Legal Research
Cases
Bray v F Hoffman-La Roche Ltd

Bray v F Hoffman-La Roche Ltd

Link copied

Case Copied 13 March 2002 78 min read

Contents

On this page

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 7
O’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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Bray v F Hoffman-La Roche Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] FCA 243
Decision Date: 13 MARCH 2002

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Bray v F Hoffman-La Roche Ltd involved a dispute concerning the jurisdiction and service of proceedings against multiple foreign respondents. The applicant sought to determine whether the court had jurisdiction under section 5(1) of a relevant act, and if the service of the application was valid. The respondents, including Hoffman-La Roche Ltd, BASF, and others, argued against the court's jurisdiction and the validity of the service. The legal issues before the court were whether the court had jurisdiction to hear the matter and whether the service of the application was valid under the rules of court.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In summary, in relation to the “jurisdiction” application I have concluded that:· I am not under a duty to hear and determine on a final basis the s 5(1) issue raised by the HLR and BASF respondents at this stage;· I have a discretion to determine the time at which and the manner in which that issue is to be determined;· for the reasons given earlier it is not appropriate to hear that issue at this stage.Conclusions For the reasons set out above I am satisfied that the matters the applicant is required to establish under O 8 r 2(2) have been made out against the foreign respondents save for BASF South East Asia. There being no discretionary reason why the service on those respondents should be set aside it must follow that the motions of the foreign respondents, other than that of BASF South East Asia, should be dismissed. The motion, however, of BASF South East Asia to set aside service of the Application upon it is to be granted.Costs Although the applicant has not succeeded on all of the issues argued by her I have concluded that costs should follow the event. Accordingly, the applicant is entitled to an order that the foreign respondents, other than BASF South East Asia, pay her taxed costs of and incidental to their motions under O 9 r 7. As between the foreign respondents the applicant’s costs should be apportioned 40% to the HLR foreign respondents, 40% to the BASF respondents (other than BASF South East Asia) and 20% to the Aventis respondents. The lower apportionment to the Aventis respondents is on the basis that they did not join in, but rather opposed, the “jurisdiction” application of the other foreign respondents and that application occupied a significant part of the hearing. The applicant, however, should pay the costs separately incurred by BASF South East Asia. Finally, it is appropriate to make no costs orders concerning the ACCC’s “intervention”.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.