FEDERAL COURT OF AUSTRALIA Stemcor (A/Asia) Pty Ltd v CV Scheepvartonderneming Ankergracht [2004] FCA 1715 Stemcor (A/Asia) Pty Ltd and anor v CV Scheepvartonderneming Ankergracht NSD 1245 of 2002 Stemcor (A/Asia) Pty Ltd and anor vOCEAN WAVE LINE SA NSD 1151 of 2002 Stemcor (A/Asia) Pty Ltd and anor vCV SCHEEPVARRTONDERNEMING ARCHANGELGRACHT NSD 84 of 2003 ALLSOP J 21 DECEMBER 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1245 of 2002 BETWEEN: STEMCOR (A/ASIA) PTY LTD FIRST PLAINTIFF TSUDA CORPORATION SECOND PLAINTIFF AND: CV SCHEEPVARRTONDERNEMING ANKERGRACHT DEFENDANT JUDGE: ALLSOP J DATE OF ORDER: 21 DECEMBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. After consultation with the solicitors for the defendant the solicitors for the plaintiffs are to file and serve a comprehensive court book on or before 18 March 2004, containing: (a) (i) index (ii) all up to date pleadings (iii) statement of issues as agreed (iv) affidavits and statements to be relied on by the parties. (b) An indexed bundle of documents, including documents to which objection is taken. 2. Liberty to apply on 3 days' notice to the associate of Emmett J to list any Notice of Motion dealing with the question of overseas witnesses. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1151 of 2002 BETWEEN: STEMCOR (A/ASIA) PTY LTD FIRST PLAINTIFF TSUDA CORPORATION SECOND PLAINTIFF AND: OCEAN WAVE LINE SA DEFENDANT JUDGE: ALLSOP J DATE OF ORDER: 21 DECEMBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. After consultation with the solicitors for the defendant the solicitors for the plaintiffs are to file and serve a comprehensive court book on or before 18 March 2004, containing: (a) (i) index (ii) all up to date pleadings (iii) statement of issues as agreed (iv) affidavits and statements to be relied on by the parties. (b) An indexed bundle of documents, including documents to which objection is taken. 2. Liberty to apply on 3 days' notice to the associate of Emmett J to list any Notice of Motion dealing with the question of overseas witnesses. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 84 of 2003 BETWEEN: STEMCOR (A/ASIA) PTY LTD FIRST PLAINTIFF TSUDA CORPORATION SECOND PLAINTIFF AND: CV SCHEEPVARRTONDERNEMING ARCHANGELGRACHT DEFENDANT JUDGE: ALLSOP J DATE OF ORDER: 21 DECEMBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. After consultation with the solicitors for the defendant the solicitors for the plaintiffs are to file and serve a comprehensive court book on or before 18 March 2004, containing: (a) (i) index (ii) all up to date pleadings (iii) statement of issues as agreed (iv) affidavits and statements to be relied on by the parties. (b) An indexed bundle of documents, including documents to which objection is taken. 2. Liberty to apply on 3 days' notice to the associate of Emmett J to list any Notice of Motion dealing with the question of overseas witnesses. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1245 of 2002 BETWEEN: STEMCOR (A/ASIA) PTY LTD FIRST PLAINTIFF TSUDA CORPORATION SECOND PLAINTIFF AND: CV SCHEEPVARRTONDERNEMING ANKERGRACHT DEFENDANT IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1151 of 2002 BETWEEN: STEMCOR (A/ASIA) PTY LTD FIRST PLAINTIFF TSUDA CORPORATION SECOND PLAINTIFF AND: OCEAN WAVE LINE SA DEFENDANT IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 84 of 2003 BETWEEN: STEMCOR (A/ASIA) PTY LTD FIRST PLAINTIFF TSUDA CORPORATION SECOND PLAINTIFF AND: CV SCHEEPVARRTONDERNEMING ARCHANGELGRACHT DEFENDANT JUDGE: ALLSOP J DATE: 21 DECEMBER 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 An issue has arisen in this matter concerning two overseas witnesses who reside in Japan. The case is one which concerns steel coils in three shipments from Japan to Australia. The plaintiffs allege that the carriers failed to comply with their obligations under the relevant provisions of the Amended Hague-Visby Rules. The two gentlemen who are said to have refused to come to Australia are said not to be witnesses in the control of the plaintiffs; rather, they are responsible officers at the mill and at a transport company. 