Alstom Power v Polar Circle A.S. [2004] FCA 607

Alstom Power v Polar Circle A.S. [2004] FCA 607

Leave to serve the second defendant outside the Commonwealth was granted because the evidence disclosed a sufficient prima facie case that negligent or deficient loading and stowage supervision caused the cargo to shift and suffer damage in Australia, satisfying Order 8 rule 1, and because Malaysia's non-convention status made the ordered mode of service appropriate.

Jurisdiction
Australia
Judgment Date
10 May 2004
Procedural Posture
Admiralty and Maritime; Practice and Procedure; Service Ex Juris / Plaintiff's Application for Leave to Serve the Application and Statement of Claim on the Second Defendant Outside the Commonwealth
Outcome
Leave granted to serve the application and statement of claim on the second defendant outside the Commonwealth; costs of the application to be the plaintiff's costs in the cause; leave granted to amend the return date for the second defendant to 26 July 2004.
Legal Topics
['service Outside the Commonwealth' 'prima Facie Case for Service Ex Juris' 'cargo Damage' 'negligence or Breach of Duty' 'federal Jurisdiction in Admiralty']
['admiralty and Maritime' 'civil Procedure'] ['service Outside the Commonwealth' 'prima Facie Case for Service Ex Juris' 'cargo Damage' 'negligence or Breach of Duty' 'federal Jurisdiction in Admiralty']

Case Brief

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Procedural Posture

Admiralty and Maritime; Practice and Procedure; Service Ex Juris / Plaintiff's Application for Leave to Serve the Application and Statement of Claim on the Second Defendant Outside the Commonwealth

Legal Issues

  1. 1 ['Whether leave should be granted under Order 8 rule 2 of the Federal Court Rules to serve the application and statement of claim on the second defendant outside the Commonwealth.' 'Whether the plaintiff had shown a sufficient prima facie case of negligence or breach of duty and damage in Australia to satisfy Order 8 rule 1.' 'What method of service was appropriate in Malaysia, a non-convention country.']

Ratio Decidendi

Leave to serve the second defendant outside the Commonwealth was granted because the evidence disclosed a sufficient prima facie case that negligent or deficient loading and stowage supervision caused the cargo to shift and suffer damage in Australia, satisfying Order 8 rule 1, and because Malaysia's non-convention status made the ordered mode of service appropriate.

Court Disposition

Leave granted to serve the application and statement of claim on the second defendant outside the Commonwealth; costs of the application to be the plaintiff's costs in the cause; leave granted to amend the return date for the second defendant to 26 July 2004.

Orders

  • ['Leave be granted pursuant to Order 8 rule 2 of the Federal Court Rules to serve the application and statement of claim, both dated and filed herein on 7 April 2004, on the second defendant outside the Commonwealth.' 'Service of the originating process in the proceedings be effected upon the second defendant by...