Kirby v ICC ICC v Hamburg Sud

[2000] NSWSC 289

CITATION:	Kirby v ICC ICC v Hamburg Sud [2000] NSWSC 289
CURRENT JURISDICTION:	Equity Division Admiralty List
FILE NUMBER(S):	SC 015/98; 017/98
HEARING DATE(S):	17.3.00
JUDGMENT DATE:	10 April 2000
PARTIES :	James N Kirby Pty Ltd v International Cargo Control Pty Limited International Cargo Control Pty Limited v Hamburg Sudamerkianische Dampfschifffahrts-Gesellschaft Eggert & Amsinck & Norfolk Southern Railway Company
JUDGMENT OF:	Hunter J

COUNSEL :	International Cargo Control Pty Ltd - Mr S R Horgan Hamburg Sudamerikanische Dampfschifffahrts-Gesellschaft Eggert & Amsinck- Mr B W Larkin Norfolk Southern Railway Company - Ms L A Muston
SOLICITORS:	James N Kirby Pty Ltd - Withnell Hetherington International Cargo Control Pty Ltd - Middletons Moore & Bevins Hamburg Sudamerikanische Dampfschifffahrts-Gesellschaft Eggert & Amsinck- James Neill Solicitor Norfolk Southern Railway Company - Conway Leather Shaw
CATCHWORDS:	Practice and Procedure - Forum non conveniens - submission to jurisdiction - delay in application - risk of inconsistent findings in local and foreign courts - potential for abuse of process.
DECISION:	Application for stay dismissed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ADMIRALTY LIST HUNTER J MONDAY 10 APRIL 2000 015/98 JAMES N. KIRBY PTY LTD -V- INTERNATIONAL CARGO CONTROL PTY LTD & HAMBURG Sudamerikanische DAMPFSCHIFFFAHRTS GESELLSCHAFT-EGGERT & AMSINCK 017/98 INTERNATIONAL CARGO CONTROL PTY LTD -V- HAMBURG Sudamerikanische DAMPFSCHIFFFAHRTS-GESELLSCHAFT EGGERT & AMSINCK & NORFOLK SOUTHERN RAILWAY COMPANY
REASONS FOR JUDGMENT
1    Norfolk Southern Railway Company (Norfolk) seeks the following orders:

“1. All claims and cross-claims brought against Norfolk Southern Railway Company in proceedings 015/1998 and 017/1998 be stayed.
2. In the alternative, all claims and cross-claims brought against Norfolk Southern Railway Company in proceedings 015/1998 and 017/1998 be stayed until further order of the Court.”

2    This is the second stay application brought on behalf of Norfolk in relation to these proceedings. The first application, by motion dated 13 May 1999, sought the following orders:

“1. The proceedings numbered of 015 of 1998 and 017 of 1998 be stayed permanently.
2. In the alternative, the proceedings numbered 015 of 1998 and 017 of 1998 be stayed until final determination of the proceedings brought in Atlanta, Georgia, USA by James N Kirby Pty Limited t/as Kirby Engineering and Kirby USA Inc.
3. Further and in the alternative, the proceedings numbered 015 of 1998 and 017 of 1998 be stayed until further order of the Court.”

3    That application was made on behalf of Norfolk and Hamburg Sudamerikanische Dampfschifffahrts-Gesellschaft Eggert & Amsinck (Hamburg). It was dismissed by Rolfe J on 19 July 1999. 4    In proceedings 015/1998 James N. Kirby Pty Limited (Kirby) sues International Cargo Control Pty Ltd (ICC) and Hamburg (the Kirby proceedings) for losses sustained as owner of goods accidentally damaged in a derailment while en-route from Savannah, Georgia to Huntsville, Alabama, U.S.A. Norfolk is alleged to be the responsible entity in relation to the maintenance and operation of the subject rail system. The goods had been consigned by Kirby under a bill of lading issued in Sydney by ICC on 27 August 1997 (the ICC bill) for carriage of the goods by sea from Sydney to Savannah for delivery in Huntsville. ICC “sub-contracted” that contract of carriage to Hamburg under a bill of lading issued in Sydney by Hamburg on 22 August 1997 (the Hamburg bill). 5    Kirby has framed its causes of action against ICC under the ICC bill for breach, in bailment and in tort. So far as the causes of action are dependent upon negligence, particulars of negligence were given as follows:

