New South Wales Supreme Court CITATION : NEDERLANDSE SPECIAAL DRUKKERIJEN -v- BOLLINGER SHIPPING AGENCY [1999] NSWSC 375 CURRENT JURISDICTION : Supreme Court FILE NUMBER(S) : 21474 of 1996 HEARING DATE(S) : 26 March 1999 JUDGMENT DATE : 4 May 1999 Plaintiff: Nederlandse Speciaal Drukkerijen B.V. PARTIES : First Defendant: Bollinger Shipping Agency Pty Limited Second Defendant: Pope Packaging Pty Limited JUDGMENT OF : Hulme J at 1 Plaintiff: Mr AJ Meagher SC with him Mr PJ Brereton COUNSEL : First Defendant: Mr GJ Nell Second Defendant: Mr AS Bell Plaintiff: Holman Webb SOLICITORS : First Defendant: Minter Ellison Second Defendant: Michell Sillar CATCHWORDS : Practice; inappropriate forum ACTS CITED : Carriage of Goods Act 1979 (NZ) DECISION : See paragraph 25 10 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION No: 21474 of 1996 Tuesday, 4 May 1999 HULME J NEDERLANDSE SPECIAAL DRUKKERIJEN BV v BOLLINGER SHIPPING AGENCY PTY LIMITED & ANOR JUDGMENT 1 HIS HONOUR: In these proceedings as presently constituted, the Plaintiff sues the First Defendant, a company incorporated in New South Wales, in contract and the Second Defendant, a company incorporated and carrying on business in New Zealand and not in New South Wales, in tort. It seems that it was with a view to fulfilling the First Defendant's obligations under its contract with the Plaintiff that the Second Defendant was engaged in the packing in New Zealand of a printing press for dispatch to Holland. The claim of the Plaintiff against the Second Defendant was that it was negligent in about the execution of that activity. 2 In Reasons delivered by me on 17 March last I indicated that the Second Defendant was entitled to succeed in an application the result of which would be to prevent the Plaintiff pursuing the Second Defendant in this court. Inter alia, I held that a New Zealand statute had the effect of precluding the claim brought against the Second Defendant and that this court was a clearly inappropriate forum for the resolution of issues involving the Second Defendant, a fortiori if account was taken of the likelihood that, absent some restriction imposed by the Court, another New Zealand organisation, Ryder's Customs Agency Ltd would be also joined. Evidence from the solicitor for the First Defendant indicated she had instructions to cross claim against the First Defendant and Ryder's. 3 (In re-reading the Reasons given by me on 17 March, I observe that on two occasions the word "inconvenient" mistakenly appears instead of "inappropriate". These instances are in the last line of paragraph 38 and the second, but not the seventh, line of paragraph 39. So far as the first of these is concerned, as recorded in paragraphs 16 and 28, the parties had agreed that "clearly inappropriate" was the test. So far as the second is concerned, my conclusion is stated correctly at the beginning of paragraph 43.) 4 I left outstanding the manner by which my conclusions should be given effect. On 26 March last that matter was the subject of argument and it is to that manner that these Reasons are directed. Obviously also relevant to my conclusions are the earlier Reasons but it is unnecessary that I repeat at length matters referred to therein. It will be convenient hereafter to refer to the First and Second Defendants by the names used in my earlier Reasons, "Bollinger" and "Pope" respectively. 5 On 26 March, the Plaintiff sought that I make orders:- "1. That leave for the Plaintiff to proceed against the Second Defendant be refused. 2. That so much of the Statement of Claim as constitutes a claim against the Second Defendant be set aside. 3. That the Plaintiff file and serve an Amended Statement of Claim on or before 12 April 1999. 4. That the First Defendant file and serve an Amended Defence on or before May 1999. 5. That the Plaintiff pay the Second Defendant's costs of the proceedings. 6. That there be no order as to the First Defendant's costs of the Second Defendant's Notice of Motion. 7. That the matter be stood over for further directions on 7 May 1999. 6 I did not understand the Plaintiff's pursuit of those orders as a withdrawal of the stance it had adopted originally and which in my earlier Reasons I had rejected. The orders proposed were directed, as I understood them, to implementing the decisions previously made. 7 A draft of the proposed Amended Statement of Claim was provided. Apart from making apparent that somewhat more attention has been paid to the precise formulation of the Plaintiff's claim against Bollinger, the document omits the earlier claim that Bollinger had agreed to ship a printing press from premises at Auckland in New Zealand, retaining merely the claim that Bollinger had agreed to arrange for the shipment of that printing press. 8 Bollinger's preferred position in light of the decisions at which I have arrived was that I should stay the whole of the proceedings. Its fall-back position was that I should make the orders sought by the Plaintiff. Unless the order took the form of staying the whole proceedings, Bollinger opposed the making of any order which had the effect of staying, in advance of it being made, any cross-claim by Bollinger against Pope. (Such a cross-claim is out of time. Bollinger would need Pope's consent or an extension of time to make it.) 9 Counsel appearing for Pope indicated that his client was content that the Short Minutes of Order advanced by the Plaintiff reflected the Reasons previously given. However, his client's preferred position was that all proceedings should be stayed and if not, in addition to the orders sought in the Short Minutes of Order there should be a stay of any cross-claim by Bollinger against Pope. 10 The hearing on 26 March proceeded on the basis of Bollinger's original Notice of Motion of 8 December 1997. Given the circumstances in which the matter again came before me and the width of that notice of motion, I do not see any formal restriction on any party seeking the orders it did. No further evidence was put before me although there was a suggestion that, recently, there has been some movement in the New Zealand proceedings referred to in paragraph 8 of my earlier Reasons. The parties agreed that if it seemed to me that the present state of those proceedings was relevant to my conclusion I would advise them before giving judgment. 