FEDERAL COURT OF AUSTRALIA De Brett Seafood Pty Ltd v Qantas Airways Limited (No 6) [2013] FCA 591 Citation: De Brett Seafood Pty Ltd v Qantas Airways Limited (No 6) [2013] FCA 591 Parties: DE BRETT SEAFOOD PTY LTD (ACN 093 552 366) and J WISBEY & ASSOCIATES PTY LIMITED (ACN 001 959 851) v QANTAS AIRWAYS LIMITED (ACN 009 661 901), LUFTHANSA CARGO AKTIENGESELLSCHAFT, SINGAPORE AIRLINES LTD (ARBN 001 056 195), SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857), CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514), AIR NEW ZEALAND LTD (ARBN 000 312 685), AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569), and BRITISH AIRWAYS PLC (ARBN 002 747 597) File number: VID 12 of 2007 Judge: TRACEY J Date of judgment: 2 April 2013 Catchwords: PRACTICE AND PROCEDURE – Applications to join additional cross-respondents – whether applications should be adjourned pending ruling on application to amend pleadings – consideration of two broadly competing submissions. Legislation: Federal Court of Australia Act 1976 (Cth) – s 37M Federal Court Rules 2011 (Cth) – r 15.05 Date of hearing: 2 April 2013 Date of publication of reasons: 14 June 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 16 Counsel for the First and Second Applicants: Mr M Pesman and Ms E Bennett Solicitor for the Applicants: Maurice Blackburn Counsel for the First Respondent: Mr C Colquhoun Solicitor for the First Respondent: Johnson Winter and Slattery Counsel for the Second Respondent: Ms H Tiplady Solicitor for the Second Respondent: Freehills Counsel for the Third and Fourth Respondents: Mr M O'Bryan SC and Mr N De Young Solicitor for the Third and Fourth Respondents: Minter Ellison Counsel for the Fifth Respondent: Ms M Sloss SC Solicitor for the Fifth Respondent: DLA Piper Australia Counsel for the Sixth and Seventh Respondents: Mr R Smith SC and Mr R Yezerski Solicitor for the Sixth and Seventh Respondents: Corrs Chambers Westgarth Counsel for the Ninth Respondent: Mr J Arnott Counsel for the Ninth Respondent: Mallesons Stephen Jaques Counsel for the First, Second and Third Cross-Respondents: Mr P Solomon SC Solicitors for the First, Second and Third Cross-Respondents: Allens Counsel for the Fourth Cross-Respondent: No appearance Solicitor for the Fourth Cross-Respondent: Ashurst Counsel for Emirates: Mr C Scerri QC Solicitors for Emirates Allens Counsel for Malaysia Airlines Cargo SDN BHD: Mr P Brereton SC Ms V Whittaker Solicitors for Malaysia Airlines Cargo SDN BHD: Gilbert & Tobin IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 12 of 2007 BETWEEN: DE BRETT SEAFOOD PTY LTD (ACN 093 552 366) First Applicant J WISBEY & ASSOCIATES PTY LIMITED (ACN 001 959 851) Second Applicant AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Respondent LUFTHANSA CARGO AKTIENGESELLSCHAFT Second Respondent SINGAPORE AIRLINES LTD (ARBN 001 056 195) Third Respondent SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Fourth Respondent CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514) Fifth Respondent AIR NEW ZEALAND LTD (ARBN 000 312 685) Sixth Respondent AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Seventh Respondent BRITISH AIRWAYS PLC (ARBN 002 747 597) Ninth Respondent AND BETWEEN DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT (ARBN 000 495 232) Cross-Claimant on the First Cross-Claim AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Cross-Respondent on the First Cross-Claim SINGAPORE AIRLINES LTD (ARBN 001 056 195) Second Cross-Respondent on the First Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Third Cross-Respondent on the First Cross-Claim CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514) Fourth Cross-Respondent on the First Cross-Claim AIR NEW ZEALAND LTD (ARBN 000 312 685) Fifth Cross-Respondent on the First Cross-Claim AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Sixth Cross-Respondent on the First Cross-Claim BRITISH AIRWAYS PLC (ARBN 002 747 597) Seventh Cross-Respondent on the First Cross-Claim and between: qantas airways LIMITED (ACN 009 661 901) Cross-Claimant on the Second Cross-Claim and: LUFTHANSA CARGO AKTIENGESELLSCHAFT First Cross-Respondent on the Second-Cross Claim SINGAPORE