Bulong Nickel Pty Ltd v Bateman Project Engineering Pty Ltd - [2001] FCA 1900

FEDERAL COURT OF AUSTRALIA
Bulong Nickel Pty Ltd v Bateman Project Engineering Pty Ltd [2001] FCA 1900
PRACTICE AND PROCEDURE - application for leave to serve originating process out of Australia - whether prima facie case for relief established by party obtaining the order.
Trade Practices Act 1974 (Cth) ss 51A, 52, 82
Federal Court Rules O 8 r 1 and r 2, O 9 r 7
Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 cited
Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 cited
Century Insurance Ltd (NL) v New Zealand Guardian Trust Ltd [1996] FCA 376 cited
Trade Practices Commission v Gillette Company (No 2) (1993) 118 ALR 280 referred to
Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 referred to
AIMS Computer Systems Pty Ltd v IPC Corporation (Australia) Pty Ltd [1996] FCA 847 referred to
Tycoon Holdings Ltd v Trencor Jetco Inc (1992) 34 FCR 31 referred to
Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 referred to
Caterpillar Inc v John Deere Ltd [1999] FCA 1503 referred to
BULONG NICKEL PTY LTD (ACN 000 807 036) and BULONG OPERATIONS PTY LTD (ACN 008 930 881) v BATEMAN PROJECT ENGINEERING PTY LTD (ACN 056 741 596); KINHILL PACIFIC PTY LTD (ACN 010 241 620); SNC‑LAVALIN ENGINEERS & CONSTRUCTORS INC and KILBORN ENGINEERING & CONSTRUCTION LTD
WAG 14 of 2000
LEE J
25 JUNE 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 14 OF 2000

BETWEEN:

BULONG NICKEL PTY LTD (ACN 000 807 036)
FIRST APPLICANT

BULONG OPERATIONS PTY LTD (ACN 008 930 881)
SECOND APPLICANT

AND:

BATEMAN PROJECT ENGINEERING PTY LTD
(ACN 056 741 596)
FIRST RESPONDENT

KINHILL PACIFIC PTY LTD (ACN 010 241 620)
SECOND RESPONDENT

SNC-LAVALIN ENGINEERS & CONSTRUCTORS INC
THIRD RESPONDENT

KILBORN ENGINEERING & CONSTRUCTION LTD
FOURTH RESPONDENT

JUDGE:

LEE J

DATE OF ORDER:

25 JUNE 2001

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The applicants be granted leave to serve the Application and Amended Statement of Claim outside Australia on the third and fourth respondents by serving such originating process on each respondent in accordance with Canadian law.

2.The copies of the Application served on each of the third and fourth respondents must be endorsed in red ink with the terms of Order 9 rule 7 of the Federal Court Rules set out in full.

3.A copy of this order must be served on the third and fourth respondents concurrently with service of the originating process together with a list of the affidavits relied upon by the applicants to obtain the order for leave to serve the respondents out of Australia, the applicants to provide a copy of any affidavit requested by a respondent.

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

W 14 OF 2000

BETWEEN:

BULONG…

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.

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Details

Case: [2001] FCA 1900
Decision Date: 25 JUNE 2001

CaseChat Overview and Summary

Bulong Nickel Pty Ltd brought an action against Bateman Project Engineering Pty Ltd, alleging breach of contract and associated economic loss. The defendants, including Canadian companies, were served with the amended statement of claim outside Australia, leading to objections on the basis of improper service. The Federal Court of Australia was tasked with determining whether the applicants were entitled to serve the originating process outside Australia.

The court considered whether the applicants had established that they could not effect service within Australia. This required a determination of whether the defendants had effectively made themselves available to be served within Australia, given their connections to the state of Victoria. The court also had to consider whether the defendants had demonstrated a sufficient arguable case against the applicants' entitlement to serve outside Australia.

The court found that the applicants had established that they could not effect service within Australia as the defendants had made themselves unavailable. The defendants had not demonstrated an arguable case against the applicants' entitlement to serve outside Australia, and the court granted leave for service outside Australia. The court emphasised the importance of the defendants being given a reasonable opportunity to respond to the originating process.

The orders included granting leave to serve the originating process outside Australia in accordance with Canadian law, with specific requirements for endorsing the copies of the application served on the respondents. Additionally, the applicants were required to provide a copy of any affidavit requested by a respondent.

Orders

Orders of the court

1. The applicants be granted leave to serve the Application and Amended Statement of Claim outside Australia on the third and fourth respondents by serving such originating process on each respondent in accordance with Canadian law.

2. The copies of the Application served on each of the third and fourth respondents must be endorsed in red ink with the terms of Order 9 rule 7 of the Federal Court Rules set out in full.

3. A copy of this order must be served on the third and fourth respondents concurrently with service of the originating process together with a list of the affidavits relied upon by the applicants to obtain the order for leave to serve the respondents out of Australia, the applicants to provide a copy of any affidavit requested by a respondent.

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

LEE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LEE J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 14 OF 2000

BETWEEN:	BULONG NICKEL PTY LTD (ACN 000 807 036) FIRST APPLICANT BULONG OPERATIONS PTY LTD (ACN 008 930 881) SECOND APPLICANT
AND:	BATEMAN PROJECT ENGINEERING PTY LTD (ACN 056 741 596) FIRST RESPONDENT KINHILL PACIFIC PTY LTD (ACN 010 241 620) SECOND RESPONDENT SNC-LAVALIN ENGINEERS & CONSTRUCTORS INC THIRD RESPONDENT KILBORN ENGINEERING & CONSTRUCTION LTD FOURTH RESPONDENT
JUDGE:	LEE J
DATE OF ORDER:	25 JUNE 2001
WHERE MADE:	PERTH