Strong Wise Limited v Esso Australia Resources Pty Ltd (No 2) [2010] FCA 575

FEDERAL COURT OF AUSTRALIA

Strong Wise Limited v Esso Australia Resources Pty Ltd (No 2) [2010] FCA 575 Citation: Strong Wise Limited v Esso Australia Resources Pty Ltd (No 2) [2010] FCA 575

Parties: STRONG WISE LIMITED v ESSO AUSTRALIA RESOURCES PTY LTD (ACN 091 829 819), BHP BILLITON PETROLEUM (BASS STRAIT) PTY LTD (ACN 004 228 004) and PERSONS WHO MAY HAVE A CLAIM WITHIN THE MEANING OF ARTICLE 2 OF CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS 1976 (AS AMENDED BY THE 1996 PROTOCOL TO AMEND CONVENTION OF LIMITATION OF LIABILITY FOR MARITIME CLAIMS 1976) AS GIVEN FORCE OF LAW BY THE LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT (1989) (AS AMENDED) IN RESPECT OF LOSS SUFFERED OR DAMAGE CAUSED BY AN ANCHOR OR ANCHOR CABLE OF THE VESSEL "APL SYDNEY" IN PORT PHILLIP BAY, VICTORIA ON OR ABOUT 13 DECEMBER 2008

File number: VID 1060 of 2008

Judge: RARES J

Date of judgment: 8 June 2010

Catchwords: HIGH COURT AND FEDERAL COURT – JURISDICTION – STATUTORY INTERPRETATION – whether jurisdiction of Court limited by pleadings in proceedings under s 25 of the Admiralty Act 1988 (Cth), s 9 of the Limitation of Liability for Maritime Claims Act 1989 (Cth) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth) seeking relief under Convention on Limitation of Liability for Maritime Claims 1976 as affected by the 1996 protocol to amend that Convention – shipowner pleaded entitlement to limit liability on only one distinct occasion – defendant pleaded existence of four distinct occasions – Court found existence of two distinct occasions – whether Court has jurisdiction to make orders that shipowner entitled to limit liability for both distinct occasions consistent with its findings PRACTICE AND PROCEDURE – PLEADINGS – relief flowing from pleadings – Convention does not deny shipowner the right to limit because number of distinct occasions is misidentified in pleadings – real controversy to be resolved in proceedings is whether shipowner can invoke limitation of liability under Art 10 of the Convention on one or more distinct occasions – Court able to give effect to findings by ordering the constitution of one limitation fund and making a declaration of shipowner's entitlement to establish a second fund PRACTICE AND PROCEDURE – PLEADINGS – orders to prevent multiplicity of proceedings under s 22 of the Federal Court of Australia Act 1976 (Cth) from shipowner's failure to plead more than one distinct occasion – Court able to grant relief appropriate to dispose of the controversy litigated – multiplicity of proceedings inevitable consequence of not making orders giving effect to reasons due to shipowner's failure to plead more than one distinct occasion –refusal to grant relief not consistent with interests of justice PRACTICE AND PROCEDURE – PLEADINGS – amendment of pleadings – late application to amend after reasons delivered – power of Court to make amendments of its own motion to determine real questions in controversy – no unqualified duty to permit late addition of any new claim – tactical choices significant factor in exercise of discretion to allow amendments COSTS – unfettered discretion to award costs under s 43(2) of the Federal Court of Australia Act 1976 – no special practice as to costs in limitation actions under the Convention – substantial issues won and lost by each of the parties – limitation of liability under Convention a right rather than privilege – no general rule that shipowner liable for all costs in limitation proceedings – shipowner liable for costs of establishing uncontested entitlement to limitation: r 61(1) of Admiralty Rules 1988 Held: jurisdiction of Court not limited by pleading of shipowner – plenary jurisdiction to determine the controversy between the parties – orders made to avoid multiplicity of proceedings – shipowner to pay 50% of defendants' costs