“15. In breach of the said duty of care the First Defendant, by its servants or agents for whom it is responsible, was negligent in the carriage of goods.
Particulars of Negligence

(a) Norfolk Southern Corporation “NSC” failing to maintain the railway line
over which the goods were to be transported;

(b) NSC running a railway line over an area of land which was unstable;

(c) NSC failing to maintain a traction vehicle so that bearings did not fail
during the course of the journey;

(d) NSC failing to rectify the problems associated with the instability of the
railway line;

(e) NSC’s train travelling at a speed which caused or contributed to the
carriages becoming derailed;

(f) Res ipsa loquitur.”

6 The causes of action against Hamburg were similarly founded, Kirby suing as owner of the goods and holder of the Hamburg bill. In the Kirby proceedings Kirby seeks damages in excess of $2,000,000. Each of ICC and Hamburg have filed defences based upon the Hague Rules and the terms of the respective bills, including defences in the nature of package limitations, which, if successful, would severely limit Kirby’s entitlement to damages. ICC and Hamburg have brought cross-claims in the Kirby proceedings against Norfolk as the carrier under a rail waybill issued by Norfolk in respect of the carriage of the goods by rail from Savannah to Huntsville, as a common carrier, as a bailee and in negligence. Norfolk has not filed a defence to those cross-claims. 7 The Kirby proceedings were instituted by statement of claim filed on 29 June 1998. Initially, the Kirby proceedings were taken only against ICC. It was not until the filing of an amended statement of claim on 5 January 1999 that Hamburg was joined as second defendant. Hamburg’s cross-claim against Norfolk was filed on 30 November 1998, it having been joined in the Kirby proceedings as cross-defendant to a cross-claim brought by ICC. ICC’s cross-claim against Norfolk in the Kirby proceedings was filed on 7 April 1999. 8 Proceedings number 017/1998 (the ICC proceedings) were brought by ICC against Hamburg and Norfolk by statement of claim filed on 10 July 1998. The ICC proceedings are founded upon causes of action in contract and in negligence. No particulars of negligence are given in the statement of claim. The cause of action in contract is founded upon a “sub-contract of carriage” evidenced by the Hamburg bill. In the ICC proceedings, ICC seeks damages or a declaration of an entitlement to an indemnity in respect of any liability it may have arising out of the damage to the goods. Hamburg has filed a defence denying liability and brought a cross-claim against Norfolk, filed on 30 November 1998, in terms similar to its cross-claim against Norfolk in the Kirby proceedings. Norfolk had not filed a defence in the ICC proceedings. 9 A consent order was made in each of the Kirby and ICC proceedings on 13 November 1998 by which those proceedings were consolidated. That consolidation order may have to be revisited as, at the time of its making, no consent of Norfolk appears to have been given. 10 It was the uncontested evidence on this application that on 5 February 1999, Norfolk entered an appearance in the Kirby proceedings and the ICC proceedings. It purported to be a conditional appearance. However, the Supreme Court Rules make no provision for the filing of a conditional appearance. In the absence of a submission to jurisdiction, I do not know upon what basis ICC could maintain its action against Norfolk in the ICC proceedings. 11 In the reasons for judgment on Norfolk’s first application, Rolfe J. noted the following in relation to the Kirby proceedings:

“It was not in issue that :-
(a) Kirby could only sue ICC and Hamburg Sud in this Court: clause 19 of ICC’s Bill of Lading and clause 22 of Hamburg Sud’s Bill of Lading;
(b) proceedings had to be brought against ICC and Hamburg Sud within nine months and one year respectively after delivery of the goods: clause 17 of the ICC Bill of Lading and clause 18 of the Hamburg Sud Bill of Lading;
(c) these times have now passed; and
(d) neither ICC nor Hamburg Sud was prepared to waive these contractual rights.”

