Kirby v International CargoInternational Cargo v Hamburg Sud [1999] NSWSC 706

Kirby v International CargoInternational Cargo v Hamburg Sud [1999] NSWSC 706

The stay application was refused because Kirby had not sued Norfolk in the Supreme Court of New South Wales and was entitled to proceed against ICC and Hamburg Sud in the only court in which, by the contractual jurisdiction clauses and expired time limits, it could sue them. The inconvenience in litigating claims against Norfolk, if any, arose between Norfolk and ICC or Hamburg Sud, not between Norfolk and Kirby. The Notices of Motion were not properly constituted to obtain a stay of ICC's and Hamburg Sud's claims and cross-claims against Norfolk, and no useful general stay should be made.

Jurisdiction
Australia
Judgment Date
19 July 1999
Procedural Posture
Admiralty Proceedings; Application for Stay / Determination of Notices of Motion Filed on 13 May 1999 Seeking a Permanent Stay or Stay Pending Final Determination of United States District Court Proceedings
Outcome
Notices of Motion dismissed with costs; stay refused.
Legal Topics
['stay of Proceedings' 'forum Non Conveniens' 'anti Suit Injunction' 'jurisdiction Clauses' 'bills of Lading' 'limitation of Liability' 'concurrent Foreign Proceedings']
['admiralty' 'civil Procedure' 'private International Law' 'carriage of Goods'] ['stay of Proceedings' 'forum Non Conveniens' 'anti Suit Injunction' 'jurisdiction Clauses' 'bills of Lading' 'limitation of Liability' 'concurrent Foreign Proceedings']

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Procedural Posture

Admiralty Proceedings; Application for Stay / Determination of Notices of Motion Filed on 13 May 1999 Seeking a Permanent Stay or Stay Pending Final Determination of United States District Court Proceedings

Legal Issues

  1. 1 ['Whether proceedings 15 of 1998 and 17 of 1998 should be stayed pending final determination of proceedings brought by Kirby in Atlanta, Georgia, USA.' 'Whether Kirby should be precluded from pursuing proceedings in the Supreme Court of New South Wales against ICC and Hamburg Sud when those were the parties and forum required by the bills of lading and Kirby had not sued Norfolk in this Court.' 'Whether the Notices of Motion, as constituted, justified orders affecting claims and cross-claims brought by ICC and Hamburg Sud against Norfolk.']

Ratio Decidendi

The stay application was refused because Kirby had not sued Norfolk in the Supreme Court of New South Wales and was entitled to proceed against ICC and Hamburg Sud in the only court in which, by the contractual jurisdiction clauses and expired time limits, it could sue them. The inconvenience in litigating claims against Norfolk, if any, arose between Norfolk and ICC or Hamburg Sud, not between Norfolk and Kirby. The Notices of Motion were not properly constituted to obtain a stay of ICC's and Hamburg Sud's claims and cross-claims against Norfolk, and no useful general stay should be made.

Court Disposition

Notices of Motion dismissed with costs; stay refused.

Orders

  • ['In proceedings 15 of 1998 and 17 of 1998, the Notices of Motion filed on 13 May 1999 be dismissed.' "Norfolk and Hamburg Sud pay Kirby's costs of the Notices of Motion." "No order in respect of ICC's costs." 'Exhibits be returned.']