Puccini Festival Australia Pty Ltd v Nippon Express

PRACTICE AND PROCEDURE - Application for summary judgment by defendant - Plaintiff claimed in the alternative against Italian company and Australian company for delay in shipping of goods - Defendants subsidiaries of international holding company - Australian company denies that it was a party to the shipping contract - Australian company referred to during negotiations with Italian company - Australian company issued invoice for the freight in its own name - Plaintiff's claim against Australian company not hopeless - Summons dismissed - Supreme Court (General Civil Procedure) Rules 2005, Order 23.

1 These reasons deal with two related appeals by the plaintiff against decisions of the Senior Master arising out of summonses issued by the first and second defendants respectively.

2 By its amended statement of claim, the plaintiff, Puccini Festival Australia Pty Ltd ("PFA"), alleges that it had a contract with the first defendant, Nippon Express (Australia) Pty Ltd ("NEA"), or alternatively with the second defendant, Nippon Express Italia Srl ("NEI"), for the transportation from Italy to Australia by sea of certain theatrical sets and costumes needed for three proposed performances in Melbourne of the opera "Turandot" by Puccini. The goods remained at all times the property of an Italian organisation, Fondazione Festival Pucciniano ("FFP"), to which they were to be returned after the proposed Melbourne performances. PFA claims that the relevant defendant was in breach of contract by reason of the late delivery of the goods to Melbourne. It claims damages in the sum of $275,000 for alleged consequential loss.

3 It appears that both the first defendant and the second defendant are wholly owned subsidiaries of a Japanese company, Nippon Express Co.

4 Originally, PFA sued NEA alone. NEA admitted that PFA was a party to a contract for the carriage of the goods, but alleged that the contract was with NEI, not itself. PFA then issued an amended writ with an amended statement of claim naming both defendants (in the alternative).

5 PFA served the amended writ on NEI out of the jurisdiction in reliance on rule 7.01(1)(g), which enables service out where:

(g) the proceeding is brought in respect of a breach committed within Victoria of a contract wherever made, even though that breach was preceded or accompanied by a breach out of Victoria that rendered impossible the performance of that part of the contract which ought to have been performed within Victoria."

6 There is no dispute that this is a case where the allegation of the breach answers the description in rule 7.01(1)(g).

7 NEI says, and I do not think that PFA has been heard to disagree, that the reference in rule 7.01(1)(g) to a "contract" is a reference to a contract to which the plaintiff is alleged to be a party, whether or not the references to a "contract" in paragraph (f) and paragraph (h) of rule 7.01(1) are to be similarly construed.[1] I will proceed accordingly.

8 By a summons filed on 21 July 2006 NEI sought orders setting aside the service on it of the amended writ, on the basis that the requirements of rule 7.01(1)(g) had not been complied with in that the plaintiff was not a party to the contract pleaded against NEI. NEI says that it dealt contractually with FFP (as consignor) or, in the alternative, with an entity called "Australian Land and Development Company" and/or a person named Manuel Jiminez-Navarro (as consignor and/or consignee) but not with the plaintiff, PFA (in any capacity). Alternatively, NEI alleges that Victoria is not the appropriate forum for the disposition of the proceeding and on that basis it seeks to have the proceeding stayed.

9 NEA's summons was filed on 10 August 2006. It sought summary judgment under Order 23 of the Rules on the basis that it was hopeless for the plaintiff to argue that it (NEA) was a party to the relevant contract.

10 Both summonses came on before Senior Master Mahony on 9 November 2006. In relation to NEI's summons, the Master took the point that the endorsement on the writ did not comply with the requirements of rule 7.02 because it did not refer to the relevant paragraph of the amended statement of claim, and the Master set aside service on NEI because of that defective endorsement. He gave the plaintiff leave to file a further amended writ and ordered the plaintiff to pay certain specified costs.

11 In relation to NEA's summons, the Master determined that it was premature to dismiss the proceeding as against NEA. He gave leave to the plaintiff, until 28 February 2007, to further amend the statement of claim and to apply to add parties. Otherwise he adjourned NEA's application until 28 March 2007. He ordered the plaintiff to pay the costs.

12 The plaintiff appealed against the Senior Master's orders in both matters. The appeals came on for hearing before Harper J in the Practice Court on 12 December 2006. As to the NEI matter, his Honour allowed the plaintiff's appeal, save as to the Senior Master's order for costs. His Honour ordered that the Senior Master's order setting aside service be itself set aside. He gave leave to the plaintiff to amend the endorsement to bring it into compliance with r 7.02. These orders were expressed to be made without prejudice to the applications made by NEI in its summons. His Honour then ordered, in effect, that the remaining questions arising on NEI's summons be referred to the Listing Master for the fixing of a date for hearing and determination. NEI was ordered to pay the plaintiff's costs of the appeal (thus far incurred) and was granted a certificate under the Appeal Costs Fund Act 1998. The entirety of the appeal in the NEA matter was referred to the Listing Master, to be heard together with the outstanding issues in the NEI matter.

13 It is agreed on all sides that the task for me, being the judge to whom these matters have been referred for hearing and determination, is, in effect, to entertain the summonses of the two defendants de novo and to determine them, subject only to the orders made by Harper J. In particular, despite what might otherwise appear from paragraph 7 of the orders of Harper J, it is agreed that I am not required to make a final determination of the question who were the parties to the relevant contract, but rather I am to apply the appropriate tests in relation to that question and the other questions arising in these matters and thus to determine the respective summonses as originally issued.

