Beluga Shipping GmbH & Co v Headway Shipping Ltd

Judgment (6 paragraphs)

[1]

Orders 1-9 below are by consent of the second and third defendants, defendants to the first cross claim and the second cross applicants (the Suzlon Companies), the first and fourth defendants, cross claimants on the first cross claim and the first and second defendants to the second cross claim (the Headway Companies) and Inder Paul Singh Malhotra.
The third defendant to the second cross claim (Sanjeev Bangad) the fifth defendant to the second cross claim (SS Oceanwind Pte Limited) and the sixth defendant to the second cross claim (Genus Shipping Services Pvt Limited) have been called outside the court today and have not appeared. THE COURT ORDERS THAT:
Inder Paul Singh Molhatra be joined as fourth defendant to the second cross claim, without admissions, and on condition that he have liberty up to and including 27 January 2009 to file and serve a motion and any evidence in support to set aside his joinder, service on him, strike out or seek judgment on the amended second cross application and/or statement of claim as against him.
On or before 16 January 2009, the Suzlon Companies file and serve: (a) all further affidavits and expert evidence as to damages, upon which they propose to rely; and (b) any motion for judgment in default of appearance of any defendants to the amended second cross application.
On or before 20 January 2009, the Headway Companies and all other defendants to the second cross claim file and serve: (a) all affidavits and expert evidence upon which they propose to rely; (b) their list of documents; and (c) give simultaneous inspection of any such documents.
On or before 10 February 2009, the Suzlon Companies file and serve any affidavits and expert evidence upon which they propose to rely in reply.
Return any motion filed pursuant to Orders 1 or 2(b) on 2 February 2009 at 11.00am.
On or before 30 January 2009, each of the parties provide the associate to Justice Rares a draft of the proposed orders which they seek be made on 2 February 2009 relating to: (a) the conduct of the trial; (b) the time that should be limited for the examination in chief and cross-examination of each witness proposed to be called; (c) the time by which an outline of opening submissions of each party, of no more than 15 pages, be filed and served before the final hearing; and (d) directions for the purposes of conducting a case management conference with a Registrar in order to identify what items in the various claims for damages are agreed, and what items are in dispute and the nature of any such dispute.

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 On 12 December 2008, in the course of giving my reasons in Beluga Shipping GmbH & Co v Headway Shipping Ltd (No 3) [2008] FCA 1989 I stated that there would be no utility in proving service out unless I was satisfied that it was appropriate to allow the joinder of both SS Oceanwind and Genus Shipping. I also said that I was satisfied that both should be joined as parties to the proceedings and service out should be ordered. 2 However, in the orders that I formally announced in court at the conclusion of giving those reasons, I accidentally omitted to make a formal order joining those two companies to the proceedings. That was necessary because of order 4 made on 5 December 2008, in which I had granted leave for the Suzlon companies to file in court the amended second cross-application on condition that it stand, until further order, as having been filed only against the first, second and third second cross-defendants, who were then currently parties to the proceedings, and that, among others, SS Oceanwind and Genus Shipping were not to be treated as being parties until a formal order joining them had been made. 3 It was inherent in my granting leave to serve outside the jurisdiction that they be joined, but for an abundance of caution, I will amend the orders made and entered on 12 December 2008 by adding that the fifth second cross-defendant, SS Oceanwind Pte Limited, and the sixth second cross-defendant, Genus Shipping Services Pvt Limited, be joined as parties to the amended second cross-application. 4 The power to correct the record so that it truly does represents what the court pronounced or intended to pronounce as its order is well-established: Burrell v R (2008) 248 ALR 428; 82 ALJR 1221 at [21] per Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ (Kirby J agreed at [104]); see also SZMLB v Minister for Immigration and Citizenship (No 2) [2008] FCA 1962 and the cases referred to. I am satisfied that I have power to amend the order made on 12 December 2008 under the slip rule and do so. 5 The Suzlon companies have relied on an affidavit by Raj R Yadav, affirmed on 13 December 2008, that he served emailed copies of the various documents referred to in order 2 made on 12 December 2008 by post to what was the registered office of Genus Shipping. He deposed that on 15 December 2008 he attended at that registered office but found no such company was situated at the address. He did not leave a copy of the documents there but rather, went back to his office and sent them by mail to that address. 6 The Suzlon companies have asked that I extend the time for service on both of Genus Shipping and SS Oceanwind to 23 December 2008 in lieu of the time of 16 December in order 3 made on 12 December 2008. I propose to accede to that request. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

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