AND BRISBANE)
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AND:
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The notice of motion filed on 14 August 2008 be dismissed; and
2. the plaintiff pay the first respondent’s costs of the hearing on 26 August 2008.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA
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QUEENSLAND DISTRICT REGISTRY
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NSD 125 OF 2006
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IN ADMIRALTY
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BETWEEN:
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SQ MARINE SA
Plaintiff |
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AND:
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GIANT MARINE SHIPPING SA, BEING THE OWNERS OF THE SHIP "GLOBAL
PEACE"
First Defendant ADSTEAM HARBOUR PTY LIMITED Second Defendant |
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JUDGE:
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DOWSETT J
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DATE OF ORDER:
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26 AUGUST 2008
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WHERE MADE:
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PERTH (VIA VIDEO LINK TO SYDNEY AND BRISBANE)
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THE COURT ORDERS THAT:
1. The notice of motion filed on 14 August 2008 be dismissed; and
2. the plaintiff pay the first respondent’s costs of the hearing on 26 August 2008.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.
IN ADMIRALTY
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BETWEEN:
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ELBE SHIPPING SA
Plaintiff |
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AND:
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GIANT MARINE SHIPPING SA, BEING THE OWNERS OF THE SHIP "GLOBAL
PEACE"
First Defendant ADSTEAM HARBOUR PTY LIMITED Second Defendant |
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IN THE FEDERAL COURT OF AUSTRALIA
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QUEENSLAND DISTRICT REGISTRY
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NSD 125 OF 2006
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BETWEEN:
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SQ MARINE SA
Plaintiff |
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AND:
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GIANT MARINE SHIPPING SA, BEING THE OWNERS OF THE SHIP "GLOBAL
PEACE"
First Defendant ADSTEAM HARBOUR PTY LIMITED Second Defendant |
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JUDGE:
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DOWSETT J
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DATE:
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26 AUGUST 2008
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PLACE:
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PERTH (VIA VIDEO LINK TO SYDNEY AND BRISBANE)
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REASONS FOR JUDGMENT
1 These reasons should be read with my earlier reasons published on 5 August 2008. On that day, in action NSD 124/06, I ordered that the plaintiff pay the first defendant’s costs of and incidental to preparation for trial, incurred after 7 February 2008 and prior to 11 March 2008, such costs to be taxed and paid on an indemnity basis. In action NSD 125/06 I ordered that the plaintiff pay the first defendant’s costs of and incidental to preparation for trial, incurred after 21 February 2008 and prior to 11 March 2008, such costs to be taxed and paid on an indemnity basis. The first date in each case, 7 February 2008 in the case of action NSD 124/06 and 21 February 2008 in the case of action NSD 125/06, was the date upon which the second defendant in each action paid the amount of the claim. Those dates appeared from affidavits filed on behalf of the plaintiff and the first defendant in each action. The second date in each case, 11 March 2008, was the date upon which the plaintiff in each action indicated to the first defendant that it would not proceed to trial in the event that it failed to obtain judgment in advance of trial.
2 Following the publication of my reason, but prior to the perfection of my orders, the plaintiffs indicated that they wished to apply to amend them. They filed notices of motion accordingly. As the orders have not been perfected, there is power to amend. However I would not normally entertain any further submissions or receive further evidence with respect to them. Nonetheless, in the present case I have agreed to do so, primarily because of a factual discrepancy which emerged in counsel’s original submissions concerning costs. At pp 180 and 181 of the transcript counsel for the plaintiffs said:
Your Honour, there's only one last housekeeping matter I’d move to deal with, it’s one I don’t think your Honour will need me to deal with in a formal way. The dates of payment – just so that your Honour is alive to it, because my learned friend seeks to agitate that in the orders he was asking for. In the ... Victoria the date we received payment is 8 February.3 He then went on to say in respect of the other matter:
The final payment was received on 27 February.4 As I have previously observed the state of the evidence was that payment had been made in action NSD 124 of 2006, on 7 February 2008 and in action NSD 125 of 2006, on 21 February, 2008.
