Nederlandse Speciaal Drukkerijen v Bollinger Shipping Agency

[1999] NSWSC 200

CITATION:	NEDERLANDSE SPECIAAL DRUKKERIJEN -v- BOLLINGER SHIPPING AGENCY [1999] NSWSC 200 revised - 28/04/99
CURRENT JURISDICTION:	Supreme Court
FILE NUMBER(S):	21474 of 1996
HEARING DATE(S):	29/10/99 to 30/10/99
JUDGMENT DATE:	17 March 1999
PARTIES :	Plaintiff: Nederlandse Speciaal Drukkerijen B.V. First Defendant: Bollinger Shipping Agency Pty Limited Second Defendant: Pope Packaging Pty Limited
JUDGMENT OF:	Hulme J at 1

COUNSEL :	Plaintiff: Mr AJ Meagher SC with him Mr PJ Brereton First Defendant: Mr GJ Nell Second Defendant: Mr AS Bell
SOLICITORS:	Plaintiff: Holman Webb First Defendant: Minter Ellison Second Defendant: Michell Sillar
CATCHWORDS:	Practice; inappropriate forum
ACTS CITED:	Carriage of Goods Act 1979 (NZ)
DECISION:	See paragraph 43

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

No: 21474 of 1996
Wednesday, 17 March 1999
HULME J

NEDERLANDSE SPECIAAL DRUKKERIJEN B.V. -v- BOLLINGER SHIPPING AGENCY PTY LTD AND ANOR

JUDGMENT

1 HIS HONOUR: The Second Defendant Pope Packaging Pty Ltd (hereinafter referred to as “Pope”), a company incorporated and carrying on business in New Zealand and having no presence in New South Wales, by Notice of Motion filed on 8 December 1997 seeks the following orders:-
1. That the Court declines to grant the Plaintiff leave to proceed against the Second Defendant.
2. That the originating process be set aside.
3. In the alternative, that the Court, in the exercise of its discretion, declines to exercise jurisdiction over the Second Defendant.
4. In the further alternative, that the Plaintiff’s proceedings brought against the Applicant be permanently stayed.
5. Such further or other order as the Court considers appropriate.
6. That the Plaintiff pay the Applicant’s costs of this motion.
2 The application is made pursuant to Part 10 of the Supreme Court Rules. So far as is relevant, this provides:-
“1A(1)Subject to Rule 2 and Rule 2A, originating process may be served outside Australia in the following cases -
(a) Where the proceedings are founded on a cause of action arising in the State.
(b) …
(i) Where the proceedings are properly brought against a person served or to be served in the State and the person to be served outside the State is properly joined as a party to the proceedings.
2(1) Where an originating process is served on the defendant outside Australia and the defendant does not enter an appearance within the time limited for appearance the Plaintiff shall not proceed against that defendant except with the leave of the Court.
(2) A motion for leave under sub-rule (1) may be made without serving notice of the motion on the defendant.
6A(1) The court may make an order of the kind referred to in Part 11 Rule 8… on application by a person on whom an originating process is served outside Australia.
(2) Without limiting sub-rule (1), the Court may make an order under this Rule under the ground -
(a) That the service of the originating process is not authorised by these Rules, or
(b) That this Court is an inappropriate forum for the trial of the proceedings.”
3 Part 11 Rule 8 provides, inter alia:-
“8(1) The Court may, on application made by a defendant to any originating process on Notice of Motion filed within the time fixed by sub-rule (2), by order -
(a) Set aside the originating process.
(b) Set aside the service of the originating process on the defendant.
(c) …
(d) Discharge any order giving leave to serve the originating process outside the state or confirming the service of the originating service outside the state.
(g) Declare that the court has no jurisdiction over the defendant in respect of the subject matter of the proceedings.
(h) Decline in its discretion to exercise its jurisdiction in the proceedings.”
4 The Plaintiff asked that, if the motion of Pope does not succeed, the Plaintiff be given leave under Part 10 rule 2(1).
5 The Plaintiff is a company incorporated in the Netherlands. By Statement of Claim filed on 27 December 1996 it sued Bollinger Shipping Agency Pty Ltd (hereinafter referred to as “Bollinger”) and Pope. The claim against Bollinger is in contract. It is said that by an agreement made orally and in writing on or about 2 October 1995 Bollinger agreed to ship a printing press owned by the Plaintiff from premises of Arrow Manufacturing Limited at Auckland in New Zealand to Delft in Holland. In the alternative, and in reliance on the same documents, it is alleged that Bollinger had agreed to arrange the shipment of the printing press from Auckland to Delft. It is claimed that in consequence of deficiencies in the packing of the printing press - said to be or demonstrate breaches of contract by Bollinger - the printing press suffered damage prior to its arrival in Holland. The damages claimed exceed $267,000. To the terms of the arrangement between the Plaintiff and Bollinger, it will be necessary to return.
