Bridgestone Earthmover Tyres Ltd v Bowater Tutt Industries Pty Ltd (Trading as Australian Hydraulics Co)

[1992] FCA 398

398 5 9 2

JUDGMENT NO. -. --

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)	No NG 38 of 1992
GENERAL DIVISION	1

BETWEEN BRIDGESTONE EARTHMOVER

TYRES LIMITED
Applicant

AND BOWATER TUTT INDUSTRIES PTY LIMITED T/AS AUSTRALIAN HYDRAULICS COMPANY

Respondent

EX TEMPORE JUDGMENT

SYDNEY 11 MAY 1992

This is an application by the respondent company, Bowater Tutt Industries Pty Limited, trading as Australian Hydraulics Company (AHC), to serve a cross claim in this action on an English company, Danzoe Engineering Limited. The matter is dealt with in this Court by order 8 rule 2(2):

this Order.

Where the Court i s s a t i s f i e d o f the fo l l ow ing

m a t t e r s :

( a ) t h a t the proceeding i s a proceed ing i n which

the Court h a s j u r i s d i c t i o n ;

(b) t h a t the proceeding i s a proceeding t o which

r u l e 1 a p p l i e s ; and

( C ) t h a t the a p p l i c a n t h a s a prima f a c i e c a s e f o r

the re l ie f which he seeks;

the Court may, by order , grant l e a v e t o serve

o r i g i n a t i n g p roces s o u t s i d e the Commonwealth under

The substantive action is brought by Bridgestone Earthmover Tyres Pty Limited (Bridgestone) against AHC in respect of representations said to have been made by AHC before and within a contract between them. This allegedly provided for the supply by AHC to Bridgestone of a large piece of equipment supposedly designed to lift very heavy tyres up to and including 5,000 kilograms in weight. The allegation made by Bridgestone is that the machine supplied was incapable of performing the work represented as within its capacity, and was therefore, to all intents and purposes, useless and had to be replaced. Bridgestone alleges that the representations were deceptive or misleading, and false, contrary to the provisions of Part V of the Trade Practices Act 1974 (Clth). There are also allegations of breach of contract and of other statutory duties or provisions.

AHC's desire to join Danzoe is based upon the contention that any representations made by AHC to Bridgestone were merely passed on by AHC from Danzoe who, as the manufacturer of the	equipment concerned, had made the same or similar
representations to AHC.
The task before the Court is to determine whether leave should be given to serve the cross claim in England. In relation to the first criterion of Order 8 rule 2(2), there is no doubt that the Court has jurisdiction to deal with this dispute. This arises in a number of ways, one of which is that the proposed cross-claim alleges contraventions of some sections of the Trade Practices Act 1974 (Clth) by way of misleading and deceptive conduct and false representations. These alone are sufficient to ground jurisdiction. There are many other grounds as well.
Order 8 rule 1 provides a number of bases upon which originating process may be served outside the Commonwealth of Australia. The rule has been drafted on the basis of seeking to provide the maximum flexibility permitted by the Constitution and, so far as I can see, provides a number of bases upon which this proposed cross-claim qualifies. Amongst others, sub-paragraphs (a), (ab), (b) and (c) provide either actual or at least strongly arguable grounds for its inclusion.
The third criterion required is a prima facie case. This is made out by a number of means. Two will suffice for present purposes. The proposed cross-claim embodies the substance of the statement of claim issued by Bridgestone against AHC in alleging the facts which I have summarised. On the face of it, which is as far as I am required to go at the present
time, Bridgestone's statement of claim against AHC makes out a prima facie case for relief and accordingly the cross-claim itself must necessarily do so as well. Whether the respective cases are made out will of course depend on whether the facts in each pleading can in due course be established.
The second basis upon which a prima facie case can be found established is set out in the affidavit of AHC's group controller, Theo Hudson, of 1 April 1992. That affidavit and the annexures to it establish a strong basis for a case of the kind set out in the proposed cross-claim in the necessary sense that the facts deposed to and the matters set out in that material would, if proved, make out the case for relief sought.
Accordingly, there can be no doubt that a prima facie case is established on the material. Nonetheless, rule 2(2) provides the Court with a residual discretion as to whether to grant leave to serve this cross-claim in England. No doubt there are many bases upon which this discretion might be refused. One may be if the matter was trivial or of a very minor kind. Another might be that, notwithstanding the appropriateness of establishing that another party might be involved in the subject matter of the action, Bridgestone should not be delayed while such a procedure is undertaken and the cross-
claim should be heard in separate proceedings.
None of these situations exist here. In fact there seems to be every reason to accept that the only way in which justice can be done in this case is by having Danzoe as a party to the action when it is litigated. For its part, Bridgestone does not object to the orders now being sought.
I grant leave to serve the cross-claim against Danzoe Engineering Ltd outside the Commonwealth, namely at the address in England stated in the affidavit of Peter Lindsay Burston of 1 April 1992 or such other address as service may properly be effected.
On 5 March 1992 I ordered AHC to file and serve its defence and cross-claim by 2 April. That has not yet been done. I excuse AHCrs contempt of the Court's orders of that day and extend the period of time for the service of the cross-claim to Friday 4 p.m. on 29 May. The cross-respondent Danzoe will file and serve its defence to the cross-claim by not later than 4 p.m. on Friday 26 June. Liberty to apply will be reserved to any party. The matter will be listed for directions again on Monday 29 June 1992 at 9.30 am.