Kirby v International CargoInternational Cargo v Hamburg Sud
[1999] NSWSC 706
•19 July 1999
CITATION: Kirby v International CargoInternational Cargo v Hamburg Sud [1999] NSWSC 706 CURRENT JURISDICTION: Admiralty FILE NUMBER(S): 15/1998; 17/1998 HEARING DATE(S): 09/07/99 JUDGMENT DATE:
19 July 1999PARTIES :
James N. Kirby Pty Limited - Plaintiff
International Cargo Control Pty Limited - First Defendant
Hamburg Sudamerikansche Dampfschifffahrts-Gesellschaft Eggert & Amsinck - Second Defendant
International Cargo Control Pty Limited - Plaintiff
Hamburg Sudamerikansche Dampfschifffahrts-Gesellschaft Eggert & Amsinck - First Defendant
Norfolk Southern Railway Company - Second DefendantJUDGMENT OF: Rolfe J
COUNSEL : James N. Kirby Pty Limited - Mr N.C. Hutley SC/Ms J.S. Gleeson
International Cargo Control Pty Limited - Mr S.R. Horgan
Hamburg Sudamerikanische Dampfschiffahrts-Gesellschaft Eggert & Amsinck - Mr B.W. Larkin
Norfolk Southern Railway Company - Ms L.A. MustonSOLICITORS:
James N. Kirby Pty Limited - Withnell Hetherington
International Cargo Control Pty Limited - Middletons Moore & Bevins
Hamburg Sudamerikansche Dampfschifffahrts-Gesellschaft Eggert & Amsinck - James Neill Solicitor
Norfolk Southern Railway Company - Conway Leather ShawCATCHWORDS: Application for stay. DECISION: Application refused in the particular circumstances.
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADMIRALTY LISTROLFE J
MONDAY, 19 JULY 1999
15/1998 - JAMES N. KIRBY PTY LIMITED v INTERNATIONAL CARGO CONTROL PTY LTD & ANOR
17/1998 - INTERNATIONAL CARGO CONTROL PTY LIMITED v HAMBURG SUDAMERIKANSCHE DAMPFSCHIFFFAHRTS-GESELLSCHAFT EGGERT & AMSINCK & ANORJUDGMENT
HIS HONOUR:
Introduction
1 Proceedings 15 of 1998 were commenced by a Statement of Claim filed on 29 June 1998, which was amended by an Amended Statement of Claim filed on 5 January 1999. In the Amended Statement of Claim the plaintiff, James N. Kirby Pty Limited trading as Kirby Engineering, (“Kirby”), for which Mr N.C. Hutley of Senior Counsel and Ms J.S. Gleeson of Counsel appeared, sued International Cargo Control Pty Limited, (“ICC”), for which Mr S.R. Horgan of Counsel appeared, and Hamburg Sudamerikanische Dampfschifffahrts-Gesellschaft Eggert & Amsinck, (“Hamburg Sud”), for which Mr B.W. Larkin of Counsel appeared.
2 The Amended Statement of Claim alleged that pursuant to Bill of Lading No AU12-27086101 dated 27 August 1997, ICC agreed to carry on board the motor vessel “Queensland Star” ten containers containing certain equipment in good order and condition for an agreed freight for carriage from Sydney to the Port of Savannah, USA, and from there for delivery to Huntsville Ramp, Alabama, in accordance with its terms.
3 It was alleged that Kirby was, at all material times, the owner of the goods and the holder of the Bill of Lading and entitled to possession of and delivery to it of the goods, and that in the premises Kirby was entitled to claim under and in respect of the Bill, the contract of carriage evidenced therein, and for loss or damage to the goods.
4 It was pleaded that the Bill was a clean Bill expressly acknowledging the shipment of the goods in apparent good order and condition, and that it was a term thereof that ICC would procure the transportation of the goods to their destination and would be responsible for them and for any occurrence, which caused loss or damage to them whilst in its charge, unless the loss or damage was proved by ICC not to have been caused or contributed to by any fault or neglect on its part, or that of its servants or agents, or on the part of any person of whose services ICC made use.