AIRLINES LTD (ARBN 001 056 195) Second Cross-Respondent on the Second Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Third Cross-Respondent on the Second Cross-Claim CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514) Fourth Cross-Respondent on the Second Cross-Claim AIR NEW ZEALAND LTD (ARBN 000 312 685) Fifth Cross-Respondent on the Second Cross-Claim AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Sixth Cross-Respondent on the Second Cross-Claim BRITISH AIRWAYS PLC (ARBN 002 747 597) Seventh Cross-Respondent on the Second Cross-Claim AND BETWEEN: CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514) Cross-Claimant on the Third Cross-Claim AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Cross-Respondent on the Third Cross-Claim LUFTHANSA CARGO AKTIENGESELLSCHAFT Second Cross-Respondent on the Third Cross Claim SINGAPORE AIRLINES LTD (ARBN 001 056 195) Third Cross-Respondent on the Third Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Fourth Cross-Respondent on the Third Cross-Claim AIR NEW ZEALAND LTD (ARBN 000 312 685) Fifth Cross-Respondent on the Third Cross-Claim AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Sixth Cross-Respondent on the Third Cross-Claim BRITISH AIRWAYS PLC (ARBN 002 747 597) Eight Cross-Respondent on the Third Cross-Claim AND BETWEEN: BRITISH AIRWAYS PLC (ARBN 002 747 597) Cross-claimant on the Fourth Cross-Claim AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Cross-Respondent on the Fourth Cross-Claim LUFTHANSA CARGO AKTIENGESELLSCHAFT Second Cross-Respondent on the Fourth Cross-Claim SINGAPORE AIRLINES LTD (ARBN 001 056 195) Third Cross-Respondent on the Fourth Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Fourth Cross-Respondent on the Fourth Cross-Claim CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857) Fifth Cross-Respondent on the Fourth Cross-Claim AIR NEW ZEALAND LTD (ARBN 000 312 685) Sixth Cross-Respondent on the Fourth Cross-Claim AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Seventh Cross-Respondent on the Fourth Cross-Claim AND BETWEEN: AIR NEW ZEALAND LTD (ARBN 000 312 685) Cross-Claimant on the Fifth Cross-Claim AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Cross-Respondent on the Fifth Cross-Claim LUFTHANSA CARGO AKTIENGESELLSCHAFT Second Cross-Respondent on the Fifth Cross-Claim SINGAPORE AIRLINES LTD (ARBN 001 056 195) Third Cross-Respondent on the Fifth Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Fourth Cross-Respondent on the Fifth Cross-Claim CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857) Fifth Cross-Respondent on the Fifth Cross-Claim BRITISH AIRWAYS PLC (ARBN 002 747 597) Sixth Cross-Respondent on the Fifth Cross-Claim AND BETWEEN: AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Cross-Claimant on the Sixth Cross-Claim AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Cross-Respondent on the Sixth Cross-Claim LUFTHANSA CARGO AKTIENGESELLSCHAFT Second Cross-Respondent on the Sixth Cross-Claim SINGAPORE AIRLINES LTD (ARBN 001 056 195) Third Cross-Respondent on the Sixth Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Fourth Cross-Respondent on the Sixth Cross-Claim CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857) Fifth Cross-Respondent on the Sixth Cross-Claim BRITISH AIRWAYS PLC (ARBN 002 747 597) Sixth Cross-Respondent on the Sixth Cross-Claim and between: singapore airlines ltd (arbn 001 056 195) First Cross-Claimant on the Seventh Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Second Cross-Claimant on the Seventh Cross-Claim AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Cross-Respondent on the Seventh Cross-Claim LUFTHANSA CARGO AKTIENGESELLSCHAFT Second Cross-Respondent on the Seventh Cross-Claim CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857) Third Cross-Respondent on the Seventh Cross-Claim AIR NEW ZEALAND LTD (ARBN 000 312 685) Fourth Cross-Respondent on the Seventh Cross-Claim AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Fifth Cross-Respondent on the Seventh Cross-Claim BRITISH AIRWAYS PLC (ARBN 002 747 597) Sixth Cross-Respondent on the Seventh Cross-Claim AND BETWEEN: CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514) Cross-Claimant