Ualesi v Expeditors International Pty Ltd

REASONS FOR JUDGMENT Background to the application as presented by the Applicants 1 This is an application filed on 28 September 2004 for the transfer of proceedings pending in the Local Court of New South Wales to this Court, pursuant to s 86A(4) of the Trade Practices Act 1974 (Cth) ('TP Act') and s 39B of the Judiciary Act 1903 (Cth), and further or in the alternative, for leave from this Court, pursuant to s 9 of the Evidence and Procedure (New Zealand) Act 1994 (Cth) ('E & P Act'), to serve certain subpoenas in New Zealand. The application is opposed by the respondent and came before me as duty judge as a matter of urgency because of the unavailability of the docket judge, and because dates had been earlier set down for the final hearing of the dispute in the Local Court of New South Wales on 20-21 January 2005. 2 The proceedings in the Local Court were commenced on 23 April 2003 by the respondent as plaintiff against the applicants as defendants, the subject matter of the claim being $11,923.17 for moneys owing for services rendered concerning the carriage, customs clearance and delivery of consignments of goods from New Zealand to Australia. Altogether six invoices were issued by the respondent to the applicants from 17 December 2002 to 10 January 2003 which made up that total sum. On 25 August 2003, the applicant filed in the Local Court grounds of defence to the respondent's liquidated claim, and on 13 October 2003, the applicants filed notice of cross-claim. The cross-claim relates to loss of profits for the late delivery of shipments of goods and for arrival of goods in other than 'good condition' and for damages for misrepresentation relating to a consignment of corned beef. For what it may presently matter, both the grounds of defence and cross-claim are confusingly pleaded. Later on 7 July 2004, the respondent filed an amended statement of claim in the Local Court, to which the applicants responded with amended grounds of defence. 3 It is apparent from the extensive written submissions of the applicants that the issues involved in the Local Court proceedings arise out of the same facts and circumstances as would be litigated if the same are to be transferred to this Court pursuant to the present application. The dispute between the parties is thus of a commercial kind arising out of steps put in place by the respondent for the import by the applicants of goods from New Zealand to Australia. 4 Until recently, the applicants have been legally represented by their daughter Ms Paras, a qualified lawyer, who described herself as 'a partner in the applicants business in charge of its legal division'. At the final hearing of the proceedings in this Court, the applicants were represented by a solicitor Mr Law. Mr PT Russell, Counsel for the respondent, had earlier objected to Ms Paras' retainer as solicitor for the applicants. Written material emanating from the Law Society of NSW was produced in support of that objection (see affidavit of Brennan Coleman sworn 29 November 2004 pars 41 to 52) and a Notice of Change of Solicitor was subsequently filed on 2 December 2004. 5 The applicants purportedly outlined by written submissions the nature of the disputes between the parties, being submissions which I have found to be confusing and difficult to comprehend, at least in terms of legal significance: '3. BRIEF BACKGROUND OF THE ROLE OF THE PARTIES 3.1 The Applicant is an importer/distributor. The Respondent is an international freight forwarder/customs broker. Both entities are businesses registered in Australia. 3.2 From 2001, the Respondent was appointed to act as a customs broker in Australia for the Applicant from time to time in relation to certain imports from overseas. 3.3 The Applicants' overseas sellers contracted with third parties for the transportation of certain consignments to Australia. 3.4 The Respondent's agents also sub-contracted the carriage and handling of goods consigned to the Applicant to third parties incorporated and located overseas. 3.5 These third party consolidators were, for the purposes of international conventions, the contracting parties with the actual carriers of the Applicant's goods. They were named as consignors and consignees on the relevant master bills of lading and master air waybills. 3.6 The Applicants were undisclosed principals in relation to these master bills of lading and air waybills. 4. THE RESPONDENT'S LOCAL COURT CLAIM 4.1 The Respondent commenced legal proceedings by way of Statement of Liquidated Claim in the Local Court of New South Wales (Downing Centre) on 23 April 2003 alleging that the Applicants were indebted to it in the sum of $11,923.17. The Respondent alleged that its right to recover the sums allegedly due was founded in the provisions of a document known as the 'Expeditors International Pty Limited Terms and Conditions for Distribution Service'. 4.2 On 25 August 2003, the Applicants filed defences to the Respondent's claim denying that they entered into an agreement for Distribution Services and denying they were indebted to the Respondent as alleged. 