D'Ath v TNT Australia Pty Ltd [1991] QSC 37 [1992] 1 Qd R 369

10 30 40 50 60 5<_,/1 0311 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MASTER WHITE BRISBANE, 25 FEBRUARY 1991 No.2599 of 1988 {Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: MARIE-HELENE D'ATH -and- T.N.T. AUSTRALIA PTY.LTD. -and- HALJUDI PTY.LTD. trading as HAULMARK TRAILERS {AUSTRALIA) -and- TRANS?EC LIMITED -and- RINGFEDER GM6H -and- WARSTEIN ACHSEN GM6H JUDGMENT Plaintiff Defendant Second Defendant ThirdDefendant FourthDefendant Third Party MASTER: In this application it is ordered that the service of the Third Party Notice be set aside; that service of the amended Third Party Notice be not set aside. It is further ordered that the third party's conditional appearance be set aside and the time for entering an unconditional appearance be extended to 14 days from the delivery of this judgment. G 21~ovt. Printer, Qld. 1 I 10 20 30 40 50 60 -- 1 of 29 -- (_ 10 20 30 40 50 60 It is further ordered that the claims as set out in paragraphs 15 and 16 of the Amended Statement of Claim by the fourth defendant against the third party be stayed until further order. With respect to the costs, since the applicant/third party has been partially successful in relation to its application, as has the fourth defendant in resisting that application, in all the circumstances, taking into account the correspondence between the parties and the outcome of the striking out application, it is ordered there be no order as to costs. I publish my reasons. 2~ - 2 G 214-Govt. Printer, Qld. 2 10 30 40 50 60 -- 2 of 29 -- 40 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MASTER WHITE BRISBANE, 25 FEBRUARY 1991 No.2599 of 1988 \ (Copyright i this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: MARIE-HELENE D'ATH -and- T.N.T. AUSTRALIA PTY.LTD. -and- HALJUDI PTY.LTD. trading as HAULMARK TRAILERS (AUSTRALIA) -and- TRANS~EC LIMITED -and- RINGFEDER GM6H -and- WARSTEIN ACHSEN GM6H JUDGMENT Plaintiff Defendant Second Defendant ThirdDefendant FourthDefendant Third Party MASTER: In this application it is ordered that the service of the Third Party Notice be set aside; that service 10 20 30 40 50 50 60 of the amended Third Party Notice be not set aside. It is further ordered that the third party's conditional appearance be set aside and the time for entering an unconditional appearance be extended to 14 days from the delivery of this judgment. G 214-Govt. Printer, Old. 1 60 -- 3 of 29 -- IN THE SUPREME COURT OF QUEENSLAND No. 2599 of 1988 BETWEEN: MARIE-HELENE D'ATH T.N.T. AUSTRALIA PTY. LTD. HALJUDI PTY. LTD. trading as HAULMARK TRAILERS (AUSTRALIA) TRANSPEC LIMITED RINGFEDER GmbH WARSTEIN ACHSEN GmbH Plaintiff Defendant Second Defendant Third Defendant Fourth Defendant Third Party REASONS FOR·JUDGMENT - MASTER WHITE Delivered the twenty-fifth day of February, 1991 CATCHWORDS: COUNSEL: Practice; service out of the jurisdiction; 0.11 r. 1 ( 5); manufacture in Germany by third party; defects; failure to warn at point of sale; essence of tort; third party notice; sufficiency of service; convention status; conditional appearance; 0.12 r.22; amendment of third party notice, how to be served. Mr. P. McMurdo for the applicant third party, instructed by McCullough Robertson Miss D. O'Reilly for the respondent fourth defendant, instructed by Feez Ruthning HEARING DATE: 31st January, 1991 -- 4 of 29 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: MARIE-HELENE D'A.TH T.N.T. AUSTRALIA. PTY. LTD. HA.LJUDI PTY. LTD. trading as HA.ULMA.RK TRAILERS {AUSTRALIA.) TRA.NSPEC LIMITED RINGFEDER GmbH WA.RSTEIN A.CHSEN GmbH No. 2599 of 1988 Plaintiff Defendant Second Defendant Third Defendant Fourth Defendant Third Party REA.SONS FOR JUDGMENT - MA.STER WHITE Delivered the twenty-fifth day of February, 1991 This application has been brought by Warstein Achsen GmbH ( "the third party") to set aside service on it of the third party notice and the amended third party notice by the fourth defendant and further that those third party proceedings be struck out. The plaintiff in the action is the widow of John D'Ath who died on the 9th July, 1985 when the car which he was driving was struck by a freighter dog-trailer after it had broken free from a truck owned by the first defendant, T.N.T. Australia Pty. Ltd. -- 5 of 29 -- 2 travelling in the opposite direction on the highway near Caloundra. The second defendant, Haljudi Pty. Ltd., the third defendant, Transpec Limited and the fourth defendant, Ringfeder GmbH are all alleged by the plaintiff to be manufacturers and/or suppliers of automotive parts. The cause of the trailer breaking loose is alleged by the plaintiff to be the sudden fracture of the drawbar on the trailer which drawbar is alleged to have been manufactured and/or supplied by the second, third and fourth defendants to the first defendant. The fourth defendant, a company incorporated in Germany and apparently carrying on business in Queensland purported to serve the third party with a third party notice and a statement of claim by posting those documents to its place of business in the Federal Republic of Germany under cover of letter dated the 15th January, 1990. An amended third party notice and statement of claim was subsequently sent by post under cover of letter dated the 9th October, 1990. By the original third party notice, the fourth defendant claimed:- " ... contribution against you in respect of the plaintiff's claim and the costs of this action and further or alternatively damages for breach of contract on the ground that the allegedly defective drawbar supplied by the fourth defendant to the third defendant was supplied to the fourth defendant by you." The relevant paragraphs of the accompanying statement of claim were as follows:- "5. If the fourth defendant is liable to the plaintiff in respects alleged or at all (which is denied):- (a) the drawbar supplied by the fourth defendant to the third defendant was manufactured by the third party and supplied to the fourth defendant by the third party; (b) the drawbar was supplied in breach of the terms of the agreement between the fourth defendant and the third party for the supply of such drawbars; (c) the drawbar was manufactured negligently by the third party." The prayer for relief claimed relevantly:- "(a) Contribution as against the third party in respect of -- 6 of 29 -- (b) (c) 3 the whole of the