Tiezone Pty Ltd v Schenker Stinnes Logistics - [2004] FCA 847

FEDERAL COURT OF AUSTRALIA
Tiezone Pty Ltd v Schenker Stinnes Logistics [2004] FCA 847
ADMIRALTY AND MARITIME - practice and procedure – delay in service using diplomatic channels – alternative method of service ordered.
Federal Court of Australia 1976 (Cth) s 23
Federal Court Rules Order 1 rule 8, Order 7 rule 2, Order 8
TIEZONE PTY LTD & ANOR v SCHENKER STINNES LOGISTICS & ORS
N1112 of 2002
ALLSOP J
30 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1112 of 2002

BETWEEN:

TIEZONE PTY LTD
FIRST PLAINTIFF

EUROPVIN S.A.
SECOND PLAINTIFF

AND:

SCHENKER S.A. T/A SCHENKER STINNES LOGISTICS
FIRST DEFENDANT

MEDITERRANEAN SHIPPING COMPANY S.A.
SECOND DEFENDANT

M.S. “MARE TUSCUM” SCHIFFARHRTSGES GMBH & CO. KG
THIRD DEFENDANT

LAVICER INVESTMENTS CORP
FOURTH DEFENDANT

PATRICK STEVEDORES OPERATIONS PTY LIMITED
FIFTH DEFENDANT

JUDGE:

ALLSOP

DATE OF ORDER:

30 JUNE 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.That the plaintiffs be permitted to serve the first defendant by
(a)serving the following documents upon the first defendant at its principal office in France by a French process server on or before 2 August 2004:
(i)copies in English of the amended application and amended statement of claim;
(ii)copies in English of the reasons for judgment of Allsop J of 26 March 2003 and these reasons;
(iii)copies in French of the amended application and amended statement of claim; and

(b)serving the documents referred to in 1.(a)(i) and (ii) above on Schenker Australia Pty Limited addressed to the managing director of that company at 72-80 Bourke Road Alexandria 2015 on or before 16 July 2004.

2.Leave be granted to the plaintiffs to amend the return date in the amended application in respect of the first defendant to Monday, 6 September 2004 at 9.30 am.

3.The directions hearing fixed for 13 August 2004 be vacated and the proceedings be stood over for directions to 6 September 2004 at 9.30 am.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1112 of 2002

BETWEEN:

TIEZONE PTY LTD
FIRST PLAINTIFF

EUROPVIN S.A.
SECOND PLAINTIFF

AND:

SCHENKER S.A. T/A SCHENKER STINNES LOGISTICS
FIRST DEFENDANT

MEDITERRANEAN SHIPPING COMPANY S.A.
SECOND DEFENDANT

M.S. “MARE TUSCUM” SCHIFFARHRTSGES GMBH & CO. KG
THIRD DEFENDANT

LAVICER INVESTMENTS CORP
FOURTH DEFENDANT

PATRICK STEVEDORES OPERATIONS PTY LIMITED
FIFTH DEFENDANT

JUDGE:

ALLSOP

DATE:

30 JUNE 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 26 March 2003, I made orders granting leave to the plaintiffs to serve the application and amended statement of claim on the first, third and fourth defendants. I gave reasons for those orders: [2003] FCA 281. I do not repeat what I said there about the nature of the case. A difficulty has arisen with the service of the first defendant in France. All other parties whom the plaintiffs wish to serve are present. The disposition of the case is being held up by the absence of 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: [2004] FCA 847
Decision Date: 30 JUNE 2004

CaseChat Overview and Summary

Tiezone Pty Ltd, the plaintiff, sought an order to serve a statement of claim on Schenker Stinnes Logistics, the first defendant, and Schenker Australia Pty Limited, the second defendant. The plaintiff argued that the first defendant's presence in Australia was transient and therefore not sufficient to establish jurisdiction in the Federal Court of Australia. The case was before the Federal Court, where the plaintiff sought to amend the return date and the method of service for the first defendant.

The court was required to determine whether the plaintiff's proposed method of service on the first defendant was appropriate and whether the return date should be extended. The court had to consider the nature of the first defendant's presence in Australia and whether it was sufficient to establish jurisdiction, as well as the procedural fairness in the case.

The court found that the proposed method of service was appropriate and that the return date should be extended. The court determined that the first defendant's presence in Australia was transient and did not establish jurisdiction. However, the court found that the plaintiff's proposed method of service was appropriate and that the return date should be extended to allow for the service of the statement of claim. The court also found that the procedural fairness in the case was not compromised by the extension of the return date.

Accordingly, the court ordered that the plaintiffs be permitted to serve the first defendant by a French process server and that the return date be extended to 6 September 2004. The court also vacated the directions hearing and stood over the proceedings for directions to 6 September 2004.

Orders

Orders of the court

1. That the plaintiffs be permitted to serve the first defendant by

(a) serving the following documents upon the first defendant at its principal office in France by a French process server on or before 2 August 2004:

(i) copies in English of the amended application and amended statement of claim;

(ii) copies in English of the reasons for judgment of Allsop J of 26 March 2003 and these reasons;

(iii) copies in French of the amended application and amended statement of claim; and

(b) serving the documents referred to in 1.(a)(i) and (ii) above on Schenker Australia Pty Limited addressed to the managing director of that company at 72-80 Bourke Road Alexandria 2015 on or before 16 July 2004.

2. Leave be granted to the plaintiffs to amend the return date in the amended application in respect of the first defendant to Monday, 6 September 2004 at 9.30 am.

3. The directions hearing fixed for 13 August 2004 be vacated and the proceedings be stood over for directions to 6 September 2004 at 9.30 am.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

ALLSOP J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: ALLSOP J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1112 of 2002

BETWEEN:	TIEZONE PTY LTD FIRST PLAINTIFF EUROPVIN S.A. SECOND PLAINTIFF
AND:	SCHENKER S.A. T/A SCHENKER STINNES LOGISTICS FIRST DEFENDANT MEDITERRANEAN SHIPPING COMPANY S.A. SECOND DEFENDANT M.S. “MARE TUSCUM” SCHIFFARHRTSGES GMBH & CO. KG THIRD DEFENDANT LAVICER INVESTMENTS CORP FOURTH DEFENDANT PATRICK STEVEDORES OPERATIONS PTY LIMITED FIFTH DEFENDANT
JUDGE:	ALLSOP
DATE OF ORDER:	30 JUNE 2004
WHERE MADE:	SYDNEY