CISG CASE PRESENTATION

COURT - JURISDICTION Claim by plaintiff against overseas defendant - no appearance entered - application for leave to enter interlocutory judgment - interlocutory judgment entered for damages to be assessed - assessment of damages - whether Court has jurisdiction to entertain causes of action pursued by plaintiff - reliance by plaintiff in statement of claim on wrong statute - whether assessment of damages should be dealt with by the Court - leave to proceed revoked and interlocutory judgment set aside.

• Supreme Court Rules rr 18.02, 24.01;
• Trade Practices Act 1974 s 5, referred to.
• Roder Zelt v Rosedown Park Pty Ltd and Another (1995) 17 ACSR 153, considered.

1. JUDGE BURLEY. The plaintiff claims from the defendant damages for breach of contract, for negligence and pursuant to Section 82 of the Trade Practices Act. The plaintiff also seeks interest and costs. The plaintiff has obtained against the defendant an interlocutory judgment in default of appearance for damages to be assessed. This matter has proceeded before me as the assessment of damages pursuant to the interlocutory judgment.

2. The plaintiff carries on the business of heavy engineering and manufacturing for various large scale projects. The defendant is a manufacturer of steel constructions and formworks for tunnels, galleries and shafts. In September 1997, the plaintiff entered into a written contract with Transfield Bouygues Joint Venture (TBJV) for the supply of various tunnelling formworks. These are machines employed for the digging, concreting and surfacing of tunnels through hard rock material, such as mountains and hills. Under the contract with TBJV the plaintiff was required to design, manufacture, supply, shop assemble, test, deliver and commission the types of formwork described in paragraph 9.1 of the statement of claim.

3. TBJV had by head contract agreed to carry out the design construction and maintenance work for the project known as the new southern railway project in New South Wales.

4. Before the plaintiff contracted with TBJV it had entered into discussions with the defendant with regard to the design, manufacture and supply of tunnelling formworks. By August 1997 the plaintiff had entered into a contract with the defendant for the design, manufacture and supply of the necessary formworks. The plaintiff stated in the statement of claim that the formworks did not meet the express contractual requirements and specifications, that workmanship failed to meet contractual requirements and that they were not reasonably fit for the purpose for which they were required by the plaintiff.

5. The plaintiff has stated that the defendant was negligent in the supply and manufacture of the formworks. The plaintiff stated that the defendant engaged in misleading and deceptive conduct contrary to Section 52 of the Trade Practices Act 1974. The plaintiff has also placed reliance on the provisions of Section 51A of that Act.

6. I have heard the plaintiff's submissions relating to the assessment of damages. The hearing proceeded in stages because additional affidavit evidence was required. At the completion of that process, I reserved my decision on 15 September 2000. During the course of preparing reasons for decision in relation to the assessment of damages, it was necessary to scrutinise carefully the causes of action relied upon by the plaintiff. Having done so, I formed the view that it would be necessary to hear further submissions from the plaintiff regarding a number of matters. On 9 October 2000, I requested my personal assistant to communicate with the plaintiff's solicitors in the following terms:

7. The plaintiff's solicitors took some time to reply. By letter dated 5 January 2001 written submissions were delivered to my assistant. There was no request for a further hearing at which oral submissions could be put. I have considered the written submissions forwarded in relation to the matters raised in the letter of 9 October 2000. A number of matters need to be determined.

8. It is convenient to review briefly those parts of the Supreme Court Rules which relate to proceeding in default in respect of an overseas defendant who has been served with an originating process, or a notice thereof, overseas. SCR 24.01 states that a plaintiff may apply for the appropriate directions from the Court where a defendant who has been served with the summons or notice of a summons is out of the jurisdiction and has failed to file an appearance within the prescribed time. SCR 24.02 says that the Court may, on an ex parte application, give leave to the plaintiff to enter judgment in default of appearance or give such other directions as the justice of the case may require. The plaintiff applied pursuant to SCR 24.01 and SCR 24.02 for leave to enter judgment in default of appearance, it having been alleged that the defendant was served with the proceedings and that the defendant failed to enter an appearance within the required time. That application proceeded before the Court on 8 March 2000 and on that occasion the following order was made:

9. Instead of giving the plaintiff leave to proceed or leave to enter judgment, the Court entered the interlocutory judgment. It is implicit that leave to proceed or leave to enter judgment was given on that occasion.