claim by the plaintiff against the fourth defendant; Further or alternatively, damages for breach of contract .. II As can be seen, the claim against the third party was based on breach of contract and contribution. It is common ground that any contract between the fourth defendant and the third party for the supply of the drawbar was made and performed in the Federal Republic of Germany. A conditional appearance was entered by the third party on the 28th March, 1990 which denied the jurisdiction of this Court to entertain the action against it without its consent. Correspondence ensued between the solicitors for the parties. The third party brought an application that the service of the third party notice on it be set aside and that the third party proceedings against it be struck out which came before me on the 2nd August, 1990. On that day the application was adjourned and the fourth defendant applied for and was given leave to amend the third party notice and statement of claim in an unspecified manner. Mr. McMurdo, who appeared for the third party, did not participate in the application to amend. I should note that this was a quite formal appearance and the subject mater of the application was not referred to. The amended third party notice provided, so far as is relevant:- " .. that such contribution amount to a complete indemnity on the grounds that your negligence namely acts or omissions committed in this State, caused or contributed to the damage complained of by the plaintiff ... " The amended statement of claim abandoned the claim in contract as set out above and picked up the allegations in negligence made by the plaintiff against the fourth defendant. The drawbar is said to have been sold by the second defendant to the first -- 7 of 29 -- 4 defendant in 1985 at the second defendant's premises at Rocklea. It had been allegedly supplied to the second defendant by the third defendant who had purchased it from the fourth defendant. The fourth defendant pleads against the third party that it was the distributor in Queensland of drawbars made by the third party which:- " ... the third party knew and intended would be sold by the fourth defendant in Australia for sale and use in, inter alia, Queensland." The alleged wrong of the third party is set out in paragraphs 8, 9, 10, 11, 12, 13, 14 and 15 of the amended third party statement of claim. I set those paragraphs out in full: "8. The third party cause[d], allowed or permitted the drawbar the subject of the plaintiff's claim to be sold to the first defendant at the point of sale:- (a) Without advice or warning that the drawbar should be used only in conjunction with safety chains or some other device which would ensure control of a dog-trailer in the event of a spontaneous failure of the drawbar; (b) Without advice as to any or any adequate and proper specifications for the installation and use of the drawbar to be supplied at the point of sale. 9. The matters in paragraph 8 hereof amounted to negligence on the part of the third party. 10. In the premises the third party is responsible for, or caused or contributed to, the plaintiff's damage. 11. Further or alternatively the plaintiff's claim against the fourth defendant includes that the fourth defendant was negligent in respect of the drawbar in that, interalia, it:- ( a) Supplied the drawbar when it knew or ought to have known it was unfit and dangerous to be used and was likely to fracture suddenly in the course of use in that it was not of correct or proper shape, design or construction; (b) Supplied the drawbar which changed section from taper to parallel at the point of maximum stress; (c) Supplied the drawbar which contained forging defects and/or which was subject to fracture in consequence of .its high. silicone content; -- 8 of 29 -- 5 ( d) Supplied the drawbar which had been branded and/ or stamped at the point of section diversion whereby it was weakened at the point of maximum stress; ( e) Supplied the drawbar with strength between the front and rear sections of the drawbar assembly not matched. 12. Each of the matters in paragraph 11 hereof, if true, was a defect in the manufacture of the drawbar. 13. Further or alternatively the plaintiff's claim against the fourth defendant includes that the fourth defendant was negligent in respect of the drawbar in that, inter alia, it:- (a) Supplied the drawbar without first ascertaining or ensuring by way of examination, test, inspection or otherwise that it was and would remain safe and sound to be used as a coupling between the truck and trailer referred to in the plaintiff's statement of claim; (b) Supplied the drawbar when it knew and intended that it would be used as part of a coupling without any intermediate or previous examination. 14. At all material times the third party knew and intended that the fourth defendant would distribute and supply the drawbars manufactured by the third party:- (a) For the purpose of use as a coupling between a truck and a trailer; (b) In the form in which they left the third party; (c) Without examination, ascertain and ensure would remain safe and coupling; test, or inspection tothat the drawbar was and sound to be used as such a (d) Without any intermediate or previous examination by the person or persons to whom it was supplied or by whom it was to be used; (e) With the knowledge that in the absence of reasonable care in the manufacture of the drawbar damage or injury would or might result in the course of its use. 15. The third party:- (a) Failed to give notice at the point of sale of the defects in paragraph 11 hereof; (b) Failed to advise or warn that at or prior to the point of sale there ought to be an examination, test or inspection which could ascertain or ensure that the drawbar was and would remain safe and sound to be used as a coupling between a truck and a trailer or that there ought to be some intermediate or other inspection or examination." -- 9 of 29 -- 6 Service out of the jurisdiction of a third party notice and statement of claim is permitted if the subject matter of the cause, so far as it concerns the party to be served falls within any of the circumstances set out in 0.11 r.1 of the Rules. 