14 It is convenient to deal with NEI's summons first. Counsel for NEI, Mr Morfuni SC, submitted that in a proceeding where service out of the jurisdiction is sought to be set aside the plaintiff bears the onus "of establishing that there is a strongly arguable case, more than a prima facie case, that the relevant conditions of rule 7.01 have been satisfied". Mr Morfuni cited a number of authorities in support of that proposition, including the decision of the Court of Appeal in Schib Packaging Srl v Emrich Industries Pty Ltd[2]. Counsel for the plaintiff, Mr Ravech, told me that, on reflection, he did not wish to submit to the contrary. However I doubt that Mr Ravech's concession is correct. Unless there is a relevant distinction between rule 7.01 and the corresponding provisions of the Supreme Court Rules 1970 (NSW) which were considered by the High Court in Agar v Hyde[3] (and at present I cannot see any), the observations of Gaudron, McHugh, Gummow and Hayne JJ, at paragraphs [42]-[61] (and especially at paragraphs [50] and [60]) of Agar, would seem to establish that, on an application to set aside service out of the jurisdiction, it is for the plaintiff to show, merely, that according to the allegations made, the plaintiff's proceeding answers one or other of the descriptions in rule 7.01(1)(a)-(n); and then it is for the defendant to show (if the defendant be so advised) that there is a high certainty that the plaintiff's claim (as a whole) will fail. With respect, I doubt whether Schib and the earlier cases referred to in Schib and relied on by Mr Morfuni can be reconciled with the observations to which I have referred. Agar is not referred to in Schib. In Eagle v Delta Haze Corporation[4], a single judge of this Court cited the judgment of Gleeson CJ in Agar[5] in support of the proposition that the question is whether there is a good or strong arguable case that the jurisdictional nexus exists. However, with respect, it seems to me that the view of Gleeson CJ (like that of Callinan J in Agar) was a minority view.[6] Nevertheless, in view of the concession, I will proceed on the basis that the plaintiff must establish that there is a strongly arguable case that it and NEI were parties to the agreement relied upon by it to justify service out of the jurisdiction.[7]

15 In its pleading and in affidavits, the plaintiff particularises the alleged agreement by reference to a number of email communications which commenced in August 2004. The emails related mainly to prices, terms and conditions for the proposed transportation of the goods. At first the emails were between FFP and NEI. (The plaintiff asserts that FFP was acting as its agent in this regard, although the agency arrangements are not clearly spelt out.) Later, commencing 8 September 2004, an individual residing and located in Australia, the abovementioned Manuel Jiminez-Navarro ("Jiminez"), physically took over the communications from the side of the carrier's potential "customer". Jiminez sent his emails from Australia from an email address containing the expression "ALDC". On some occasions (including the important email of 14 September 2004 to which I am about to refer) the expression "Australian Land and Development Company" and the address 518 Elizabeth Street, Melbourne appeared beneath Jiminez's name, at the foot of the email. However, there is no evidence as to whether "Australian Land and Development Company" is the name of a legal entity or a business name or something else; nor is there any evidence as to the nature of any connection there may have been between "Australian Land and Development Company" and the proposed Puccini festival in Australia[8]. On the other hand, there is uncontested evidence that Jiminez was the sole director and exclusive controller of the plaintiff, PFA. In the email to NEI of 14 September 2004, which I regard as critical, the author said:

"Thank you for your email and we accept your quote. Please invoice Australia Puccini Festival Pty Ltd at 518 Elizabeth Street, Melbourne Victoria 3000, Australia."

Of course, the correct name of the plaintiff is "Puccini Festival Australia Pty Ltd", not Australia Puccini Festival Pty Ltd. However, the plaintiff's address is correctly stated in the body of the email as 518 Elizabeth Street, Melbourne (albeit that the same address is given for "Australian Land and Development Company" at the foot of various emails). On 16 September 2004, NEI replied to the email of 14 September 2004. So far as is relevant, NEI said:

"For Manuel only: thanks for your acceptance, be informed that you will rcv our debit through our Nippon Express-Melbourne office."

16 Counsel for the plaintiff, Mr Ravech, submits that the agreement was finally concluded by the email of 14 September 2004 or alternatively by the email of 16 September 2004. On the other hand, Mr Morfuni submits for NEI that the agreement was not concluded until 25 September 2004 when NEI issued a bill of lading. Further, he submits that the evidence does not support the plaintiff's contention that the plaintiff was a party to the agreement for carriage of the goods. Mr Morfuni made several points in that regard, which I will now deal with one by one.

17 First of all, Mr Morfuni said that the plaintiff was not even mentioned in any of the negotiations. That would only be correct if one were not prepared to read the email of 14 September as referring to the plaintiff. I think it is more than strongly arguable that the email of 14 September, which purported to accept a prior offer from NEI, does refer to the plaintiff and I would, in that regard, apply the maxim falsa demonstratio non nocet (see further below). It seems to me that the reference in the email to "Australia Puccini Festival Pty Ltd" was a mere misdescription of the name of the plaintiff, which justice requires be read as though it were correctly set out. Jiminez swears that as far as he is aware no entity of the name set out in the email exists, that the reference was intended to be a reference to the plaintiff, that the description was a mistake and that the plaintiff is located at the address specified in the email. NEI did not apply for leave to cross-examine Jiminez on these assertions or at all. In these circumstances, it is extremely difficult for NEI to suggest that Jiminez intended to refer to some entity other than the plaintiff. Moreover, the reference was very close to an exact reference to the plaintiff. The words used were the exact words of the plaintiff's name, but partly in the wrong order. The reference was plainly a reference to a proprietary limited company. The company's address was correctly specified. It is true that the judicial task is not to discover the actual intention of each party, but rather to decide what each was reasonably entitled to conclude from the attitude of the other.[9] In my view the plaintiff (acting through Jiminez) was reasonably entitled to conclude from the attitude of NEI that NEI was content to deal with the plaintiff.