12    It was also noted by Rolfe J. that it was conceded on behalf of Norfolk and Hamburg that the making of an order for a permanent stay of the two proceedings could not be supported. 13    Rolfe J’s reasons for judgment also disclose that ICC was prepared to submit to the making of the orders sought, other than that for a permanent stay. 14    Presumably as a consequence of defences that may be available to ICC and Hamburg in the Kirby proceedings, Kirby instituted proceedings against Norfolk on 8 October 1998 in the United States District Court for the Northern District of Georgia (the U.S. proceedings). In the U.S. proceedings Kirby seeks damages as claimed in the Kirby proceedings on causes of action in negligence, bailment and contract. Norfolk does not dispute that the U.S. proceedings were properly brought by Kirby. 15    ICC also commenced proceedings in the United States District Court against Norfolk and Hamburg on 13 July 1998 in the Southern District of New York (the New York proceedings). Those proceedings were brought against Hamburg and Norfolk in respect of the damage to the goods as:

“vessel owners and/or operators common carriers by land and/or rail, bailees for hire, and/or shippers responsible for delivering the cargo described in the bill of lading”

referring to the Hamburg bill. It was alleged that the goods were damaged due to the defendants’ “fault, neglect, breach of contract, and/or breach of warranty…” 16    The New York proceedings were discontinued on 15 April 1999. Norfolk does not accept that ICC was justified in discontinuing those proceedings. 17    In the U.S. proceedings Norfolk has moved the court to enjoin Kirby from pursuing ‘parallel’ causes of action in Australia. In view of the fact that Kirby is contractually obliged to pursue any entitlements it has against ICC and Hamburg in this jurisdiction and to the fact that the Kirby proceedings are not brought against Norfolk, it is not clear upon what basis such relief can be founded. 18    The stage to which the U.S. proceedings have progressed has not been established by the evidence adduced in this application. In the affidavit of Alan Eric Polivnick sworn 27 August 1999, as the solicitor having the conduct of this matter for Norfolk, he deposed to the fact that deposition of witnesses had commenced on 17 June 1999 and continued as at the date of his affidavit. He stated that there were “55 potential witnesses identified at [that] stage…”, forty nine of whom “[were] located in the United States”. Norfolk was endeavouring to locate the others. There was no evidence offered of the number of witnesses that are likely to be called. I would expect that it would be nothing like fifty five, having regard to the nature of the issues raised in the U.S. proceedings. 19    Taylor Tapley Daly, the attorney instructed by Norfolk, gave evidence that proceedings involving common questions of law or fact were capable of being consolidated with the U.S. proceedings pursuant to the Federal Rule of Civil Procedure 42 and that consolidation of such related cases is a common practice in Federal Courts, which in the deponent’s experience, favoured consolidation. That practice, presumably, would have applied to the New York proceedings and would apply to any related proceedings to the U.S. proceedings brought by ICC or Hamburg against Norfolk. 20    The circumstances in which the New York proceedings were instituted and then discontinued were evidenced in the affidavit of Gavin James Vallely sworn 11 January 2000, he being the partner in the firm Middletons Moore & Bevins, the solicitors for ICC. It was his evidence as follows:

“11. Based on several years experience in dealing with claims arising from the carriage of goods, I was aware that it is a common practice for carriers to incorporate contractual time bars into their terms and conditions of carriage. In particular, it is a common practice for a nine months time bar to be incorporated in respect of any claims in relation to damage suffered during land based carriage of goods.

