Amalgamated Wireless Australasia Pty Ltd v McDonnell Douglas Corporation

[1987] FCA 650

IN T.kE FEDERAL COURT OF AUSTRALIA ..

i )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G 338 of 1987

! 1

i	DIVISION	GENERAL	)
l
ON APPEAL from a sinule Judge
of the Federal Court of
Australia
: B -
AMALGAMATEX WIRELESS
AUSTRALASIA PTY. LIMITED

I Appellant

McDONNELL DOUGLAS CORPORATION

and OTHERS

CORAM:	FOX, DAVIES AND SHEPPARD JJ.
D=:	1 OCTOBER 1987

REASONS FOR JUDGMENT	PRINCIPAL
OEGISlRY

EX TEMPORE

FOX J.

In thls matter the appellant seeks leave to appeal from

an order made by Northrop J. In my view leave should be granted.

and I can proceed at once to say something about the appeal.

The question really at issue is whether a party should

be able to effect service in accordance with 0.8 of the rules of

this court, having alreadv effected service or substituted

service under 0.7. T h i s would be an unusual course. but one can

I

r .

2 .

U

r

see that there may well be circumstances in which it is advisable ! : .

for a party to adopt the course so that any question arisjng out

of what was done in relation to-or under 0.7 can be cured bp what

.

is done under 0 . 8 .

In my view, therefore, the appeal against Northrop J's

decision, wherein he felt that both courses could not be adopted;

should be allowed, and the matter should be remitted to a single

judge of this court to be dealt	with in accordance with	0.8.
DAVIES J:

I am of the same opinion.

I SHEPPARD J:

I also am of the same opinion, and I would only add that

it seems to me that the provisions of 0.8 r 2 provide the court

with a wide discretion to determine whether or not it should

qrant leave to s rve originating process outside the

Commonwealth. The fact that there is an existing order for

service which may have been complied with is a factor. but I cannot regard it, as the learned primary Judge did, as a factor

so couent that it disqualified an applicant who may be concerned

about the validity of service under 0.7. particularly if he has

obtained an order for substituted service, from takins a cautious

approach and after	all	seekinq leave to serve outside the
jurisdiction.

r .

I would agree with the orders which have been proposed.

,.	..
i
i

,- _I

1

7: certifv that this and the

t w o ( 2 ) preceding pages are a

true copy of the Reasons for

Judgment of the Court.:-

Associate: - S.&&

Date: 1 October 1987

Counsel for the Appellant: Mallesons &-Stephen Jaques

Solicitors for the Appellant:	C.A. Sweeney
Counsel for the second and
third Respondents:	N. Manousaridis

Solicitors for the second and l,

thlrd Respondents: Baker & McKenzie

l	Dates of hearinq:	Sydney:	l October 1987
Date judgment delivered:	Sydney:	1 October 1987
I

I

I IN THE FEDERAL COURT OF AUSTRALIA )

I	)
I

NEW SOUTH WALES DISTRICT REGISTRY	1	No. G 338 of 1987
)

DIVISION	GENERAL	)
ON APPEAL from a sincrle Judge
of the Federal Court of
Australia BFIIWEEN:
AMALGAMATED WIRELESS
AUSTRALASIA PTY. LIMITED Appellant
m:
McDONNELL DOUGLAS CORPORATION and OTHERS

CORAM: FOX, DAVIES AND SHEPPARD JJ.

D=:	1987	1 OCTOBER	; _ I	:	2 3 OCT 1987
!	t

' FEDERAL COURT OF

\ . AUSTFIALIA

REASONS FOR JUDGMENT PRINCIPAL

EX TEMPORE L \. REGISTRY

FOX J. __-c

In this matter the appellant seeks leave to appeal from

an order made by Northrop J. In my view leave should be granted, and I can proceed at once to say something about the appeal.

The question really at issue is whether a party should

be able to effect servlce m accordance wlth 0.8 of the rules of

this court, havinu already effected service or substituted

service under 0.7. Thls would be an unusual course. but one can

3 .

7: certifv that this and the

two ( 2 ) preceding pages are a true copy of the Reasons for Judgment of the Court.

Associate: S. G L

Date: 1 October 1987

Counsel f o r the Appellant:	Mallesons & Stephen Jaques
Solicitors for the Appellant:	C.A. Sweeney
Counsel for the second and
third Respondents:	N. Manousaridis
Solicitors for the second and
third Respondents:	Baker & McKenzie
Dates of hearinu:	Sydney: I October 1987
Date judgment delivered:	Sydney: 1 October 1987

I

t

!	.
l

! IN THE FDERAL COURT OF AUSTRALIA

I )

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G 338 of 1987
)

DIVISION GENERAL 1

I

ON APPEAL from a sinule Judge

i

of the Federal Court of	r -
Australia	I .
AMALGAMATED WIRELESS
AUSTRALASIA PTY. LIMITED

Appellant

m:

McDONNELL DOUGLAS CORPORATION

and OTHERS

I-

i'

CORAM: FOX, DAVIES AND SHEPPARD JJ. .

D B : 1 OCTOBER 1987 I -! 2 3 OCT 1987

I FEDERAL COURT OF

\, . AUSTRALIA

REASONS FOR JUDGMENT PRINCIPAL

'I \ REGISTRY

EX TEMPORE -.

FOX J. - --

In this matter the appellant seeks leave to appeal from

an order made by Northrop J. In my view leave should be granted,

and I can proceed at-once to say something about the appeal.

The question really at issue is whether a party should I , '

be able to effect service in accordance with 0.8 of the rules of

this court. having alreadv effected service or substltuted

servlce under 0.7. This would be an unusual course. but one can

2 .

see that there may well be circumstances in which it is advisable

for a party to adopt the course so that any question arising out

of what was done in relation to or under 0.7 can be cured by what

is done under 0.8.

In my view, therefore, the appeal aualnst Northrop J's

decision. wherein he felt that both courses could not be adopted,

should be allowed. and the matter should be remitted to a single

judge of this court to be dealt	wi h in accordance with	0.8.
DAVIES J:

I am of the same opinion.

SHEPPARD J:

I

I also am of the same opinion, and I would only add that

it seems to me that the provisions of 0.8 r 2 provide the court

with a wide discretion to determine whether or not it should I .

grant leave to s rve originating process outside the

Commonwealth. The fact that there is an existing order for

service which may have been complied with is a factor. but I

cannot regard it, as the learned primary Judge did. as a factor

so cocrent that it disqualified an applicant who may be concerned

about the validity of service under 0.7, particularly if he has

obtained an order for substituted service. from takinu a cautious

approach and after all seekins leave to serve outside the

Jurisdictlon.

i I wauld agree wlth the orders which have been proposed.

3 .

I '.	I	1 certifv that this and the
two ( 2 ) precedinq pages are a
I	Lrue copy or the Reasons for
I
Judgment of the Court.
Associate: S. &G
Date: 1 October 1987

Counsel for the Appellant:	Mallesons & Stephen Jaques
Solicitors for the Appellant:	C.A. Sweeney

I

Counsel for the second and

third Respondents: N. Manousaridis

Solicitors for the second and

third Respondents: Baker & McKenzie

Dates of hearing:	Sydney: l. October 1987	I
Date Judgment delivered:	Sydney: 1 October 1987	!,I

I .

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