6 The claim against Pope is that it carried out the packing of the printing press pursuant to an agreement with Bollinger but neglected to exercise reasonable care in carrying out that task. This claim is solely in tort.
7 Other matters against which the issues raised must be decided include the following. Bollinger is incorporated in New South Wales and carries on business here. In a Defence filed on 27 March 1997, Bollinger admitted that it had agreed to arrange shipment of a printing press from Auckland to Delft, that it was a term of the agreement that Bollinger would arrange for a packer to pack the printing press, and that Pope packed the pieces of the dismantled printing press.
8 On 8 November 1996 Bollinger had commenced proceedings in the High Court of New Zealand against two defendants. The first was Ryder’s Customs Agency Ltd (hereinafter referred to as Ryder’s) and the second Pope Packaging Limited. The Statement of Claim in those proceedings recites that the Plaintiff in the New South Wales proceedings claims that Bollinger had contracted to transport a printing press, that Bollinger denied so contracting but that Bollinger’s had contracted with the First Defendant to the New Zealand proceedings to have the printing press packed by a specialist export packer, that Ryder’s had sub-contracted to that packing to Pope Packaging Limited, and that Bollinger was entitled to $13,500 under Section 15(1) of the Carriage of Goods Act 1979 (New Zealand) and to be indemnified by one or other or both of the defendants for any consequential loss. Pleadings in the New Zealand proceedings have closed but no further steps have been taken in them.
9 A letter from the New Zealand solicitors acting for “Pope” admits that Pope entered into a non-written contract with Ryder Customs Services for Pope to provide packaging services. A bill of lading issued by Ryder’s Customs Agency as agent for the carrier Nedlloyd Lijnen B.V. Rotterdam records the shipping of the goods from Arrow Manufacturing Ltd of Auckland to Nederlandsche Spec, Drukkerijen in Delft.
10 It will be observed that in the New South Wales proceedings the Second Defendant has been named Pope Packaging Pty Limited whereas in the New Zealand proceedings the name used is Pope Packaging Limited. In his affidavit, Mr Thompson, the solicitor acting for Pope in the New South Wales proceedings seems to assume that only the one “Pope” company is involved and in the proceedings before me no-one suggested otherwise. I will proceed on the same assumption.
11 The solicitor for the Plaintiff said that he anticipated that there would be called on behalf of the Plaintiff residents of the Netherlands who inspected the printing press prior to shipment and, as I read the affidavit, other residents of the Netherlands to prove the condition of the printing press on arrival. There would be some expert evidence from persons ordinarily resident in New South Wales, the Netherlands and/or New Zealand. He said that he expected the First Defendant would call evidence from at least one person who resided in New South Wales.
12 The Solicitor for Bollinger, Ms Madafiglio, said that she expected that Bollinger “may” call:-
(i) One witness of fact from New South Wales.
An expert witness from New Zealand as to New Zealand law.
(iii) An expert witness from New Zealand as to good practice in packing and,
(iv) Possibly a surveyor from the Netherlands.
13 Ms Madafiglio also said that she had instructions to cross-claim against Pope and to join Ryder’s Customs Agency Ltd as another cross-defendant.
14 Mr Thompson, the solicitor for Pope, gave evidence that Pope was likely to call four witnesses of fact including the person who arranged the contact between Pope and Ryder’s and the individuals who were involved in packing the consignment. It is a reasonable inference that all of these people are resident in New Zealand. Mr Thompson went on to record his instructions that Pope intends calling a number of expert witnesses all of whom are likely to be based in New Zealand.
15 I turn to the issues which arise. It may be said at the outset that I am satisfied that the circumstances fall within Part 10, rule 1A(1)(b)(i). As Bollinger is incorporated and carrying on business with in New South Wales the proceedings are properly brought against Bollinger and served on Bollinger within the State. Pope is properly joined as a party to the proceedings both because the Plaintiff’s rights to the relief claimed are in respect of, or arise out of, the same transaction, viz. the carriage of the printing press from Auckland to Delft and, because there is a question which arises that is common to claims by the Plaintiff against Bollinger and Pope, viz. the extent of the loss suffered by the Plaintiff in consequence of the damage alleged to have occurred to the printing press - see Part 8, rule 2.