2 The witnesses, broadly speaking, will give evidence of the state of the cargo, at dispatch and also, importantly, on the barges being taken to the ships. The defendants wish to cross-examine these witnesses if their evidence is to be received because of the centrality of the factual matter of the state of the cargo prior to delivery into the possession of the carrier. The parties have, at my request, provided in the last week helpful letters and submissions setting out their respective positions on this evidence. I requested this in order to ensure that each of the parties understood, with precision, what the others said about this evidence. 3 The difficulty arises because these gentlemen refuse, I am told, to come to Australia. Japan's arrangements with Australia make it difficult, if not impossible, for either evidence to be taken on commission or simply video-link cross-examination. That is not said as a conclusion of fact, but what I have been told from the bar table. It accords with my understanding of the matter, but that does not preclude any of the parties taking issue with these matters. What is apparently available is to have a competent authority in Japan administer written questions to these gentlemen. That may or may not be satisfactory to the defendants. On the current understanding of their position, I understand it not to be satisfactory. 4 An issue may or will arise as to the admissibility of either the current form or amended form of these gentlemen's statements under s 63 of the Evidence Act 1995 (Cth), particularly bearing in mind the operation of s 135 of the Evidence Act and the centrality of the subject matter. 5 The parties are now on notice of the respective difficulties and risks involved in dealing with this matter. The matter has been set down for hearing to commence on 4 April 2005 before Emmett J. The matter will take some time. There are some Japanese witnesses and a number of expert witnesses dealing with the always difficult issue of the carriage and conduct of steel coils from the northern hemisphere to the southern hemisphere. 6 Mr Roberts, on behalf of the plaintiffs, requested that I made an order today in terms that the Japanese authorities be approached to administer, in effect, interrogatories. I refuse to make that order today. I think the issue is one for the trial judge and the parties should take their own advice as to what, if any, steps they wish to take in relation to pre-trial or trial steps to deal with this matter. Therefore, I do not propose to make any directions or orders concerning this but rather simply leave it to the trial judge and to the parties to raise with him by notice of motion any step they say the court should take in relation to the problem. 7 I do propose to make one group of orders in relation to trial preparation and they are as follows. 1. I order that after consultation with the solicitors for the defendants the solicitors for the plaintiffs are to file and serve on or before 18 March 2005: (a) A comprehensive court book containing: (i) An index (ii) All up-to-date pleadings (iii) A statement of issues legal and factual which is agreed between respective solicitors; and (iv) The affidavits and statements to be relied on by all parties. (b) An indexed agreed bundle of documents including any documents to which objection is taken, so it is not just a question of documents that are agreed to go in, together with other documents that are going to be tendered. 2. I grant liberty to the parties to approach the associate to Emmett J to list any notice of motion dealing with the question of evidence, particularly overseas evidence. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 22 December 2004 Counsel for the Plaintiffs: Mr I G Roberts Solicitor for the Plaintiffs: O'Reilly Sever & Co. Counsel for the Defendants in NSD 1245 of 2002 and NSD 84 of 2003: Mr D James (Slr) Solicitor for Defendants in NSD 1245 of 2002 and NSD 84 of 2003: Ebsworth & Ebsworth Counsel for the Defendant in NSD 1151 of 2002: Ms J Bazakas (Slr) Solicitor for the Defendant in NSD 1151 of 2002: Norton White Date of Hearing: 21 December 2004 Date of Judgment: 21 December 2004