0.11 r.1(5) is applicable to the present matter. rt provides that the Court has jurisdiction:- "When the claim is for contribution to or indemnity in respect of a liability founded on a contract made or enteredinto or broken within the jurisdiction or a tort committed within the jurisdiction." Section 5 of the Law Reform (Tortfeasors Contribution, Contributory Negligence, Division of Chattels) Act of 1952 provides that:- "Where damage is suffered by any person as a result of a tort:- (c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise ... " "Damage" is defined in s. 4 to include loss of life. rt must thus be demonstrated that the subject matter of the cause is for contribution or indemnity in respect of liability founded on a tort committed within the jurisdiction. Miss O'Reilly who appeared for the fourth defendant submitted that that must be a reference to a tort committed within the jurisdiction by the party claiming indemnity or contribution. ram not persuaded that that is the effect of 0.11 r.1(5) but, as she concedes, nothing in this application turns upon it since s.5(c) of the Law Reform (etc.) Act of 1952 requires that there be a tort committed by the third party within the jurisdiction so that it would, if sued by the plaintiff, have been liable. Order 11 rule 1 applies to third party notices and proceedings begun thereby, see 0.17 r.3(3) which provides: "Subject to the foregoing provisions of this Rule, the -- 10 of 29 -- 7 following provisions of the within Rules, namely Rule 9 of Order 5, Order 10 (except Rule 15), Order 11 (except Rule 2), and Order 12, shall apply in relation to a third party notice and to the proceedings begun thereby as if- (a) the third party notice were a writ and the proceedings begun thereby were an action; and (b) the defendant issuing the third party notice were a plaintiff and the person against whom it is issued a defendant in that action." Shepherdson J., so found in Tricon Industries Pty. Ltd. & Ors. v. Abel Lemon & Co. Pty. Ltd. & Ors. [1988] 2 Qd.R. 464 at p. 467. It is appropriate that the question of jurisdiction be decided on an interlocutory application, see Gore v. Octahim Wise Limited & Ors, unreported decision of Dowsett J. of 20th October, 1989 (No. 743 of 1989) where his Honour observed: "In determining whether or not service out of the jurisdiction is justified, the Court will be concerned to examine the nature of the claim made. Obviously, when the matter comes for trial it will be the validity bf that claim which falls for determination." The degree of proof required on such an application was also considered by his Honour at p. 12: "Normally when one considers interlocutory matters, one does not look to the strength of the plaintiff's cause of action, but only at whether sufficient information appears to indicated that he is making a recognisable cause. However, in some circumstances where a plaintiff seeks to bring in the defendants from outside the jurisdiction, it will be appropriate for the Court to look closely at the matters of claim in order to ensure that it is not vexatious. I think too that to be.satisfied that the claim falls within one or other of the limbs of 0.11 r.1, one must look to see if the various component parts of a cause of action are made out." In Carroll v. Laurie (1959) V.R. 275 Deane J. at p. 277, considering the degree of proof needed in such an application and quoting from Vitkovice Horni A Hutni Tezirstro v. Korner [1951] A.C. 869 held that: "The solution which I should adopt is stated by Lord Radcliffe at p. 883. His Lordship said: 'It must sufficiently appear to him that it is a proper case. The phrase is a composite one and it is not elucidated by taking it to pieces; but it seems to me clear that the use of the -- 11 of 29 -- 8 word "sufficiently" in this context shows that it is not necessary that the judge should be satisfied beyondreasonable doubt as to the existence of the qualifying conditions. Further, a case does not appear to be a proper case for the purposes of this Order unless on consideration of all admissible material there remains a strong argumentfor the opinion that the qualifying conditions are indeed satisfied'." Paragraph 8 of the amended third party statement of claim alleges that the third party caused, allowed or permitted the drawbar to be sold to the first defendant at the point of sale without any advice or warning that it should be used only in conjunction with safety chains or some other device and, further, without advice as to any or adequate and proper specification for the installation and use of the drawbar to be supplied at the point of sale. Evidence of the facts asserted in that pleading is found in the affidavits of Geoffrey Neil Rankin {paragraphs 3 and 4), Kerry Charles Gardner {paragraphs 5 to 8) and the joint affidavit o•f Carl-Friedrich Wilhelm Krumm and Horst-Dieter Schafer { paragraph 5) {exhibited to the affidavit of Peter Anthony Schmidt). It is asserted that the third party manufactured the drawbar {paragraph 4) and this is sufficiently proved by the affidavits of Rankin and Krumm/Schafer referred to above and that the fourth defendant was a distributor of the drawbars which the third party knew and intended would be sold by the fourth defendant in Australia for use in, inter alia, Queensland. This allegation is said to be supported by paragraph 4 of the affidavit of Messrs. Krumm and Schafer. They swear: "4. Ringfeder GmbH distributed the drawbar eyes it had purchased from Warstein Achsen GmbH in various countries around the world including Australia. In Australia, Ringfeder GmbH sold the drawbar eyes exclusively to the third defendant Transpec Limited. The drawbar eyes are despatched by Ringfeder GmbH in Germany to Transpec Limited at Melbourne, Perth, Adelaide, Sydney or Brisbane. We say that Warstein Achsen GmbH at all material times was aware that Ringfeder GmbH distributed the drawbar eyes in various -- 12 of 29 -- 9 countries around the world, including Australia for use as truck-trailer couplings ... " That may not be sufficient proof that the third party knew of the sale in Queensland - such knowledge may not be a necessary ingredient of the cause of action, all that is required is reasonable foreseeability. Mr. McMurdo who appeared for the third party took no point on the sufficiency or otherwise of the evidence to support the cause and the third party' s German solicitor, Mr. Triebel, who swore an extensive affidavit on German law, made no reference to this aspect of the pleading. Mr. McMurdo relied upon the cases of Buttigeig v. Universal