on the Eighth Cross-Claim AND: SOCIÉTÉ AIR FRANCE (ARBN 000 489 074) First Cross-Respondent on the Eighth Cross-Claim KONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV (ARBN 000 067 916) Second Cross-Respondent on the Eighth Cross-Claim MARTINAIR HOLLAND NV (ARBN 069 862 862) Third Cross-Respondent on the Eighth Cross-Claim CARGOLUX AIRLINES INTERNATIONAL SA (ARBN 089 7O2 447) Fourth Cross-Respondent on the Eighth Cross-Claim AND BETWEEN: Singapore airlines ltd (arbn 001 056 195) First Cross-Claimant on the Ninth Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Second Cross-Claimant on the Ninth Cross-Claim AND: SOCIÉTÉ AIR FRANCE (ARBN 000 489 074) First Cross-Respondent on the Ninth Cross-Claim KONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV (ARBN 000 067 916) Second Cross-Respondent on the Ninth Cross-Claim MARTINAIR HOLLAND NV (ARBN 069 862 862) Third Cross-Respondent on the Ninth Cross-Claim CARGOLUX AIRLINES INTERNATIONAL SA (ARBN 089 7O2 447) Fourth Cross-Respondent on the Ninth Cross-Claim AND BETWEEN: Singapore airlines ltd (arbn 001 056 195) First Cross-Claimant on the Tenth Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Second Cross-Claimant on the Tenth Cross-Claim AND: Korean airlines co ltd (arbn 003 938 261) Cross-Respondent on the Tenth Cross-Claim AND BETWEEN: CATHAY PACIFIC AIRWAYS LIMITED (ARBN 479514) Cross-Claimant on the Eleventh Cross-Claim AND: Korean airlines co ltd (arbn 003 938 261) Cross-Respondent on the Eleventh Cross-Claim and between: lufthansa cargo aktiengesellschaft Cross-Claimant on the Twelfth Cross-Claim AND: KONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV (ARBN 000 067 916) First Cross-Respondent on the Twelfth Cross-Claim MARTINAIR HOLLAND NV (ARBN 069 862 862) Second Cross-Respondent on the Twelfth Cross-Claim SOCIÉTÉ AIR FRANCE (ARBN 000 489 074) Third Cross-Respondent on the Twelfth Cross-Claim CARGOLUX AIRLINES INTERNATIONAL SA (ARBN 089 702 447) Fourth Cross-Respondent on the Twelfth Cross-Claim AND BETWEEN: LUFTHANSA CARGO AKTIENGESELLSCHAFT Cross-Claimant on the Thirteenth Cross-Claim AND: AIR NEW ZEALAND LTD (ARBN 000 312 685) First Cross-Respondent on the Thirteenth Cross-Claim AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Second Cross-Respondent on the Thirteenth Cross-Claim BRITISH AIRWAYS PLC (ARBN 002 747 597) Third Cross-Respondent on the Thirteenth Cross-Claim CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857) Fourth Cross-Respondent on the Thirteenth Cross-Claim QANTAS AIRWAYS LIMITED (ACN 009 661 901) Fifth Cross-Respondent on the Thirteenth Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Sixth Cross-Respondent on the Thirteenth Cross-Claim singapore airlines ltd (arbn 001 056 195) Seventh Cross-Respondent on the Thirteenth Cross-Claim AND BETWEEN: LUFTHANSA CARGO AKTIENGESELLSCHAFT Cross-Claimant on the Fourteenth Cross-Claim AND: KOREAN AIR LINES CO LTD (ARBN 479514) Cross-Respondent on the Fourteenth Cross-Claim JUDGE: TRACEY J DATE OF ORDER: 2 APRIL 2013 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. On or before 19 April 2013, the applicants file and serve any submissions, no more than six pages in length, upon which they intend to rely in support of their interlocutory application filed on 26 March 2013. 2. On or before 3 May 2013 any respondent opposing the making of any orders referred to in paragraph 1 file and serve any written submissions, no more than six pages in length, and any evidence upon which it intends to rely. 3. On or before 17 May 2013, the applicants file and serve any written submissions, no more than ten pages in length, and any evidence upon which they intend to rely in reply. 4. The proceeding be listed for hearing of the interlocutory application referred to in paragraph 1 on 29 July 2013 on an estimate of two days. 5. On or before 12 April 2013, the applicants file and serve a statement containing: a. the names of all experts that have been retained by the applicants to give evidence in relation to the question of loss in this proceeding; b. a copy of the resume of each such expert; c. all questions asked or proposed to be asked of each such expert; and d. a description of the methodology proposed to be used by the expert in answering those questions. 