16 The argument between Pope and the Plaintiff centred on two topics. One was whether Pope had demonstrated that New South Wales was a clearly inappropriate forum for the trial of the action, all parties accepting that Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 had laid down this test. The second was whether, in light of the terms of the Carriage of Goods Act, 1979 (New Zealand), the Plaintiff had an arguable case against Pope. It was common ground that in the circumstances where the relevant events occurred in New Zealand, for the Plaintiff to succeed in tort against Pope in New South Wales, the Plaintiff had to establish, inter alia, that under the law of New Zealand, Pope was under a liability of the same kind - McKain v R.W.Miller and Co (SA) Pty Ltd (1991) 174 CLR 1 at 39, Stevens V Head (1993) 176 CLR 433 at 453, James Hardie & Co v Hall (1998) 43 NSWLR 554 at 559, 577-8.
17 It was also submitted on behalf of Pope that, even if that question was decided in the Plaintiff’s favour, the difficulties thrown up by the existence and terms of that Act, were best determined by a New Zealand court and strengthened the argument that New South Wales was a clearly inappropriate forum.
18 In written submissions, counsel for Bollinger limited himself to arguments supporting the Plaintiff’s opposition to all of the relief sought by Pope. In oral argument he said he sought that there be one forum only. Bollinger made no formal application in this regard.
19 It is convenient to turn first to a consideration of the New Zealand Carriage of Goods Act, a copy of which was in evidence. It was also the subject of evidence from a Mr Myburgh, a senior lecturer in commercial Law at the University of Auckland and consideration in a number of decisions to which I was referred. So far as is relevant the Act provides:-
“2. Interpretation - in this Act, unless the contact otherwise requires, -
“Carriage” includes any incidental service; and “carry” has a corresponding meaning:
“Carrier” means a person who, in the ordinary course of his business, carries or procures to be carried goods owned by any other person, … and … includes a person who, in the ordinary course of his business, performs or procures to be performed any incidental service in respect of any such goods:
“Contract of carriage” means a contract for the carriage of goods:
“Incidental service”, in relation to any goods, means any service (such as that performed by consolidators, packers, stevedores, and warehousemen) the performance of which is to be or is undertaken to facilitate the carriage of the goods pursuant to a contract of carriage:
“International carriage”, -
(a) …
(b) In relation to the carriage of goods by sea, means carriage from any port in New Zealand to any port outside New Zealand, or to any port in New Zealand from any port outside New Zealand, commencing when the goods are loaded onto a ship and ending when they are discharged from a ship.
5. Application of Act - (1) Subject to sub-section (4) of this section and to section (4) of this Act, this Act applies to every carriage of goods, not being international carriage, performed or to be performed by a carrier pursuant to a contract entered into after the commencement of this Act, whether the carriage is by land, water, or air, or by more than one of those modes.
6. Other remedies affected - Notwithstanding any rule of law to the contrary, no carrier shall be liable as such, whether in tort or otherwise, and whether personally or vicariously, for the loss of or damage to any goods carried by him except -
(a) In accordance with the terms of contract of carriage and the provisions of this Act; or
(b) Where he intentionally causes the loss or damage.
9. Liability of contracting carrier -
(1) Subject to the other provisions of this Act, a contracting carrier is liable as such to the contracting party for the loss of or damage to any goods occurring while he is responsible for the goods in accordance with the succeeding provisions of this section; whether or not the loss or damage is caused wholly or partly by him or by any actual carrier.
(6) Notwithstanding any of the foregoing provisions of this section, the responsibility of a contracting carrier who contracts for the carriage of goods to a destination outside New Zealand ends for the purposes of this Act at the time when the international carriage of those goods begins.”
20 An appreciation of the operation of the Act in the circumstances of this case requires that further attention be paid to events, at least as disclosed by the evidence. In a fax of 22 September 1995, one of the documents which passed between the Plaintiff and Bollinger and relied on by the Plaintiff as forming part of the contract, Bollinger provided a breakdown of the services to be arranged and the costs or charges it was suggesting the Plaintiff bear. These, and a provision which was no doubt at least part of the inspiration for allegations by the Plaintiff in the Statement of Claim that Bollinger was in breach of contract, included:-
“Dismantling of machine AUD 639
Carting of machine (*) AUD 758
Packing of container AUD 1150
Container cartage AUD 380
Sea freight to Rotterdam USD 5020”
“(*) Nine fully enclosed cases, 58.50 M3, packed into 1 x 40ft GP container. Each case lined with polyethylene sheeting shrink wrapped over the machine, silica gel moisture inhibitor used, each case with skidded base and heavy duty steel strapping.”