18 Mr Morfuni submitted that there was in fact an entity named "Australia Puccini Festival" to which the email may have been intended, or may have been understood, to refer. This submission was put by reference to a written agreement between FFP and the plaintiff dated 4 November 2004 relating to the facilitation of the proposed performances in Australia. However, on my reading of that agreement, the reference therein to "Australia Puccini Festival" was a broad reference to the proposed event, not a reference to any particular legal entity. Jiminez's evidence indicates that, apart from the plaintiff, no legal entity with such a name (or any like name) exists. There is evidence that the written agreement was a formalisation of an agreement entered into orally in July 2004. However there is no indication that NEI was privy to or aware of the agreement at any relevant time. In any event, none of this suggests that NEI had any cause to believe that, when referring to "Australian Puccini Festival Pty Ltd", Jiminez intended to refer to FFC or to "Australian Land and Development Company" or to Jiminez himself. Indeed, NEI must surely have realised that Jiminez was specifically requesting that NEI invoice an entity distinct from any entity or person previously referred to in the course of the negotiations. NEI's email of 16 September indicates strongly that NEI was content to deal with whatever entity Jiminez intended to refer to in the email of 14 September 2004.[10]

19 The maxim falsa demonstratio non nocet has been applied many times in many different contexts, including quite recently in the Victorian Court of Appeal in Mountain Pine Furniture Pty Ltd v Taylor[11]. It was applied in a more relevant context by the House of Lords in Adamastos Shipping Company Ltd v Anglo Saxon Petroleum Co Ltd[12]. That case, like this, was a shipping case. The parties entered into a charterparty. The charter referred to a "paramount clause ... as attached". A typed clause was physically attached. However it contained the opening words "This bill of lading" as distinct from "This charterparty". The charterers alleged that this made the clause meaningless and inoperative. The House of Lords disagreed. Viscount Simon said that the parties had "a common meaning and intention" which compelled his Lordship to regard the opening words as a conspicuous example of the maxim falsa demonstratio non nocet.[13] His Lordship went on to say that he had no difficulty in seeing the "broad purpose and intent of the parties" and continued[14]:

"I must reject, if I can, the unattractive argument urged by the charterers through their counsel that the agreement to which they put their hands meant nothing at all."

20 A similar approach was taken by Emmett J in relation to a comparable situation in another shipping case, Hi-Fert Pty Ltd v United Shipping Adriatic Inc[15], although his Honour did not refer to the maxim in terms.

21 The maxim was referred to and applied in Ford Motor Company of Australia v Arrowcrest Group[16], a decision of Finkelstein J, in which his Honour said[17]:

"As regards the applicability of cl 11, ROH's principal submission was that the clause was only concerned with a failure to comply with the provisions in the 'Purchase Order' and the breach alleged was of a condition to the Memorandum. I think that the answer to this point is to apply the principle falsa demonstratio non nocet to disregard 'what is inaccurate and inapplicable and [proceed] upon that which is appropriate and intelligible and what are evidently intended to be the governing words'."

22 Likewise, in Manpac Industries Pty Ltd v Work Cover Authority of New South Wales[18], Wright, Walton and Hungerford JJ said:

"The said maxim, literally meaning that a false description does not vitiate a document, has application in law to the effect that if a description of something is partly true and partly false then, if the true part describes the subject with sufficient certainty, the false part will be ignored. In conceptual terms, it seems to us the maxim is apt to apply in the present case because the identification of the defendant was correct in the name but where an incorrect ACN was added ... ... We should not be seen as holding that the maxim falsa demonstratio non nocet is decisive of the issues as it is but a guide, to be utilised in appropriate circumstances, where a false description may sensibly be rectified if it is in the interests of justice to do so."

23 In my view, in the present case, the circumstances are sufficient to show, at least on a strongly arguable basis, that the plaintiff was mentioned in the negotiations and, indeed, in a critical part of them, namely, the part whereby the agreement was allegedly concluded.

24 The next matter relied on by counsel for NEI is that the plaintiff is not named in any of the shipping documents. There have been long discussions about that issue during the course of the argument before me. NEI refers to three documents in particular: a bill of lading, a certificate of fumigation and an Italian Customs declaration. I will deal first with the bill of lading.

25 The bill of lading names FFC as the "shipper". The name of the "consignee" appears as follows:

26 The plaintiff says that the bill of lading was not binding on it at all and, in any event, was not definitive or exhaustive as to the identity of the parties to the contract. The plaintiff's case is that the contract was complete by 14 or 16 September 2004 (whereas the bill of lading was not issued until 25 September 2004) and that, in all the circumstances, the bill of lading was not a contractual document and is not even evidence of the terms of the contract.[19] It is common ground that neither the plaintiff nor FFC nor any relevant Australian party was provided with a copy of the bill of lading or made aware of its terms at any relevant time. The plaintiff relies on the following observation in Davies and Dickey, Shipping Law and on the authorities cited by the learned authors in support[20]:

"If the carrier does not issue a booking note when the contract is first made and makes no other effort to draw its standard terms to the attention of the shipper at that time, it surely cannot expect to rely on the protection those standard terms are designed to give."

27 NEI responds that the shipper/consignor (whoever that was) must be taken to have been aware that a bill of lading would issue and would take effect[21]; and that the bill of lading is conclusive or virtually conclusive as to the identity of the parties to the contract of carriage.