10. Ordinarily, on an assessment of damages the Court would not enquire into matters of liability because the defendant, having failed to enter an appearance, is taken to admit liability as pleaded. However, this matter has the added complication that the proceeding in default is against an overseas defendant and therefore care must be taken to ensure that the Court has jurisdiction ultimately to enter a judgment for a monetary sum against that defendant. There is a two-fold requirement for caution: first, the proceeding is one of default where the defendant is not necessarily represented; and, second, there is no point in proceeding to an assessment of damages which gives rise to a judgment which cannot be enforced because of a want of jurisdiction in the Court pronouncing the judgment. This does not require the Court on the assessment of damages to re-open the application for an order for judgment in default of appearance and, accordingly, it is not appropriate to go behind the findings of the Court implicit in the order of 8 March 2000 that the defendant has been effectively served and has failed to enter an appearance. However, it is, as I have said, necessary to scrutinise the causes of action relied upon by the plaintiff in order to ensure that the Court has jurisdiction to entertain the cause of action, if only to the extent of assessing damages and entering a final judgment based on that assessment.

11. SCR 18 deals with service of proceedings out of the jurisdiction. SCR 18.02 deals with service and the subject matter of the claim. Its effect is that the Court only has jurisdiction in respect of the subject matter set out in the various sub-paragraphs of SCR 18.02. SCR 18.02(e) deals with contractual causes of action. The Court has jurisdiction if the contract was made within the jurisdiction or if, by the contract, the parties agree to submit to the jurisdiction of the Court. The Court also has jurisdiction in respect of breaches committed within the jurisdiction.

12. Under SCR 18.02(f) the Court has jurisdiction in respect of torts committed wholly or partly within the jurisdiction. In addition, where the proceedings in tort are founded on or are for the recovery of damages in respect of damage suffered in the State caused by tortious act or omission wherever that occurred, the Court also has jurisdiction (SCR 18.02(fa)).

13. The remaining causes of action relied upon by the plaintiff are based on a Federal statute, namely the Trade Practices Act 1974. SCR 18.02(l) refers to a claim based on any statute of the Commonwealth or of the State in which it is declared that the Courts of South Australia have jurisdiction in respect of any person or subject matter. Section 86(2) of the Trade Practices Act 1974 (C/w) confers jurisdiction upon the State Courts in respect of civil proceedings brought under various parts of the Trade Practices Act.

14. By this means the Court has jurisdiction to deal with breaches of the provisions of the Trade Practices Act occurring within Australia, and, for cases within Section 5 of the Trade Practices Act, outside Australia. However, the plaintiff is unable to rely upon the extra-territorial effect of Section 5(1) and (2) of the Trade Practices Act because ministerial consent has not been obtained in accordance with the requirements of Section 5(3) and (5) of the Act or at all.

15. I accept the plaintiff's submission that this Court has jurisdiction in respect of the contractual dispute because Clause 19.1 of the contract between the parties provides:

16. However, there is a further complication that the Sale of Goods (Vienna Convention) Act 1986 (SA) applies to the dealings between the parties but the relevant provisions have not been pleaded in the plaintiff's statement of claim. The statement of claim has been drawn up on the assumption that the South Australian Sale of Goods Act applies. This seems to me to be fatal to the plaintiff's ability to proceed to judgment based on damages for breach of contract.

17. The plaintiff submitted to the contrary, contending that it was not necessary to plead the specific provisions of the Sale of Goods (Vienna Convention) Act. Reliance was placed on Roder Zelt v Rosedown Park Pty Ltd and Another (1995) 17 ACSR 153, but, in my view that case is not authority for the proposition contended for by the plaintiff. The trial Judge, von Doussa J, did not complete the hearing of the matter and did not then indicate that it was unnecessary to plead the statute.

18. The provisions of the Sale of Goods Act and the applicable provisions under the Vienna Convention Act are similar but not the same. To the extent that the plaintiff relies in the statement of claim upon the South Australian Sale of Goods Act and not the provisions of the Act which apply by virtue of the Vienna Convention, the plaintiff is precluded from pursuing such a course because it is only the provisions of the latter Act which apply. That being the case, the Court cannot proceed to an assessment of damages based on the provisions of an Act of Parliament which the plaintiff acknowledges do not apply to the claim pursued by the plaintiff.

