Elders IXL Ltd & Ors v Lindgren Pty Ltd & Anor [1988] FCA 218

Elders IXL Ltd & Ors v Lindgren Pty Ltd & Anor [1988] FCA 218

The transfer was refused because Lindgren's proposed claim against Gunze was not, in a legal sense, a claim for contribution or indemnity but an independent claim for damages for breach of contract, and Pt 10 r 1(2) did not alter the construction of Pt 10 r 1(1)(f) or (i) so as to authorise service outside the jurisdiction. In any event, the Court was not satisfied that transfer would be in the interests of justice, given the likely connection of the Gunze contract with Japan, possible application of Japanese law, potential unfairness to Gunze, possible different issues on the cross-claim, and the need to bring the existing proceedings on for hearing without further delay.

Jurisdiction
Australia
Judgment Date
17 May 1988
Procedural Posture
Notice of Motion by the Respondent to Transfer Federal Court Proceedings to the Supreme Court of New South Wales Under S.86 a of the Trade Practices Act 1974 / Interlocutory Application Following an Earlier Ruling That the Federal Court Rules Did Not Authorise Overseas Service of the Cross Claim
Outcome
Application dismissed with costs.
Legal Topics
['transfer of Proceedings' 'service Outside Jurisdiction' 'cross Claim' 'contribution or Indemnity' 'interests of Justice' 'foreign Proper Law']
['practice and Procedure' 'trade Practices' 'contract Law' 'private International Law'] ['transfer of Proceedings' 'service Outside Jurisdiction' 'cross Claim' 'contribution or Indemnity' 'interests of Justice' 'foreign Proper Law']

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Procedural Posture

Notice of Motion by the Respondent to Transfer Federal Court Proceedings to the Supreme Court of New South Wales Under S.86 a of the Trade Practices Act 1974 / Interlocutory Application Following an Earlier Ruling That the Federal Court Rules Did Not Authorise Overseas Service of the Cross Claim

Legal Issues

  1. 1 ['Whether the proceedings should be transferred to the Supreme Court of New South Wales under s.86A of the Trade Practices Act 1974.' "Whether Pt 10 r 1(1)(f) and r 1(2) of the Supreme Court rules would authorise service outside the State of Lindgren's cross-claim against Gunze Limited." 'Whether Pt 10 r 1(1)(i) and r 1(2) of the Supreme Court rules altered the construction previously reached under the equivalent Federal Court rule.' 'Whether transfer would be in the interests of justice under s.86A(2)(b).']

Ratio Decidendi

The transfer was refused because Lindgren's proposed claim against Gunze was not, in a legal sense, a claim for contribution or indemnity but an independent claim for damages for breach of contract, and Pt 10 r 1(2) did not alter the construction of Pt 10 r 1(1)(f) or (i) so as to authorise service outside the jurisdiction. In any event, the Court was not satisfied that transfer would be in the interests of justice, given the likely connection of the Gunze contract with Japan, possible application of Japanese law, potential unfairness to Gunze, possible different issues on the cross-claim, and the need to bring the existing proceedings on for hearing without further delay.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed, with costs.']