28 It is somewhat ironic that NEI is saying, on the one hand, that the plaintiff is not a party to the bill of lading and, on the other, that the bill of lading is conclusive against the plaintiff on the question of the identity of the parties to the contract. Further, should the proceeding against NEI be permitted to continue, NEI will presumably argue, at least in the alternative, that the plaintiff is bound by the restrictions in the bill of lading. (NEI has already sought to rely on those restrictions against the plaintiff in support of NEI's alternative claim for a stay of this proceeding on forum non conveniens grounds: see further below. And, for its part, NEA pleads, as a primary defence, that, whichever defendant be the carrier, the plaintiff is bound by the bill of lading).

29 The question whether the bill of lading is binding on the plaintiff would be a major issue at any trial. For that reason alone it would be undesirable for me to say more about it than necessary at this interlocutory stage. As it happens, I see no need to express a view on it at all. It seems to me that NEI is incorrect in its submission that the bill of lading is conclusive or virtually conclusive as to the identity of the parties. Mr Morfuni did not cite any authority to the effect that bills of lading are conclusive as to the parties. Indeed he acknowledged that additional parties may gain rights to sue under or in relation to bills of lading in accordance with general shipping law and practice.[22] Further, I note that in Hi-Fert Pty Ltd v United Shipping Adriatic Inc and Others[23], the bill of lading contained no reference to the shipowner (as distinct from the sub-charterer) but it was common ground that, by the issue of the bill of lading, a contract of carriage came into existence between the consignee and the shipowner.

30 Whether or not in the present case the bill of lading is ultimately found to be binding on the plaintiff, it was not the plaintiff's document. It was issued by NEI. In my view, the mere fact that it does not name the plaintiff as either the consignor or the consignee is not conclusive by any means, and indeed, in the particular circumstances of the present case, that fact is not highly indicative that the plaintiff was not a party to the contract. The form of the bill of lading in the present case is equally, if not more likely, to be explained as an administrative error by clerical staff in the office of NEI, who may have simply inserted a description which frequently appeared in the relevant email correspondence. I do not think that NEI can expect to be permitted to rely on its own documentation to the extent necessary to negate, for these interlocutory purposes, the impact of its apparent acceptance (by the email of 16 September 2004) of the specific request made in the email of 14 September 2004.

31 The bill of lading is not clear in itself as to the identity of the consignee. The description given might refer to Jiminez personally or to "Australian Land and Development Company" or to both. The address specified is the address of the plaintiff, albeit it is also the address elsewhere specified for Jiminez and for "Australian Land and Development Company". In practical commercial terms the consignee as described is not very far away from the plaintiff. There is nothing to indicate that there was a considered high level decision to name Jiminez and "Australian Land and Development Company" rather than the plaintiff. As I have said, this is more likely explained by imprecise work done at a clerical level.

32 The critical thing is the tenor of the communications between the senior people that were directly responsible for the making of the agreement, being the people who were the signatories to the emails. It is clear enough to me, for present purposes anyway, that the relevant person at NEI (Christina Mondini) was content to accept the plaintiff as the relevant entity for the purposes of the contract, or at least that NEI cannot be heard to say the contrary.

33 At all times NEI retained adequate security for its freight charges regardless of the identity of the other contracting party or parties. It had the benefit of a written, tolerably clear, direct undertaking from an authorised representative of the plaintiff that the plaintiff would pay the freight charges. Further, in the bill of lading, NEI nominated a related company, NEA, as the notifying party. NEA would thus have had complete control of the goods on their arrival in Melbourne. Therefore, as a matter of practicality, the carrier was highly unlikely to be out of pocket for the transaction. So it did not have any particular reason to be careful about the specification in the bill of lading of the precise name of the consignor or of the consignee.

34 I turn to certain other documents that were relied upon by Mr Morfuni: namely, a certificate of fumigation that was completed in Italy and a customs declaration (or "Carnet ATA") that was also completed in Italy. There is no mention of the plaintiff by name in either of those documents. However I regard them as being of very little weight for present purposes.

35 The documents were completed for specific purposes under Italian legal requirements. They were not completed (or even seen at any relevant time) by the plaintiff itself, or by Jiminez. The Italian certificate of fumigation, issued by the relevant Italian public health authorities on 22 September 2004, recites that the "exporter" is FFP and that the consignee is "Manuel Jiminez-Navarro Australian Land and Development Company". It states that the information "has been supplied by the exporter firm". The customs declaration was made on 22 September 2004 by FFP as the "holder" and as "represented by" NEI. The purpose of the customs declaration was to ensure that the goods could be re-imported into Italy duty free on the basis that they had merely been the subject of a temporary borrowing overseas. Mr Morfuni submitted that if the plaintiff had truly been the shipper of the goods, or even merely the consignee of the goods, its so-called "agent", FFP, would have known this and would have nominated the plaintiff accordingly in relation to both documents.

36 However, in my view, the two documents do not damage the plaintiff's case significantly. It is not surprising that FFP was named as the "exporter" in relation to the fumigation requirements, because it remained the owner of the goods and was taking a role in their temporary exportation by making them available for collection. Further, FFP would have the appropriate knowledge of the goods to supply to the fumigation authorities. The identity of the consignee was of little or no apparent significance for the purposes of the fumigation certificate. Similarly, in relation to the customs declaration, FFP was appropriately described as the "holder" of the goods insofar as it remained the owner of the goods and remained the party to which the goods were to be returned, duty free, after the completion of their use in Australia. The customs declaration made no reference at all to the identity of the consignee. Accordingly, I do not regard the absence of reference to the plaintiff itself in either of these two documents as being particularly significant for present purposes.