Terminal & Stevedoring Corporation [1972] V.R. 626 and Macgregor v. Application Des Gaz [1976] Qd.R. 175 to support his submission that the essence of the tort alleged to have been committed by the third party was effected outside Queensland and in Germany, the place of manufacture, and that the amended pleading was merely an artificial device to bring the tort within the jurisdiction. In Buttigeig, the plaintiff, a wharf labourer, employed by a company engaged as stevedore to unload a vessel berthed in Melbourne, was injured when he stood on a sheet of masonite flooring in the hold of the ship in the course of his employment and it failed to carry his weight so that he fell and sustained injury and damage. An application was made to serve the third named defendant, a stevedoring company in New York responsible for the stowage of the cargo in New York. That company had placed the masonite in the hold using it to conceal a hole which had been created by the manner of the cargo stowage which it had adopted. It was pleaded against the New York stevedoring company that it ought to have warned any person who might have thought to stand on the rnasonite of its insufficiency. It was said that the warning should have been provided in New -- 13 of 29 -- 10 York for use in the country of the cargo's destination. Crockett J. found, at p. 629, that the pleading was "unreal" and "artificial" and held that what must be done is to "look at the substance of the wrong conduct alleged to be a tort" . He concluded that the tort was committed in New York. In Macgregor v. Application Des Gaz, supra, the plaintiff was alleged to have been injured when a gas lantern which was manufactured in France fell and liquid petroleum fuel escaped from a replaceable cartridge in the lantern and exploded. The manufacturer had not at any relevant time carried on business or been registered in Queensland. It was apparently pleaded that the. defendant intended that the gas lantern be marketed in Australia and in Queensland or reasonably foreseeable that it would be so marketed. A particular of negligence was the defective manufacture of the lantern by the defendant and failure to mark upon the lantern instructions for proper insertion of the replacement cartridge although Matthews J. noted that there was no allegation that the replacement cartridge had not been properly inserted. There was a further allegation of failure to give any or any sufficient warning to users or potential users of the lantern of the dangerous nature of liquid petroleum gas. His Honour held at p. 177: " ... when one regards.the substance, the allegations made by the particulars of negligence which are said to give a Queensland nexus to the case, are, to use the words of Crockett J. in Buttigeig v. Universal Terminal & Stevedoring Corporation (1972] V.R. 626 at p. 629, unreal and artificial." Both of those cases made reference to Distillers Co. ~<=B=i=o~c=h=e=m=1=·=c=a=l=s~}---'L=t==d~.--v-'--'-.-~T~h=o=m=p.a.=s=o=n (1971] A.C. 458, a decision submitted by Miss O'Reilly, to be determinative of the issues before me. expression, Their Lordships were there concerned with the "a cause of action which arose within the -- 14 of 29 -- 1 1 jurisdiction" as used in s.18(4) of the Common Law Procedure Act of New South Wales. Crockett J. in Buttigeig, supra, at p. 628 was of the view that the interpretation of that expression would apply "with equal, if not greater force, to the words 'tort committed'" which was the expression to be interpreted in the Victorian legislation which he was considering. That must be true also of 0.11 r.1(5) of the Queensland Rules. The facts of the Distillers case are well known and for the purposes of these reasons it is sufficient to note that the appellant company was an English company. An Australian company purchased pharmaceutical preparations manufactured by the appellant in England and marketed and sold the products in Australia. The product, the subject of the litigation, was manufactured and packaged in England and sold to the Australian company in the form in which it was to reach the ultimate consumer. The printed matter with the product described it as harmless, safe and an effective sedative with no side effects. The plaintiff, an infant, was born with disabilities said to be due to her mother taking the English company's product during her pregnancy. The negligence was alleged to be the failure to warn the mother that the product would be dangerous if taken during the first three months of pregnancy. Their Lordships rejected any notion that the "last ingredie·n t" of a cause of action only need occur within the jurisdiction to give jurisdiction. In a tort action this will invariably be the suffering of the damage. Their Lordships went on to hold at p.468: "The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise?" Their Lordships concluded that it was the omission of the warning from either the packaging of the product or at the point of sale -- 15 of 29 -- 12 to the consumer which constituted the tort and the place where the warning needed to be communicated was New South Wales. This gave the necessary jurisdiction, see p.469. In Tricon Industries Pty. Ltd. & Ors v. Abel Lemon & Company Pty. Ltd. & Ors, supra, Shepherdson J. was of the opinion at p.472 that "act" appearing in O.11 r.4 of the Rules ("when any act ... for which damages are sought ... was done ... within the jurisdiction") did not include an omission. In that case the relevant particulars of negligence which gave rise to his Honour's observation was the allegation of failure to warn of the unstable nature of quantities of a certain chemical manufactured outside the jurisdiction. I should have considerable difficulty in accepting this interpretation of O.11 r.1(4) which would have the effect of excluding from the ambit of justiciable matters within the jurisdiction actions in tort against foreigners based upon an omission to do something which the law requires to be done within the jurisdiction. It would have the effect of making 0.11 r.1(4), which is direct recourse to a defendant, narrower than 0.11 r.1(5) concerning indemnity or contribution proceedings. It should be noted that in any event his Honour found that there was no or insufficient evidence to support the allegation of failure to warn in Queensland, at p. 73 et seq. Whatever may be the ambit of 0.11 r.1(4), 0.11 