6. On or before 19 April 2013, the applicants file and serve any submissions, no more than six pages in length, upon which they intend to rely in support of their interlocutory application filed on 15 March 2013 and any further evidence upon which they intend to rely. 7. On or before 17 May 2013, any respondent opposing the making of any orders referred to in paragraph 6 file and serve any written submissions, no more than six pages in length, and any evidence upon which it intends to rely. 8. On or before 31 May 2013, the applicants file and serve any written submissions in reply, no more than ten pages in length. 9. This proceeding be listed for hearing of the interlocutory application referred to in paragraph 6 on 29 July 2013 on an estimate of two days. 10. The further hearing of the applications by the second, third, fourth, fifth, sixth, seventh and ninth respondents to join additional cross-respondents be adjourned to a date to be fixed after determination of the applicants' applications for leave to file a sixth amended application and an eighth amended statement of claim. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 12 of 2007 BETWEEN: DE BRETT SEAFOOD PTY LTD (ACN 093 552 366) First Applicant J WISBEY & ASSOCIATES PTY LIMITED (ACN 001 959 851) Second Applicant AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Respondent LUFTHANSA CARGO AKTIENGESELLSCHAFT Second Respondent SINGAPORE AIRLINES LTD (ARBN 001 056 195) Third Respondent SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Fourth Respondent CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514) Fifth Respondent AIR NEW ZEALAND LTD (ARBN 000 312 685) Sixth Respondent AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Seventh Respondent BRITISH AIRWAYS PLC (ARBN 002 747 597) Ninth Respondent AND BETWEEN DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT (ARBN 000 495 232) Cross-Claimant on the First Cross-Claim AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Cross-Respondent on the First Cross-Claim SINGAPORE AIRLINES LTD (ARBN 001 056 195) Second Cross-Respondent on the First Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Third Cross-Respondent on the First Cross-Claim CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514) Fourth Cross-Respondent on the First Cross-Claim AIR NEW ZEALAND LTD (ARBN 000 312 685) Fifth Cross-Respondent on the First Cross-Claim AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Sixth Cross-Respondent on the First Cross-Claim BRITISH AIRWAYS PLC (ARBN 002 747 597) Seventh Cross-Respondent on the First Cross-Claim and between: qantas airways LIMITED (ACN 009 661 901) Cross-Claimant on the Second Cross-Claim and: LUFTHANSA CARGO AKTIENGESELLSCHAFT First Cross-Respondent on the Second-Cross Claim SINGAPORE AIRLINES LTD (ARBN 001 056 195) Second Cross-Respondent on the Second Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Third Cross-Respondent on the Second Cross-Claim CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514) Fourth Cross-Respondent on the Second Cross-Claim AIR NEW ZEALAND LTD (ARBN 000 312 685) Fifth Cross-Respondent on the Second Cross-Claim AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Sixth Cross-Respondent on the Second Cross-Claim BRITISH AIRWAYS PLC (ARBN 002 747 597) Seventh Cross-Respondent on the Second Cross-Claim AND BETWEEN: CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514) Cross-Claimant on the Third Cross-Claim AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Cross-Respondent on the Third Cross-Claim LUFTHANSA CARGO AKTIENGESELLSCHAFT Second Cross-Respondent on the Third Cross Claim SINGAPORE AIRLINES LTD (ARBN 001 056 195) Third Cross-Respondent on the Third Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Fourth Cross-Respondent on the Third Cross-Claim AIR NEW ZEALAND LTD (ARBN 000 312 685) Fifth Cross-Respondent on the Third Cross-Claim AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Sixth Cross-Respondent on the Third Cross-Claim BRITISH AIRWAYS PLC (ARBN 002 747 597) Eight Cross-Respondent on the Third