37 The next point relied on by Mr Morfuni is that, up until 8 September 2004, all of the discussions relating to the carriage were between NEI and FFP. That may be so, but there was then a major change and Jiminez personally came in to conduct the negotiations from Australia. He himself sent the critical email. In effect, the email nominates the plaintiff as being responsible to the carrier for payment. Jiminez swears that he did these things on behalf of the plaintiff. Indeed he swears that, previously, FFP were only acting as his agent. As I have already mentioned, NEI did not seek to cross-examine Jiminez at all.

38 Next, Mr Morfuni argued that by 8 September 2004 the terms and conditions of carriage had been fully communicated to FFP by NEI. I am not sure that that is right, because there is a great deal of confusion in the evidence about what the proposed terms and conditions of carriage were. The emails are by no means clear as to the prices and the other conditions. Clarity is not assisted, of course, because a lot of it was in Italian and has had to be translated and the translations are not easy to follow but, in any event, it does not seem to me to be an important point because, plainly, FFP did not itself at any time communicate any acceptance on its own behalf of the terms and conditions that were put forward. So there is no prospect of a finding that there was an agreement between FFP and NEI as at 8 September.

39 The next argument is that from 8 September Jiminez and "Australian Land and Development Company" were communicating with NEI solely to seek clarification of the terms, on behalf of FFC. This argument does not sit well with Mr Morfuni's previous point. In any event I do not accept it as a proper characterisation of the relevant emails. The emails speak for themselves. The critical email of 14 September 2004 indicates with sufficient clarity for present purposes that Jiminez was not purporting to act on behalf of FFC but rather was purporting to act on behalf of the plaintiff.

40 In effect I have already dealt with the next point, which was that "Australia Puccini Festival Pty Ltd", the description given in the email of 14 September, was not the plaintiff. In my view that point is dealt with by the application of the maxim to which I have referred.

41 Then it is said that even if one regards the plaintiff as being the entity that was referred to in the email, the reference to it would not be binding on NEI. I do not agree with that. If one reads the request in the email as referring to the plaintiff, then it is binding on NEI if NEI has accepted it. Did NEI accept it? I think it is strongly arguable that it did, namely by its own email of 16 September 2004, to which I have referred.

42 However, it is further argued that, ultimately, there was no compliance with the request to invoice the plaintiff and that this indicates that NEI considered that it was not dealing with the plaintiff.[24] However, the invoice was not issued by NEI. Nor was it issued in Italy. Rather, it was issued by NEA, in Melbourne. It is not clear to what extent NEI was involved in the invoicing process nor precisely how the invoice came to be addressed as it was. To the extent that, in its intra-group corporate communications, NEI may not have clearly or precisely specified the identity of the party with which it had been dealing, that was, again, its own doing. It cannot expect to place much reliance on it for present purposes. In any event, the point is one of little attractiveness given that the addressee of the invoice was located at the same address as the plaintiff, and the plaintiff was in fact the entity responsible for the getting up of the proposed Puccini Festival in Australia for which the goods in question were required.

43 Mr Morfuni submitted that the agreement of 4 November 2004 between the plaintiff and FFP (said to reflect an oral agreement made in July 2004) did not require the plaintiff to arrange the transport of the goods from Italy, but merely to be responsible (to FFP) for the freight charges. However, on my reading of the agreement, contrary to Mr Morfuni's submission, it was the responsibility of the plaintiff (which, incidentally, was correctly named in the agreement) not just to pay for, but also to arrange, the transportation of the goods from Italy to Australia . This is clear enough, in my view, from item 3 in the list of obligations of the plaintiff contained in Article 2 of the agreement, namely "the transportation of all materials". It seems to me that, apart from item 1, each of the items listed in Article 2 must have been for the plaintiff to organise. For example, this is crystal clear in relation to the arranging of the insurance policy (item 4); and in relation to the arranging of the airfares and board and lodging in Australia for the stage director and costume assistant (item 5); and also in relation to the loading and unloading in Australia of the scenes, costumes and equipment (item 2). There appears to be no reason to take a different view in relation to the "transportation of all materials" (item 3). In my view, the terms of the agreement between FFP and PFA make it more than strongly arguable that it was for the plaintiff, not FFP, directly to arrange and pay for the transportation of the theatrical goods from Italy to Australia.

44 It does not seem to me to be critical what particular label or category or heading one attributes to the plaintiff with respect to the shipping arrangements. The plaintiff could be regarded as the shipper/consignor or as the consignee, or as both, or simply as a party who had requested the provision of the transport service in return for a promise to NEI (or to NEA, as the case may be), to pay for it. It is very strongly arguable, in my view, that the effect of the critical emails of 14 and 16 September, in all the circumstances, is that the plaintiff was a party to the contract in one such way or another. The freight charges were duly paid. The bulk of the payment was made by way of a generic bank cheque. Jiminez swears that the plaintiff itself made that payment. There is no evidence to the contrary. The balance of the amount due (representing GST) was paid by a company cheque drawn by the plaintiff. There was no complaint about this by NEI (or NEA) at the time.

45 Overall, in my view, the plaintiff's claim against NEI is at least strongly arguable. Accordingly I am not prepared to set aside the service of the amended writ on the second defendant.