21 An invoice of 30 November 1995 from Bollinger to the Plaintiff sought reimbursement for disbursements described as:-
Packing and handling 7758.00
Container pack/unpack 1725.00
Cartage and labour 620.00
Export sea freight 10,846.53
22 It is appropriate to draw from the reference to “cartage” in these documents the inferences that there was carriage of the printing press in New Zealand to the wharves prior to its loading on board ship and that this carriage was pursuant to a contract of carriage. The form of the documents and common knowledge would suggest that the packing occurred prior to any carriage. Some of the other documents in evidence suggest the same.
23 Having regard to these matters, the conclusion at which I have arrived is that the claim advanced by the Plaintiff against Pope cannot succeed. The activities of Pope were undertaken to facilitate the carriage of goods pursuant to a contract of carriage and fell within the definition of incidental service. The contract of carriage included at least the contract whereby the printing press was conveyed to the wharf. This conclusion derives support from the decisions to which I was referred of Fletcher Panel Industries Ltd v Ports of Auckland Ltd (1992) 2 NZLR 231 where it was held that the holding of goods on a wharf prior to loading was incidental to the domestic carriage of the goods from their place of origin and of International Cargo Express Ltd v U-Jin Enterprises Inc (1997) 2 NZLR 712 where a similar decision was reached in the case of goods intended to be shipped by air which were being held in a warehouse near an airport.
24 Furthermore, it does not seem to me that the definition of “incidental service” requires that such services be provided pursuant to the contract under which the goods the subject of that incidental service were actually carried. So long as the services are undertaken to facilitate carriage (using that term in its normal sense) under a contract of carriage - and not, for example, by the owner of the goods - the services are within the definition.
25 It may be that because Pope’s services were also undertaken to facilitate the carriage of goods from Auckland to Delft, they fell within the definition of “incidental service”. It may, I think, be taken that, despite the definition of the terms “carriage” and “carrier”, “carriage”, where used in the definition of incidental service, means movement as distinct from merely something that constitutes an incidental service. However, given the statement in s 5 that “this Act applies to every carriage of goods, not being international carriage” a question arises whether the term “carriage” where used in the definition of incidental service includes international carriage. If it does not, then services incidental to international carriage only do not fall within the definition.
26 On the other hand, it can be argued that what is excluded from the operation of the Act is international carriage itself, not incidental services wholly performed within New Zealand. After all, international carriage is not excluded from the definition of carriage. In light of the conclusion at which I have arrived above, it is unnecessary for me to form any concluded view on the this issue. However as it is an issue on which I think the answer is by no means clear, there is much to be said for the view that the question should be decided by a New Zealand court, rather than an Australian one. The proper construction of New Zealand statutes, particularly one which undoubtedly governs as many transactions as the Carriage of Goods Act does, is best left for authoritative exposition to the courts of that country.
27 Be that as it may, my earlier remarks lead to the view that Pope clearly falls within the definition of carrier. Although this conclusion is one which seems to me to flow from the mere terms of the Act, it accords with the opinion of Mr Myburgh that “it is the accepted legal position in New Zealand that the Act applies to all carriage, including incidental services, performed in New Zealand before international carriage begins, and performed in New Zealand after international carriage ends”. There is no suggestion that Pope intentionally caused damage or that there is otherwise anything in the New Zealand Act to provide a basis for a claim in tort against Pope. Thus Section 6 operates to bar any claim against Pope in tort for any deficiencies which may have occurred in and about the packing of the goods.
28 I turn to the other issue which arose. As I have said, all parties accepted that the question was whether Pope has demonstrated that New South Wales is a clearly inappropriate forum for the trial of the action. Were the only persons interested the Plaintiff and Bollinger, this question might well be answered in the negative. The Plaintiff has chosen to sue here. Bollinger is incorporated and carrying on business here. The contract seems to have been concluded by a faxed acceptance sent to New South Wales. The proper law of the contract is probably that of New South Wales.