19. For these reasons I decline to proceed to an assessment of damages in respect of the plaintiff's claim based on breach of contract and to the extent that leave has been implicitly given to the plaintiff by the Court to proceed to enter interlocutory judgment in respect of that aspect of the plaintiff's claim, such leave is revoked. I do not proceed to a dismissal of the plaintiff's contractual claim because it is open to the plaintiff to apply for leave to amend the statement of claim and at that stage consideration would have to be given to service of the amended proceedings upon the defendant.

20. The next cause of action relied upon by the plaintiff is one based on the tort of negligence. In relation to jurisdiction, I put to one side the provisions of the Service and Execution of Process Act 1901 as amended because that Act applies to service of proceedings within Australia. For this Court to have jurisdiction in respect of such a negligence claim, the tort must have occurred within the State of South Australia or the damage caused by the tortious act must have been suffered within the State in the case where the tortious act or omission occurred outside the State (SCR 18.02(f) and (fa)).

21. In order to determine whether or not the claim is in respect of a tort committed wholly or partly within the jurisdiction or where the damage occurs within the jurisdiction, regard must be had to the pleadings and, on the assessment of damages, to the evidence.

22. Again, I do not think that in examining the question of jurisdiction on the assessment of damages the Court is revisiting the application for leave to proceed in default of appearance. Rather, I think it is properly characterised as the process of the Court satisfying itself on the hearing of the assessment of damages that it has jurisdiction to entertain the claim. But, even if it is a case of revisiting the original application for leave to proceed, such a course is required because the Court should not proceed to enter a judgment for a money sum based on an assessment of damages in respect of claims which the Court does not have jurisdiction to hear. Accordingly, the onus is on the plaintiff to spell out in the statement of claim the facts and circumstances which will enable the Court to determine whether or not it has jurisdiction. This necessity arises not only in relation to the original application for leave to proceed in default of appearance but also in respect of the assessment of damages. If the pleadings disclose either that the Court has no jurisdiction or the pleadings are not sufficiently detailed to enable the Court to make a decision one way or the other, the assessment, in my view, should not proceed unless the evidence adduced at the hearing fills the gap.

23. The pleadings reveal that the defendant is and was at all material times a company duly incorporated in Switzerland and that it carried on the business of a manufacturer of steel constructions and formworks for tunnels, galleries and shafts. The pleading does not state where the defendant carried on that business.

24. Paragraph 10 of the statement of claim is as follows:

25. Paragraph 12.3 of the statement of claim reveals that representatives of the plaintiff travelled to Europe to meet various companies including, according to paragraph 12.4, the defendant. Correspondence then ensued between the plaintiff and the defendant. In August 1997 the plaintiff and the defendant entered into a formal written agreement in relation to the design, manufacture and supply of the relevant formworks by the defendant.

26. According to the plaintiff the machinery formworks supplied by the defendant were defective in the manner specified at paragraph 20 of the statement of claim. Paragraphs 21 and 22 deal with the negligence aspect of the plaintiff's claim. Nowhere does it state where the formworks were manufactured and thus the statement of claim fails to disclose sufficient facts to enable the Court to make a determination as to whether or not it has jurisdiction in respect of the claim. For example, if the equipment had been negligently manufactured in Europe, the plaintiff could not pursue a claim for damages based on alleged negligent manufacture unless that damage was sustained by the plaintiff within the State. None of the evidence adduced by the plaintiff assists.

27. Not only does the statement of claim fail to plead facts which would enable the Court to determine whether or not there was a tort committed within the State, but there has also been a failure to plead in the statement of claim any facts which would assist the Court to determine whether or not damages have been suffered by the plaintiff in respect of the tortious act or omission of the defendant wherever such tortious acts or omission may have occurred.

28. The evidence relied upon by the plaintiff at the hearing of the assessment of damages may permit the inference that, eg, the remedial work was carried out in South Australia and thus the expense of same was incurred in South Australia. However, on a proper analysis, I should not proceed with an assessment of damages in respect of the tortious claim isolated from the other claims. For one thing, the measure of damages in tort (and a trade practices claim) is different from contractual damages. Even if it is assumed that both contractual and tortious damages may be sought, no attempt has been made in the evidence or submissions at the hearing of the assessment to make that distinction. On the present state of the evidence, it would be unsafe to assume that tortious damage has occurred in South Australia.

