Dachser v Waco - [2000] NSWSC 1049

CITATION: Dachser v Waco [2000] NSWSC 1049

CURRENT JURISDICTION: Equity Division
Commercial List

FILE NUMBER(S): SC 50070/00

HEARING DATE(S): 18/10/00, 19/10/00, 20/10/00

JUDGMENT DATE: 16 November 2000

PARTIES :

Dachser GmbH & Co KG - Plaintiff
Waco Australia Pty Limited - Defendant

JUDGMENT OF: Rolfe J

COUNSEL : Mr I.M. Jackman/Ms N. Obrart - Plaintiff
Mr I.M. Neil - Defendant

SOLICITORS: Clayton Utz - Plaintiff
Schweizer & Co - Defendant

CATCHWORDS: Whether the plaintiff has standing to bring these proceedings in New South Wales by reason of the application of Swiss law. Held it did not. - Applicability of foreign law considered.

LEGISLATION CITED: Supreme Court Rules

CASES CITED: United States Surgical Corporation v Hospital Products International Pty Limited & ors (1982) 2 NSWLR 766
Clarke v The Earl of Dunraven and Mount-Earl [1897] AC 59 (The "Satanita")
In Re Recher's Will Trusts [1972] 1 Ch 526
Finlayson v Carr [1978] 1 NSWLR 657
Scruples Imports Pty Limited v Crabtree & Evelyn Pty Limited [1983] 1 IPR 315
Temilkovski v Australian Iron and Steel Pty Limited (1966) 67 SR (NSW) 211
Subbotovsky v Waung (1968) 72 SR (NSW) 242

DECISION: Summons dismissed with costs.

I N D E X

PARA
Introduction 1
The WACO System Constituent Documents 7
The Issues 19
Whether The Plaintiff Lacks Standing To Bring
These Proceedings 33
The Applicable Law 39
Submissions On Behalf Of The Parties 91
Conclusion 138
The Arbitration Clause 139
Result 141

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

ROLFE J

THURSDAY, 16 NOVEMBER 2000

50070/00 - DACHSER GmbH & CO KG v WACO AUSTRALIA PTY LIMITED

JUDGMENT

HIS HONOUR:
Introduction

1    By a Summons filed on 5 June 2000, the plaintiff, Dachser GmbH & Co KG, for which Mr I.M. Jackman of Counsel and Ms N. Obrart of Counsel appeared, sought various relief, to which I shall refer in a moment, against the defendant, Waco Australia Pty Limited, for which Mr I.M. Neil of Counsel appeared.
2 On 7 July 2000, Hunter J made an order by consent, pursuant to Part 31 rule 2 of the Supreme Court Rules, that the questions in respect of the relief claimed by the plaintiff in paragraphs 1, 2 and 3 of the Summons be determined separately from and prior to the assessment of the damages claimed by the plaintiff.
3    On 9 June 2000, the defendant gave to the plaintiff and the Court an undertaking that:-

“.. it will continue to act as the plaintiff’s neutral handling agent in Australia until the earlier of:

(a) the final determination of the plaintiff’s application for orders 1, 2 and 3 in the Summons; or

(b) the expiration of 60 days notice given in writing to the plaintiff’s solicitor.”

4    Each of the plaintiff and the defendant is in the business of providing air freight industry services. They do so respectively to, from and within the Federal Republic of Germany and Australia. Each is a full member of the WACO System, the letters…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWSC 1049
Decision Date: 16 November 2000

CaseChat Overview and Summary

The case of Dachser v Waco involved a dispute between Dachser, a German logistics company, and Waco, an Australian company. The plaintiff, Dachser, sought to bring proceedings against the defendant, Waco, in the Supreme Court of New South Wales, arguing that the application of Swiss law granted it standing to do so. The court was required to determine whether Swiss law applied to confer jurisdiction on the plaintiff and, if so, whether this was sufficient for Dachser to initiate proceedings in New South Wales.

The primary legal issue before the court was the applicability of Swiss law in determining the plaintiff's standing to bring the proceedings in New South Wales. The court had to consider whether the choice of law provisions within the contractual relationship between the parties, which designated Swiss law as the governing jurisdiction, could also confer jurisdiction upon the plaintiff to bring the proceedings in an Australian court. Additionally, the court examined the extent to which the principles of comity and public policy would permit the enforcement of foreign law in this context.

In its reasoning, the court found that while Swiss law designated the Swiss courts as the exclusive jurisdiction for disputes arising from the contractual relationship, this did not confer standing on the plaintiff to bring the proceedings in New South Wales. The court held that the principles of comity and public policy did not support the enforcement of foreign law in a manner that would permit a party to sidestep the jurisdictional rules of the forum state. Consequently, the plaintiff was not permitted to bring the proceedings in New South Wales under the application of Swiss law. The court dismissed the plaintiff's application on the grounds that it lacked standing.

The court's decision effectively clarified the limits of applying foreign law in determining the jurisdictional rights of parties in Australian courts. The final orders of the court dismissed the plaintiff's application and determined that the New South Wales court did not have jurisdiction to hear the case.

Orders