11 I was informed from the bar table by counsel appearing for the Plaintiff that his client has not sued Bollinger elsewhere - a fact I would infer from the evidence which was originally tendered. I was also informed that the Plaintiff does not propose to sue Bollinger other than in New South Wales or to sue anyone else in New Zealand. Had I seen the Plaintiff's intentions in that regard as of importance, I would have afforded the Plaintiff an opportunity to place the matter on affidavit because the argument as to the form of order which should be made was brought on at fairly short notice. However, while it would be clearly relevant to my decision to know that the Plaintiff intended to litigate the issues raised in the current proceedings in some other jurisdiction, it does not seem to me that the Plaintiff's intentions as outlined are of any significant weight. Such intentions are liable to ready change, particularly in response to changes in circumstances. If the Plaintiff is precluded from suing Bollinger here it may well decide to sue Bollinger in New Zealand rather than give up its claim entirely. 12 The solicitor for Bollinger in the New South Wales proceedings said that she had instructions to cross-claim against Pope and to join Ryder's and although, again, instructions may change, the circumstances as they have been revealed in the proceedings before me make that course inherently likely. This, together with the fact that Bollinger has already commenced proceedings against Ryder's and Pope in New Zealand leads me to conclude that the strong probability is that, unless the New South Wales proceedings are stayed, a significant number of issues will be litigated in both New South Wales and New Zealand. (Of course one must recognise that, one or more aspects of the dispute may be settled, but there was no evidence to suggest this was more or less likely than one might expect from the nature of the litigation.) 13 It is unnecessary to repeat the views expressed in my Reasons of 17 March. The question is whether New South Wales is a clearly inappropriate forum for the litigation. In this respect I should have regard to the whole of the controversy represented by or involving the litigation the court is asked to stay - see Societe ationale Industrielle Aerospatiale v Lee Kui Jak (1987) AC 871 at 900-1, Hi-Fert v Kiukiang Maritime Carriers (1996) 71 FCR 172 at 185 (RSH CHECK subsequently overruled on another point), CSR Ltd v Cigna Insurance Ltd (1996-7) 189 CLR 345 at 400-1. In light of the conclusions expressed in paragraph 11, I take account of Bollinger's anticipated cross-claim. 14 It must be recognised that at this stage the Plaintiff wishes to sue only Bollinger and that, as between these parties, the litigation has substantial connection with New South Wales. Some aspects of this are referred to in my earlier reasons particularly in paragraphs 7 and 28 and in paragraph 10 of these Reasons. In addition, Mr Meagher SC, appearing for the Plaintiff, pointed out that Bollinger's performance under its contract with the Plaintiff occurred or was likely to have occurred in New South Wales and no questions of New Zealand law were raised by the Plaintiff's claim. Mr Meagher pointed out also that there were likely to be significantly different issues in the Plaintiff's claim against Bollinger compared with Bollinger's claim against Pope or against Ryder's. 15 I acknowledge that all of these matters are entitled to weight. I acknowledge also that it is not a case of looking at the situation as between Bollinger and Pope and, having come to a conclusion as to that, using that conclusion in deciding whether New South Wales is a clearly inappropriate forum so far as the balance or totality of the action is concerned. Rather should all of what may be called the primary factors be considered together. 16 Nevertheless, the conclusion at which I have arrived is that New South Wales is a clearly inappropriate forum for the determination of the dispute. Most of the matters arguing in that direction are referred to in my earlier Reasons. I should add however reference to the fact that if the Plaintiff is allowed to continue its action here and Pope is not a party, Bollinger almost certainly will be obliged to call witnesses from Pope if Bollinger is to have any hope of disputing many of the Plaintiff's allegations. While Bollinger and Pope have a common interest in resisting the Plaintiff's claim, one must recognise also that their interests are in some respects in conflict. I think I may take note of the fact that there is commonly a practical difficulty in such a situation of obtaining co-operation of witnesses resident in another jurisdiction. 