Cross-Claim AND BETWEEN: BRITISH AIRWAYS PLC (ARBN 002 747 597) Cross-claimant on the Fourth Cross-Claim AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Cross-Respondent on the Fourth Cross-Claim LUFTHANSA CARGO AKTIENGESELLSCHAFT Second Cross-Respondent on the Fourth Cross-Claim SINGAPORE AIRLINES LTD (ARBN 001 056 195) Third Cross-Respondent on the Fourth Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Fourth Cross-Respondent on the Fourth Cross-Claim CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857) Fifth Cross-Respondent on the Fourth Cross-Claim AIR NEW ZEALAND LTD (ARBN 000 312 685) Sixth Cross-Respondent on the Fourth Cross-Claim AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Seventh Cross-Respondent on the Fourth Cross-Claim AND BETWEEN: AIR NEW ZEALAND LTD (ARBN 000 312 685) Cross-Claimant on the Fifth Cross-Claim AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Cross-Respondent on the Fifth Cross-Claim LUFTHANSA CARGO AKTIENGESELLSCHAFT Second Cross-Respondent on the Fifth Cross-Claim SINGAPORE AIRLINES LTD (ARBN 001 056 195) Third Cross-Respondent on the Fifth Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Fourth Cross-Respondent on the Fifth Cross-Claim CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857) Fifth Cross-Respondent on the Fifth Cross-Claim BRITISH AIRWAYS PLC (ARBN 002 747 597) Sixth Cross-Respondent on the Fifth Cross-Claim AND BETWEEN: AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Cross-Claimant on the Sixth Cross-Claim AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Cross-Respondent on the Sixth Cross-Claim LUFTHANSA CARGO AKTIENGESELLSCHAFT Second Cross-Respondent on the Sixth Cross-Claim SINGAPORE AIRLINES LTD (ARBN 001 056 195) Third Cross-Respondent on the Sixth Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Fourth Cross-Respondent on the Sixth Cross-Claim CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857) Fifth Cross-Respondent on the Sixth Cross-Claim BRITISH AIRWAYS PLC (ARBN 002 747 597) Sixth Cross-Respondent on the Sixth Cross-Claim and between: singapore airlines ltd (arbn 001 056 195) First Cross-Claimant on the Seventh Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Second Cross-Claimant on the Seventh Cross-Claim AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Cross-Respondent on the Seventh Cross-Claim LUFTHANSA CARGO AKTIENGESELLSCHAFT Second Cross-Respondent on the Seventh Cross-Claim CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857) Third Cross-Respondent on the Seventh Cross-Claim AIR NEW ZEALAND LTD (ARBN 000 312 685) Fourth Cross-Respondent on the Seventh Cross-Claim AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Fifth Cross-Respondent on the Seventh Cross-Claim BRITISH AIRWAYS PLC (ARBN 002 747 597) Sixth Cross-Respondent on the Seventh Cross-Claim AND BETWEEN: CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 514) Cross-Claimant on the Eighth Cross-Claim AND: SOCIÉTÉ AIR FRANCE (ARBN 000 489 074) First Cross-Respondent on the Eighth Cross-Claim KONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV (ARBN 000 067 916) Second Cross-Respondent on the Eighth Cross-Claim MARTINAIR HOLLAND NV (ARBN 069 862 862) Third Cross-Respondent on the Eighth Cross-Claim CARGOLUX AIRLINES INTERNATIONAL SA (ARBN 089 7O2 447) Fourth Cross-Respondent on the Eighth Cross-Claim AND BETWEEN: Singapore airlines ltd (arbn 001 056 195) First Cross-Claimant on the Ninth Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Second Cross-Claimant on the Ninth Cross-Claim AND: SOCIÉTÉ AIR FRANCE (ARBN 000 489 074) First Cross-Respondent on the Ninth Cross-Claim KONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV (ARBN 000 067 916) Second Cross-Respondent on the Ninth Cross-Claim MARTINAIR HOLLAND NV (ARBN 069 862 862) Third Cross-Respondent on the Ninth Cross-Claim CARGOLUX AIRLINES INTERNATIONAL SA (ARBN 089 7O2 447) Fourth Cross-Respondent on the Ninth Cross-Claim AND BETWEEN: Singapore airlines ltd (arbn 001 056 195) First Cross-Claimant on the Tenth Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Second Cross-Claimant on the Tenth Cross-Claim AND: Korean airlines co ltd (arbn 003 938 