12. I was instructed by ICC that the derailment occurred on or about 11 October 1997 (Australian time). It followed that in the event a nine months time bar was, in fact, applicable to any claim by ICC against Hamburg Sud or Norfolk Southern, proceedings would have to be commenced on behalf of ICC by 10 July 1999. In light of the time constraints and to avoid any problems, I instructed Mallesons Stephen Jaques to act as my firm’s agents in issuing proceedings against Hamburg Sud and Norfolk Southern in this Honourable Court being proceeding 17 of 1998 which has since been consolidated with this proceeding. I also took the precaution of instructing a firm of New York attorneys, Healy and Baillie, to commence an action [on] behalf of ICC against Hamburg Sud and Norfolk Southern in the US District Court Southern District of New York (‘the New York proceeding’) principally for the purpose of protecting against the possibility of Norfolk Southern contesting the jurisdiction of this Honourable Court.
…

20. On 11 November 1998 ICC filed a Notice of Motion in this proceeding for the consolidation of this proceeding with proceeding 17 of 1998. At the time of filing the Motion, ICC’s Statement of Claim in proceeding 17 of 1998 had yet to be served on Norfolk Southern. I refer to the Affidavit of Geoffrey Eric Farnsworth sworn 13 November 1998 in support of this Motion in which he stated, inter alia, that he had written to Mr Robert Conway of Conway Leather Shaw whom he understood acted for Norfolk Southern and asked him to seek his client’s instructions to accept service of proceeding 17 of 1998. I also recall having telephone conversations with Mr Conway at or about this time in relation to his authority to accept service on behalf of Norfolk Southern. Prior to the filing of the Motion Mr Farnsworth had attempted to obtain Hamburg Sud and Norfolk Southern’s agreement to discontinue proceeding 17 of 1998 on the basis that no issue would be taken in respect of the time of commencement of any Cross claim by ICC in this proceeding. However, neither Hamburg Sud’s solicitors nor Mr Conway were able to obtain instructions on this proposal. Accordingly, I received instructions to proceed with the Motion. In the end event, this proceeding was consolidated with proceeding 17 of 1998 by consent on 13 November 1998.
…
29. I am informed by Claire (sic) Margaret Matthews, the assistant to James Neill who has the conduct of the file on behalf of Hamburg Sud and verily believe that Hamburg Sud’s Cross claims against Norfolk Southern in this proceeding and proceeding 17 of 1998 (which are now consolidated) were served on Norfolk Southern in the US on or about 29 January 1999. On 5 February 1999, Robert Bruce Conway of Conway Leather Shaw filed Notices of Conditional Appearance to Hamburg Sud’s Cross claims in both proceedings.
30. On or about 12 April 1999, having concluded that Norfolk Southern’s Notices in this consolidated proceeding had become unconditional and that as Norfolk Southern had not applied for a stay of Hamburg Sud’s Cross claims on jurisdiction or forum grounds, I received instructions to discontinue the New York proceedings. Accordingly, the New York proceedings were discontinued on 15 April 1999 (New York time). Furthermore, on 17 April 1999 I arranged for a Cross claim against Norfolk Southern to be filed and served on behalf of ICC in this consolidated proceeding.”

21    ICC now claims that it will suffer prejudice if Norfolk is successful on this motion as a result of “the discontinuance of the New York proceedings….the possible expiry of time periods for the re-issue of proceedings and the incurring of substantial cost and expense in prosecuting this proceeding against Norfolk…” 22    Following the dismissal of its first application, Norfolk consented to orders of this Court of 23 July 1999 that Norfolk file defences and participate in the discovery process in each of the Kirby and ICC proceedings. In doing so, it unambiguously submitted to the jurisdiction of this Court in each of those proceedings. 23    Hamburg also contends that it would suffer prejudice if Norfolk’s application was successful. In the affidavit of Clare Margaret Matthews sworn 31 January 2000, she being a solicitor having the conduct of this matter on behalf of Hamburg, that prejudice was evidenced as follows:

“…In the twelve months since the Conditional Appearance was filed on behalf of Norfolk Southern Hamburg Sud has expended considerable time and costs in dealing with the Sydney proceedings, not least in the provision of discovery to all parties on 27th August 1999. This has been done in the expectation that Norfolk Southern is a party to these proceedings and that Hamburg Sud would be able to pursue their cross claim for an indemnity against it Hamburg Sud have proceeded in this litigation on that basis that Norfolk Southern has submitted to the jurisdiction.

