Westpac Banking Corporation v P & O Containers Ltd

[1991] FCA 886

JUDGMENT No. =L / .9~,,

IN THE F E D E ~ COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

No. QG 94 of 1990

BETWEEN: WESTPAC BANKING CORPORATION

Plaintiff

AND:  P. & 0. CONTAINERS LIMITED

First Defendant

AND:  P. 5 0. CONTAINERS SHIPPING LIMITED
Second Defendant

AND: P. & 0. CONTAINERS LIMITED

First Cross-Claimant

AND:  P. & 0. CONTAINERS SHIPPING LIMITED

Second Cross-Claimant

AND: P. & 0. FERRYMASTERS A.B.

lformerlv FERRYMASTERS A.B.l

First Cross-Respondent

AND: JOHAN i HALLEN PARTIHANDEL A.B.

jformerlv JOHAN ANDERSON CHARKUTERIAFFAR A.B.1

Second Cross-Respondent

AND? P. & 0. FERRYMASTERS A.B.

jformerlv FERRYMASTERS A.B.1

Third Cross-Claimant

AND: P. & 0. CONTAINERS LIMITED First Defendant

AND: JOHAN i HALLEN PARTIHANDEL A.B.

jformerlv JOHAN ANDERSON CHARKUTERIAFFAR A.B.1

Third Cross-Respondent

No. QG 96 of 1990

BETWEEN: FEDGOLD PTY. LTD.

Plaintiff

AND:	P. & 0. CONTAINERS SHIPPING LIMITED Second Defendant
AND:	P. & 0 . CONTAINERS LIMITED

First Cross-Claimant

AND:  P. & 0 . CONTAINERS SHIPPING LIMITED

Second Cross-Claimant

AND: P. & 0. FERRYMASTERS A.B.

lformerlv FERRYMASTERS A.B.1

First-Cross-Respondent

AND: JOHAN i HALLEN PARTIHANDEL A.B.

jformerlv JOHAN ANDERSON CHARKUTERIAFFAR A.B.1

Second Cross-Respondent

AND:	P. & 0. FERRYMASTERS A.B.
j  formerlv FERRYMASTERS A. B. 1

Third Cross-Claimant

AND:  JOHAN i HALLEN PARTIHANDEL A.B.
jformerlv JOHAN ANDERSON CHARKUTERIAFFAR A.B.L

Third Cros

MINUTES ORDER

JUDGE MAKING ORDER:  PINCUS S .

DATE OF ORDER:	9 AUGUST 1
WHERE MADE:	BRISBANE
THE COURT:

1.    Gives leave to Mr. G.A. Thompson to appear as amicus curiae.

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

IN THE FEDE~IAL COURT OF AUSTRAGIA 1

QUEENSLAND DISTRICT REGISTRY	1
G E N E W DIVISION	)

No. QG 94 of 1990

BETWEEN: WESTPAC BANKING CORPORATION

Plaintiff

AND: P. & 0. CONTAINERS LIMITED

First Defendant

AND:  P. 5 0. CONTAINERS SHIPPING LIMITED

Second Defendant

AND: P. & 0. CONTAINERS LIMITED

First Cross-Claimant

AND:  P. & 0. CONTAINERS SHIPPING LIMITED

Second Cross-Claimant

AND: P. & 0. FERRYMASTERS A.B.

Jformerlv FERRYMASTERS A.B.1

First Cross-Respondent

AND:  JOHAN i HALLEN PARTIHANDEL A.B.
(formerlv JOHAN ANDERSON CHARKUTERIAFFAR A.B.1

Second Cross-Respondent

AND: P. & 0. FERRYMASTERS A.B.

jformerlv FERRYMASTERS A.B.1

Third Cross-Claimant

AND: JOHAN i HALLEN PARTIHANDEL A.B.

Jformerlv JOHAN ANDERSON CHARKUTERIAFFAR A.B.1

Third Cross-Respondent

No. QG 96 of 1990

BETWEEN: FEDGOLD PTY. LTD.

Plaintiff

AND:  P. & 0. CONTAINERS LIMITED

First Defendant

AND:  P. & 0. CONTAINERS SHIPPING LIMITED

Second Defendant

AND: P. & 0. CONTAINERS LIMITED

First Cross-Claimant

AND:  P. & 0. CONTAINERS SHIPPING LIMITED

Second Cross-Claimant

AND: P. & 0. FERRYMASTERS A.B.

Jformerlv FERRYMASTERS A.B.)

First-Cross-Respondent

AND: JOHAN i HALLEN PARTIHANDEL A.B.

Jformerlv JOHAN ANDERSON CHARKUTERIAFFAR A.B.1

Second Cross-Respondent

AND: P. & 0. FERRYMASTERS A.B.

Jformerlv FERRYMASTERS A.B.1

Third Cross-Claimant

AND: JOHAN i HALLEN PARTIHANDEL A.B.

jformerlv JOHAN ANDERSON CHARKUTERIAFFAR A.B.1

Third Cross-Respondent

CORAM: PINCUS J.

PLACE: BRISBANE

m: 9 NOVEMBER 1991

EX TEMPORE REASONS FOR JUDGMENT

In this matter the issue is whether or not certain proceedings have been served. Notice of motion, which was filed on 2 August, seeks a declaration that the service was valid. Mr G.A. Thompson of counsel sought leave to appear as arnicus curiae, to put it loosely, in the interests of the party alleged to have been served. He says that he can assist the Court on that question, and I have no doubt that that is so.

m. Sullivan, who appears for the party seeking the

declaration, opposes Mr. Thompson's application to appear as amicus. He points out, however, that if Mr. Thompson does not get leave he would not be able to appear in any other capacity because by doing so he might be taken to submit to the jurisdiction. The inconvenience of the course which Mr. Thompson proposes is drawn attention to by Mr. Sullivan, who points out that if the argument goes against Mr. Thompson then his client will not be affected by the result and he will have such rights as he might otherwise have had to attack the decision and to re-argue the matter.

The position of a party who is objecting to jurisdiction is beset by such complexities. My own view, however, is that if there is a discretion, and I think there is, it should be exercised in favour of the foreign party to

difficult. I therefore propose to give Mr. Thompson leave to	facilitate its objection rather than to make it more
appear as amicus curiae.

I certify that this and the

preceding page are a true copy of the reasons for judgment herein of his Honour Mr Justice Pincus

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