5 It was alleged that a number of the goods were delivered in a damaged condition, in consequence of which Kirby has suffered damages in the sum of approximately $2m.
6 It was further pleaded that ICC was a bailee for reward and, by reason thereof, owed a duty to Kirby in respect of the transhipment of the goods; that ICC entrusted the goods to Norfolk Southern Railway Company, (“Norfolk”), for which Ms L.A. Muston of Counsel appeared, and that ICC, “by its servants or agents” for which it was responsible, was negligent in the carriage of the goods. The particulars alleged that Norfolk failed to maintain the railway line over which the goods were to be transported; ran a railway line over an area of land which was unstable; failed to maintain a traction vehicle so that bearings did not fail during the course of the journey; failed to rectify the problems associated with the instability of the railway line; caused a train to travel at a speed which caused or contributed to the carriages being derailed; and res ipsa loquitur. These were allegations made by Kirby against ICC.
7 As against Hamburg Sud, Kirby alleged that it was a bailee for reward of the goods and had a duty to it to properly care for and deliver them in the same good order and condition as when shipped at Sydney, and that in breach thereof Hamburg Sud delivered the goods in a damaged condition.
8 Further, or alternatively, Kirby relied on a Bill of Lading issued by Hamburg Sud at Sydney on or about 27 August 1997, the terms of that Bill of Lading, and the failure by Hamburg Sud to deliver the goods in accordance therewith.
9 In his affidavit of 5 July 1999 the solicitor for Kirby, Mr S.W. Hetherington, deposed that the claim made by it against ICC is primarily in contract pursuant to ICC’s Bill of Lading, and that the claim made against Hamburg Sud is one in bailment and contract, pursuant to its Bill of Lading, and in tort.
10 The Bill of Lading, which was issued by ICC and is Annexure “A” to Mr Hetherington’s affidavit, is described as a Negotiable Fiata Multimodal Transport Bill of Lading.
11 It was not in issue that :-12 In paragraphs 11 and 12 of his affidavit, Mr Hetherington deposed:-
(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.
“11. By their defences both ICC and Hamburg Sud rely upon provisions in one or both of the bills of lading which are annexed hereto and marked ‘A’ and ‘B’ and in particular rely upon limitations of liability contained in those bills of lading. If the Plaintiff is successful in these proceedings and the First and Second Defendants are entitled to rely upon any limitation of liability provision under the bills of lading the recovery which the Plaintiff will make in these proceedings will be considerably less than the amount of its claim, which is quantified in paragraph 10 of the Amended Statement of Claim as being Aust$2,065,183.00. On the view which is most favourable to the plaintiff the potential recovery for the Plaintiff if the Defendants are entitled to rely on limitation of liability under those bills of lading is under the ICC bill approximately Aust$345,000.00 or under the Hamburg Sud bill of lading approximately Aust$316,000.
12. It was in anticipation that the one or both of the Defendants, ICC and Hamburg Sud would seek to exclude and/or limit their liability to an amount considerably less than the Plaintiff’s damage that I was instructed to appoint attorneys in the United States to commence proceedings against Norfolk Southern Railway Company.”
13 Mr Hetherington annexed to his affidavit the Complaint filed by Kirby against Norfolk, on 8 October 1998, in the United States District Court for the Northern District of Georgia, (“the United States District Court”), and the Answer thereto whereby, inter alia, Norfolk relied upon the terms and conditions of its “Intermodal Rules Circular”, which it asserted formed the contract of carriage between Kirby and it, whereby the maximum liability is $500 “pursuant to the bill of lading”.