r.1(5) clearly includes an omission. I was referred to Castree v. E.R. Squib & Sons Ltd. & Anor [1980] 1 W.L.R. 1248, a decision of the Court of Appeal. The plaintiff sued for damages for personal injury which she sustained when the centrifuge that she was using in the course of her employment disintegrated. The machine was manufactured in Germany and purchased in England by her employer. The employer sought leave to issue and serve out of the jurisdiction -- 16 of 29 -- 13 a third party notice upon the manufacturer of the machine claiming contribution. The Court of Appeal asked itself the question asked by Lord du Parq in George Monro Ltd. v. American Cyanamid and Chemical Corporation [1944] 1 K.B. 432 at p. 440- 1, namely, "where was the wrongful act, from which the damage flows, in fact done?" Ackner L.J. responded at p. 1252: " ... That which gave, or gives, the plaintiff her cause of complaint is not the mere manufacture of the defective machinery, which of course took place in Germany; the mere manufacture of the defective machinery is not in my judgment even the beginning of tort. That manufacture might have been manufacture for experimental purposes, or it might have been for the development of some part of the machinery. The substantial wrongdoing in this case alleged to have been committed by the appellants is putting on the English market a defective machine with no warning as to its defects. That being, in my judgment, the position, and applying the test which is accepted on all sides to be the appropriate test, namely, to look back over the series of events constituting the tort and to ask the question where in substance this cause of action arose, I would conclude that it arose in this country." The Court of Appeal regarded as an important fact that the manufacturer had a sole agent acting as its distributor within the United Kingdom, so that the "putting upon the market" in the United Kingdom can be seen as an intentional act to circulate within the jurisdiction the defective machine, see at p. 1250. This approach was apparently approved by a later Court of Appeal in Me tall und Rohs to ff A.G. v. Donaldson Lufkin & Jenrette Inc. and Anor. [1989] 3 All E.R. 14 per Slade L.J. at p. 29. The tort there alleged was of conspiracy to induce breach of contract and the Court of Appeal applied the test "where in substance did the cause of action arise". There does not appear to be any conflict in the approaches of Buttigeig, Macgregor or Distillers. The test is the same. Castree might be thought to be inconsistent with Buttigeig, they both being manufacturing defects cases, but an important fact emphasised by their Lordships in Castree, as mentioned, was that the manufacturer -- 17 of 29 -- 14 sold in the United Kingdom through a sole agent. The facts here as presently understood would not support such a "putting upon the market" conclusion, so that a pleading which alleged, as it does, supply outside the jurisdiction of a defective product without warning as to manufacturing defects would not, in my opinion, be sufficient to found jurisdiction. Neither would the further assertion that there ought to have been a warning not to use without inter-mediate examination or testing of the drawbar. That seems no more than the artificial pleading complained of by Matthews J. in Macgregor, supra. I am, however, of the opinion that the duty to warn and advise with respect to safety chains or other device and mode of installation of the drawbar is a positive duty which arose at the point of sale in Rocklea and was breached in relation to the plaintiff if the warning or advising did not occur. In stating the foregoing, I am, of course, making a finding with respect of the nature of the cause of action pleaded and not its validity beyond what is necessary for this application. Accordingly I find that the jurisdiction of this Court is sufficiently established insofar as part of the claim is concerned and falls within 0.11 r.1(5). It is clear however that originating process which is to be served out of the jurisdiction may not contain a claim which lies outside O. 11 r. 1 even thou·gh it also contains a claim within the rule, see Tricon Industries Pty. Ltd. & Ors. v. Able Lemon and Company Pty. Ltd. & Ors, supra, per Shepherdson J. at p. 471 and Siskina ( Owners of Cargo Lately Laden on Board) v. Distos Compania Naviera S.A. [1979) A.C. 210 per Diplock L.J. at p.255, where he held: " it is equally well settled now that it is not permissible in any action commenced by service of process on a person out of the jurisdiction to litigate any claim that does not fall within one or other of sub-rules (a) to (o): see Holland v. Leslie [1894] 2 Q.B. 346; Waterhouse v. Reid [1938] 1 K.B. 743 and Total Oil Great Britain Ltd. -- 18 of 29 -- 15 v. Marbonanza Compania Naviera S.A. June 27, 1975; Court of Appeal (Civil Division) Transcript No. 298 of 1975, C.A." This does not have the effect of striking out the whole of the proceeding, as I read the cases, but the practice seems to be to stay the proceedings, if otherwise good, in relation to the impermissible claim, see Gore v. Octahim Wise Pty. Ltd. & Ors, supra, per Dowsett J. at p.16. Mr. McMurdo submitted that if I found against him on jurisdiction then I should find that service of the third party notice and statement of claim and the amended third party notice and statement of claim should be set aside as not complying with the Rules. above. The provisions of O. 17 r. 3 ( 3) have been set out 0. 11 r. 2, which is excepted from the operation of third party proceedings provides:- "Unless service is to be effected in any State or Territory of the Commonwealth, notice of the originating proceeding and not the originating proceeding itself, is to be served. 