46 Mr Morfuni argued, in the alternative, that the proceeding should be stayed against his client on the basis that the courts of Victoria are an inappropriate forum. This claim was not argued with any great vigour by Mr Morfuni. He accepted that the proceeding may only be stayed if the forum is found to be "clearly inappropriate" in accordance with the authorities in the High Court and elsewhere that have considered this matter in recent times, including Oceanic Sun Line Special Shipping v Fay[25]; Voth v Manildra Flour Mills[26], Akai Pty Ltd v Peoples Insurance Company Limited[27], Regie Nationale Renault v Zhang[28] and Coloseum Investment Holdings Pty Ltd v Vanguard Logistics Services Pty Ltd[29]. The burden of persuasion on this matter is on the party seeking the stay and in general it is a burden not easily discharged.[30] NEI needs to show that a trial in Victoria "would be productive of injustice, because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious, in the sense of productive of serious and unjustified trouble and harassment".[31] I do not think that NEI has discharged this burden. Once again, I will deal with the points relied on by Mr Morfuni in the order in which he raised them.

47 Mr Morfuni submitted first that the contract had been made in Italy. In the case of instantaneous communications such as emails, the place of the contract is the place where notice of acceptance was received by the offeror.[32] So, if the plaintiff's email of 14 September 2004 constituted the notice of acceptance, the contract was made in Italy. On the other hand, if NEI's email of 16 September was the notice of acceptance, the contract was made in Australia. Then again, if there was no contract until the bill of lading was issued, the contract was made in Italy. The plaintiff's primary position is that the contract was concluded by the email of 14 September 2004. On that basis the contract would have been made in Italy, as the plaintiff's counsel acknowledged. However, in these days of modern communications, the place of contracting is often a matter of mere chance and is of little weight in determining the proper law of the contract.[33] It is of even less weight, of itself, as a "connecting factor" for the purposes of the forum non conveniens issue generally.

48 It is next put that the goods were in Italy. It is true that the goods were originally in Italy but the very purpose of the contract was to transport them to Australia.

49 Mr Morfuni says, next, that the contracting parties were in Italy. I do not think that that is right. The plaintiff's representative, Jiminez, was not in Italy at the relevant time. He is an Australian resident. The plaintiff is incorporated in Australia. Further, NEI told Jiminez that "our debit" would be received through "our Nippon Express - Melbourne office". This introduced another Victorian-based entity, NEA, into the picture. NEA later issued the relevant invoice in its own name. Unsurprisingly, the plaintiff has now sued both NEI and NEA, in the alternative. There is no suggestion that the claim against NEA should be heard elsewhere. It would be inconvenient and wasteful to have separate proceedings in different countries both raising the question of the identity of the parties to the contract.[34]

50 It is next put that the ship left from an Italian port. That is so, but the ship was required to transport the goods to an Australian port. The very basis of the plaintiff's claim is alleged delay in the ship's arrival at the Port of Melbourne.

51 Mr Morfuni submitted that the proper law of the contract is Italian law. This is highly debatable. Putting aside the bill of lading for a moment, Mr Morfuni does not suggest that the parties themselves have made an (express or implied) choice, in their contract, that Italian law should be the proper law of the contract.[35] If anything, it might be thought that Jiminez's request to NEI to invoice the (Melbourne-based) plaintiff, together with NEI's acceptance and its advice that the invoice would be received through "our Nippon Express - Melbourne office", provide some basis for an inference that the parties had chosen the law of Australia as the proper law of the contract.

52 On the other hand, clause 20 of the terms and conditions of the bill of lading provides:

"20.1 The contract evidenced by this Bill of Lading shall be governed by the laws of the country where the Carrier has his principal place of business and shall be decided according to the laws of such country.

20.2 No proceeding shall be brought before other courts unless the parties expressly agree on both the choise [sic] of another court or arbitration tribunal and the laws to be applicable."

If the bill of lading is binding on the plaintiff, then clause 20 would seem to amount to an express selection by the parties of the law of Italy as the proper law of the contract, given that the bill of lading specifies NEI as the carrier and NEI's principal place of business is in Italy. To the extent that it is a choice of law clause, clause 20 would not be overridden by s 11 of the Carriage of Goods by Sea Act 1991 (Cth).[36] I do not stop to consider whether there may be room to argue that it would be unconscionable to enforce the clause against the plaintiff due to an inequality of bargaining power, perhaps coupled with the fact that the plaintiff was not actually made aware of the existence or the terms and conditions of the bill of lading at any relevant time.[37] As already mentioned, there is a major dispute in this case as to whether the bill of lading is binding on the plaintiff at all (see paragraph 26 above). And, as I have also mentioned already (see paragraph 29 above), it would be undesirable for me to say any more than necessary about that question at this interlocutory stage. Once again, I see no need to express a view on the question in the present context, because my conclusion on the forum non conveniens issue as a whole would not be altered even if I were of the view that the bill of lading bound the plaintiff and produced the result that Italian law is the proper law of the contract. I say this for the reason, among other reasons, that, when pressed, Mr Morfuni was unable to point to any significant difference between the law of Italy and the law of Australia concerning the issues in the present case. Indeed I think that Mr Morfuni conceded that the relevant shipping laws in both places were in standardised form.[38] Certainly NEI did not lead any expert evidence as to any relevant differences. In Regie Nationale Renault v Zhang[39], the following was said:

"An Australian court cannot be a clearly inappropriate forum merely by virtue of the circumstance that the choice of law rules which apply in the forum require its courts to apply foreign law as the lex causae."

