Western Bulk Carriers (Australia) Pty Ltd v Cosco Bulk Carrier Co Ltd [2002] FCA 1520

FEDERAL COURT OF AUSTRALIA

Western Bulk Carriers (Australia) Pty Ltd v Cosco Bulk Carrier Co Ltd [2002] FCA 1520

ADMIRALTY – PRACTICE & PROCEDURE – application for preliminary discovery under O 15A Federal Court Rules – where reasonable cause to believe that cranes on vessel not fit for purpose – where potential claim for recovery of economic loss – application for access to vessel to inspect cranes and related documentation PRACTICE & PROCEDURE – motion to set aside service outside jurisdiction – where alleged that no prima facie case

Admiralty Act 1988 (Cth) s 4(3)(d)(i) Judiciary Act 1903 (Cth) s 39B(1)(A) Federal Court Rules O 15A

Caltex Oil (Australia) Pty Limited v The Dredge "Willemstad" (1977) 136 CLR 529 cited Hooper v Kirella Pty Limited (1999) 96 FCR 1 cited Perre v Arpand Pty Limited (1999) 198 CLR 180 cited SmithKline Beecham plc v Alphapharm Pty Limited [2001] FCA 271 cited M. Walford et al Time Charters 4th ed (1995)

WESTERN BULK CARRIERS (AUSTRALIA) PTY LIMITED AND WESTERN BULK CARRIERS KS V COSCO BULK CARRIER CO LIMITED

N 1264 OF 2002 BEAUMONT J 29 NOVEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1264 OF 2002

BETWEEN: WESTERN BULK CARRIERS (AUSTRALIA) PTY LIMITED

FIRST PLAINTIFF

WESTERN BULK CARRIERS KS

SECOND PLAINTIFF

AND: COSCO BULK CARRIER CO LIMITED

DEFENDANT

JUDGE: BEAUMONT J

DATE OF ORDER: 29 NOVEMBER 2002

WHERE MADE: SYDNEY

ORDeRS

Noting that the plaintiffs undertake to the Court that they will use any documents obtained under these orders for the purposes only of proceedings in this Court of the kind mentioned in O 15A r 6(a), THE COURT ORDERS THAT: 1. The defendant permit the plaintiffs by their surveyor and solicitor to attend on board the MV "Tai An Hai" at Port Kembla and to inspect, test, take photographs and video tape footage of the vessel's cranes together with their motors and also to obtain photocopying access to the following records in respect of the vessel's cranes: a) Crane operation manual, b) Crane maintenance manual, c) Manufacturer's crane specifications, d) Maintenance record, running hours, e) Spare parts ordered during the last five years and on hand, f) Classification society records (where applicable to cranes), g) Crane manufacturer's inspection reports, h) Repair and inspection reports from other parties, i) Notices of protest during the past five years recording crane "down time", j) Other documents incidental or relevant to the above. 2. The defendant preserve at an office or location within the State of New South Wales, a copy of the following records presently on the vessel and/or removed on or after 13 November 2002 to date, in respect of the vessel's cranes: a) Crane operation manual, b) Crane maintenance manual, c) Manufacturer's crane specifications, d) Maintenance record, running hours, e) Spare parts ordered during the last five years and on hand, f) Classification society records (where applicable to cranes), g) Crane manufacturer's inspection reports, h) Repair and inspection reports from other parties, i) Notices of protest during the past five years recording crane "down time", j) Other documents incidental or relevant to the above. 3. The defendant to pay 80 percent of the plaintiffs' costs of the application and notice of motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.