14 He exhibited to his affidavit as “SWH1” those Rules, which required proceedings to be commenced only in certain nominated jurisdictions in the United States, including the United States District Court.15 Mr Hetherington exhibited to his affidavit a Motion filed by Norfolk in the United States District Court for an anti-suit injunction “to enjoin Plantiffs from pursuing parallel cause of action in Australia”. The plaintiffs are Kirby and MMI General Insurance Limited. The Motion asserts:-
The Claim By Norfolk For An Anti-Suit Injunction
16 Exhibit “SWH3” to Mr Hetherington’s affidavit is the brief in opposition to Norfolk’s motion, which starts by asserting that Norfolk is incorrect in alleging that the proceedings constitute “a parallel cause of action” to those in Australia, because no action has been brought by the plaintiffs against Norfolk in Australia. Reference is then made to Hamburg Sud’s Cross-Claim against Norfolk in the Australian proceedings and, under the heading:-
“The case at bar, and the Australian actions, involve the same claim for nearly two million dollars in damages to cargo allegedly occurring in the course of a derailment in Littleville, Alabama. Plaintiffs contend Norfolk Southern is negligent and/or otherwise responsible for these damages under the applicable contracts of carriage. Norfolk Southern seeks to enjoin the Plaintiffs from proceeding with the Australian action on the grounds that simultaneous prosecution of these two actions will result in inefficiency for the Court and the parties .. and inequitable hardship on Norfolk Southern. In addition, prosecution of the case in Australia will not permit Norfolk Southern to obtain a fair trial of the case because it cannot adequately present evidence in support of its defences in the distant forum of Australia, when the site of the derailment and all equipment involved are located in the United States, as well as virtually all the witnesses. Finally, such an injunction will not work a hardship on Plaintiffs as they have voluntarily, submitted themselves to the jurisdiction of this Court and are aggressively proceeding with discovery and prosecution of their claims in this Court.”
This injunction is sought notwithstanding that neither Kirby nor MMI General Insurance Limited has instituted any proceedings against Norfolk in this Court.
17 The submissions concluded:-
“There are forum clauses which necessitate the jurisdictional posture of the suits”
it is stated:-
“Granting this motion puts the Court in the position of ordering Plaintiffs to stop pursuing a properly instigated suit against entities which are not parties to this suit, ICC and Hamburg Sud, thereby leaving Plaintiffs with no suit pending against those entities. Forum clauses, which are enforceable, are what caused the current situation.”
Subsequently it is stated:-
“Accordingly, this Court, while it has jurisdiction over Norfolk Southern and Plaintiffs, does not and would not have jurisdiction over the other parties to the Australian proceeding. Meaning, if the instant motion is granted, Kirby is stripped of its claims against ICC and Hamburg Sud.”
“Accordingly, while there are two proceedings involving some, but not all, of the same parties, it cannot be said that Plaintiffs are maintaining parallel or duplicative actions. Furthermore, the multiple forum selection clauses of the parties must necessarily be given effect, resulting in multiple actions. International comity dictates that the injunction of the Australian proceedings only be granted in rare instances. The remaining factors to be considered by the Court when assessing whether to enjoin a foreign suit are either not present or are insignificant. Accordingly, this Court should allow both proceedings on the in personam claim to proceed simultaneously, at least until a judgment is reached in one jurisdiction which can be pled as res judicata in the other.”
18 Exhibit “SWH4” to Mr Hetherington’s affidavit is Norfolk”s Reply, which asserts that Norfolk’s only objective is to have the duties and liabilities surrounding the derailment near Littleville, Alabama on 9 October 1997 tried in the most practical and efficient forum possible, which is asserted to be the United States District Court. The only proceedings brought by Kirby against Norfolk in relation to this incident have been instituted in the Court which Norfolk asserts to be “the most practical and efficient forum possible”. Norfolk’s complaint against Kirby is therefore very difficult to understand. MMI General Insurance Limited is not a party to any presently relevant proceedings in this Court.
