Empire Shipping Co Inc v Navix Line Inc [1996] FCA 367

LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 290 of 1989 GENERAL DIVISION IN ADMIRALTY ) BETWEEN: EMPIRE SHIPPING COMPANY INC. Plaintiff AND: NAVIX LINE INC. Defendant CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 9 MAY 1996 REASONS FOR JUDGMENT TAMBERLIN J: LOSS OF PROFITS DISCOVERY The plaintiff seeks "full and proper Discovery" of all records which relate to the profits derived by the defendant between June 1987 and the sale of the vessel Shin Kobe Maru in July 1991. In a letter dated 14 February 1996 the plaintiff's solicitors say:

"... So far as the discovery by the Defendant is concerned, the Plaintiff maintains that the Defendant has failed to give full and proper discovery both of the documents relating to the sale of the vessel as well as all records relating to the profits derived by the defendant for the period from June 1987 up to and including the sale of the vessel. Our client was not aware that your client had sold the vessel and did not consent to the same. Your client has now deprived itself from being able to comply with any Court order in respect of the vessel and our client is entitled, upon the close of the case and prior to Judgment, to elect in these circumstances between the alternative remedies of damages or an account of profits, see Dart Industries Inc. v Decor Corporation Pty Ltd (1993) 179 CLR 101 at 110-111. Our client is clearly entitled to discovery of the records in respect of the profits wrongfully derived by the Defendant by use of the vessel and half interest in the net proceeds of sale. To determine whether to pursue the alternative of an account of profits, we are instructed to press for discovery of these records by the Defendant. Please confirm that the records will be discovered within 14 days." The defendant resists the application and makes three submissions. These are: 1. That the pleadings do not make any claim which raises or seeks an account for loss of profits. 2. Loss of profits is not an available remedy in any event.