53 For completeness, however, I would note that, absent any choice of law by the parties themselves in the bill of lading or otherwise, the Court would, in determining the proper law of the contract, be required to look for "the system of law with which the transaction has its closest and most real connection".[40] Relevant factors would include the place of contracting, the place of performance, the place of residence or business of the parties respectively, and the nature of the subject matter of the contract.[41] I have already expressed the view that, in this case, the place of contracting is of little significance. The place of performance was, principally, Melbourne, in that the carrier's essential task was to get the goods to Melbourne; and the obligation of the customer was to pay the freight charges in Melbourne, in Australian dollars. The plaintiff was based in Melbourne. NEI was a member of a multi-national corporate group which had a Melbourne office. The subject matter of the contract was as I have just described. The factors considered so far would tend significantly in favour of Australian law as the law with which the contract has the "closest connection". The law of the flag would be neutral, because the ship was registered in Israel.[42]

54 In summary on this aspect, there is real doubt whether the proper law of the contract is Italian law; and, even if it is, this would not be a strong factor in favour of a stay.

55 More generally, the above analysis reveals significant connecting factors between the case as a whole and the Victorian forum.

56 It is next put by Mr Morfuni that the Italian legal system provides a remedy. That may well be so, although there were no particulars or details given of which particular court, or court system, would be available to deal with this matter in Italy. It was mentioned that the plaintiff had been prepared to agree with FFC that any dispute arising out of the contract between those parties would be settled by "Rome Law Courts". However this is far from establishing that "Rome Law Courts" would be a suitable venue for resolving the present dispute between the plaintiff and NEI.

57 Mr Morfuni also refers to the exclusive jurisdiction clause in the bill of lading, namely cl 20.2 (which is set out in paragraph 52 above). That clause is not specific as to which particular courts in Italy would be appropriate. Further, as already mentioned, there is a dispute as to whether the bill of lading is applicable at all. Moreover, as Mr Morfuni ultimately acknowledged, section 11 of the Carriage of Goods by Sea Act 1991 would render cl 20.2 of the bill of lading of "no effect". Mr Morfuni submits, nevertheless, that cl 20.2 "manifests the intention of the contracting parties". However, a similar submission was rejected by the Full Federal Court in Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5).[43]

58 It is then put that most of the witnesses are outside Australia and that the only witness who resides in Australia is Jiminez, but in the end Mr Morfuni was only able to refer to two witnesses who were based in Italy, namely Ms Mondini and Mr Tappia. There was some reference made to the master of the ship but he is not known to live in Italy. As already mentioned, the ship was a chartered vessel registered in Israel. Beyond that, nothing is known as to where the master may reside. Nor is it clear by any means that the master would be a necessary witness. It does not seem to me therefore that there is a significant preponderance of witnesses who would be inconvenienced by being brought to Australia for the hearing. In any event, these days there is extensive availability of audio visual facilities that may alleviate or even eliminate the need for witnesses to travel to Australia.[44] This is a case where most of the evidence, it seems, will be documentary evidence in any event. It is true that there is a dispute on one factual matter concerning a telephone conversation to which Ms Mondini was said to be a party (concerning the question whether Jiminez was warned about the risk of delay involved in non-direct shipping) but this does not seem to loom large in the overall scheme of the case.

59 I am not satisfied that this is a case where the courts of Victoria are clearly inappropriate, as the test is explained in the authoritative cases.

60 The second defendant's summons will be dismissed.

61 This brings me to the first defendant's summons. As I have mentioned, the first defendant, NEA, seeks the summary dismissal of the plaintiff's claim on the basis that it is hopeless for the plaintiff to argue that NEA is a party to the relevant contracts.

62 I note that the test to be met by NEA is a stringent one. The plaintiff has referred to Lindon v Commonwealth (No. 2)[45] where Kirby J said:

"Even a weak case is entitled to the time of the court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment."

I am by no means satisfied to the requisite extent that the claim against the first defendant is unmaintainable.

63 The two defendants appear to be wholly owned subsidiaries of a Japanese company that operates worldwide as a freight forwarder and carrier. They seem to cooperate closely with each other in relation to that overall business. The plaintiff, it is true, was initially dealing with NEI, but in response to its email of 14 September 2004 it received a response (from NEI) saying that the debit would be received "through our Nippon Express - Melbourne office".

64 There has been quite a bit of discussion about what that email meant, but the very nature and extent of the discussion about its meaning rather tends to highlight the arguability of the plaintiff's point[46], namely that the email gave the impression that the Melbourne based company was going to be responsible overall for the delivery of the services that were being requested by the plaintiff. That impression, as the plaintiff submits, was reinforced by the terms of the invoice that was ultimately issued by the Australian company, NEA. The invoice did not describe itself as being issued on behalf of anybody other than the Australian company. It detailed ocean shipping as the principal item in relation to which it was being issued. The Australian company was apparently saying that it had taken responsibility for the provision of the relevant services.

65 In a recently filed affidavit of NEA's Australian manager, Mr Yoshida, there is a relatively detailed explanation of the make-up of the invoice, most of which tends to be quite consistent with the view that, in the end, responsibility had been assumed by NEA for the whole of the services in question, including the sea transport, vis-a-vis the plaintiff.

66 It was not disputed by counsel for NEA that it was itself responsible for the services that were provided after the goods arrived in Australia and it seems to me to be not a long step to the conclusion that NEA had taken responsibility for the whole of the invoiced services. The various services were not treated as distinguishable in the invoice or indeed in the critical email of 16 September.

67 So it does not seem to matter whether one looks at the matter as a case of undisclosed principal or as a case of disclosed principal or as a case of assignment or implied novation of contractual rights and obligations, being the three ways in which the matter has been analysed in argument. Whichever way one looks at it, it seems to me that it is not hopeless for the plaintiff to submit that responsibility (to it) for the provision of the services under the contract was undertaken or assumed by the first defendant, NEA.

