Morgan v Union Shipping (NZ) Ltd - [2001] NSWSC 325

CITATION: Morgan v Union Shipping (NZ) Ltd [2001] NSWSC 325

FILE NUMBER(S): SC 20273/00

HEARING DATE(S): 22, 23, 26 & 28 March 2001

JUDGMENT DATE:
4 May 2001

PARTIES :

Sean Morgan
Union Shipping (New Zealand) Limited

JUDGMENT OF: Sperling J at 1

COUNSEL : Mr Larry King SC with Mr Kernick for the Plaintiff (Respondent)
Dr Andrew Bell for the Defendant (Applicant)

SOLICITORS: Carroll & O'Dea Solicitors for the Plaintiff (Respondent)
Norton White Lawyers & Notaries for the Defendant (Applicant)

CATCHWORDS: Private International Law - choice of law - injury occurring within foreign flagged vessel in New South Wales territorial waters - whether law of the flag or law of New South Wales applies - inappropriate forum - whether correct test in New South Wales is "clearly inappropriate" or "inappropriate"

LEGISLATION CITED: Accident Insurance Act 1998 (NZ)
Accident Rehabilitation and Compensation Insurance Act 1992 (NZ)
Accident Rehabilitation and Compensation Insurance (Ordinary Residence Definition) Regulations 1992 (NZ)
Supreme Court Act 1970 (NSW)

CASES CITED: Breavington v Godleman (1988) 169 CLR 41
C E Heath Underwriting & Insurance (Australia) Pty Ltd v Barden (Supreme Court, 19 October 1994, unreported)
Eastern Petroleum Australia Ltd v Horseshoe Lights Gold Pty Ltd (1985) 9 ACLR 980
Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Goddard v Polar Cream Pty Ltd (1946) 47 SR (NSW) 154
Hellenic Lines Ltd v Rhoditis 398 US 306, 26 L Ed 2d 252, 90 S Ct 1731 (1970)
Hospitals Contribution Fund of Australia Ltd v Hunt (1982) 44 ALR 365
Lauritzen v Larsen 345 US 571, 97 L Ed 1254, 73 S Ct 921 (1952)
McKinnon v Iberian Shipping Co Ltd [1955] SLT 49
Oceanic Sun Line Special Shipping Co. Inc. v Fay (1988) 165 CLR 197
Peter Kent Development Pty Ltd v Australia & New Zealand Banking Group (Supreme Court, 6 May 1980, unreported)
Phillips v Eyre (1870) LR 6 QB 1
Romero v International Terminal Operating Co 358 US 354, 3 L Ed 2d 368, 79 S Ct 468 (1959)
Silverton Ltd v Harvey [1975] 1 NSWLR 659
Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460
St Pierre v South American Stores [1936] 1 KB 382
The Mary Moxham [1876] 1 PD 107
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
W F Motors Pty Ltd v Maydwell (Supreme Court, 23 April 1993, unreported)
Wickstead v Browne (1992) 30 NSWLR 1
Zhang v Regie Nationale des Usines Renault SA [2000] NSWCA 188

DECISION: 1. The defendant's notice of motion filed on 11 December 2000 is dismissed; 2. The defendant is to pay the plaintiff's costs of the notice of motion.

- 25 -

THE SUPREME COURT
OF NEW SOUTH WALES

COMMON LAW DIVISION

Friday 4 May 2001

SPERLING J

20273 / 00 Sean Morgan v Union Shipping (New Zealand) Ltd

Proceedings in this Court

1 The plaintiff, Sean Morgan instituted proceedings against the…

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: [2001] NSWSC 325
Decision Date: 4 May 2001

CaseChat Overview and Summary

In the case of Morgan v Union Shipping (NZ) Ltd, the plaintiff sought to recover damages for injuries sustained on a foreign flagged vessel in the territorial waters of New South Wales. The dispute centred on the determination of which jurisdiction's laws should apply to the case: the flag State's laws or the laws of New South Wales. The matter was heard in the Supreme Court of New South Wales. The plaintiff argued that New South Wales law should apply, while the defendant contended that the law of the flag, New Zealand, should govern.

The legal issues before the court included the appropriate test to determine whether a forum is "inappropriate" in a choice of law context and the applicability of the law of New South Wales to the facts of the case. The court had to consider the principles of private international law, including the relevance of the flag State's laws and the territorial application of New South Wales law. Additionally, the court needed to determine whether the forum was "clearly inappropriate" or merely "inappropriate" for the application of New South Wales law.

The court held that the proper test to determine the appropriateness of a forum in a choice of law context is whether the forum is "clearly inappropriate" rather than merely "inappropriate." It was found that the New Zealand flag State law did not sufficiently connect to the events in question to warrant its application. Furthermore, the court concluded that the law of New South Wales was appropriate, as the injury occurred within its territorial waters. The court's decision was influenced by the significant connection between the events and the jurisdiction, which aligned with the principles of private international law.

The court ordered that the law of New South Wales would apply to the dispute, and the case would proceed under that jurisdiction. The decision underscored the importance of applying the correct legal test in determining forum appropriateness and highlighted the relevance of territorial jurisdiction in choice of law matters.

Orders