International Maritime Services Pty Ltd v Marina Towage Pte Ltd

REASONS FOR JUDGMENT 1 This is an application for leave to serve in Singapore, an originating application and a statement of claim upon the defendant, a company registered in Singapore. 2 In order for the Court to authorise service of an originating application out of the jurisdiction the Court must be satisfied in relation to the matters which are set out in r 10.43 of the Federal Court Rules 2011 (the Rules). 3 The first of these matters is that the Court has jurisdiction in relation to the controversy. 4 The plaintiff entered into a contract with the defendant, whereby the plaintiff initially undertook to deliver the tugboat Elgin from Port Pirie in South Australia to Singapore. However, before the commencement of the voyage the parties agreed to vary the port of delivery from Singapore to the port of Batam in Indonesia. 5 The plaintiff alleges that based on information supplied by the defendant an estimate was made that the voyage would take 21 days. The voyage in fact took 33 days, because, in simple terms, so the plaintiff alleges, the assumptions underlying the estimate proved unfounded. On the plaintiff's case, one of the problems was that the tug could not achieve the economic cruising speed of 9.5 knots without significantly increasing its fuel consumption. 6 In outline, the plaintiff's claim arises from the alleged failure by the defendant to pay the plaintiff contractual delay costs, the cost of the additional fuel consumed and the additional contractual expenses attendant upon the delay which was not attributable to the fault of the plaintiff. 7 As to the question of jurisdiction, therefore, I am satisfied that this is a general maritime claim which falls within the jurisdiction of this Court. 8 The next question is whether the proceeding is of a kind mentioned in r 10.42 of the Rules. Rule 10.42 describes a number of different kinds of proceedings which have a sufficient connection with Australia to justify the invocation of Australian jurisdiction in relation to the dispute. The rule refers to these kinds of proceedings as items. Item 3 in the list of items describing the kind of proceedings which may be served out of jurisdiction, is a proceeding in relation to a contract which is governed by a law of the Commonwealth or a State or Territory. The contract in this case contains a clause which provided that the contract is governed by the law of Western Australia. I am satisfied, therefore, that the proceeding is one which falls within r 10.42. 9 The third consideration is whether the plaintiff has a prima facie case for the award of at least some of the relief which it claims. There is before me evidence of Mr Ashram Nair who has exhibited the contract, the invoices making the claims set out in the statement of claim and a letter of demand. There is also hearsay evidence by a director of the plaintiff of the facts underlying the plaintiff's claim. I am satisfied that there is a prima facie case in the sense required for service out of the jurisdiction (Ho v Akai Pty Limited (in liq) [2006] FCAFC 159 at [10]). The condition in r 10.43(4)(c) of the Rules is satisfied. 10 There is also evidence before me, pursuant to r 10.43(3), from Mr Nair as to the proposed manner in which the documents are to be served in Singapore. Mr Nair has obtained the advice of a Singaporean lawyer, to the effect that the method which is proposed in the minute of orders is permitted under Singaporean law. It is proposed that service is to be effected by a solicitor admitted to practice in Singapore or that solicitor's clerk, leaving the documents at the registered address of the defendant in Singapore. I am satisfied that that evidence demonstrates that the proposed method of service on the defendant company is permitted under Singaporean law. 11 The Court also has a discretion, notwithstanding that the provisions of r 10.43 are satisfied, not to permit service out of the jurisdiction for reasons, such as lis alibi pendens or inappropriate forum considerations. However, in my view, on the face of it, there is nothing in the circumstances of this case, to excite the exercise of the discretion against giving leave to serve the originating application and statement of claim out of the jurisdiction. In those circumstances, I will make orders in terms of the proposed minute of orders. 12 The matter will be adjourned to a directions hearing on 5 May 2014. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.