Bannerton Holdings Pty Ltd v Sydbank Soenderjylland

[1996] FCA 289

IN THE FEDERAL COURT OF AUSTRALIA                 ) 
  )  
WESTERN AUSTRALIA DISTRICT REGISTRY    )  No WG 133 of 1993
  )  
GENERAL DIVISION  )     

BETWEEN:  BANNERTON HOLDINGS PTY LIMITED  

Applicant

AND:  SYDBANK SOENDERJYLLAND

Respondent

Coram:        Davies J.
Date:          22 March 1996
Place:         Perth

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.      Leave to appeal be granted.

2.      Costs of the application for leave to appeal be costs in the appeal.

NOTE:        Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                 ) 
  )  
WESTERN AUSTRALIA DISTRICT REGISTRY    )  No WG 133 of 1993
  )  GENERAL DIVISION  )     

BETWEEN:  BANNERTON HOLDINGS PTY LIMITED  

Applicant

AND:  SYDBANK SOENDERJYLLAND

Respondent

Coram:        Davies J.
Date:          22 March 1996
Place:         Perth

REASONS FOR JUDGMENT

This is an application for leave to appeal from a decision of Nicholson J in which his Honour upheld service out of Australia upon the respondent Sydbank Soenderjylland ("Sydbank").  His Honour also declined to stay the proceedings on the ground that the proceedings would more appropriately have been taken elsewhere.

As substantial arguments can be put in the appeal, it seems to me that leave should be granted as the respondent is a Danish company.  The only actual activity which occurred in Australia was one telephone call which was made from Perth to Copenhagen, and the discussion which therein occurred.

The respondent now finds itself embroiled in proceedings in this country which  largely focus upon the Trade Practices Act 1974 (Cth) ("the TPA") which is, of course, an Australian statute dealing with conduct which occurs in Australia.  A claim under the TPA can be made only in Australia.  I think the argument for Sydbank will be that, really, the issue between the parties concerns matters which took place elsewhere than in Australia.

As the proceedings in Australia may be quite lengthy and complex and may raise matters which could not be raised in any other forum, it seems to me that the respondent should be given the opportunity of putting its case to the Full Court, if it wishes to do so, to say that service out of Australia should not have been upheld. 

Accordingly, I shall grant leave to appeal and will order that the costs of the application for leave to appeal be costs in the appeal.

I certify that this and the preceding page
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date:  22 March 1996

Counsel for the applicant:  M.D. Howard

Solicitors for the applicant:  Parker & Parker        

Counsel for the respondent:  W.S. Martin QC
  B. Dharmananda

Solicitors for the respondent:  Malleson Stephen Jaques

Date of hearing:  22 March 1996

Date of judgment:  22 March 1996