19 The problem confronting Kirby is easy to see. Pursuant to its contractual arrangements with ICC and Hamburg Sud it was obliged to sue them in this Court and within limited times after the loss. Because of the monetary limitation on which those defendants seek to rely, Kirby has also sought to proceed against Norfolk, in the possession of which the goods obviously were at the time they were damaged, in the United States District Court. It clearly has different causes of action against each, certain of which can only, as a matter of contract, be brought in this Court, and some of which, arguably as a matter of contract, can only be brought in the United States District Court. Further, if Kirby had sought to join Norfolk in the proceedings in this Court it would, in all probability, have been met with an application for a stay on forum non conveniens principles.
The Position In This Court
20 On 21 August 1998, in proceedings 15 of 1998, ICC cross-claimed against Hamburg Sud in this Court alleging, inter alia, that it was the duty of Hamburg Sud or a term of the contract that it and/or its servants, agents and/or independent contractors, for which it was responsible, would exercise reasonable care of the goods during the loading, carriage and discharge thereof. ICC alleged that Hamburg Sud had breached this duty.
21 On 30 November 1998 Hamburg Sud cross-claimed against Norfolk, alleging that by a contract evidenced by a rail way bill between it and Norfolk, Norfolk received the goods in good order and condition for carriage by it by rail and for delivery in like good order to Hamburg Sud or its agents, which obligations Norfolk failed to meet. Alternatively, it alleged that Norfolk was a bailee for reward and breached its duties as such in the manner to which I have referred.
22 ICC brought a third cross-claim against Norfolk making essentially the same allegations against it as Hamburg Sud had.
23 By each of the cross-claims, the cross-claimants sought indemnity or contribution from the cross-defendants. However, Kirby has not sought to join Norfolk in the proceedings in this Court.
24 In proceedings 17 of 1998, which were commenced by a Statement of Claim filed on 10 July 1998, ICC sued Hamburg Sud and Norfolk claiming damages arising out of the defendants’ alleged breaches of duty, and a declaration that ICC is entitled to an indemnity from those defendants in respect of any liability of ICC “to any person” for loss or damage to the cargo pursuant to its Bill of Lading. It is not clear how the allegations in proceedings 17 of 1998 advance those made in proceedings 15 of 1998. What is clear is that Kirby is not a party to those proceedings.
25 On 30 November 1998 Hamburg Sud cross-claimed against Norfolk and, on 5 February 1999, Norfolk filed a Notice of Conditional Appearance.
26 In so far as Norfolk has been made a party to proceedings 15 of 1998 that has been pursuant to the Second Cross-Claim brought by Hamburg Sud against it and the Third Cross-Claim brought by ICC against it. In so far as it has been joined as a party to proceedings 17 of 1998 that is by virtue of its being joined as a defendant by ICC, and as a cross-defendant by Hamburg Sud.27 On 13 May 1999 the solicitors for Norfolk filed Notices of Motion in each of the proceedings, which named as the applicants Hamburg Sud and Norfolk. Each Notice of Motion named Kirby and Kirby USA Inc as respondents and sought the same relief, namely:-
The Present Notices Of Motion
“1. The proceedings numbered 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” Kirby.
“3. Further and in the alternative the proceedings numbered 015 of 1998 and 017 of 1998 be stayed until further order of the Court.”
Notwithstanding that ICC’s proceedings were sought to be stayed, it was not named as a respondent. However, it appeared and, in the end, Mr Horgan consented to the making of orders 2 and 3, (order 1 not by then being pressed), thus consenting to his client’s proceedings (17 of 1998) being stayed conformably with those orders.
28 The Notices of Motion were supported by the affidavits of the solicitor for Norfolk in Sydney, Mr Robert Bruce Conway, sworn 13 May 1999, and of Counsel for Norfolk in the United States, Ms T.T. Daly, sworn 28 June 1999. It is sufficient, for present purposes, to refer to Ms Daly’s affidavit. No objection was taken to any part of it and she was not required for cross-examination.
29 Ms Daly set forth the history and content of the proceedings in uncontroversial terms, and then dealt in some detail with the proceedings between Kirby and Norfolk in the United States District Court. These proceedings are well advanced in that a number of interlocutory steps have been taken, including the obtaining of depositions of witnesses, the delivery and answering of interrogatories and the having of discovery. It is also clear that there are a number of factual issues concerning the circumstances in which the goods were damaged in the United States, which can be more efficiently and effectively determined in the United States District Court. Before me so much was not in issue.