10. I refer also to my first affidavit filed in this matter dated 18th October 1999. At the time of swearing that affidavit I had not received a substantive response from Norfolk Southern’s solicitors on my request for comfort that, should the stay sought by Norfolk Southern be granted, they would not seek to rely upon any time-bar defence they may have in any consequential indemnity action in the U.S. that Hamburg Sud would have to bring to protect their position.
11. Exhibited hereto and marked “CMM2” is a true copy of a letter dated 22nd October
1999 from Messrs. Conway Leather Shaw. The letter advises that Norfolk Southern would not contest the jurisdiction of a U.S. Court properly seized of jurisdiction to hear a claim brought by ICC and/or Hamburg Sud in this matter and that they will rely upon any and all defences available to it should such proceedings be brought. I believe that these defences are deemed to include time limit/ bar defences.

12. Norfolk Southern has thus neither consented to jurisdiction in the United States, nor provided an assurance that it will not raise a time bar defence in any action brought in the United States. Thus, if the Norfolk Southern motion is granted, Hamburg Sud might face a time-bar defence in the United States on what is clearly a timely action in this jurisdiction. It might also face jurisdictional challenges in a United States venue.

13. Norfolk Southern has failed to give any assurance that Norfolk Southern is amenable to the determination of the matter on its merits in the United States. Hamburg Sud thus faces material prejudice.”

24    All parties have conducted the application on the basis that the principle to be applied in deciding this application is the ‘clearly inappropriate forum’ test. 25    In the joint judgment of Mason CJ., Deane, Dawson and Gaudron JJ. in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565, when addressing the task confronting the trial judge in an application of this kind, the following observation was made :

“Ordinarily, however, it will be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence and having taken account of the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens (i.e. “clearly inappropriate forum”) grounds”.

I doubt if the circumstances of this application admit of such an approach. 26    Voth forms part of a series of cases in the High Court which established that the ‘clearly inappropriate forum’ test was the test to be applied in forum non conveniens cases in Australia, beginning with the exposition of that principle by Deane J. in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247 et seq. 27 The nature and rationale of the test was expressed in the following terms by Deane J. in Oceanic Sun as follows (at 247-248):

“In the light of the foregoing and at the cost of some repetition, it is possible to identify in summary form what I see as the modern content of the traditional principles governing the power of a court in this country to order that proceedings which have been regularly instituted within jurisdiction should be dismissed or stayed on inappropriate forum grounds. That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression. The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff. Otherwise, that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, it is a clearly inappropriate forum for the determination of the dispute between the parties. The reason why that is so is that, once it is accepted that the adjectives “oppressive” and “vexatious” are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of the proceedings rather than the conduct of the plaintiff in continuing them, the continuation of proceedings in a tribunal which is a clearly inappropriate forum would, in the absence of exceptional circumstances being established by the plaintiff (cf. Spiliada Maritime Corp. v. Cansulex Ltd .), be oppressive or vexatious to such a defendant if there is some available and appropriate tribunal in another country.”

28    In that passage His Honour used the adjectives “oppressive” and “vexatious” in the following way (at 247):

“On that approach, “oppressive” should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while “vexatious” should be understood as meaning productive of serious and unjustified trouble and harassment.”

29    Further explanation is to be found in CSR Ltd v Cigna Insurance Australia Ltd (1996-1997) 189 CLR 345 at 390-391 and 400-401 in the following terms:

“The test which, in this country, governs a stay of proceedings in favour of proceedings in another country is as stated in Voth v Manildra Flour Mills Pty Ltd. In that case, this Court declined to adopt the more appropriate forum test laid down by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd and accepted, instead, the test propounded by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay , namely, that a stay is only to be granted if the Australian court is a clearly inappropriate forum.
It was pointed out in the joint majority judgment in Voth that it was common ground in the judgments of the majority in the earlier case of Oceanic Sun that “the traditional power to stay proceedings … on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice…. in the particular case.”
It is clear from the rationale for the exercise of the power to stay proceedings and, also, from the words “oppressive”, “vexatious” and “abuse of process” in Voth , in Oceanic Sun and in the earlier cases considered in Oceanic Sun, including St Pierre v South American Stores (Gath & Chaves) Ltd, that the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice….”
In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial or damaging.”