29 However, the introduction of Pope, and as seems likely if the proceedings are allowed to continue against Pope, Ryder’s adds additional features. The situation of those two parties in New Zealand, the number of transactions and events that occurred there and the number of witnesses resident there, compared with the number of parties, transactions and witnesses in Australia, all argue in favour of New Zealand having a closer connection with the dispute than does Australia. More particularly, the number of witnesses - even excluding any involvement of Ryder’s - has an ongoing relevance on the topics of convenience and cost of any trial. Both New Zealand and Australia are sufficiently far from the Netherlands as to make the further distance any witnesses from the Netherlands would have to travel of little, if any, weight. Subject to the terms of any contract, New Zealand standards of packing may be relevant to liability. (It is said that the timber used in the packing of the printing press contained an excessive degree of moisture.) Part of the claim already made by Bollinger against Ryder’s and Pope is said to be pursuant to s15 of the Carriage of Goods Act 1979 (NZ). That section imposes limits on a carrier’s liability and it may well be that Bollinger’s entitlement to the further indemnity it seeks will raise other operation of the Act. I have already indicated that I regard the proper construction and operation of a New Zealand statute as best left for exposition to New Zealand courts. Of course, I do not suggest that is conclusive.
30 It was submitted on behalf of Bollinger that to allow the application by Pope would mean that Pope’s liability would be determined only in New Zealand, with the risk that Bollinger might suffer from different findings being made here and there. Technically this is not correct because the issue before me concerns the Plaintiff’s claim against Pope, Bollinger not having yet made such a claim in New South Wales. However I accept that the conclusion at which I arrive may well have an impact on the fate of any similar dispute between Bollinger and Pope.
31 At the forefront of the argument against granting Pope any of the relief sought on this ground were two matters. One was that New South Wales was a proper forum in which the Plaintiff was entitled to sue Bollinger. The second was the disadvantage of two actions, one here and one in New Zealand, with all the attendant additional costs, risk of inconsistent findings and other disadvantages of which many judges have spoken - see e.g. Qantas Airways Ltd v Dillingham Corporation (1985) 4 NSWLR 113 at 117E-118, Citi-March Ltd v Neptune Orient Lines Ltd (1997) 1 Lloyd’s Rep. 72 at 77-8.
32 In the circumstances of this case while some of these disadvantages clearly exist, I am not persuaded that they are as great as in many other cases that have come before the courts. The factual issues common to the proceedings between the Plaintiff and Defendant on the one hand and proceedings against Pope (and perhaps Ryder’s) on the other fall within a relatively narrow compass. Furthermore much will depend on the terms of the particular contracts between the parties and, so far as damages are concerned, the impact of Section 15 of the Carriage of Goods Act. That section imposes substantial limitations on the amount of a carrier’s liability and the documents between Bollinger and Ryder’s referred to in Bollinger’s Statement of Claim in the New Zealand proceedings, and which became Exhibit B before me, do not suggest any expansion of that liability. Questions of choice of law may arise but that Statement of Claim is drafted as if some of the limitations in the Act apply.
33 And I am not persuaded that it does not lie within the power of the Plaintiff to conduct the whole of the litigation in New Zealand, thus avoiding the consequences which, it was submitted, were so bad. Sections 18 and 19 of the Carriage of Goods Act do lay down time limits which may apply to an action by the Plaintiff against Bollinger but, particularly in light of Bollinger’s New Zealand action, there would have to be a reasonable prospect of any time limits which have expired being extended.
34 Pope’s presence in New Zealand allows the Plaintiff to sue Pope there and an extract from the Rules of the New Zealand High Court which was tendered makes it clear that the Plaintiff could join Bollinger in such an action. However in light of the consideration that has been given to the Carriage of Goods Act during argument and in these Reasons, I am not prepared to assume that the Plaintiff will be disposed to sue Pope again. On the other hand, those Rules permit of service outside the jurisdiction in a number of other situations within which the circumstances here fall. This may occur, inter alia:-
(a) Where any act or omission for or in respect of which damages are claimed was done or occurred in New Zealand:
(b) Where the contract sought to be enforced … or for the breach whereof damages or other relief is demanded in the proceeding -
(i) …
(iii) Was to be wholly or in part performed in New Zealand …
(c)Where there has been a breach in New Zealand of any contract, wherever made.
35 It may be that the terms of sub-clause (m) are not as wide as they at first appear. While I accept that the proceedings commenced by Bollinger in New Zealand mean that Bollinger has submitted to the jurisdiction of the New Zealand courts sufficiently to enable a party to those proceedings to bring certain claims against Bollinger, the commencement of those proceedings is not a general submission to the jurisdiction - see National Commercial Bank v Wimborne (1979) 1 NSWLR 156. However, in light of the other provisions which I have quoted, it is unnecessary to pursue this aspect. I am satisfied that the New Zealand courts have jurisdiction to entertain the action which the Plaintiff has brought against Bollinger here.