11 0.11 r.3 sets out the manner of service of process outside the jurisdiction. It provides:- " ( 1) Subject to the following provisions of this Rule, Rules 1 and 16 of Order 10 shall apply in relation to the service of an originating proceeding or notice thereof, notwithstanding that the originating proceeding or notice is to be served out of the jurisdiction. (2) Nothing in this Rule, or in any order or direction of the Court or a Judge made by virtue of it, shall authorfse or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country. ( 3) Notice of an originating proceeding which is served out of the jurisdiction need not be served personally on the person required to be served so long as it is served on him in accordance with the law of the country in which service is effected." O. 10 r .1 requires personal service of originating proceedings and 0.10 r.2 provides how personal service is to be effected. Evidence was put before the Court as to the law of the Federal Republic of Germany in relation to the service of -- 19 of 29 -- 16 originating process on corporations in the affidavit of Bernd Volker Triebel. It seems to have been accepted in the course of submissions that such evidence was largely irrelevant in relation to the service of third party proceedings in so far as it was thought that reliance could be placed upon 0.11 r.3(3) compliance with the law of the country in which service is to be effected. This is because 0.17 r.3(3) excepts r.2 of 0.11 from third party proceedings and 0.11 r.3(3) refers only to notice of originating proceedings. However that evidence does show that the proper recipient of documents to be served on a company incorporated in the Federal Republic of Germany is the legal representative (Geschaftsfuhrer) of the company and that person may be identified by perusal of the Commercial Register of the District Court for the area in which the company has its legal seat, see paragraph 22 of Mr. Triebel's affidavit. The original third party notice and statement of claim was sent by ordinary air mail post in January 1990 to "Mr. Hubertus Spieker, Warstein Achsen GmbH, Im Heidfeld 1 D-4793 Buren". Mr. Spieker was the legal representative at that time of the third party, but from the 20th August, 1990 was not. The amended third party notice was sent to him by ordinary air mail post under cover of letter bearing date 9th October, 1990. It was submitted that service by post was good service notwithstanding 0.10 r.1 because service by post on the registered office of a company· is permitted by s.528(1) of the Companies (Queensland) Code. This, it was submitted, is to be read in conjunction with Article 6 of the Convention Regarding Legal Proceedings in Civil and Commercial Matters of 28th March, 1928 made between the United Kingdom and Germany which permits documents to be transmitted by post in cases where this method of service is permitted by the law of the country from which the -- 20 of 29 -- 17 documents emanate. Two things must be said of this submission. The convention was at the relevant time and is said to be in force as between Australia and the Federal Republic of Germany, see certification of Brian Alexander Slee, Treaties Information Officer, Treaties Section, Department of Foreign Affairs and Trade, Canberra of 30th January, 1991 which is exhibited to the affidavit of Peter Anthony Schmidt. This has been accepted by the parties as sufficient proof of the status of the convention, but I note that Professor James Crawford doubts that this is so, see J. Crawford and W.R. Edeson, "International Law and Australian Law" in International Law in Australia, 2nd ed. by his Honour Mr. Justice Ryan (1984) at pp.129 et seq. In order for the convention to have effect in this Court it must have become incorporated into the law of Queensland, see Attorney-General for Canada v. Attorney-General for Ontario [1937] A.C. 326 per Atkin L.J. at p.347 and Simsek v. McPhee (1982) 56 A.L.J.R. 277 per Stephen J. at p.280. So far as the service of foreign process in Queensland is concerned, the convention has been enacted, as far as I can discern, in 0.11 rr.5-8 of the Rules. Whilst there is provision in O. 11 r. 3 ( 3) for service out of Queensland to comply with the law of the country in which service is effected, which will sufficiently give effect to, inter alia, the reciprocal effect of the convention requirements, that subrule does not apply, as discussed above, to third party proceedings. In my opinion direct resort may not be had to the convention for the service of third party proceedings. The second point about the submission is that the Companies (Queensland) Code 1981 defines a "company" in s.5 as follows:- "5(1) In this Act, unless the contrary intention appears 'Company' means a company incorporated or deemed to be incorporated under the Act or under any corresponding previous law of the State." -- 21 of 29 -- 18 and "foreign company" does not, by definition in the same section, include a company such as the third party. The third party does not fall within those definitions and thus the provisions as to service contained in ss.528 and 530 are not apposite. Accordingly, O. 11 r. 3 ( 1 ) applies. O. 1 0 r. 1 relevantly provides that service shall be personal service unless otherwise prescribed or when the party by his solicitor undertakes in writing to accept service and enter an appearance. 0.10 r.2 provides for the manner in which personal service may be effected. Order 11 rule 3(1) does not refer to 0.10 r.2 but 0.17 r.3(3) specifically applies the whole of O.10 (except r.15) to third party proceedings. rt provides:- "Personal service shall be effected, in the case of a writ of summons, originating summons, or other document authenticated by signature or seal, by delivering to and leaving with, or offering to deliver to and leave with, the person to be served a copy of the writ, summons, or other document, in such a condition as to be open for examination, and at the same time showing him the original writ, summons, or other document, if he requires it; and, in the case of any other document, by delivering or offering to deliver the same to the person to be served in such a condition as to be open for examination." The third party notice, in my opinion, is a "document authorised by signature" and falls within 0.10 r.2. Further, Cooper J. in Richard Crookes Constructions v. Wendell (1990] 1 Qd.R. 392 at p.394 held:- "rn my opinion when· 0. 