30    I read that last paragraph as though the words “court is a clearly inappropriate forum” in the sense that they were interpolated after the word “Australian” where it last appears in the passage quoted. In Oceanic Deane J., in discussing the balancing of competing claims of different jurisdictions, offered the view (at 243) that the:

“starting point… must be the prima facie right of a plaintiff to insist upon the exercise of competent jurisdiction which he has regularly invoked [and that such a] prima facie right of a plaintiff is not to be lightly displaced or denied”

and noted that “the jurisdiction” was one which should be exercised “with great care” or “extreme caution”
(at 244). 31    I think that ‘starting point’ may be of more utility in considering the position of Kirby and of less relevance in considering a stay of cross claims as in this application. Such an application, in my view, emphasises the need to have regard to the following controversy as a whole recognising that the exercise of the subject discretionary powers:

“involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression ( Oceanic Sun at 247-278)”.

32    In considering the position of ICC and Hamburg as cross-claimants against Norfolk in the Kirby proceedings, I think the starting point in this application is the fact that Kirby is both obliged and clearly entitled to bring the Kirby proceedings in this jurisdiction as found by Rolfe J. Second, it is not disputed that Kirby is entitled to press its claims against Norfolk in the U.S. proceedings. Third, I think it is clear that ICC and Hamburg are entitled to bring their cross-claims against Norfolk in the Kirby proceedings, especially, having regard to the particulars of negligence involving the acts of Norfolk relied upon by Kirby in those proceedings. Fourth, Norfolk has submitted to the jurisdiction of this Court in both the Kirby and ICC proceedings and has delayed several months in bringing this application for a stay. Fifth, there is no evidence as to (a) the number of witnesses who would be called to prove Norfolk’s case in the U.S. proceedings, as distinct from the number of “available” possible witnesses; (b) the time when the U.S. proceedings are likely to be determined either at first instance, or on appeal; (c) the effect that consolidation with the U.S. proceedings of any related proceedings brought at this stage by Hamburg or ICC might have upon the time of determination of the U.S. proceedings. 33    I think it is in that factual and legal context that one should approach Norfolk’s dilemma in being confronted with two sets of litigation with different claimants against it arising out of the same factual sub-stratum. 34    I do not understand it to be seriously suggested that there is not a significant disadvantage to Norfolk in being placed in that position, nor in being required to contest claims in this Court when its witnesses and relevant documents are located in the United States. 35    Whether that dilemma justifies a conclusion that the ICC and Hamburg cross-claims against it are “vexatious or oppressive in the…sense….that they are “productive of serious and unjustified trouble and harassment” or “seriously or unfairly burdensome, prejudicial or damaging””, is, I think, a question not easily answered in the circumstances confronting Norfolk, some of which are of its own making. 36    The view I have formed is that the claims of ICC and Hamburg against Norfolk are not oppressive or vexatious, in that sense. In reaching that conclusion I place little weight on any prejudice suffered by ICC in discontinuing the New York proceedings in its belief that Norfolk was not contesting the jurisdiction of this Court. Clearly, there was reasonable ground for ICC to conclude that Norfolk had submitted to the jurisdiction of this Court, albeit in the form of entering a conditional appearance, and from the absence of any move by Norfolk to contest that jurisdiction. However, I think the discontinuance would not have been free of a tactical consideration by ICC, given the absence of any attempt to seek clarification from Norfolk of its position before discontinuing the New York proceedings. 37    Further, I take the view that any prejudice as to costs suffered by ICC and Hamburg as a result of Norfolk’s submission to the jurisdiction of this Court and its delay in bringing the first application, or this application, is of little significance, in that any such prejudice may be accommodated by appropriate conditions as to costs being imposed on any order for a stay. 38    The fact that Hamburg joined with Norfolk in the first application for a stay and that ICC was prepared to submit to that application, save as to the order for permanent stay, is not irrelevant to that consideration. Clearly, in Norfolk’s application, ICC and Hamburg saw it in their respective interests to have a stay of the consolidated proceedings, notwithstanding Norfolk’s submission to the jurisdiction and ICC’s discontinuance of the New York proceedings prior to the determination of that application. It is not particularly difficult to discern the basis for that joint approach when it is seen that success by Kirby in the U.S. proceedings, for practical purposes, would put an end to the issues raised in the consolidated proceedings, save as to costs. 39    The difficulty that Norfolk faced in satisfying the ‘clearly inappropriate forum’ test lies in the following:

