Air Tahiti Nui v Dailey

[2000] NSWSC 271

CITATION:	Air Tahiti Nui v Dailey [2000] NSWSC 271 revised - 6/04/2000
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 13007/99
HEARING DATE(S):	20 March 2000
JUDGMENT DATE:	20 March 2000
PARTIES :	Air Tahiti Nui (Plaintiff) Ralph Dailey (First Defendant) David Luc Monlun (Second Defendant)
JUDGMENT OF:	Dunford J

COUNSEL :	J Stevenson (Plaintiff) B Green (Defendants)
SOLICITORS:	John L Merity (Plaintiff) Selby Anderson (Defendants)
CATCHWORDS:	Practice and Procedure - jurisdiction of Court - written agreement made overseas - further and better particulars.
LEGISLATION CITED:	SCR Pt 11 r 8
CASES CITED:	Rome & anor v Punjab National Bank (1989) 2 All ER 136.
DECISION:	See para 9.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
MONDAY, 20 MARCH 2000
13007/99 - Air Tahiti Nui v Ralph DAILEY & anor
JUDGMENT

1    HIS HONOUR: This is the return of a notice of motion seeking various orders pursuant to SCR Pt 11 r 8 and Mr Green on behalf of the defendants has submitted that I should today give directions for the further conduct of the motion. 2    The plaintiff by its statement of claim seeks to recover over US $500,000 from the defendants pursuant to an alleged agency agreement appointing them its cargo agents in Japan. The defendants were both served within New South Wales but have not entered an appearance yet and seek to challenge the jurisdiction of this Court or, alternatively, to seek an order pursuant to Pt 11 r 8 (1) (h) that the Court in its discretion decline to exercise its jurisdiction. 3    The defendants through their solicitor have sought further and better particulars from the plaintiff before filing their defence, namely they seek particulars of the agreement and copies of any writing constituting or forming any part of such agreement or agreements. 4    The grounds on which they have done this appear from a letter dated 16 March 2000. The defendants claim that the agency agreement was an agreement between the plaintiff and a Japanese company, Dipco, and that any moneys allegedly owing to the plaintiff under an agency agreement are owing by Dipco, and not by them personally. In their letter of 16 March the defendants' solicitor says his clients have a memory of Dipco Pacific Co Limited receiving a document from the plaintiff at the Mercure Hotel in Paris, which to their recollection nominated the civil law of California as the governing law. They are unable to recall whether this was an exclusive jurisdiction nominated, but anticipated this may have been so. It is for this reason that they wish to see the document, as such consideration would be material, in particular, to any application to this Court for it to decline to exercise jurisdiction in the matter. 5    The plaintiff, on the other hand, has offered to supply particulars, but has declined to do so unless and until an appearance is entered; and Mr Stevenson on behalf of the plaintiff has this morning submitted that an appearance should be entered before the particulars are supplied. Of course, the defendants are reluctant to embark upon this course as it is clear that such a step may weaken their prospects of having the Court decline to exercise jurisdiction in the matter. The plaintiff has also indicated that on the defendants entering an appearance, it will seek security for costs. 6    I was referred to the English Supreme Court Practice (White Book) and to Rome & Anor v Punjab National Bank (1989) 2 All ER 136, where under a comparable rule it was held that the Court had power to order discovery of documents on a defendant's application to set aside a writ for irregularity of service, and that such an order may be an appropriate direction for the disposal of an application under the equivalent rule, provided it is shown that discovery was necessary for the fair disposal of the application. 7 In the present case I fail to see how the plaintiff could be prejudiced by supplying, before the defendants are required to file an appearance, the particulars which it will be bound to supply in any event; unless it seeks to obtain some tactical advantage by requiring the defendants to enter an appearance before their current application is disposed of. 8 I am satisfied from the evidence that the defendants do not have access to a copy of the relevant documentation, particularly the alleged contract of agency, and that it is necessary for them to have such access so that their current application under Pt 11 r 8 can be fairly and properly disposed of. However, I do not consider that discovery is necessary and the provision of the particulars sought by the defendants, together with copies of the relevant documents, should be sufficient for the defendants' purposes, and I propose to order accordingly. 9 I order that on or before 3 April 2000 the plaintiff supply the further and better particulars requested in a letter from the defendants' solicitor dated 28 February 2000, together with copies of any document constituting or forming part of the agreement alleged. Costs of today will be the defendants' costs on the motion. 10 Motion stood over to 17 April 2000 for hearing. oOo

Last Modified: 09/25/2000