An application and statement of claim were filed by the plaintiff, Hilditch Pty Ltd (Hilditch) in March 2007 concerning two sums of money: USD 380,000 and AUD 60,000. The matter came into the Sydney Admiralty and Maritime list. In the statement of claim, reliance was placed on ss 4(3)(e) and 9 of the Admiralty Act 1988 (Cth); the former concerns loss or damage to goods during sea carriage. The goods that were damaged were 400,469 metric tons of Yubase 6 (a base oil) which was contaminated with molasses. The larger sum in USD was for this damage, while the amount in AUD was for the costs of testing, terminal handling fees, and the port corporation's fees.

Questions arose as to whether this was bill of lading carriage. If it was, then as the cargo had been inbound to Australia, the shipment was covered by the Australian version of the Hague Rules, the Hague-Visby Rules, the Hamburg Rules, or some other variant of these, under the Carriage of Goods by Sea Act 1991 (Cth). Each regime to some extent demands from carriers a duty to exercise due diligence to make a vessel seaworthy for the cargo that it is about to carry. That duty would include making available a cargo tank that did not contaminate the cargo.

When this case came to Court, the specialised commercial Admiralty and Maritime list had only existed for a few years. Allsop J, who had heard matters on the list in Sydney since its inception, took issue with the plaintiff's statement of claim due to its lack of detail. His Honour expressed that a certain level of structural detail was necessary for the expedient resolution of any case, but especially more complex commercial cases. While the statement of claim was sufficient to express what the case was about, it was still lacking in other areas.

Allsop J also touched on art 4.2 of the Hague Rules, which provides exceptions for carriers to liability for loss or damage to cargo. It was argued by Wright J in Gosse Millerd v Canadian Government Merchant Marine Ltd [1927] 2 KB 432 that art 4.2 incorporated the relationship of bailment, and that once damage to goods that had been loaded in good condition had been proven, the carrier had to prove both its defence under art 4.2, and that it had carried the goods with due care and had exercised due diligence to make the vessel seaworthy. This view was subsequently rejected by members of the House of Lords in other major cases and lost its credibility as time passed.

Gaudron, Gummow, and Hayne JJ in Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad ('The Bunga Seroja') (1998) 196 CLR 161 suggested that since the Hague Rules was an international Convention, reliance should not be placed on outdated English decisions about bills of lading, and English rules of pleading. The uncertainty that this view created, in combination with discussions from other recent decisions, led Allsop J to state that there was some confusion about what parties had the onus of proof in maritime cases of this nature. This made it more understandable when plaintiffs did not know how to plead, and did not know whether to state loss or damage to cargo as prima facie evidence of their case, or whether they should plead breaches of arts 3.1 and 3.2 of the Hague Rules as well.

This discussion assisted in contextualising the case at hand and some of the surrounding issues of the time with regard to pleading loss or damage in carriage of goods cases.

In this case, Hilditch's pleadings contained an implied assertion that the defendant, Dorval Kaiun KK (DK), was the contractual carrier under the bill of lading. There was a time charter by an owner or disponent owner to DK, which then entered a voyage charter with a shipper, and a bill of lading was issued. As the shipper still had the bill of lading at that time, it did not evidence the contract of carriage; only the voyage charter itself constituted proof of the arrangement/the contract between DK and the shipper.

Although it appeared that the defendant was the time charterer in this case and not a party to the bill of lading, the defendant did not argue this. It was necessary for the administration of justice in this case that the defendant made clear whether it accepted it was the contractual carrier under the bill, and it did not do so. If it was not the contractual carrier, then another party would need to be joined to the proceedings for the case to continue. The defendant also said that its time charter with the vessel's owner had ended and that the original bill of lading was on a ship somewhere. This only raised further questions as to DK's record-keeping practices. Hilditch did not have the bill either, and it was not clear why.

These circumstances explained further the many problems with the case, although Allsop J was nonetheless willing to grant the parties more time to explain exactly what the agreed facts and issues were, and if DK was even the proper party to be sued.

Held: The Court ordered that Hilditch's statement of claim be struck out, amongst other related orders for clarifying the issues in the case and the content of the plaintiff's arguments. This included ordering the parties attend a case management conference for sorting out the relevant issues, and ordering the defendant to file and serve a document accepting or denying its status as carrier to the bill.

[For subsequent proceedings in this matter, see Hilditch Pty Ltd v Dorval Kaiun KK (No 2) [2007] FCA 2014 (CMI1116).]