Tiezone Pty Ltd v Schenker Stinnes Logistics - [2003] FCA 281

FEDERAL COURT OF AUSTRALIA
Tiezone Pty Ltd v Schenker Stinnes Logistics [2003] FCA 281
Carriage of goods – service ex juris
TIEZONE PTY LTD & ANOR v SCHENKER STINNES LOGISTICS & ORS
N1112 of 2002
ALLSOP J
26 MARCH 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

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:

26 MARCH 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Leave be granted to the plaintiffs subject to compliance with Div 2 of O 8 in respect of the first and third defendants and Div 3 of O 8 in respect of the fourth defendant to serve the application and amended statement of claim (appropriately amended as to name) outside Australia on the first, third and fourth defendants;
2.The question of costs be reserved.
3.The plaintiff file an affidavit setting out any information concerning the loss in question on or before Friday 28 March 2003.
4.The matter be stood over to a date to be fixed.

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

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:

26 MARCH 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is a notice of motion brought by the plaintiffs seeking leave to serve an application and an amended statement of claim outside the jurisdiction under Order 8 of the Federal Court Rules.
I take the following from the evidence before me, from what I have been informed from the bar table and from the amended statement of claim by way of background facts. I should add that I have received two affidavits from the plaintiffs’ solicitor, Mr O'Reilly, and I have required him to place on record in an affidavit by this coming Friday, 28 March 2003, the matters which I am presently prepared to accept from him from the bar table.
The requirement to put these matters on affidavit does not reflect in the slightest way my acceptance of the reliability of what Mr O'Reilly says. However, in the exercise of the exhorbitant jurisdiction of the court under Order 8 I think it appropriate that the court reflect clearly in evidential terms the matters which have been said to me from the bar table.
The first plaintiff is an importer and seller of wine in Sydney. Prior to 6 December 2001, it agreed to purchase wine…

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: [2003] FCA 281
Decision Date: 26 MARCH 2003

CaseChat Overview and Summary

Tiezone Pty Ltd, a company engaged in the business of manufacturing and selling shoelaces, brought an action against Schenker Stinnes Logistics and others for the loss of goods in transit. The defendants, who were involved in the logistics of transporting the goods, denied liability and disputed the amount claimed. The case was heard in the Supreme Court of New South Wales. The court was required to determine whether the plaintiffs could serve the application and amended statement of claim outside Australia on the defendants who were based overseas and whether the court had jurisdiction to hear the claim.

The court found that the plaintiffs had established a prima facie case for service of the application and amended statement of claim outside Australia. The court noted that the defendants were corporations incorporated outside Australia and had no place of business in New South Wales. The court further found that the plaintiffs had taken reasonable steps to effect service within Australia but were unable to do so. The court held that the plaintiffs could therefore apply to the court for leave to serve the documents outside Australia. The court also found that it had jurisdiction to hear the claim as the cause of action arose out of or in the course of the defendants' activities in Australia. The court therefore granted leave for service outside Australia and reserved the question of costs. The plaintiffs were required to file an affidavit setting out any information concerning the loss in question and the matter was stood over to a later date.

Orders

Orders of the court

1. Leave be granted to the plaintiffs subject to compliance with Div 2 of O 8 in respect of the first and third defendants and Div 3 of O 8 in respect of the fourth defendant to serve the application and amended statement of claim (appropriately amended as to name) outside Australia on the first, third and fourth defendants;

2. The question of costs be reserved.

3. The plaintiff file an affidavit setting out any information concerning the loss in question on or before Friday 28 March 2003.

4. The matter be stood over to a date to be fixed.

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	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:	26 MARCH 2003
WHERE MADE:	SYDNEY