PCH Offshore Pty Ltd v Dunn (No 2)

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FEDERAL COURT OF AUSTRALIA

PCH Offshore Pty Ltd (ACN 086 216 444) v Dunn (No 2) [2010] FCA 897

Citation: PCH Offshore Pty Ltd (ACN 086 216 444) v Dunn (No 2) [2010] FCA 897
Parties: PCH OFFSHORE PTY LTD (ACN 086 216 444)
v
CRAIG MICHAEL DUNN
File number: WAD 68 of 2009
Judge: SIOPIS J
Date of judgment: 20 August 2010
Catchwords: PRIVATE INTERNATIONAL LAW – applicant brought proceedings against respondent in Azerbaijan – applicant claimed compensation from the respondent in Azerbaijan proceedings – claim for compensation based on acts and omissions of respondent that occurred in Azerbaijan – applicant amended claim in Azerbaijan to withdraw claim for compensation and claim only production of documents by respondent – Azerbaijan court made orders for production of some documents and otherwise dismissed the claim – applicant commenced proceeding in Australia claiming compensation from respondent in respect of acts and omissions relied on in the Azerbaijani proceedings – whether the applicant estopped from proceeding in Australia – whether Australia was a clearly inappropriate forum.
Legislation: Corporations Act 2001 (Cth) ss 180, 181, 182, 183, 1317H(1), 1317H(2)
Federal Court Rules O 8 r 2 Item 12, O 8 r 3(2)
Cases cited: Voth v Manildra Flour Mills Proprietary Limited (1990) 171 CLR 538
Heilbrunn v Lightwood PLC [2007] FCA 433
Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1976] 1 AC 853
Charm Maritime Inc v Kyriakou [1987] 1 Lloyd’s Rep 433
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491
McGregor v Potts (2005) 68 NSWLR 109
Reinsurance Australia Corporation Ltd v HIH Casualty and General Insurance (in liq) (2003) 254 ALR 29
CSR Limited v Cigna Insurance Australia Limited (1977) 189 CLR 345
Date of hearing: 3, 4 December 2009, 21 June 2010
Date of last submissions: 17 August 2010
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 165
Counsel for the Applicant: Mr MD Howard SC
Solicitor for the Applicant: Norton Rose
Counsel for the Respondent: Dr AS Bell and Mr SJ Penrose
Solicitor for the Respondent: Tottle Partners

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 68 of 2009
BETWEEN:

PCH OFFSHORE PTY LTD (ACN 086 216 444)
Applicant
AND:

CRAIG MICHAEL DUNN
Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

20 AUGUST 2010

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.Orders 1 and 2 of the orders made by the Court on 20 May 2009 and order 1 of the orders made by the Court on 30 July 2009, be set aside.

2.Service of the application and statement of claim on the respondent pursuant to orders 1 and 2 of the orders made by the Court on 20 May 2009 further or alternatively order 1 of the orders made by the Court on 30 July 2009, be set aside.

3.The applicant…

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Details
Case
[2010] FCA 897
Decision Date

CaseChat Overview and Summary

PCH Offshore Pty Ltd brought an action against Dunn in Australia for compensation in respect of acts and omissions of Dunn that occurred in Azerbaijan. Dunn sought to set aside the orders made by the Court allowing service of the application and statement of claim on him in Azerbaijan. Dunn argued that PCH was estopped from proceeding in Australia and that Australia was a clearly inappropriate forum. The primary legal issues were whether PCH was estopped from proceeding in Australia and whether Australia was a clearly inappropriate forum for the proceedings.

The Court held that PCH was not estopped from proceeding in Australia. It was not a case of estoppel by representation, as PCH had not made any representation to Dunn that it would not proceed in Australia. The Court also held that Australia was not a clearly inappropriate forum for the proceedings. The Court noted that the Azerbaijani courts had declined jurisdiction over the merits of the claim, and that the parties had agreed that the merits of the claim were to be determined in Australia. The Court held that the matter was not res judicata, as the Azerbaijan proceedings did not involve a final determination of the merits of the claim.

The Court set aside the orders allowing service of the application and statement of claim on Dunn in Azerbaijan, set aside the service of the application and statement of claim on Dunn pursuant to those orders, and ordered PCH to pay Dunn’s costs of the application, including reserved costs, to be taxed if not agreed.

Orders

Orders of the court

1. Orders 1 and 2 of the orders made by the Court on 20 May 2009 and order 1 of the orders made by the Court on 30 July 2009, be set aside.

2. Service of the application and statement of claim on the respondent pursuant to orders 1 and 2 of the orders made by the Court on 20 May 2009 further or alternatively order 1 of the orders made by the Court on 30 July 2009, be set aside.

3. The applicant pay the respondent’s costs of the application, including reserved costs, to be taxed if not agreed.

4. The taxing officer is to make a reasonable allowance for:

4.1 the engagement and services of both senior and junior counsel; and

4.2 the obtaining of transcript.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

In the case of Voth v Manildra Flour Mills Proprietary Limited (1990) 171 CLR 538 (Voth), Mason CJ, Deane, Dawson and Gaudron JJ observed (at 564) that where an application is brought to set aside orders granting leave to serve a proceeding outside the jurisdiction, the onus remained on the plaintiff to satisfy the court that the case is one which falls within the relevant category and “that the proceedings would not be subsequently stayed as an abuse of process on forum non conveniens grounds or for some other reason”. The majority explained at 564 that:Otherwise, the ex parte order for service outside the jurisdiction, if onus of proof were to prove decisive, would confer and enduring advantage upon a plaintiff notwithstanding that the expanded evidence on a contested application to set aside service indicated that the applicant had not been entitled to that ex parte order.THE EVIDENCE AS TO AZERBAIJANI LAW Each of the parties relied upon evidence as to Azerbaijani law.Mr Dunn relied upon the evidence of Mr Anar Janmammadov and PCH relied on the evidence of Mr Elnur Mammadov. In his affidavit of 29 October 2009, Mr Janmammadov deposed that he was a lawyer employed by MGB Law Offices Limited, a Baku based law firm. Mr Janmammadov answered two questions which were posed to him in a letter from Mr Dunn’s instructing solicitors, Tottle Partners. First, he deposed that Azerbaijani law did not require a plaintiff to amend a civil claim by reason of it having made a complaint or an application, to any Azerbaijani criminal prosecution authority. Secondly, Mr Janmammadov said that a party was at liberty under the Civil Procedure Code to change the subject or basis of its claim or to increase or decrease the claim before the court decides the case. No permission or approval of the judge was required for this procedural action, said Mr Janmammadov. These questions arose in the context of Mr Dunn’s contention that there had been non-disclosure of material facts by PCH in its ex parte application. In an affidavit made on 9 November 2009, Mr Janmammadov deposed that the courts of the Republic of Azerbaijan have jurisdiction over civil and economic disputes when one of the parties to a dispute is a foreigner, namely, a foreign legal person, in a number of circumstances. These circumstances include the circumstance that the foreign legal person has a management body, representative or branch office in Azerbaijan, or where the dispute concerns compensation for damage to property, “the acts” on which the claim is based took place in Azerbaijan, or the claim arises from a contract that was or must be fully or partially performed in Azerbaijan. Mr Janmammadov went on to say that Art 6(c) of the Labor Code excluded the Labor Code from applying to certain individuals. One such class of individuals was foreigners who signed an employment agreement with a legal entity in a foreign country but performed their duties in Azerbaijan. However, said Mr Janmammadov, this did not mean that other parts of Azerbaijani law, including the Civil Code did not apply to those individuals.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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