Alstom Power v Polar Circle A.S.

REASONS FOR JUDGMENT 1 In this matter the plaintiff seeks leave to serve outside the Commonwealth of Australia the application and statement of claim in these proceedings. The party upon which service is sought is the second named defendant, being a company apparently registered, on the evidence, in Malaysia. 2 The affidavit of Mr Withnell makes clear that the plaintiff's claim is supported by sufficient prima facie evidence for today's purposes as follows. 3 The plaintiff purchased a consignment of 36 bundles of HRSG harps, which are metal tube modules used in power generation from a vendor in Malaysia on ex works terms. The goods were carried from Lumut, Malaysia to Fremantle, Western Australia, in the ship, "The Polar Bird" owned and operated by the first defendant. There was a bill of lading issued for and on behalf of the carrier. On arrival in Fremantle the goods were found to have shifted in the hold during the voyage; many of the tubes were found to be bent and distorted. The surveyor's report, annexed to Mr Withnell's affidavit, reveals this. The tubes were repaired in Western Australia at a cost of Australian $1,325,001.68. 4 The second defendant, the proposed party to be served in Malaysia, was appointed by the plaintiff's marine insurer to survey the goods upon loading. This, the evidence reveals, was to supervise the loading and stowage and to ensure that such was done suitably. 5 The prima facie case for relief is revealed by the fact that the goods shifted during the course of the voyage during weather on the voyage described in the marine surveyor's report as "heavy swells during the passage down the Western Australian coast". The report of the marine surveyor attends to the question as to the suitability of stowage. It notes that the bundles were secured with a steel-lifting beam on top of which timber was strapped and nailed around the bundle. It notes that there was no evidence of any welding or other attempt to restrain steel bearers, which were used, such as by chains or wire. There was no evidence of any boxed framing used to ensure that the timber, which had been used to fill the void between the edge of the bundles and bulkheads, did not come loose; nor was there any evidence of wires or lashings back to the load point on the ship's hold from the lifting beam. 6 In the circumstances of the marine surveyor's report which, of course, is only one side's evidence and untested, I am prepared to accept that there is a sufficient prima facie case of negligence or breach of duty to warrant service out of jurisdiction. Further, there is prima facie evidence of damage in Australia from that breach. Thus Order 8 rule 1 (ad), and arguably (ac) and (a) are satisfied. 7 Malaysia is a non-convention country, as defined in Order 8 of the Federal Court Rules. The Attorney-General's Department has advised that the Malaysian government will not accept requests through diplomatic channels seeking the assistance of its authorities in serving documents. In these circumstances, it is appropriate that service take place by the retainer of persons in Malaysia to personally serve the prospective second defendant at its registered office according to the laws of Malaysia. 8 The orders I make are as contained within the short minutes of order handed to me, amended by me and dated today, those orders being: 1. That leave be granted pursuant to Order 8 rule 2 of the Federal Court Rules to serve the application and statement of claim, both dated and filed herein on 7 April 2004, on the second defendant outside the Commonwealth. 2. That service of the originating process in the proceedings be effected upon the second defendant by leaving copies of the application, statement of claim, these orders, and the settled ex tempore reasons of myself with some person apparently an officer of or in the service of the second defendant and apparently of or above the age of 16 years: (a) at the office of the second defendant registered according to the laws of Malaysia as being the place at which documents may be served upon the second defendant or (b) if there is no such registered office, at the principal place of business or the principal office of the second defendant. 9 Costs of the application will be the plaintiff's costs in the cause. 10 I should note one aspect of Mr Withnell's affidavit. He refers to the claim against the second defendant being under s 32 of the Federal Court of Australia Act 1976 (Cth). It is not. That is a provision of particular meaning: see Phillip Morris Inc v Adam Brown Male Fashion (1981) 148 CLR 457, 476; PCS Operations Pty Ltd v Maritime Union of Australia (1998) 153 ALR 520; 521; and, see generally, (2002) 23 Australian Bar Review 29, 47 - 8. Here, the claim against the second defendant is an integral part of the matter or controversy arising under a law of the Commonwealth Parliament, the law being ss 4(3)(e) & 9 of the Admiralty Act 1988 (Cth). I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .