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 DUNNFile 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 345Date 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)
ApplicantAND: 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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- Case
- [2010] FCA 897
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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