This was an interlocutory application seeking non-standard and more extensive discovery as part of the wider litigation (see also Commonwealth of Australia v Shenzhen Energy Transport Co Ltd (No 2) CMI21) surrounding the grounding of the Shen Neng 1 on the Douglas Shoal in the Great Barrier Reef. The applicant, the Commonwealth of Australia, was seeking damages in the amount of AUD 194,000,000, representing the estimated cost of remediation of Douglas Shoal, or alternatively an order requiring that the respondent undertake the remediation of Douglas Shoal. The application was for an order for discovery of a large number of documents.

The respondent admitted in the pleadings that the grounding of the Shen Neng 1 was caused by the negligent navigation of the Chief Officer of the vessel and that it was entitled to avail itself of the limitation of liability provided for in the Convention on Limitation of Liability for Maritime Claims 1976 (LLMC 1976) as applied by the Limitation of Liability for Maritime Claims Act 1989 (Cth).

In relation to its amended interlocutory application, the Commonwealth submitted that there was a live issue about Shenzhen’s right to limit and the amount of any limitation. It was implicit in the defence pleadings that there was only one ‘distinct occasion’ for the purposes of the LLMC 1976. The Commonwealth argued that these were matters in respect of which it was entitled to discovery.

Held: The application would be dismissed and the costs of the respondent borne by the applicant.

It was common ground between the parties that documents that parties may legitimately seek discovery must be within the scope of the pleadings.

A claim arises on a distinct occasion within the meaning of the LLMC 1976 in the following way. Where a single act, neglect or default of a shipowner places it in such a relationship that, as a matter of common sense, it is a cause of loss or damage suffered by a third party, that third party will have a claim under art 2. Such a claim will be caused by an occurrence and will arise on that distinct occasion for the purposes of arts 6, 7, 9 and 11.

Where a subsequent act of the same shipowner separately operates to cause different or separately identifiable loss or damage to the same third party, then a new claim or claims will arise on that later distinct occasion. That occasion will be distinct because, first there is a new event, secondly there is new loss or damage, and thirdly the cause (as a matter of common sense) is not a consequence of the earlier act.

The Commonwealth, in its statement of claim, only pleaded one ‘distinct occasion’ giving rise to the loss or damage and that was the grounding of the Shen Neng 1. If the Commonwealth wanted to refer to other acts of negligence of Shenzhen it would need leave to amend the statement of claim.