FEDERAL COURT OF AUSTRALIA
Bray v F. Hoffman-La Roche Ltd [2002] FCA 243
TRADE PRACTICES – international price fixing and market allocation cartel - extra-territorial operation of the Trade Practices Act 1974 (Cth) –– whether Court has jurisdiction in respect of the making and giving effect to the cartel arrangement by foreign corporations – whether jurisdiction of the Court depends on whether foreign corporations carried on business in Australia by or through their Australian subsidiaries – whether foreign corporations gave effect to the cartel arrangement in Australia by communications from outside Australia which were received in Australia - whether officers of the Australian subsidiaries of the foreign corporations acted as their agents in implementing the cartel arrangement
COURTS – PRACTICE AND PROCEDURE – leave to serve out of the jurisdiction – whether Court has jurisdiction in the proceeding in respect of extra-territorial conduct – whether jurisdiction is to be determined by reference to the prima facie case established by the applicant - whether motion to set aside proceeding for want of jurisdiction is a final or interlocutory proceeding – whether the Court is under a duty to forthwith hear and determine a bona fide challenge to its jurisdiction – whether the Court has been conferred with jurisdiction to conclusively determine the facts upon which its jurisdiction depends
EVIDENCE – whether s 75 of the Evidence Act 1995 (Cth) applies to second-hand and more remote hearsay – circumstances in which the Court might dispense with compliance with the rules of evidence in respect of matters that are not bona fide in dispute
WORDS AND PHRASES – “carrying on business in Australia”
Trade Practices Act 1974 (Cth) s 5(1), 45(2), 75B, 86 and 163A
Evidence Act 1995 (Cth) s 75
Federal Court Rules O 8 r 2(2), O 9 r 7O’Keefe Nominees Pty Limited v BP Australia Limited (1992) 38 FCR 85 – cited
Westpac Banking Corporation v Northern Metals Pty Ltd (1989) ATPR 50,407 – cited
Caterpillar Inc v John Deere Ltd (1999) 48 IPR 1 - applied
Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 - cited
Tycoon Holdings Ltd v Trencor Jetco Inc (1992) 34 FCR 31 - considered
Allstate Life Insurance Co v ANZ Banking Group Ltd (No 3) (1996) 64 FCR 55 - cited
Licul v Corney (1976) 180 CLR 213 – cited
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 – cited
Victorian Broadcasting Network v Whitlam (1980) 31 ALR 184 – cited
Contender 1 Ltd v Lep International Pty Ltd (1988) 82 ALR 394 – considered
WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 – cited
Anderson and Co (A Firm) v GPA Group PLC (Unreported, Federal Court of Australia, Spender, Drummond and Sundberg JJ, 13 November 1998) - cited
Trade Practices Commission v Australian Iron and Steel Pty Limited & Ors (Unreported, Federal Court of Australia, Lockhart J, 29 September 1989) - cited
Weatherall v Satellite Receiving…
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- Case
- [2002] FCA 243
- Decision Date
CaseChat Overview and Summary
The court considered the arguments presented by the respondents and concluded that it did not have a duty to hear and determine the jurisdiction issue at that stage. The court held that it had a discretion to decide the timing and manner of such a determination and, for the reasons given, it was not appropriate to do so at that stage. The court found that the applicant had satisfied the requirements under rule 8 r 2(2) of the court rules against all respondents except BASF South East Asia, whose motion to set aside service was granted. The court determined that the other respondents' motions to dismiss the proceedings should be dismissed, and the applicant was entitled to costs against those respondents.
The court ordered that the motions of the specified respondents be dismissed, except for BASF South East Asia, whose motion to set aside service was granted. The court further ordered that the respondents pay the applicant's costs of the motions, with specific apportionments among the respondents. The applicant was to separately pay the costs incurred by BASF South East Asia. No costs were ordered concerning the Australian Competition and Consumer Commission's intervention.
Orders
Orders of the court
1. The motions of the first, fourth, sixth, eighth, ninth, tenth and thirteenth respondents be dismissed.
2. Service of the Application on the twelfth respondent be set aside but otherwise the motion of the twelfth respondent be dismissed.
3. The first, fourth, sixth, eighth, ninth, tenth and thirteenth respondents pay the applicant’s taxed costs of and incidental to their motions.
4. As between the first, fourth, sixth, eighth, ninth, tenth and thirteenth respondents the costs payable to the applicant be apportioned 40% to the first and fourth respondents, 20% to the sixth, eighth and ninth respondents and 40% to the tenth and thirteenth respondents.
5. The applicant is to pay the taxed costs separately incurred by the twelfth respondent in respect of or incidental to its motion.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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