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Topaloglu v P&O Nedlloyd Ltd

 

[2006] QSC 17

 

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION [2006] QSC 017

FRYBERG J

 

No BS42 of 2004

MITHAT TOPALOGLU

Plaintiff/Respondent

and

 

P & O NEDLLOYD LIMITED

(ACN 074 877 562)

Defendant/Applicant

BRISBANE

..DATE 01/02/2006

 

ORDER


HIS HONOUR:  This is an application by the defendant for summary judgment.  The hearing proceeded for a substantial period during the course of the day with the usual entertaining engagement between Bench and Bar table on the points of law which arose.  The outcome of the exchanges has been that, toward the end of the day, the respondent/plaintiff has sought an adjournment of the hearing to gather further evidence. 

 

It is apparent that this possibility was in mind at the beginning of the day because when the hearing began the respondent sought and obtained leave to read and file an affidavit, the sole purpose of which seems to be to found the adjournment application.  No application was made at that time.

 

The application is opposed vehemently by Ms Derrington on behalf of the applicant and in the forefront of her arguments in opposition is the proposition that there is nothing to be gained by an adjournment.  That has two aspects;  one is that the additional evidence sought to be gathered cannot overcome the arguments of law which have been addressed to me during the day.  The other is that the affidavit in support of the application is so vague that the adjournment amounts to a request for nothing more than time to conduct a fishing expedition.

 

As to the merits, the application has been conducted by Ms Derrington on the basis that there are two overwhelming arguments to which the plaintiff can have no response.  Both of them involve the proposition that the action has been commenced out of time.  The first is that the action was commenced outside the time provided by article 3 rule 6 of the amended Hague rules as they applied to the contract between the parties in this case. 

 

That contract was a contract for the carriage of goods from Brisbane to Izmir in Turkey.  The goods in question were household effects, though it seems rather a large quantity of such effects, perhaps more than might be owned by one individual.  The goods were carried to Turkey.  At Izmir they passed into the hands of the Turkish customs authorities and it seems the plaintiff took no steps to get them out of customs and in due course the goods not having been claimed they were forfeited to the Turkish State.

 

Ms Derrington submits that the case falls within the compass of article 3 rule 6 of the amended Hague rules, which provide relevantly that the carrier be discharged from all liability whatsoever in respect of the goods unless suit is brought within one year of the date when they should have been delivered.  On any view of things they should have been delivered sometime in 1998 and the present action was not commenced until 2004.

 

A number of authorities were cited to me.  That which seems to me to be most pertinent is the decision of the Supreme Court of Victoria in Kamil Export Australia Pty Ltd v. NPL Australia Pty Ltd [1996] 1 VR 538.  That was a decision given on the predecessor rule to the one which I have just quoted.  There were some slight differences of wording between the two rules but the only one material at the present time is that the earlier version did not include the word "whatsoever".

 

Ms Derrington sought to distinguish that case and the earlier Queensland decision of Justice Cooper in Teys Brothers (Beenleigh) Pty Ltd v. ANL Cargo Operations Pty Ltd [1990] 2 QdR 288, on the basis that the earlier version of the rules was the subject of those decisions.

 

Those decisions are authority for the proposition that the exemption contained in Article 3, Rule 6, does not avail the carrier after the discharge of the goods.  In the present case the goods were intended to be discharged from the vessel at Piraeus and I assume they were discharged as intended and were subsequently conveyed to Izmir by some other form of transport.

 

If that interpretation applies in the present case, the clause cannot avail the defendant.  It seems to me that there is no material distinction to be drawn between the previous version of the rules and the present one. No authority has been cited to me suggesting that any such distinction ought to arise.

 

The words of both versions are, of course, strongly expressed.  If one were approaching the problem de novo one might be inclined to take the approach adopted by the English Court of Appeal in respect of the new rules in the Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) [1995] 1 Lloyd's Rep 1 and to hold that the words should be construed to have the widest possible ambit.  The approach might lead one to the conclusion that the limitation period proposed by the Rule would not be confined to the period up to discharge. 