261) Cross-Respondent on the Tenth Cross-Claim AND BETWEEN: CATHAY PACIFIC AIRWAYS LIMITED (ARBN 479514) Cross-Claimant on the Eleventh Cross-Claim AND: Korean airlines co ltd (arbn 003 938 261) Cross-Respondent on the Eleventh Cross-Claim and between: lufthansa cargo aktiengesellschaft Cross-Claimant on the Twelfth Cross-Claim AND: KONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV (ARBN 000 067 916) First Cross-Respondent on the Twelfth Cross-Claim MARTINAIR HOLLAND NV (ARBN 069 862 862) Second Cross-Respondent on the Twelfth Cross-Claim SOCIÉTÉ AIR FRANCE (ARBN 000 489 074) Third Cross-Respondent on the Twelfth Cross-Claim CARGOLUX AIRLINES INTERNATIONAL SA (ARBN 089 702 447) Fourth Cross-Respondent on the Twelfth Cross-Claim AND BETWEEN: LUFTHANSA CARGO AKTIENGESELLSCHAFT Cross-Claimant on the Thirteenth Cross-Claim AND: AIR NEW ZEALAND LTD (ARBN 000 312 685) First Cross-Respondent on the Thirteenth Cross-Claim AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Second Cross-Respondent on the Thirteenth Cross-Claim BRITISH AIRWAYS PLC (ARBN 002 747 597) Third Cross-Respondent on the Thirteenth Cross-Claim CATHAY PACIFIC AIRWAYS LIMITED (ARBN 000 479 857) Fourth Cross-Respondent on the Thirteenth Cross-Claim QANTAS AIRWAYS LIMITED (ACN 009 661 901) Fifth Cross-Respondent on the Thirteenth Cross-Claim SINGAPORE AIRLINES CARGO PTE LTD (ARBN 095 934 857) Sixth Cross-Respondent on the Thirteenth Cross-Claim singapore airlines ltd (arbn 001 056 195) Seventh Cross-Respondent on the Thirteenth Cross-Claim AND BETWEEN: LUFTHANSA CARGO AKTIENGESELLSCHAFT Cross-Claimant on the Fourteenth Cross-Claim AND: KOREAN AIR LINES CO LTD (ARBN 479514) Cross-Respondent on the Fourteenth Cross-Claim JUDGE: TRACEY J DATE: 2 APRIL 2013 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 At a directions hearing, held on 2 April 2013, applications were made to the Court by certain respondents for leave to join certain additional cross-respondents. An issue arose as to whether those applications should be dealt with immediately or be adjourned pending a ruling on the applicants' application to file a further amended application and a further amended statement of claim. Having considered two competing submissions I gave a ruling on transcript. Solicitors for Malaysian Airlines have subsequently asked for my reasons to be published. I now do so. 2 The parties have advanced two broadly competing submissions as to the best way to take the proceeding forward, having regard to the wishes of some respondents to join additional parties as cross-respondents. 3 The two competing regimes can be broadly identified, as I observed during argument, as being on the one hand acceding to the British Airways' proposal and making that applicable to each of the relevant respondents or, alternatively, to delay ruling on the applications for joinder, until such time as the Court has considered and determined the applicants' application to be granted leave to file a further amended statement of claim and application. That will not be dealt with, at least, until the end of July and almost certainly there will then be a delay while the arguments are considered and a reserved judgment prepared. 4 Neither solution is ideal in the circumstances and neither can meet the interests of all of the parties. What I must try to do is chart a course in accordance with the requirements of section 37M of the Federal Court of Australia Act 1976 (Cth), having regard to the overarching purpose there identified and subordinate objectives, insofar as they have a bearing on the present applications. 5 When some of these present applications were before me late last year, there was the prospect that, by early February, the applicant would have filed its eighth amended statement of claim having first exposed it to the other parties. I was advised that, at least at that stage, it was not intended that there would be any radical changes to the statement of claim, rather, it was suggested that it would become a more specific document as a result of discovery which had taken place between the filing of the current pleading and the formulation of the proposed pleading. 