30 In paragraph 33 Ms Daly referred to the injunction proceedings, and deposed that “judgment generally is handed down between thirty and one hundred and twenty days after the filing of the brief in reply but, this depends on the Judge”.
31 In paragraph 34 she stated:-
“If NS” (Norfolk) “is forced to defend the Australian proceedings, its defence to the claims will be identical to its defence to the United States Proceedings. The evidence upon which NS will rely in defending the Australian Proceedings will be identical to that relied upon in the United States Proceedings. In view of the defence that NS would have to mount in the Australian Proceedings, NS will be required to make all of its witnesses available for cross-examination. Many of these witnesses will require considerable time to give their evidence and explain to the Supreme Court the technical issues in this case, including the workings of their models and graphs and the observations, findings and conclusions which they have reached.”
The Present Case
The only proceedings Norfolk is required to defend in this Court are brought against it by ICC and Hamburg Sud.
32 I should note that on 13 November 1998 Hunter J made an order, by consent, that proceedings 15 and 17 of 1998 be consolidated.
33 In the course of submissions it became a little difficult, if I may say so with respect, to ascertain precisely what Norfolk’s position is. This arose essentially because of its concession that there is no Court, other than the Supreme Court of New South Wales, which can, having regard to the contractual obligations between the parties, hear the proceedings between Kirby as plaintiff, on the one hand, and ICC and Hamburg Sud as defendants, on the other. Neither of these defendants was prepared to accept that the dispute between Kirby and it should be determined in the United States proceedings, nor were they prepared to forego the time limitation defences in the event of any such proceedings being instituted. In these circumstances Ms Muston, whose submissions Mr Larkin adopted on behalf of Hamburg Sud, conceded that she could not press for an order that the proceedings in this Court be stayed permanently. That concession was made in both sets of proceedings, perhaps because of the consolidation order.
34 It may be, and I put it no higher than that, appropriate that the making of this concession be drawn to the attention of the United States District Court because it may be, and, once again I put it no higher than that, a matter which that Court considers relevant in determining how it should exercise its discretion in considering the anti-suit injunction for which Norfolk has applied in that Court. The granting of that injunction would have the effect of preventing Kirby proceeding against ICC and Hamburg Sud in the only Court in which it can, and in circumstances where, even if it could proceed in another Court, it would be met by time limitation defences. Of more immediate relevance, however, is the concession by Norfolk that it is not entitled to a permanent stay in this Court when the anti-suit injunction, if granted, would lead to essentially the same result. It will have to be explained why Norfolk is seeking an anti-suit injunction against Kirby when it has not been sued by Kirby in this Court, and why Norfolk has not pressed for a permanent stay in this Court against ICC and Hamburg Sud, by which it is being sued. As Hamburg Sud is suing Norfolk in this Court, its joining as an applicant in the Notices of Motion and adoption of Norfolk’s submissions is very strange.
35 It is also necessary to note that ICC made a similar concession and, further, that Mr Horgan submitted that it had no desire for a “deconsolidation” of the proceedings. However, he consented to the making of the orders in terms of paragraphs 2 and 3. In all these circumstances the proper applications by Norfolk may be for an order staying the proceedings brought by ICC and Hamburg Sud both by way of claim and cross-claim against it on the ground of forum non conveniens, but, so it seems to me, those applications would have to be made by Norfolk, as applicant, against ICC and Hamburg Sud, as respondents.
36 The questions then arise as to whether the only other relevantly substantial relief sought by Norfolk, and supported by Hamburg Sud, namely the stay of the proceedings in this Court until final determination of those in the United States District Court should be granted against Kirby, which opposes the granting of any such relief, and ICC, which consents to it. Those questions throw up for determination the reason why Kirby, which has regularly instituted proceedings against various parties in the Courts where it is contractually obliged to do so and, so far as Norfolk is concerned, in the more appropriate forum, should be precluded for any period from pursuing its proceedings in this Court against the defendants it has chosen to and is contractually obliged to sue in this Court, in circumstances where those defendants will not agree to be sued elsewhere or by way of proceedings commenced now, and why there is any utility in staying the proceedings brought by ICC, even though it consents.