68 For these reasons I would dismiss both summonses.

69 I will hear counsel as to the proper form of the orders to be made and as to costs.

[1] Compare Williams, Civil Procedure Victoria [I 7.01.110].

[2] [2005] VSCA 236 at [10].

[3] [2000] HCA 41; (2000) 201 CLR 552.

[4] [2000] VSC 513 at [10].

[5] [2000] HCA 41; (2000) 201 CLR 552 at [8].

[6] I do not stop to consider whether the observations of the majority represent ratio or mere obiter dicta.

[7] Agar v Hyde was not cited to me by counsel and was not the subject of any consideration or submissions during the hearing.

[8] Compare NEA's counterclaim for unpaid return freight which is expressed to be brought against PFA and "Kilvington Pty Ltd (Trading as Australia Land and Development Co)".

[9] Aitkin Transport Pty Ltd v Voysey [1990] 1 Qd R 510 at 515. Seddon and Ellinghaus, Cheshire and Fifoot's Law of Contract, 8th Australian edition, 2002, at [7.2].

[10] Although I do not think it is necessary to analyse this case under the rubric of mistake, the plaintiff's present argument may gain some additional support from King's Norton Metal Co Ltd v Edridge Merrett and Co Ltd (1897) 14 TLR 98. See the discussion of that case, in the context of "mistake", in Carter and Harland, Contract Law in Australia 4th edition, 2002 at [1243].

[11] [2007] VSCA 146 at [33].

[12] [1959] AC 133.

[13] [1959] AC 133 at 154.

[14] [1959] AC 133 at 158.

[15] (1998) 89 FCR 166 at 176.

[16] [2002] FCA 1156.

[17] [2002] FCA 1156 at [27]. His Honour cited Adamastos and another case in this regard.

[18] [2001] NSWIR Comm 190 at [29].

[19] See SS Ardennes (Cargo Owners) v SS Ardennes (Owners) [1951] 1 KB 55.

[20] Davies and Dickey, Shipping Law, 3rd edition, 2004 at 196.

[21] On the other hand, there is no evidence that Jiminez or the plaintiff had had any prior experience in relation to contracts for the carriage of goods by sea.

[22] See Davies and Dickey, op.cit, at 247-251; Brandt v Liverpool Brazil and River Plate Steam Navigation Company Limited [1924] 1 KB 575.

[23] (1998) 89 FCR 166 at 174-175.

[24] The invoice was addressed to "Australian Land and Development Co", an expression which, itself, is not identical to the expression "Australian Land and Development Company".)

[25] [1988] HCA 32; (1988) 165 CLR 197.

[26] [1990] HCA 55; (1990) 171 CLR 538.

[27] (1996) 188 CLR 418.

[28] [2002] HCA 10; (2002) 210 CLR 491 at [25], [78].

[29] [2005] NSWSC 803 at [61]- [72] per Palmer J.

[30] See Davies and Dickey, Shipping Law, 2nd edition, p 479, R. Garnett, "Stay of Proceedings in Australia: A 'Clearly Inappropriate' Test" [1999] MelbULawRw 2; (1999) 23 MULR 30; Nygh and Davies, Conflict of Laws in Australia, 7th edition, 2002 at [7.16], [7.17].

[31] Regie Nationale Renault v Zhang [2002] HCA 10; (2002) 210 CLR 491 at 521 [78].

[32] Schib Packaging Srl v Emrich Industries Pty Ltd [2005] VSCA 236 at [11].

[33] Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50 at 62; Nygh and Davies, op.cit, [19.7].

[34] Compare James Rolfe Transport (Vic) Pty Ltd v Livdon Engineering Ltd, unreported, SCV, McDonald J, 4 March 1991; R. Garnett, op.cit, section VIIB.

[35] See, generally, Nygh and Davies, op.cit, [19.3]-[19.4].

[36] See Compagnie Des Messageries Maritimes v Wilson (1954) 84 CLR 577 at 585; Dunbee Ltd v Gilman & Co (Australia) Pty Ltd (1968) 70 SR NSW 219; Nygh and Davies, op.cit, [7.25].

[37] See Nygh and Davies, op.cit at 360 [19.3].

[38] See section 10 of the Carriage of Goods by Sea Act 1991.

[39] [2002] HCA 10; (2002) 210 CLR 491 at 521 [81].

[40] Bonython v Commonwealth [1951] AC 201 at 219; Coast Lines Ltd v Hudig Chartering Nv [1972] 2 QB 34 at 44-45; Nygh and Davies, op.cit, [19.7].

[41] Re United Railways of Havana and Regla Warehouses Ltd [1960] Ch 52 at 91; Nygh and Davies, loc.cit.

[42] Compare Coast Lines Ltd v Hudig Chartering NV [1972] 2 QB 34; Nygh and Davies, loc.cit.

[43] (1998) 90 FCR 1 at 24-26. See also Hi-Fert Pty Ltd v United Shipping Adriatic Inc (1998) 89 FCR 166 at 178, 197-198.

[44] Compare Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at 571 [42]; News Corporation Inc v Lenfest Communications Inc (1996) 21 ACSR 553, 575; R. Garnett, op.cit, text related to footnote [70].

[45] [1996] HCA 14; (1996) 136 ALR 251 at 256. See also Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at 575-576 [57].

[46] See Batistatos v Road and Traffic Authority of New South Wales [2006] HCA 27; (2006) 227 ALR 425 at [44]- [46]; compare General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130.