Consideration
9 The relevant orders sought by the applicant are pursuant to r 20.15 of the Federal Court Rules, which makes provision for non-standard and more extensive discovery. Rule 20.15(1)(a) provides that the party seeking the order must identify any criteria mentioned in r 20.14(1) and (2) that should not apply.
10 Rule 20.14 makes provision for standard discovery in accordance with the Federal Court rules. Sub-rules 20.14(1)(b) and (c) and r 20.14(2), to which the applicant refers in the application before me, provide:
(1) If the Court orders a party to give standard discovery, the party must give discovery of documents:
(a) …
(b) of which, after a reasonable search, the party is aware; and
(c) that are, or have been, in the party's control.
(2) For paragraph (1)(a), the documents must meet at least one of the following criteria:
(a) the documents are those on which the party intends to rely;
(b) the documents adversely affect the party's own case;
(c) the documents support another party's case;
(d) the documents adversely affect another party's case.
11 Guidance to litigants in respect of discovery of documents in the Federal Court is provided by Practice Note CM 5 issued 1 August 2011, which materially provides:
the Court will not order discovery as a matter of course, even where the parties consent, unless discovery is necessary for the determination of issues in the proceeding (paragraph 2(a));
the Court will fashion any order for discovery to suit the issues in a particular case (paragraph 2(b));
the Court will want to know whether discovery is necessary to facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible (paragraph 2(c)(i));
the Court will have regard to the issues in the case and the order in which they are likely to be resolved, the resources and circumstances of the parties, the likely benefit of discovery and the likely cost of discovery and whether that cost is proportionate to the nature and complexity of the proceeding (paragraph 3); and
to prevent orders for discovery requiring production of more documents than are necessary for the fair conduct of the case, orders for discovery will ordinarily be limited to the documents required to be disclosed by r 20.14 of the Federal Court Rules (paragraph 4).
12 In the circumstances of the case before me, I am satisfied that the amended interlocutory application filed by the applicant on 23 July 2015 should be dismissed. My reasons for so finding are as follows.
13 First, it was common ground before the parties that documents in respect of which parties may legitimately seek discovery must be within the scope of the pleadings in the case. This position is consistent with Practice Note CM 5 (and cf discussion of this point in Reading Entertainment Australia Pty Ltd v Birch Carroll & Coyle Ltd [2002] FCAFC 109 per Beaumont J at [65] and the commentary in Cairns B, Australian Civil Procedure (10th ed, Lawbook Co, 2014) at [10.110]). It is necessary in considering the interlocutory application before the Court that the Court give foremost consideration to the terms of the pleadings and the manner in which the documents in respect of which discovery is sought satisfy the criteria specified by the Federal Court Rules relative to those pleadings.
14 Second, as was explained by Rares J in Strong Wise Limited v Esso Australia Resources Pty Ltd (2010) 185 FCR 149 at [78]-[79] the Convention on Limitation of Liability for Maritime Claims 1976, enacted by the Limitation of Liability for Maritime Claims Act 1989 (Cth) clearly limits the liability for claims to "distinct occasions". As his Honour observed:
78. I am of opinion that a claim arises on a distinct occasion within the meaning of the Convention in the following way. Where a single act, neglect or default of a shipowner places him in such a relationship that, as a matter of commonsense, it is a cause of loss or damage suffered by a third party, that third party will have a claim under Art 2 of the Convention. And, such a claim will be caused by an occurrence and, so, will arise on that distinct occasion for the purposes of Arts 6, 7, 9 and 11.
79. But where a subsequent act, neglect or default of the same shipowner separately operates to cause different or separately identifiable loss or damage to the same third party, or to others, then a new claim or claims will arise on that later distinct occasion. The latter occasion is distinct because, first there is a new event (the separate act, neglect or default), secondly, there is new loss or damage and thirdly, the new cause is, as a matter of commonsense, not a necessary or inseparable consequence of the earlier act, neglect or default.
80. Thus, whether one occasion is distinct from another will depend upon whether the causes of the claims that arise from each act, neglect or default are sufficiently discrete that, as a matter of commonsense, they can be said to be distinct from one another.