37 Norfolk has been brought into the proceedings in this Court by parties other than Kirby, and by parties which Kirby is obliged to sue in this Court and which will not agree to being sued by it elsewhere. Prima facie, therefore, it seems an extraordinary result that Kirby should be precluded from proceeding against ICC and Hamburg Sud and, speaking for myself, I can see no reason why that result should follow.
38 It may be that as between Norfolk, as cross-defendant, and ICC and Hamburg Sud, as cross-claimants, and ICC as plaintiff and Norfolk as defendant, Norfolk may be able to assert that it should not be sued in this Court. However, that is only part of the order it seeks and it only does that inferentially and in circumstances where it has not joined either ICC or Hamburg Sud as a respondent. Even after the concession to which I have referred was made, viz that it was not entitled to a permanent stay, it did not seek to formulate an order that the proceedings, in so far as they have been brought by ICC and Hamburg Sud against it, should be stayed.
39 It may well be, at the end of the day, that the view is taken that the proceedings as between ICC and Hamburg Sud, as cross-claimants, and Norfolk, as cross-defendant, and ICC as plaintiff and Norfolk as defendant, should not proceed in this Court. However, that is not a matter, which should cause any concern to Kirby in the prosecution of its proceedings against ICC and Hamburg Sud in the only Court in which it can sue them. It also must be kept firmly in mind that in relation to Norfolk, Kirby has sued it in the Court Norfolk accepts to be the most appropriate forum for it to be sued. Nor do I consider that I should resolve the position as between Norfolk, ICC and Hamburg Sud in the way in which the Notices of Motion have been brought and argued.
40 Various submissions were put to me based on forum non conveniens.
41 Mr Horgan relied upon the following passage from the decision of the High Court of Australia in Henry v Henry (1995) 185 CLR 571 at p.591 in the joint judgment of Dawson, Gaudron, McHugh and Gummow JJ. He did this, as I understood it, in the context of supporting Norfolk’s position, no doubt because no claim was being made which would bind his client, it not being named as a respondent. I assume the view is taken that as ICC’s claim is essentially defensive in nature, the first objective is to ensure that Kirby’s claim does not proceed. This may seem a good tactical manoeuvre. Their Honours said:-
“It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different jurisdictions which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of ‘seriously and unfairly burdensome, prejudicial or damaging’, or, vexatious, in the sense of ‘productive of serious and unjustified trouble and harassment’. And it also follows that the Court should strive, to the extent that Voth permits, to avoid that situation.” (My emphasis.)
42 There are several matters to which I would respectfully draw attention. Firstly, their Honours were considering the situation in which both countries had jurisdiction with respect to the matter. In the present case, and relevantly for present purposes, that does not appear to be the situation qua Kirby. It was conceded that the only Court with jurisdiction as between Kirby, on the one hand, and ICC and Hamburg Sud, on the other, was this Court. It was not argued that this Court had jurisdiction over the dispute between Kirby and Norfolk. In so far as there are jurisdictional problems they are such as to force Kirby to sue in both Courts and, as I have noted, none of the parties is prepared to give up any of its rights in that respect. Further, Kirby has not brought proceedings against Norfolk in the jurisdiction which, on the material presently before me, would be the less convenient jurisdiction.
43 Reference was also made to the majority decision, (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) in CSR Limited v Cigna Insurance Australia Limited & Ors (1997) 189 CLR 345 at p.399. Their Honours referred to Henry and observed that in Henry the parties were identical and the same subject matter was involved. They stated that there was not, in Cigna, “the same correspondence of subject matter”. Their Honours considered that if the question whether New South Wales is a clearly inappropriate forum were to be answered solely by reference to the issues involved in the New South Wales proceedings, there would be strong considerations pointing in favour of the view that it is not. After setting forth various reasons for coming to that conclusion their Honours said, at pp.400-401:-
“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’.”
