Carnegie Corporation Ltd v Pursuit Dynamics Plc - [2007] FCA 1010

FEDERAL COURT OF AUSTRALIA
Carnegie Corporation Limited v Pursuit Dynamics Plc
[2007] FCA 1010
PRACTICE AND PROCEDURE – service out of the jurisdiction – preliminary discovery – power to grant leave to serve application for preliminary discovery out of the jurisdiction – whether application for preliminary discovery an originating process – whether an originating process in a proceeding for which leave can be granted – no power to grant leave on bases sought – discretionary considerations against grant of leave – preliminary discovery relating to claim essentially based in breach of contract – peripheral and elusive trade practices claim – choice of English law clause in contract - factor in favour of refusal of leave
Trade Practices Act 1974 (Cth)
Patents Act 1990 (Cth)
Judiciary Act 1903 (Cth) s 39B(1A)
Federal Court Act 1976 (Cth) s 4
Evidence (Proceedings in other Jurisdictions) Act 1975 (UK)
Federal Court Rules O 8
Air Services Australia v Transfield Pty Ltd (1999) 92 FCR 200 cited
Kirella Pty Ltd v Hooper (1999) 92 FCR 90 cited
Hooper v Kirella Pty Ltd (1999) 167 ALR 358 cited
Re Sherlock (1991) 102 ALR 156 cited
Re Austral Oil Estates Ltd (in liq) (1986) 86 FLR 247 cited
Fiorentino v Irons (1997) 79 FCR 327 cited
Re Interchase Corporation Ltd (1996) 68 FCR 481 cited
Pasadale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 cited
Re Strarch International Ltd (in liq) [2005] FCA 829 cited
CARNEGIE CORPORATION LIMITED (ACN 009 237 736), NEW MILLENIUM ENGINEERING PTY LIMITED AND ALAN ROBERT BURNS v PURSUIT DYNAMICS Plc AND PURSUIT MARINE DRIVE LIMITED
WAD 107 OF 2007
FRENCH J
4 JULY 2007
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 107 OF 2007

BETWEEN:

CARNEGIE CORPORATION LIMITED (ACN 009 237 736)
First Applicant

NEW MILLENIUM ENGINEERING PTY LIMITED
Second Applicant

ALAN ROBERT BURNS
Third Applicant

AND:

PURSUIT DYNAMICS Plc
First Respondent

PURSUIT MARINE DRIVE LIMITED
Second Respondent

JUDGE:

FRENCH J

DATE OF ORDER:

4 JULY 2007

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The applicants’ motion filed 25 May 2007 is dismissed.

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

WAD 107 OF 2007

BETWEEN:

CARNEGIE CORPORATION LIMITED (ACN 009 237 736)
First Applicant

NEW MILLENIUM ENGINEERING PTY LIMITED
Second Applicant

ALAN ROBERT BURNS
Third Applicant

AND:

PURSUIT DYNAMICS Plc
First Respondent

PURSUIT MARINE DRIVE LIMITED
Second Respondent

JUDGE:

FRENCH J

DATE:

4 JULY 2007

PLACE:

PERTH

REASONS FOR JUDGMENT ON MOTION FOR LEAVE
TO SERVE OUT OF THE JURISDICTION
Introduction

This is an unusual application. Two Australian companies and their director seek leave to serve an application out of the jurisdiction on two English companies. That is not unusual. What is unusual is that the application they wish to serve in England is an application for preliminary discovery pursuant to O 15A of the Federal Court Rules. It is not in terms limited to documents…

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: [2007] FCA 1010
Decision Date: 4 July 2007

CaseChat Overview and Summary

In the case of Carnegie Corporation Ltd v Pursuit Dynamics Plc, the dispute involves an application by Carnegie Corporation Ltd for leave to serve an application for preliminary discovery on Pursuit Dynamics Plc, which is based in England. The matter was brought before the court to determine whether the Australian court should exercise jurisdiction over the English-based respondent and whether it should grant the application for preliminary discovery. The core issue before the court was whether it had the jurisdiction to serve the application for preliminary discovery on an English respondent, despite an exclusive jurisdiction clause in the contract that referred to the English courts. The court needed to weigh the contractual jurisdiction clause against the need for the Australian court to exercise its jurisdiction in proceedings arising under the Trade Practices Act.

The court considered the arguments presented by both parties and concluded that, although it had the power to order service out of the jurisdiction, the proceedings were fundamentally about alleged breaches of contract. The court found that the governing law clause in the contract could not exclude the jurisdiction of the Australian court in proceedings arising under the Trade Practices Act. However, the court also acknowledged that the applicants had expressly submitted to the exclusive jurisdiction of the English courts regarding the alleged breaches of contract. Balancing these factors, the court determined that, even if it had the power to grant leave to serve the application for preliminary discovery on the respondents in England, it should not exercise its discretion to do so. The court ultimately decided that the motion would be dismissed.

The court issued an order dismissing the applicants' motion filed on 25 May 2007. The order concluded that the motion was not to be granted, and thus, the application for preliminary discovery was not to proceed in the Australian court against the English respondent.

Orders

Orders of the court

1. The applicants’ motion filed 25 May 2007 is dismissed.

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

FRENCH J

Even assuming however that I had the power to order service out of the jurisdiction in this case, it is ultimately concerned with alleged breaches of contract. The governing law clause relied upon by the respondents cannot exclude the jurisdiction of this Court in proceedings arising under the TPA. But where the proceedings are, as a matter of substance, proceedings concerned with an alleged breach of contract then the applicants’ express submission to the exclusive jurisdiction of the English courts in that regard is a powerful factor against the assumption of jurisdiction by this Court. In my opinion, even were I satisfied that I had the power to grant leave to serve the application for preliminary discovery on the respondents in England, I do not think, as a matter of discretion, that I should do so. Conclusion For the preceding reasons the motion will be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 107 OF 2007

JUDGE:	FRENCH J
DATE OF ORDER:	4 JULY 2007
WHERE MADE:	PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 107 OF 2007

JUDGE:	FRENCH J
DATE:	4 JULY 2007
PLACE:	PERTH