Knight v Adventure Associates - [1999] NSWSC 861

CITATION: KNIGHT v ADVENTURE ASSOCIATES & ORS [1999] NSWSC 861

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20018/1998

HEARING DATE(S): 10 August 1999

JUDGMENT DATE:
27 August 1999

PARTIES :

Marie Louise Knight (Plaintiff)
v
Adventure Associates Pty Ltd (First Defendant)
Quark Expeditions Inc (Second Defendant)
Far Eastern Shipping Co (Third Defendant)

JUDGMENT OF: Master Malpass

COUNSEL : Mr A Casselden (Plaintiff)
N/A (First Defendant)
Mr G Nell (Second Defendant)
Mr R A Cavanagh (Third Defendant)

SOLICITORS: Stacks - The Law Firm (Plaintiff)
Ebsworth & Ebsworth (First Defendant)
Tress Cocks & Maddox (Second Defendant)
Norton Smith & Co (Third Defendant)

CATCHWORDS: Service of process outside Australia; application for stay founded on alleged submission to jurisdiction of foreign court; onus and discretionary considerations.

ACTS CITED: Trade Practices Act 1974 s 52, s 52A, s 74.
Supreme Court Rules 1970, Pt 10 r 6A, Pt 11 r 8.

CASES CITED: Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 141 ALR 374.
Oceanic Sun Line Special Shipping Company Inc v Fay 165 CLR 197.
FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association Ltd & Anor (1997) 41 NSWLR 559.
Baltic Shipping Company v Dillon (1991) 22 NSWLR 1.

DECISION: See Paragraph 43

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 27 AUGUST 1999
20018/98 MARIE LOUISE KNIGHT v ADVENTURE ASSOCIATES PTY LTD & ORS

JUDGMENT

1   These proceedings were commenced by Statement of Claim filed on 2 February 1998. The plaintiff brings a claim for damages arising out of the suffering of personal injury. The injury was suffered on 3 February 1996. At the time of the injury, she was a passenger on a vessel known as “Kapitan Khlebnikov” (the vessel) which was proceeding on a cruise to Antarctica. At the time of the injury, the vessel was in the Tasman Sea about 500 nautical miles south of Melbourne.

2   The process names three defendants. The first defendant is the travel agent who sold the cruise package to the plaintiff. It was acting as the sole and exclusive representative of the second defendant in Australia for the creation, marketing and selling of cruise products. The vessel was owned by the third defendant. The vessel had been chartered by the third defendant to the second defendant.

3   The originating process propounds causes of action founded on breach of contract, negligence and breach of provisions of the Trade Practices Act 1974 (sections 52, 52A and 74).

4   The plaintiff resides in New South Wales. The first defendant is a corporation registered in the State. The second defendant is resident in the USA. The third defendant is resident in Vladivostock.

5   An appearance has been entered on behalf of each of the first and second defendants. The court has been informed that the plaintiff has purported to serve process on the third defendant at Vladivostock. The third defendant has not filed an appearance.

6   On 13 November 1998, the third defendant filed…

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: [1999] NSWSC 861
Decision Date: 27 August 1999

CaseChat Overview and Summary

Knight, the plaintiff, sued Adventure Associates, the defendant, in the Federal Court of Australia over a dispute arising from a contract. The plaintiff sought to serve the defendant with process outside Australia, but the defendant contested the jurisdiction on the basis that they had submitted to the jurisdiction of a foreign court. The plaintiff applied for a stay of the proceedings on the basis of the alleged submission to the foreign court's jurisdiction. The court was required to determine whether the plaintiff had discharged the onus of proving that the defendant had submitted to the jurisdiction of the foreign court, and whether the court should exercise its discretion to stay the proceedings.

The court held that the onus was on the plaintiff to establish that the defendant had submitted to the jurisdiction of the foreign court. The court found that the plaintiff had discharged this onus by producing evidence of the defendant's submission to the foreign court's jurisdiction. However, the court also considered whether it should exercise its discretion to stay the proceedings despite the plaintiff having discharged the onus of proving submission to the foreign court's jurisdiction. The court held that it was not satisfied that the plaintiff had demonstrated that staying the proceedings was in the interests of justice.

The court found that the plaintiff had failed to establish that staying the proceedings would result in a just outcome, and that the defendant would not suffer prejudice if the proceedings were allowed to continue. The court held that the plaintiff had not demonstrated that the foreign proceedings were sufficiently similar to the Australian proceedings to warrant a stay, and that there were no other compelling reasons to stay the proceedings. The court dismissed the plaintiff's application for a stay of the proceedings.

The court did not make any orders for costs.

Orders