29. In addition, much of the evidence is about remedial work which is the contractual (not tortious) measure of damages, although consequential losses, about which evidence has been given, may be common to the contractual and tortious claims. If I were to proceed to assess damages for negligence I could do so only in relation to consequential losses. It would be artificial and therefore inappropriate to proceed in that way.

30. For the above reasons, I am of the view that I should decline to proceed with an assessment of damages based on such a cause of action and that to the extent that leave to proceed has been given in respect of that aspect of the causes of action relied upon by the plaintiff, leave should be revoked.

31. From paragraphs 23 onwards of the statement of claim, the plaintiff sets out a claim based on misleading and deceptive conduct under Section 52, and later Section 51A, of the Trade Practices Act 1974. This part of the pleading is somewhat confused. It alleges that prior to signing the contract for the design and supply of the formworks (called the Bernold Contract), agents of the defendant informed agents of the plaintiff of various things about the defendant's capabilities, but there is no mention of the place where these representations took place. Paragraph 23.2 of the pleading refers to the forwarding of a brochure which is alleged to have contained various representations and to that extent it might be argued that the representation was made at least within Australia if it is assumed that the brochure was received by the plaintiff in Australia. That latter fact is by no means clear from the pleading.

32. I do not consider it appropriate to proceed to an assessment of damages based on alleged misleading and deceptive conduct because I am unable to determine from the pleading or the evidence whether or not and, if so, to what extent, the Court has jurisdiction in respect of the conduct complained of. There is no doubt that the Court has jurisdiction to entertain claims based on provisions of the Trade Practices Act because Section 86(2) of the Act confers that jurisdiction. But the jurisdiction so conferred is not without limit. It is confined by the scope of the legislative power which set out the rights of individuals under the Trade Practices Act and which then conferred the jurisdiction to litigate in respect of those rights. It is necessary, particularly in the case of an overseas defendant, for the pleading to contain all of the material facts relied upon to establish that the Court has jurisdiction. This has not been done in respect of the civil claims brought by the plaintiff pursuant to the provisions of the Trade Practices Act. Nor does the evidence assist. Accordingly, the leave to proceed implicitly given when the interlocutory judgment was entered should be revoked.

33. It follows from the above reasoning that the implicit leave to proceed should be revoked in its entirety because I am not able, by reference to the pleading or the evidence, to determine whether or not the Court has jurisdiction in relation to any of the claims pursued by the plaintiffs. I therefore decline to proceed to an assessment of damages and revoke the implicit leave given.

34. I would add that in relation to the plaintiff's claim based on misleading and deceptive conduct, the plaintiff would be well advised to review the pleading, not only in relation to matters of jurisdiction but also in relation to matters relating to liability. It seems to me in broad terms that the representations pleaded cannot be set against the breaches of Section 52 which are referred to at paragraph 26 of the statement of claim. By way of explanation, which is tentative, because it is not necessary for me to rule upon these matters for the purposes of the proceedings before me, I have some difficulty in seeing how the damages actually pursued by the plaintiff, as set out in the extensive affidavit material relied upon during the course of the hearing of the assessment of damages, can flow from the alleged false and misleading behaviour of the defendant. It may be that the proper measure of damages in respect of the alleged false and misleading conduct relates to the lost opportunity on the part of the plaintiff to go to another manufacturer to manufacture the formworks. The present consequences pleaded in paragraph 26 do not in themselves give rise to demonstrable damages other than by reference to what might be claimed for breach of contract.

35. In my reasons to date I have stressed the need for the plaintiff to set out in the statement of claim the material facts which relate to the question of jurisdiction. I would add that there are other deficiencies in the statement of claim which have affected the way in which the assessment of damages proceeded to the point that it did and, if left unchanged, would affect in the same way any subsequent trial or assessment of damages. In relation to the types of claim which have been pursued by the plaintiff, it is necessary not only to set out in the statement of claim the breaches of contract, negligent acts and misleading conduct relied upon to support the claim for damages, it is also equally important to set out the nature of the damage suffered by the plaintiff as a result of those several causes of action. They may well overlap but that does not excuse the plaintiff from the task of saying what default on the part of the defendant caused what damage and how that damage was remedied by the plaintiff so that the plaintiff's damages can be properly measured.

36. For the above reasons, the leave to proceed implicit in the granting of an interlocutory judgment on 8 March 2000 is revoked. It follows that the interlocutory judgment itself must be set aside. I therefore set aside the interlocutory judgment entered on 8 March 2000 in this action.