11 r. 3 ( 1) requires personal servicein accordance with 0.10 r.1 it requires the personal service contemplated by O. 1 0 r. 1 which is a personal serviceeffected in accordance with O. 10 r. 2. rt follows that although 0.11 r.3(1) makes no specific reference to 0.10 r.2 the reference to 0.10 r.1 is sufficient to catch up the obligation to serve in accordance with 0.10 r.2. Such an interpretation is in accordance with the practice applied by the Masters of this Court to require service out of the jurisdiction where personal service is involved to be effected in accordance with the provisions of 0.10 r.2." rt is uncontested that the service of both the third party notice and the amended third party notice was sought to be effected by post. Needless to say, such service does not comply with the -- 22 of 29 -- 19 requirements of O. 1 0 r. 1 as to personal service. In that circumstance it does not seem necessary for me to consider in detail the further submission of Miss O'Reilly which depended upon service by post being held to be a proper mode of service. Those submissions were, in brief, that although there were two defects in the original third party notice, namely that the basis for invoking the jurisdiction of the Court was not stated on the face of the proceeding as required by 0.11 r.1 and that justiciable (contribution) and nonjusticiable (contract) claims were both made, they were not such as to strike out the original third party notice. The first defect is one which may be cured by amendment, see Drabsch v. Ingersoll-Rand (Australia) Ltd. unreported decision of de Jersey J. of 1st August, 1985 (No.1925 of 1984) and Australian Commercial Research and Development Limited v. A.N.Z. Mccaughan Merchant Bank Limited (1990) 1 Qd.R. 101 and the second I have dealt with above at p. 15. The service of the original third party notice must be set aside. Leave having been given to serve an amended third party notice on 2nd August, 1990, the first defect noted above was cured and the claim was drawn to fall within 0.11 r.1 and I have found that it does so fall in part. However, the amended third party notice and statement of claim were again sent by post. The submissions made in respect of service of the amended third party notice are three-fold. The first is that the amended third party notice was purportedly served upon the third party at the address nominated at the conclusion of the conditional entry of appearance. The relevant words were as foilows:- "The address for service of the Third Party is at the office of McCullough Robertson, of 99 Creek Street, Brisbane in the State of Queensland, solicitors for the abovenamed Third Party, telephone 234 4444." -- 23 of 29 -- 20 The conditional appearance follows exactly the requirements of Form 104 which in turn directs that it should contain the same memoranda as Form 102 which requires an address for service to be appended. Although a defendant (or third party) may enter a conditional appearance denying the jurisdiction of the Court, such person is not required to do so and may apply without entering a conditional appearance to have service of the process struck out, see 0.12 r.22. No doubt the benefits of filing a conditional appearance will preclude entry of judgment in default of appearance, or leave to proceed to enter judgment being given. Miss O'Reilly submitted that the intended purpose of requiring an address for service is to facilitate service until such time as either the conditional appearance is set aside or the service of process is set aside. She submitted that that includes service of the amended originating process. I find it difficult to accept that this can be the effect of the memoranda on Form 104. It should be noted that Messrs. McCullough Robertson, wrote to the fourth defendants expressly stating that they did not have instructions to accept service of the amended third party notice. The very essence of 0.12 r.22 is the facilitating of objection to jurisdiction. It seems inconceivable that the strict requirements of the law as to service of process outside the jurisdiction could be circumvented in this way, particularly if original service is set aside ( even though after the second alleged service). 0.12 r.4 enforces this view. It provides:- "The solicitor of a defendant appearing by a solicitor shall state in such memorandum his name or firm and place of business and telephone number and, if the solicitor has facilities for the reception of documents in a document exchange, the document exchange address and also, if his place of business is distant more than ten kilometres from the Registry, a place to be called his address for service, which shall not be more than ten kilometres from the Registry, where any proceedings in the action may be left for him. And, if such solicitor is only agent of another solicitor, he shall add to the above particulars the name or firm and place of business and telephone number and if -- 24 of 29 -- 21 applicable the document exchange address of the principal solicitor." The important expression is "where any proceedings in the action may be left for him". This presupposes that the Court has jurisdiction over the subject matter of the action and the defendant whereas that is the very thing which is in issue in 0.12 r.22. I find that the purported service upon Messrs. McCullough Robertson based upon the address of the conditional entry of appearance is not proper service. The second submission was that even though Mr. Spieker was no longer the proper recipient by 9th October, 1990, the documents came to the notice of the third party nonetheless. Reliance was placed upon Drabsch v. Ingersoll-Rand (Australia) Limited and Anor. supra, but in that case his Honour had a discretion pursuant to s.528(7) of the Companies (Queensland) Code to authorise a different mode of service than that otherwise provided for in s.528(1). As I have already found, the provisions of the Code have no application to the third party. It was further submitted that the object of all service is only to give notice to the party concerned and it is uncontested that the third party has received the amended third party documents. That might well be so, but the Courts have closely supervised the serving of process outside the jurisdiction upon a subject of a foreign country, and it should be noted that this company is the subject of a truly foreign sovereign unlike the Hong Kong, United Kingdom and Victorian companies the subject of McPherson J.'s comment in Australian Commercial Research and Development Limited v. A.N.Z. Mccaughan Merchant Bank Limited, supra, at p. 109. Accordingly, what might sometimes be sufficient for service within the jurisdiction will not satisfy the requiremen.ts of the Rules for service outside the jurisdiction in a foreign country, -- 25 of 29 -- 22 at least not without resort to 0.93 r.17. It was further submitted that O.11 r.4 might be applied on the basis that, in the