Shirlaw v Taylor - [1991] FCA 415

Re: WESTPAC BANKING CORPORATION and FEDGOLD PTY. LTD.
And: P. and O. CONTAINERS LIMITED; P. and O. CONTAINERS SHIPPING LIMITED; P.
and O. FERRYMASTERS A.B. (formerly FERRYMASTERS A.B.) and JOHAN i HALLEN
PARTIHANDEL A.B. (formerly JOHAN ANDERSON CHARKUTERIAFFAR A.B.)
Nos. Q G94 and Q G96 of 1990
FED No. 415
Practice
102 ALR 239
30 FCR 320

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Practice - service outside Commonwealth - meaning of indemnity within Federal Court Rules - whether includes indemnity which is not express or implied term of contract - meaning of "proceeding" in O.8 r.1(g).

Federal Court Rules, O.5 r.11; O.8 r.1(d), (g)

HEARING

BRISBANE

#DATE 24:7:1991

Counsel for cross-claimants: Mr P.D. McMurdo

Solicitors for cross-claimants: Thynne and Macartney

Counsel for first cross-respondent: Mr J. Sullivan

Solicitors for first cross-respondent: Morris Fletcher and Cross

Counsel for second cross-respondent: Mr G.A. Thompson

Solicitors for second cross-respondent: Bain Gasteen Smith

ORDER

The order of 6 September 1990 giving leave to serve a cross-claim on Johan i Hallen Partihandel A.B. (formerly Johan Anderson Charkuteriaffar A.B.) of Sweden be struck out.

Service of that cross-claim be struck out.

The cross-claimants pay Johan i Hallen Partihandel A.B.'s (formerly Johan Anderson Charkuteriaffar A.B.) costs of and incidental to the proceedings against it, to be taxed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

These are applications by a Swedish company, Johan i Hallen Partihandel A.B., in two related suits, in each of which the applicant seeks an order setting aside service of a cross-claim upon it and consequential relief. Although the two suits will require to be considered separately at the trial, there is no difference between them which is significant for present purposes; it is enough to set out the detailed allegations in one of them, namely G94 of 1990 in which the plaintiff is Westpac Banking Corporation; in the other case (G96 of 1990) the plaintiff is Fedgold Pty. Ltd.

In G94 of 1990, the plaintiff, Westpac Banking Corporation, sued two defendants, P. and O. Containers Limited and P. and O. Containers Shipping Limited for damages on the following allegations. The plaintiff alleged that about September 1989, a company called J.C. Hutton Pty. Ltd. sold certain goods to Johan Andersson Charkuteriffon A.B. (apparently an alternative spelling of Johan Anderson Charkuteriaffar A.B.) of Sweden to be transported c.i.f. to the port of Gothenburg (Gotenborg) Sweden. The plaintiff alleged that the defendants, or one of them, undertook by a contract evidenced by a certain bill of lading to carry the goods from Queensland to Gothenburg; that Fedgold Pty. Ltd. acquired title to the goods; that in consideration of an advance Fedgold Pty. Ltd. caused the bill of lading to be endorsed to the order of the plaintiff and passed property in goods to the plaintiff. The pleading went on to allege that goods were delivered at Gothenburg without the production of the bill of lading, that…

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.

Continue reading Shirlaw v Taylor

Details

AGLC: Westpac Banking Corporation v P & O Containers Ltd & Ors [1991] FCA 415 (102 ALR 239; 30 FCR 320)
Case: [1991] FCA 415
Decision Date: 24 JULY 1991

CaseChat Overview and Summary

Shirlaw v Taylor is a case that involves the cross-claimants seeking to serve a cross-claim on Johan i Hallen Partihandel A.B. (formerly Johan Anderson Charkuteriaffar A.B.) of Sweden. The court was required to determine the meaning of indemnity within the Federal Court Rules and whether it includes indemnity that is not an express or implied term of the contract. Additionally, the court had to interpret the meaning of "proceeding" in O.8 r.1(g).

The primary legal issue was whether the indemnity provided by the cross-claimants to the plaintiff was sufficient to allow service of the cross-claim on Johan i Hallen Partihandel A.B. outside the Commonwealth. The court also needed to determine whether the term "proceeding" in O.8 r.1(g) of the Federal Court Rules included the cross-claim.

The court found that the indemnity provided by the cross-claimants was not sufficient as it did not cover all costs and liabilities that could arise from serving the cross-claim outside the Commonwealth. The court also held that "proceeding" in O.8 r.1(g) did not include the cross-claim, as it was not a step taken in the main action. As a result, the order giving leave to serve the cross-claim and the service of the cross-claim itself were struck out. The cross-claimants were ordered to pay Johan i Hallen Partihandel A.B.'s costs of and incidental to the proceedings against it.

In conclusion, the court ruled that the cross-claimants' indemnity was inadequate and that the cross-claim did not fall within the meaning of "proceeding" in O.8 r.1(g) of the Federal Court Rules. Consequently, the order giving leave to serve the cross-claim and the service of the cross-claim were both struck out, and the cross-claimants were ordered to pay the costs of the Swedish company.

Orders

Orders of the court

The order of 6 September 1990 giving leave to serve a cross-claim on Johan i Hallen Partihandel A.B. (formerly Johan Anderson Charkuteriaffar A.B.) of Sweden be struck out.

Service of that cross-claim be struck out.

The cross-claimants pay Johan i Hallen Partihandel A.B.'s (formerly Johan Anderson Charkuteriaffar A.B.) costs of and incidental to the proceedings against it, to be taxed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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