Does a prima facie case exist?
12 The principles applicable to the predecessor provision to r 10.43(4)(c) (O 8 r 2(2)(c)) were considered by the Full Court in Ho v Akai Pty Ltd (in liq) [2006] FCAFC 159; 247 FCR 205. The Full Court held, at [10]:
As has been observed on many occasions, the prima facie case requirement has to be met at the outset, usually on an ex parte basis, and without the advantage of discovery and other procedural aids to the making out of the case: see eg Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 at 390. It "should not call for a substantial inquiry": WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 at 476; see also Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549. For present purposes it is sufficient to say that a prima facie case for relief is made out if, on the material before the Court, inferences are open which if translated into findings of fact, would support the relief claimed: Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 at 110. Or, to out the matter more prosaically as Lee J did in Century Insurance Ltd (in prov liq) v New Zealand Guardian Trust Ltd [1996] FCA 376:
What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court's processed to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified.
13 These principles are equally applicable to the current provision: Tiger Yacht Management Ltd v Morris [2019] FCAFC 8; 268 FCR 548 [45]; Israel Discount Bank Ltd v ACN 078 272 867 Pty Ltd (in liq) (formerly Advance Finances Pty Ltd) [2019] FCAFC 90; 367 ALR 71 [47].
14 The requirement that there be a prima facie case demonstrated pertains to "all or any" of the relief claimed in the proceeding. It is not necessary to demonstrate merit in all of the claims made in the proceeding: Tiger Yacht Management [45].
15 Condor has filed and relied on two affidavits of Mr Shanta Ambrose Rajadurai filed on 26 June 2020 and 9 July 2020, an affidavit of Mr Trent Paola filed on 13 July 2020, and an affidavit of Mr Jeffrey Lennon filed on 13 July 2020.
16 Condor's submissions, and the affidavits in support, are directed at establishing a prima facie case in respect of the claims said to arise out of breaches of the contracts of carriage and breaches of the contracts to provide ICT service. Condor adduced no evidence, and made no submissions, in relation to the allegations of misleading or deceptive conduct or unconscionable conduct.
17 Mr Paola is the Director and sole shareholder of Condor. He deposes to the circumstances of Condor entering into three contracts for the sale of three consignments of fresh table grapes to three customers in Taiwan. His affidavit exhibits the commercial invoices in respect of those contracts.
18 Mr Paola deposes to the circumstances of Condor entering into seven contracts of carriage with PIL for seven consignments of grapes from Melbourne to Kaohsiung under refrigerated conditions. He deposes that four of the shipments were delivered without incident but that the three shipments the subject of these proceedings were not delivered. Mr Paola also deposes that, in respect of each consignment, Condor and PIL entered into a contract for PIL to provide an ICT service at an additional fee. He says that the contracts of carriage and the ICT contracts were negotiated on behalf of Condor by Freight Logistics Pty Ltd (FL) with PIL's agent, Pacific Asia Express Pty Ltd (PAE).
19 Mr Lennon is the General Manager at FL who deposes to negotiating and managing the contracts of carriage and the ICT contracts on behalf of Condor. His affidavit exhibits the sea carriage documents in respect of the three cargoes the subject of these proceedings, the booking receipt notes evidencing the ICT contracts and three Export Receival Advice forms issued on delivery into the custody of the carrier confirming "Cold Treatment Reefer". Mr Lennon's affidavit provides some evidence of the terms of the ICT contracts, in emails from PAE exhibited to his affidavit, including that the service charge included the supply and installation of the probes and twice daily monitoring of the reefer temperatures.
20 Mr Lennon deposes to the fluctuations in temperatures within the containers during the voyages from Melbourne to Kaohsiung and spikes in temperatures which breached the ICT protocol. His affidavit adduces a significant amount of evidence, including data logger printouts for each of the containers. His affidavit exhibits two written directions of the Taiwan Bureau of Animal and Plant Health Inspection and Quarantine requiring that containers TGHU9969922 and PCIU6083126 be returned to origin because of non-compliance with cold treatment. In relation to container PCIU6059813, Mr Lennon exhibits conflicting emails from PIL's P&I club as to whether attempts at passing the ICT protocol have been successful. Mr Lennon deposes that PIL has not provided the temperature records by which this could be verified. Mr Lennon deposes that PIL has apparently surrendered the third cargo for disposal to the customs authorities. He exhibits a letter, written in Chinese together with a free hand translation, which was attached to an email sent by PIL's P&I club to Condor on 9 July 2020.
21 Mr Lennon deposes that PAE acknowledged that the ICT protocols in respect of TGHU9969922 and PCIU6083126 had failed and exhibits email exchanges between FL and PAE.
22 Mr Paola deposes, in a general sense at least, to the loss and damage suffered by Condor as a result of the temperature fluctuations and the consequential inability to deliver the three cargoes to the consignees in accordance with the sales contracts by exhibiting emails from Condor to PIL, dated 23 April 2020, 27 April 2020 and 5 May 2020, notifying of Condor's "intention to claim for the financial loss" in respect of each of the shipments. The amount claimed in respect of each of the shipments is apparent from the emails from PIL acknowledging receipt of those communications. It might be observed in passing that those amounts do not appear to credit the amount already paid by the buyers, being 50% of the invoiced sum 7 days after shipment (as deposed to by Mr Paola). An inference is open that the buyers must be refunded those sums. Further, Mr Lennon deposes to Condor having paid additional charges to ship two containers (TGHU9969922 and PCIU6083126) to Hong Kong in an attempt to mitigate its loss.
23 Observations about the facts of this matter or the strength of the applicant's case are made purely on the evidence advanced by Condor, in respect of which PIL has had no opportunity to reply. No concluded view has, or could be, reached at this stage of proceedings about any factual matter which might arise in the future. Nevertheless, the evidence establishes, at least at a prima facie level, that Condor has sustained the loss and damage it claims to have suffered as a consequence of breaches by PIL of the contracts of carriage and the ICT service contracts as alleged in the Concise Statement.