36 Bollinger is the party most at risk from having proceedings here and in New Zealand although, apart from its submission that there should be only one forum, Bollinger gave no active support, even as a fall-back position, for that part of Pope’s claim as sought the staying of the whole action. Nor is there any evidence to suggest that New Zealand law differs from that in New South Wales whereby Bollinger can seek a declaration as to its liability to the Plaintiff. Even if such an application is possible, Bollinger would, of course, have to persuade this court that the Plaintiff’s proceedings against it should be stayed, but many of the factors to which I have referred argue in favour of such an application as they do in favour of Pope’s. However I do acknowledge the risk that any order I might make based on New South Wales being a clearly inappropriate forum, unless the order is to stay the whole of the proceedings, will leave Bollinger exposed to two actions and that this matter is a significant argument against Pope’s application succeeding on that ground. Any order I make other than to stay the whole of the proceedings will also leave Pope exposed to a cross-claim by Bollinger and having to make another application such as this.
37 The fact that, subject to any order I may make, the Plaintiff is entitled to sue Bollinger in New South Wales must be recognised and given weight, particularly if Bollinger is content that that situation continue. On the other hand, so must the fact that prior to the institution of the proceedings before me action had been commenced, albeit not by the Plaintiff, against Pope arising out of much the same events and that Bollinger wishes to repeat that claim by way of cross-claim here.
38 Not all of the matters to which I have referred go to the question of whether New South Wales is a clearly inappropriate forum for the trial of the action, a test which focuses on the advantages and disadvantages of allowing the proceedings to continue in New South Wales, albeit not to the exclusion of all else - see Voth v Manildra Flour Mills Pty Ltd (supra) at p 558. Some go to issues of convenience and the practicality of the litigation being conducted elsewhere; some to the manner in which the Court’s discretion should be exercised if New South Wales is a clearly inconvenient forum.
39 The view at which I have arrived on this aspect of the case is that New South Wales is a clearly inconvenient forum for the resolution of the issues which involve Pope, a fortiori if account is taken of the likelihood that, absent some restriction by the Court, Ryder’s will also be joined. Although I recognise this is not the test, I would go so far as to say that if there is to be evidence from any significant number of New Zealand witnesses as to events or standards there, I think New South Wales is an inconvenient forum for the resolution of the dispute between the Plaintiff and Bollinger.
40 I am much inclined to the view that the originating process should be set aside, so that the totality of the issues can be determined by one court, in New Zealand. Pope has an interest in such a result in that it will preclude any cross-claim by Bollinger being made in these proceedings and obviate the occasion for any further application such as this. Pope has an indirect interest in the result of the Plaintiff’s claim against Bollinger in that failure of that claim is likely to have an impact on the claim by Bollinger against it.
41 On the other hand, if the Plaintiff and Bollinger wish to litigate their dispute in New South Wales, it seems to me that they must be allowed to do so. It may be possible to preclude any cross-claim by Bollinger against Pope under Pope’s claim for “further or other order” although the possibility of this was not canvassed during argument - see Part 26 of the Rules.
42 Furthermore, to stay the Plaintiff’s action here would be unduly harsh on the Plaintiff if there were any legal impediments in New Zealand to the success of its claim which it did not face in New South Wales. An obvious one is any limitation period, whether in Section 19 of the Carriage of Goods Act or otherwise, although presumably any such defence could be waived by Bollinger. So far as I can recall, no party adverted to these matters.
43 Because I am of the view that the Plaintiff’s claim against Pope has no reasonable prospects of success and that New South Wales is a clearly inappropriate forum for the determination of the proceedings against Pope and, if these can not be severed from the proceedings between the Plaintiff and Bollinger, for the trial of the whole action, Pope is entitled at least to orders refusing leave to the Plaintiff to proceed against Pope, and setting aside so much of the Statement of Claim as constitutes a claim against Pope. In part because the ramifications of some of the conclusions at which I have arrived were not canvassed during argument, in part because I am not sure how far Bollinger meant to go by its submission that there should be only one forum, I propose to publish these reasons and stand the matter over to afford the parties an opportunity of considering them and making such submissions as to the form of orders as they wish.

*****************************

Last Modified: 09/13/2000