 

However, that was not the approach taken in the two Australian cases to which I have referred.  Given that I see no relevant distinction between the old and the new versions of the Rule, I am, I think, bound by the decision of the Victoria Court of Appeal, Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485.  That being so I do not think that this point helps the applicant/defendant and, therefore, I do not think the adjournment can be resisted on the basis that it is futile by reason of this point.

 

The second point advanced by Ms Derrington relies on Clause 6(5) of the bill of lading.  It relevantly provides that the carrier shall be discharged of all liability whatsoever in respect of the goods unless suit is brought and notice thereof given to the carrier if the goods are not delivered within 10 months after the date of issue of the bill of lading.

 

The material is ambiguous as to when the bill of lading was issued.  It purports on its face to have been issued at Brisbane on the 17th of February 1998, but the material before me exhibits a non-negotiable copy and it seems that even the defendant contends that the bill was not provided to the shipper interests until after the goods had arrived at the destination.  Apparently this was because the freight had not been pre-paid, contrary to the terms of the bill.

 

In any event that is not of major importance because even the plaintiff concedes in the statement of claim that a person on his behalf to whom the goods were to be delivered was provided with the bill of lading in or about early April 1998.  Clearly more than 10 months expired after the issue of the bill of lading. 

 

The affidavit in support of the application for adjournment refers to the fact that the plaintiff is a Turkish gentleman and that there are language difficulties due to his limitations in speaking English.  The plaintiff's present solicitors have been acting for over a year, and I am surprised that they have not obtained proper instructions through an interpreter until now.

 

The adjournment is sought to obtain certain instructions.  These instructions are described in only the most vague terms, but the solicitors have deposed that the importance of the instructions was only explained to them by the plaintiff's son today.  That rather hints at the possibility that it may not be the plaintiff's personal fault that not everything that could be said on his behalf is able to said today.  To that extent I have some sympathy for the application.

 

On the other hand, as Ms Derrington pointed out, it is difficult to see what can be garnered which would prevent the operation of clause 6(5).  The affidavit proposes that the instructions might give rise to an argument of estoppel.  Little else is said.  That by itself would not be enough to persuade me that the applicant/defendant should be prejudiced by an adjournment.  However, the plaintiff has offered to provide a bank guarantee suggesting a sum of $10,000 to provide security for the costs of the respondent and I certainly would not be prepared to grant the application unless I were satisfied that the respondent were properly protected.

 

The matter is one of some fine balance and obviously very much discretionary.  I take into the account the fact that the events alleged in the statement of claim happened a long time ago and that the action has been running for some time also.  Although those facts are rather two-edged, it seems to me that on balance an adjournment of one month is not unreasonable in the circumstances provided there is adequate security for the defendant's costs of the summary judgment application and any foreseeable costs relating to pleadings or otherwise which may arise.

 

I, therefore, am prepared to grant the adjournment upon the condition that by 4 p.m. on the 3rd of February the plaintiff provides security to the satisfaction of the Registrar in the sum of $15,000 for the plaintiff's costs of the action.  I express it in that wide term, that is for the plaintiff's costs of the action, deliberately.  The amount is estimated by me to be a sum somewhat in excess of the costs of the application to cover things like pleadings and further instructions, but is not intended to reflect likely costs of the whole action.

 

For those reasons the order will be that upon the condition that the plaintiff provides security to the satisfaction of the Registrar by way of bank guarantee in the sum of $15,000 for the defendant's costs of the action by 4 p.m. on 3rd February, the application is adjourned until the 1st of March 2006.  Costs of the adjournment are reserved.

 

...

 

HIS HONOUR:  Liberty to apply.

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Editorial Notes

  • Published Case Name:

    Topaloglu v P&O Nedlloyd Ltd

  • Shortened Case Name:

    Topaloglu v P&O Nedlloyd Ltd

  • MNC:

    [2006] QSC 17

  • Court:

    QSC

  • Judge(s):

    Fryberg J

  • Date:

    01 Feb 2006

Litigation History

No Litigation History

Appeal Status

No Status