1. The cross-claims of ICC and Hamburg against Norfolk are an integral part of the Kirby proceedings and, in my view, necessarily bound up on those proceedings.


2. The Kirby proceedings are brought by Kirby in the only forum available to it against ICC and Hamburg. Moreover, it is a forum in which Kirby is entitled to bring its claims against ICC and Hamburg. That is where it carries on its business and where it entered into the consignment of the goods with ICC. Kirby is entitled to press those claims without being required to abandon or stay its hand against ICC and Hamburg.

3. Kirby being obliged and entitled to bring the Kirby proceedings in this jurisdiction, clearly, ICC and Hamburg are entitled to raise cross-claims for indemnity or contribution in the Kirby proceedings against Norfolk, particularly having regard to Norfolk’s involvement in the carriage of the goods and to Kirby’s case in negligence against ICC and Hamburg.
4. Norfolk accepts that the bringing of the U.S. proceedings by Kirby is not vexatious.

5. Norfolk has submitted to this jurisdiction and delayed for several months the bringing of any application for a stay.

6. The application lacks evidence of the present state of preparation of the U.S. proceedings, its likely time of hearing or of the likely impact on those matters of consolidating any related claims by ICC or Hamburg against Norfolk with the U.S. proceedings.

7. The clear disadvantage to Norfolk in facing two litigation fronts and arising out of its distant connection with the local forum may be ameliorated by appropriate orders of the Court, as to:
(a) the separation of issues
(b) the taking of evidence from persons outside of the jurisdiction by video link and
(c) possible recourse to the use of depositions taken in the U.S. proceedings

40    Norfolk has relied upon a choice of forum clause in its “Intermodel Rules” requiring that:

“Lawsuits shall be filed only in a court of competent jurisdiction in Roanoke, Virginia; Norfolk, Virginia; Atlanta, Georgia; or Chicago, Illinois or at the NS origin or NS destination.”