5 It is curious that a matter which now appears to be of some considerable significance to the plaintiffs should have been raised in that rather off-hand way. In particular, it seems unsatisfactory that counsel should, at the end of his address, have made submissions which were inconsistent with the evidence. I do not mean to be unduly critical of counsel’s approach. Submissions as to costs are traditionally less formal than submissions concerning substantive issues. I accept that counsel believed that he was raising the issue in an entirely appropriate way and inviting concurrence from the first defendant. However express concurrence was not forthcoming. In those circumstances I would have been unwilling to infer that the first defendant had, by not dissenting, agreed to any factual assertion made in the course of submissions, which assertion was not supported by the evidence. Counsel may have been distracted at the relevant time or may not have grasped the significance of such an attempt to supplement the evidence. In some cases it may be unclear whether counsel is purporting to refer to evidence or inviting an inference from the evidence. To contradict or supplement the evidence in addresses is no small thing. It is generally desirable that where counsel intends to do so, he or she consult the other side in advance as to such intention.
6 In the present case, however, the first defendant does not dispute the asserted dates of receipt of payment. In those circumstances it is reasonable that I proceed upon the basis that the payments were received on the dates indicated by counsel. At this stage, I am not sure whether I proceeded upon the basis that the relevant amounts were merely "received" (as opposed to "paid") on the dates specified in the evidence and in the orders, that is 7 February and 21 February 2008. The expression "payment" sometimes implies actual payment and sometimes implies its receipt. In any event, I am willing to reconsider the exercise of the discretion as to costs which underlies order 1 as to costs in each action. In particular I shall consider whether the plaintiff in each case should be ordered to pay the relevant costs and also whether any such payment should be on an indemnity basis. I approach both matters without regard to my previous decisions.
7 There are circumstances in which it is important to distinguish between payment and receipt of moneys. The most obvious of those is where one is considering an order for interest. A successful applicant should generally receive interest on an amount claimed up to the date of actual receipt, rather than up to the date upon which the unsuccessful respondent has paid it. That is not the present case. In these actions I must address the reasonableness of the conduct of the parties after it became known that the second defendant in each action had accepted responsibility for the damage claimed, was willing to pay and had "paid" in the sense of directing payment. The question, then, is how each plaintiff ought to have conducted itself in those circumstances.
8 I do not suggest that either plaintiff ought to have discontinued the proceedings solely in the expectation that it would receive the relevant payment. It would have been entirely appropriate for each plaintiff to wait for the receipt of the money before doing so. However the question is whether it was reasonable to continue to assert an intention to go to trial, or more particularly, not to advise the first respondent in each case that the action would not be proceeding, subject only to payment being actually received from the second defendant. The plaintiffs have not suggested that they doubted whether the second defendant would, or could, meet its obligations. The reason that the parties continued to prepare for trial was primarily that the plaintiffs had, in my view, misunderstood their positions. I have previously given my reasons for this view. In those circumstances the difference between each date of payment and the relevant date of receipt had nothing to do with the decision to continue with the action or with the further incurrence of costs by the first respondent. Given that there was no evidence of any reason to doubt that the relevant amounts would be received, it was unreasonable for the plaintiffs to continue to incur costs themselves and, effectively, to compel the first defendant to do so.
9 In those circumstances I conclude that in each case, the plaintiff should pay the first defendant’s costs of and incidental to preparation for trial incurred, in action NSD 124/06 after 7 February 2008 and prior to 11 March 2008, and in action NSD 125/06 incurred after 21 February 2008 and prior to 11 March 2008. I also consider that such costs should be paid on an indemnity basis. In those circumstances it is not necessary for me to consider amending my earlier orders.
10 At the time at which I made the earlier orders, I did not dismiss the actions. This matter was raised with the parties. It is now agreed that each action should be dismissed. I so order. My attention has been drawn to two or three minor typographical errors in my earlier reasons. As the reasons have not yet been sent to the court library for distribution, they will be amended and the parties advised accordingly.
11 The costs of today should follow the event. I order that in respect of
each motion the plaintiff pay the first respondent’s
costs of the hearing
today.
Associate:
Dated: 15
September 2008
NSD 124 OF 2006 AND NSD
125 OF 2006:
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Solicitor for the Plaintiff:
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Norton White
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Solicitor for the First Defendant:
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Thynne & Macartney
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Counsel for the Second Defendant:
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The Second Defendant did not appear
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