6 In the event, circumstances have evidently changed because I have been advised in the course of the morning that there are significant variations proposed to the statement of claim. 7 The Court and the other parties are left to speculate as to the implications of those proposed variations, assuming that they are allowed. At this stage it cannot be determined or, indeed, predicted, whether leave will be granted. Unless and until that ruling is made, the proposed cross-respondents will not be in a position to make submissions as to whether or not the allegations made by the applicant are, in whole or in part, wide enough to embrace them and if so, to what extent, a factor which must have a bearing on the question of whether or not leave should be granted to join them as cross-respondents. 8 On the other hand, the orders proposed by British Airways, which the other respondents who wish to join cross-respondents have supported, are attractive in the sense that they would overcome a difficulty which confronted some of the respondents in respect of potential limitation of actions restrictions on their ability to maintain cross-claims. The proposed joinders depend on a grant of leave, pursuant to rule 15.05 of the Federal Court Rules 2011 (Cth). 9 The difficulty that I confront in that regard, as I observed during argument, is that I consider that some of the respondents have complied with rule 15.05 to the extent of filing affidavits that explain the reasons for the delay in making their respective applications but, unfortunately, the requirement has not been satisfied by at least one of the respondents and that creates the difficulty of having two separate regimes. The success of the joinder applications also depends on my accepting, as a matter of discretion, that even in respect of the parties who have satisfied rule 15.05, that discretion should be exercised in their favour. 10 The resultant need for separate streams, in respect of different respondents who are seeking to join other cross-respondents, would not facilitate the efficient conduct of this litigation. 11 The principal detriment to the five respondents concerned of delaying the ruling on their joinder applications until after the applicant's amendment applications have been dealt with, is the possibility that they will then confront defences under the statute of limitations. 12 At this stage, no party has been able to point to any particular cause of action that they might wish to pursue against a cross-respondent that might reasonably be expected to attract a statute of limitations defence to the cross-claim. I say this non-critically because of the uncertain state of the pleadings. 13 If any of the respondents who have a desire to cross-claim, are able to identify, specifically, any such concern, then they do have a remedy in the commencement of separate proceedings against the particular cross-respondent or cross-respondents concerned. If those separate proceedings are commenced, then there can be a reasonable expectation that, at an appropriate point, they can be joined with the existing proceeding. 14 This is not an ideal procedural step and I am not unmindful of the careful way in which British Airways has gone about crafting its alternative solution but, on balance, I consider that the most efficient way of taking this difficult litigation further is to adjourn the applications to join until after the resolution of the applicant's applications for leave to amend and then to deal with those applications as speedily as possible, having regard to the state of the pleadings which will then be known with much greater certainty than is presently the case. 15 I have proposed to make orders substantially in the terms of the minutes handed up by Singapore Airlines. 16 There will be a further order that the further hearing of the applications by the second, third, fourth, fifth, sixth, seventh and ninth respondents to join additional cross-respondents be adjourned to a date to be fixed after determination of the applicant's application for leave to file a sixth amended application and an eighth amended statement of claim. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 14 June 2013