15 In this case the applicant clearly pleads in the statement of claim only one "distinct occasion" giving rise to loss and damage - namely that the damage to the Douglas Shoal was caused by the grounding of the Shen Neng 1 on the shoal at about 1710 hours on 3 April 2010. This is clear from paragraph 2 of the statement of claim, but in particular paragraphs 3 and 4 which refer to "the said grounding". If the applicant seeks to refer to other acts of negligence of the respondent or its servants or agents, I accept, as Mr Lawrance for the respondent submitted, that the applicant will require leave to amend the statement of claim to so plead.
16 Third, Mr Young submitted that the meaning of "grounding" of the vessel extended beyond the actual event occurring at or about 1710 hours on 3 April 2010. In support of this submission he referred me to paragraph 4 of the statement of claim which detailed the damage to the reef, which clearly extended beyond the initial impact on the reef, at that time and date. I do not accept this submission. As Mr Lawrance submitted, and I accept, claimable damage following a negligent act can clearly extend beyond the initial stages of the event. Normal and consequential loss following an act of negligence is the subject of an extensive body of law, in respect of which principles are well-known (cf for example McGregor H, McGregor on Damages (19th ed, Sweet & Maxwell, 2014) Ch 3). As is clear from its terms, paragraph 4 of the statement of claim is referable only to the damage resulting from the "said grounding", not identification of the event which caused the damage and loss. I do not accept that paragraph 4 constitutes a separate "distinct occasion" within the meaning of the Act, or that it broadens the meaning of "grounding" in earlier paragraphs of the statement of claim, as submitted by the applicant.
17 Fourth, the respondent has admitted that the Chief Officer of the Shen Neng 1, Mr Xuegang Wang, was negligent, and that it was his negligence that caused the grounding of the ship. It is clear on the pleadings that, although paragraph 3 of the statement of claim refers to negligent navigation of the ship by "servants or agents of the respondent", the applicant only pleads negligence of Mr Xuegang Wang. This is abundantly plain from the particulars to paragraph 3, where the Chief Officer is the only person mentioned as having any role in the grounding of the ship.
18 Mr Lawrance submitted this morning that the negligence of Mr Xuegang Wang is not an issue in the proceedings, because the respondent has admitted it. This is plainly so. To that extent it is not apparent why the documents sought by the applicant in its amended interlocutory application fall within any of the sub-paragraphs of rule 20.14(2). Mr Young for the applicant submitted that the Court should have regard to the broader terms of paragraph 3 which referred to the negligent navigation of the ship by "servants or agents" of the respondent, and place less weight on the contents of the particulars to paragraph 3. I am not minded to follow this course. It is well-settled that a key purpose of particulars in pleadings is to define and limit the issues in the proceeding (Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at [10]), and to inform an opponent of the nature of the case it has to meet and prevent it from being taken by surprise at the hearing (Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712; Conway v Mercedes-Benz Australia Pacific Pty Ltd [2010] FCA 72 at [7] and cases listed in Practice & Procedure High Court and Federal Court of Australia (LexisNexis, subscription service) r 16.41.10). In my view it is not sustainable for the applicant to claim that the particulars it has supplied in the statement of claim do not shape the substantive claim in paragraph 3.
19 It appeared from submissions this morning that the applicants may seek to rely upon the negligence of servants or agents of the respondent other than Mr Xuegang Wang. As I have already noted, if that is the case it would need to seek leave to amend the statement of claim to so plead.
20 Fifth, I do not accept the submission of the applicant concerning the utility of the Court ordering additional discovery to inform it in relation to any proposed amendment to its reply, based upon comments of Rares J in Strong Wise Ltd v Esso Australia Resource Pty Ltd (No 2) (2010) 185 FCR 237 at [5]. The juridical basis for his Honour's observations in that case is very different from that in the substantive case in these proceedings.
21 Sixth, I am not satisfied that categories of documents relating to salvage and repair of the ship meet any of the criteria in Rule 20.14 (2) on the current state of the pleadings.