41    I have attached no significant weight to that provision a) in the absence of any, or satisfactory, evidence that the Intermodel Rules formed part of any conditions upon which Norfolk undertook the carriage of the goods and b) in view of Norfolk’s submission to the jurisdiction of this Court. 42    During the course of the hearing, Norfolk offered to ICC and Hamburg concessions as to any time or jurisdiction defences it would raise in any related proceedings to the U.S. proceedings brought by ICC or Hamburg against Norfolk. For reasons that follow those concessions are of little moment. 43    Having regard to those matters, I am satisfied that Norfolk has failed to satisfy the Voth test of forum non conveniens and that the motion should be dismissed. 44    However, what this application has served to establish is that the granting or refusal of this application does not address the continuing problem inherent in the continued prosecution of the Kirby proceedings and the U.S. proceedings in each of which the alleged wrongful acts of Norfolk are relied upon by Kirby. Even a permanent stay of the ICC and Hamburg claims would not address that problem. 45    In any event, a permanent stay of the ICC and Hamburg claims is not justified, in my view. All parties agreed before Rolfe J that a permanent stay of the Kirby proceedings could not be justified. In that I think they were correct. Kirby is both obliged and entitled to bring the Kirby proceedings in this jurisdiction. Once that position is reached, Hamburg and ICC should not lightly be deprived of any entitlement to bring cross-claims in the Kirby proceedings against Norfolk seeking indemnity or contribution from Norfolk in respect of any liability either may have to Kirby arising out of Norfolk’s carriage of its goods. At the same time, Norfolk does not assert that the bringing of the U.S. proceedings is either vexatious or oppressive. 46    The only certain removal of the problem of duplication of issues and of the associated prospect of inconsistent findings lies in the joinder of all parties in the one set of proceedings. In my view neither this Court nor the court in the U.S. proceedings can achieve that result without the concurrence of the parties. 47    This Court could not achieve that result in these proceedings satisfactorily, without the consent of Norfolk and Kirby. The joinder of Norfolk as a defendant by Kirby would require Norfolk’s abandonment of a jurisdiction defence and time bars which are not available to it in the proceedings so far instituted against Norfolk. It would also require the termination of the U.S. proceedings on terms acceptable to the parties. 48    Conversely, joinder of all parties in the U.S. proceedings by Kirby’s joinder of ICC and Hamburg as defendants and by the bringing of related proceedings by ICC and Hamburg against Norfolk would require, in my view, abandonment of time and jurisdiction defences by ICC and Hamburg against Kirby: as to time bars, to the extent that such a defence is not available to them in the Kirby proceedings. Norfolk, as a party who has submitted to the jurisdiction of this Court, would be required to abandon, as against ICC and Hamburg, any defences as to time and jurisdiction that are not available to it in this Court, in any related proceedings brought by ICC or Hamburg against it. It would also involve the termination of these proceedings on terms acceptable to the parties. 49    Those issues were not addressed in Norfolk’s offer to limit its right to rely on defences as to time and jurisdiction within which related proceedings could be brought against it by ICC or Hamburg. Those concessions did not remove the problem inherent in the continued prosecution of both the Kirby proceedings and the U.S. proceedings. 50    In those circumstances, in the absence of agreement amongst the parties, the further conduct of these proceedings should be addressed by this Court with the objectives of minimising a) the disadvantage to Norfolk in the conduct of proceedings in this Court and b) the scope for the making of inconsistent findings as between these and the U.S. proceedings in the manner outlined in the orders which follow. As to (b) I think this Court should be vigilant to avoid an abuse of process which could be reflected in any attempt by Kirby to litigate issues in these proceedings based upon Norfolk’s alleged wrongful acts inconsistently with any findings in respect of like issues in the U.S proceedings. While principles of res judicata or issue estoppel may not be strictly applicable, there is ample authority for the intervention of this Court to prevent an abuse of process in such a situation. See Reichel v Magrath (1889) 14 App Cas 655, cited with approval in Walton v Gardiner (1993) 177 CLR 378 at 393, and Hunter v Chief Constable of the West Midlands Police [1992] AC 529 at 541: cf Rogers v The Queen (1994) 181 CLR 251 at 256-257 and the review of the authorities by Giles CJ. Comm D, as His Honour then was, in State Bank of New South Wales Ltd v Alexander Stenhouse Ltd: State Bank of New South Wales Ltd v HIH Winterthur Underwriting & Agency Services Ltd (1997) Aust. Torts Reports ¶81-423. 51   Accordingly,

1. The application is dismissed.

2. The applicant is to pay the respondents’ costs of this motion.

3. Proceedings number 015 of 1998 and 017 of 1998 are listed for further directions on 14 April 2000 when short minutes of order should be available addressing the following matters:

(a) Whether the consolidation order of 13 November 1998 should stand and, if so, how the pleadings should be consolidated, for example, by incorporating ICC’s claims against Hamburg and Norfolk in the ICC proceedings, respectively, in the first and third cross- claims in the Kirby proceedings and by incorporating Hamburg’s cross-claim against Norfolk in the ICC proceedings with the second cross-claim in the Kirby proceedings.

(b) Times for performing interlocutory steps, for example, for effecting consolidation of pleadings, filing of further pleadings, filing of statements of evidence, regard being had to the state of preparation of the U.S. proceedings and the utilisation of steps taken in those proceedings.

(c) The order in which issues may be addressed (i) in preparation for hearing, and (ii) on hearing. In this regard it would be of particular assistance to have a clear statement as to the progress of the U.S. proceedings, the position as to the making of depositions, the likely hearing date of the U.S. proceedings and the likely number, nature and location of witnesses in those proceedings.

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Last Modified: 09/25/2000