44 I should note that all parties expressly disavowed any submission that the proceedings in either this Court or the United States District Court were brought for any improper motive or purpose.
45 It seems to me, with respect, that in applying this portion of the decision in Cigna, upon which Mr Horgan relied, the answer may well be that as between Kirby, on the one hand, and ICC and Hamburg Sud, on the other, any Court other than this Court would be clearly inappropriate within the meaning of the Voth test because the parties, by their contract, have invested this Court alone with jurisdiction. On the other hand the view may well be taken that as between Kirby, on the one hand, and Norfolk, on the other, it would have been oppressive, within the Voth test, for Kirby to have instituted proceedings against Norfolk in this Court. It may be that it is oppressive, within the Voth test, for ICC and Hamburg Sud to have instituted proceedings in this Court against Norfolk. I say nothing more about that because the matter was not finally argued and I can hardly think that Hamburg Sud would have joined in an application to stay its own proceedings, and adopted the submissions of Norfolk to bring about the same result. It seems to me that ICC and Hamburg Sud must have had in mind that their stance would only affect the right of Kirby to proceed, and thus bring to an end their involvement.
46 The complaint about an inconvenient forum, if there be a legitimate complaint about that, is as between ICC and Hamburg Sud, on the one hand, and Norfolk on the other. No such complaint arises, at the suit of Norfolk, against Kirby. A consequence of the comments I have made is that it may well be that the appropriate relief to be sought by Norfolk in this Court is that it is not the convenient forum for the disposition of the proceedings between it, on the one hand, and ICC and Hamburg Sud, on the other. It may also be that so far as Norfolk is concerned the appropriate relief to be sought by it in the United States is an order restraining ICC and Hamburg Sud from proceeding against it in this jurisdiction. A decision whether this is the appropriate course is one for the parties’ legal advisers. In so far as I have made comments about it, I have done so for the purpose of deciding the present Notices of Motion. If any such application is made it will have to be determined on all the evidence and submissions. In the absence of such applications joining both Hamburg Sud or ICC, or either of them, as respondents, I do not propose to make orders against them. If I were to have acted on the concessions I would have stayed until the determination of the United States District Court proceedings all claims (including cross-claims) made by ICC and Hamburg Sud against Norfolk in proceedings 15 and 17 of 1998. If those are the orders those parties want, I will deal with the matter either by consent or pursuant to a Notice of Motion which makes the claim for that relief clear.
47 It is, of course, no part of my function to pre-empt the decision of the United States District Court, and I do not seek to do so. I will content myself by saying that it may, at least on the material before me and in the way in which the matter was argued before me, seem a somewhat strange result if the United States District Court were to hold that Kirby could not proceed against ICC and Hamburg Sud in this Court when, in fact, Kirby is not seeking any relief against Norfolk in this Court and, at the risk of some repetition, can only seek relief against ICC and Hamburg Sud in it.
Conclusions
48 In the result I have come to the conclusion that the only substantive relief pressed in the Notices of Motion, being that set forth in paragraph 2 thereof, against Kirby should be refused. Kirby should be allowed to proceed with its litigation against the parties it has chosen to sue. In referring to the only substantive relief I am not to be taken as overlooking the third order sought, but I can see no utility in making the general order sought in paragraph 3. I do not consider, as the motions are presently constituted, that I should make any orders against ICC and Hamburg Sud.
49 For all these reasons I am of the view that the Notices of Motion must be dismissed with costs.50 In proceedings 15 of 1998 and 17 of 1998 I order that:-
Orders
(a) the Notices of Motion filed on 13 May 1999 be dismissed;(b) Norfolk and Hamburg Sud pay Kirby’s costs of the Notices of Motion. I make no order in respect of ICC’s costs; and
(c) Exhibits be returned.**********
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