This was an interlocutory application as part of litigation (see also Commonwealth of Australia v Shenzhen Energy Transport Co Ltd CMI89) arising from the grounding of the ship Shen Neng 1 on the Douglas Shoal in the Great Barrier Reef. The applicant was the Commonwealth of Australia (the Commonwealth). The respondent was Shenzhen Energy Transport Co Ltd (Shenzhen). The Commonwealth pleaded a general maritime claim for damage done by the Shen Neng 1 to the Great Barrier Reef. On 16 November 2015 the Commonwealth applied for leave to amend its reply filed on 9 July 2014.

The Commonwealth’s cause of action was the tort of negligence. It sought to recover the loss and damage caused to the Douglas Shoal. If the Commonwealth was successful, it sought to recover all of the loss and damage flowing from the contended negligence of Shenzhen which was to be assessed by expert evidence at trial.

The Shen Neng 1 was grounded for 12 days before being refloated. During those 12 days, a number of steps were taken in connection with the grounding and attempts were made to refloat the ship. Shenzhen admitted the grounding was ‘caused solely by the negligent navigation of the Chief Officer of the vessel’ but denied para 3 of the statement of claim which asserted the grounding was caused by the negligent navigation of the ship ‘by the servants or agents of the respondent’. Shenzhen pleaded that, having regard to the factual assertions in its amended defence, it was entitled to limit its liability under the Convention on Limitation of Liability for Maritime Claims 1976 (LLMC 1976) on the basis that arts 2.1.a, 2.1.f, 6, 9.1 and 10 were engaged.

The Commonwealth sought leave to amend its reply to plead that the damage flowed from three distinct occasions and not just the grounding (thus attracting three distinct applicable liability caps). First, the grounding; second, improper seamanship following the grounding by lowering the starboard anchor, and, notwithstanding that the ship had run aground, failing to switch off the main engine for 8 minutes. This caused the anchor to drag across the Douglas Shoal and cause further damage. Third, negligence and improper seamanship by the Master’s decision to weigh anchor in an attempt to refloat the vessel.

Held: The Commonwealth had leave to amend its reply by 17 November 2015. By 19 November 2015, the Commonwealth was to file a document identifying the particular documents it required Shenzhen to produce in respect of which the respondent claimed legal professional privilege. Shenzhen was ordered to file any further evidence and its written submissions in support of any claim for legal professional privilege over those documents by 26 November 2015. The Commonwealth was given until 3 December 2015 to file any response to those written submissions.