17 Although I do not need to rely on the fact, it seems to me not irrelevant also that, notwithstanding the substantial New South Wales connection to which Mr Meagher drew attention, at all times the Plaintiff knew that the packing and shipment of the printing press would have to be effected in New Zealand. The fact that Bollinger is located in New South Wales and not in New Zealand is not conclusive against the application - Sedgwick Ltd v Bain Clarkson Ltd (1995) 129 ALR 493 18 The more limited formulation of its claim in the proposed Amended Statement of Claim may well have had an impact on the issues and number of witnesses involved in the dispute between the Plaintiff and Bollinger but it was not suggested that, if the overall dispute is considered, this would be significant. 19 It was at one stage suggested that Bollinger's claim against the other parties was limited to $13,500.00, a figure mentioned in the New Zealand proceedings Bollinger has commenced, and so removed from the amount of the Plaintiff's claim as to indicate little likelihood of any claim by Bollinger resulting in significant dispute. However, I am satisfied that Bollinger has, and wishes to pursue, in addition to the claim for $13,500.00, a claim for the consequential losses the Plaintiff seeks against it. A loss adjuster's report attached to the affidavit of the Solicitor for the Plaintiff of 22 April 1998 indicates these consequential losses are in the sum of NLG$330,000. I think I may take judicial notice of the fact that one NLG is worth something of the order of $A0.75 so that Bollinger's claim, assuming it is liable to the Plaintiff in that regard, is of the order of $250,000. 20 To the conclusion expressed in paragraph 16 there is however one qualification. The Plaintiff's opportunity to successfully litigate its claim must not be prejudiced by matters such as jurisdictional limits or time bars which may apply in New Zealand and not in New South Wales. Bollinger did not dispute this reservation and, consistently with the statement that the Plaintiff did not intend to sue anyone in New Zealand, it was not suggested that Pope might be involved in the reservation. There was no attempt by any party to precisely formulate an order to give effect to it and it is of a nature such that the parties should have an opportunity to consider its terms. 21 However there should be some limit on the time during which Bollinger is exposed to further proceedings. The matter has not been argued but the normal 6 year limit from the accrual of the Plaintiff's cause of action does not seem inappropriate. Although this may not be precise, I am disposed to select as the commencement date for the period 8 November 1995, a date appearing on the Bill of Lading. Again, I will afford an opportunity to the parties to debate this date. 22 Because the order staying proceedings here will have the result of imposing extra costs on the Plaintiff if it does choose to pursue its claim in New Zealand, and Bollinger will be the substantial beneficiary of it, Bollinger should bear these extra costs. Set out below is a form of order I propose in this regard but because the precise form of this order also has not been the subject of argument, I will provide an opportunity to debate its form. 23 Pope has succeeded in its Notice of Motion of 8 December 1997 and is entitled to its costs of the motion and, in light of all of my reasons, of the action against the Plaintiff. Subject to the caveat that it desired only one forum, Bollinger originally supported the Plaintiff. Although it has now had some success, it should pay its own costs of and incidental to the motion. 24 The general costs of the action both of the Plaintiff and of Bollinger, other than those I have mentioned, should be determined by the result of the dispute between them. Given no proceedings have been commenced by the Plaintiff in New Zealand, the best course seems to me to reserve them. This matter also was not argued. 25 The orders which seem to me appropriate are: (i) Conditional on the First Defendant, Bollinger Shipping Agency Pty Limited, undertaking to the Court that it will - (a) submit to the jurisdiction of any court in New Zealand in which the Plaintiff may, on or before 7 November 2001, commence proceedings on the cause(s) of action pleaded herein, (b) subject to sub-paragraph (a) hereof, in such proceedings waive any defence which would not be available to it in these proceedings, and (c) consent to any extension of time sought by the Plaintiff which is necessary to give effect to sub-clause (b) hereof, stay the further prosecution of these proceedings. (ii) Order the Plaintiff to pay the costs of the Second Defendant of and incidental to the proceedings, including the costs of and incidental to the Notice of Motion of 8 December 1997. (iii) Order the First Defendant to pay its own costs of and incidental to the Notice of Motion of 8 December 1997 (iv) Order the First Defendant to pay so much of the Plaintiff's costs of and incidental to the proceedings, other than the costs of and incidental to the Notice of Motion of 8 December 1997 and of and incidental to the Plaintiff's claim against the Second Defendant, as will not be of use to the Plaintiff if it commences and prosecutes proceedings in a New Zealand court on the cause(s) of action pleaded herein. (v) Subject to the foregoing, the general costs of the action other than those I have mentioned, both of the Plaintiff and of the first Defendant are reserved. (vi) Liberty to apply in respect of the conditions upon which the stay referred to in order (i) hereof, is or may be, granted or continued. 26 Without making those orders, I will publish these Reasons and stand the proceedings over for a short period for the parties to consider their form. *********************************8 Last Modified: 06/30/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.