terms of that rule, "reasonable efforts were made to effect service ... ". However, that must be read conjunctively with the words following, viz., "and either that he wilfully neglects to appear in the cause or matter, or that he is living out of the jurisdiction in order to defeat or delay the plaintiff ... " and cannot be applied to these facts. Neither could O.10 r.16 be considered apposite (substituted service) because "prompt personal service" is certainly able to be effected. Accordingly, submission must fail. Finally, Miss O'Reilly submitted that the documents in issue are "merely" amending documents, not originating process, and by 0.32 r.11 such amended documents need only be delivered which was effected either by delivery to the third party's solicitors in Brisbane or by post in the Federal Republic of Germany. At the time when leave was given to amended the third party notice and statement of claim the original third party notice and statement of claim still stood untested - the application to strike out was adjourned on that same day. Unless it could be said that the original third party notice was void ab initio which it was not, then the practice of the Court with respect to amendment of originating process she submitted would apply. Reliance was placed upon Wilde v. Australia Trade Equipment Co. Pty. Ltd. [1981) 145 C.L.R. 590 at p. 603 for this proposition. In that case an earlier order of the Court was set aside but it was held by the High Court that so long as the earlier order stood and no stay was operative it was a lawful decision of the Court and action taken in reliance upon it was lawful. That decision does not seem to be apposite to .the matters in issue here. -- 26 of 29 -- 23 Order 32 rr. 1 and 7 permit amendment "in such manner and on such terms as may be just". No terms were imposed on 22nd August, 1990 when the fourth defendant sought leave to amend the third party notice and statement of claim. Order 32 r. 2 provides how a writ may be amended but makes no provision as to service or otherwise of that writ so amended. A third party notice is only characterised as a writ for certain specified purposes, see O. 17 r. 3 ( 3). But those purposes do not include amendment. Order 32 r. 9 provides for amendments of other documents which are delivered but a third party notice is not delivered, it is served, pursuant to the 0.11 r.3, so that no assistance may be obtained from those sub-rules. Unless amendments are made within 14 days of the leave being given to amend, in the absence of any other order, then the leave elapses. On 6th August, 1990 the solicitor for the fourth defendant served the amended third party notice upon Messrs. McCullough Robertson, see affidavit of Glen Cary Miller. Master Lee Q.C. (as he then was) considered the question of service of amendments to a writ of summons in ~Q=u=e~e=n=s~l=a=n=d--'S~a=....:..v~e=r~s'--~C=r~e~d~i~t"--~U~n=i~o~n'-=---~L~t=d=-=-.---'v~.'---H=o=l=m=e'-=s unreported decision of 12th November, 1980 (No. 2367 of 1979). He noted that the rules appear to be silent on the question of whether or not an amended writ should be reserved personally on a defendant. He noted that.Jamaica Railway Company v. The Colonial Bank (1905) 1 Ch. 677 held that there was "no hard and fast rule that an amended writ, whatever be the nature of the amendment, must be reserved personally on a defendant who has not appeared to the original writ". He concluded then at p. 2 that:- "It is clear from that case that the Court has a discretion in the matter and if it can see that there is a probability of injustice being done to the absent defendant, it will require that he be served personally with the amended writ - for example, if the amendment was of the substantial nature or such as to enlarge the relief claimed against him to in effect make the writ a new writ. Whilst it is proper, if the Court thinks so, to impose a condition of the amendment -- 27 of 29 -- 24 that a writ be served personally, the Court has a discretion in the matter." A third party notice being an originating process, it is appropriate that the practice in relation to writs be followed. The practice of the Masters is to apply that discretion in the way envisaged by Master Lee Q.C. on leave to proceed applications where amendment is necessary. Whilst the amendment of the third party notice was substantial, indeed I doubt ·very much if leave to amend in the way the original third party notice has been amended would have been permitted on a leave to proceed application without personal service upon the third party, the test appears to be that of injustice to the party against whom the amendments have been made. It cannot be said that there is any injustice to the third party. It is and has been made fully aware of the amendments through its Brisbane solicitors. Accordingly, for those reasons I am satisfied that service upon Messrs. McCullough Robertson was sufficient service of the amendments to the third party notice and statement of claim. If I am incorrect in this conclusion, then 0.93 r.17 gives a plentitude of power to cure any irregularity as to service of the amended third party notice. This was the approach taken by McPherson J. in Australian Commercial Research and Development Limited v. A.N.Z. Mccaughan Merchant Bank Limited [1990) 1 Qd.R. 101 at pp.108-10 and by Master Lee Q.C. in Capewell v. Celtino Pty. Ltd. [1986) 2 Qd.R. 2 at pp.22-3. In conclusion drawing together all the various matters which have been considered it is ordered that the service of the third party notice be set aside, that service of the amended third party notice be not set aside. It is further ordered that the third party's conditional appearance be set aside and the time for entering an unconditional appearance be extended to 14 days -- 28 of 29 -- 25 from the delivery of this judgment. It is further ordered that the claims as set out in paragraphs 15 and 16 of the amended statement of claim by the fourth defendant against the third party be stayed until further order. As to costs, the applicant/third party has been partially successful in relation to its application as has the fourth defendant in resisting that application. In all the circumstances taking into account the correspondence between the parties and the outcome of the striking out application I would order that there be no order as to costs. -- 29 of 29 --