4.3 On 7 July 2004, the Respondent filed an Amended Statement of Claim alleging that the Applicants are obliged to Indemnify it pursuant to the Expeditors International Terms and Conditions which allegedly was incorporated into the commercial relations when an application for credit was signed on behalf of the Applicants in November 2001. 4.4 The matters raised in relation to the incorporation of terms and conditions in circumstances as pleaded by the Respondent, are analogous to a recent case decided by the Court of Appeal and which is currently on appeal to the High Court: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2003] NSWCA 75 (decided on 11 April 2003) [sic - judgment was delivered by the High Court in this matter on 11 November 2004: see Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52]. 4.5 The Applicants have filed an amended defence pleading an estoppel and challenging the application and the Respondent's interpretation of the Expeditor's Terms and Conditions (ANNEX A). 5. THE LOCAL COURT CROSS-CLAIM 5.1 On 13 October 2003, the Applicants filed a cross-claim against the Respondent claiming compensation for damage and delay to four (4) consignments of goods which were carried by sea from New Zealand to Australia. 5.2 The Applicants also plead a claim alleging misleading and deceptive conduct pursuant to section 52 of the Trade Practices Act. They seek damages under section 82 and 87 of the Act in relation to certain representations by the Respondent leading to the importation of a consignment of canned corned beef. This consignment was denied entry into Australia because it was handled on New Zealand premises which were not approved or licensed by the Ministry of Agriculture and Fisheries of New Zealand for handling meat products. 5.3 Further it is alleged that the Respondent and its agents in New Zealand exported the consignment prior to obtaining the 'proper' export documentation thus contravening the New Zealand Customs Act. This in turn, disqualified and prevented the Applicants from obtaining any retrospective approval for importation of the consignment into Australia. 5.4 The Respondents filed a defence making 'blanket' denials to the allegations pleaded in the Applicants Cross-Claim. 5.5 In the course of these proceedings it has become apparent that the Respondent intends to rely on the provisions of house bills of lading for its defence to the cross-claim, even though these bills are undated, unsigned and were surrendered in New Zealand. Effectively the Applicants deny they are bound by the terms of the bills of lading because they were not given the opportunity to contract prior to the goods being transported. 5.6 Flowing from that argument it is also in issue whether or not the Respondent will be able to rely on the Himalayan Clauses contained on the master documents. 5.7 It is envisaged that in the course of the hearing, arguments similar to those advanced in the recent High Court case of Siemens v Schenker [2004] HCA 11 and the role of house bills of lading will be advanced by the Applicants. 5.8 Another issue that will require determination is the method of calculating damages where the carrier does not declare the value of goods or the nature of cargo on the face of bills of lading. This is a matter which received the attention of the Full Court of the Federal Court in El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA [2004] FCAFC 202 which is currently on appeal to the High Court.' 6 Much of the applicants' foregoing description of the background to this dispute is highly contentious from the respondent's perspective. The respondent pointed out that the cross-claim relates to four consignments of cargo said to have been delayed in point of time for arrival and in any event to have been damaged. Three of those consignments are said by the respondent to be unrelated to the invoices the subject of the statement of claim filed in the Local Court and the fourth to corned beef which was refused entry by Australian Customs. It is apparently that consignment for which the applicants make claim under the TP Act, said by the respondent not yet to have been particularised. Be all that as it may, the above summary put forward by the applicants falls well short of alleging in a comprehensible manner any material facts in comprehensive form of the circumstances said to give rise to the purported defence and cross-claim of the applicants. 7 Affidavit evidence tendered by the respondent's solicitor traced in detail the events that have occurred since the respondent's institution of the Local Court proceedings. That material reflects unusual conduct on the part of Ms Paras of the Local Court proceedings on behalf of her parents, being of course the applicants in the proceedings in this Court, being conduct of no apparent materiality to the present cross-vesting application. I should perhaps observe that Magistrate Latham dismissed one application of the applicants made to the Local Court and ordered the applicants to pay the respondent's costs of $1000, which apparently however remains unpaid.