Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd

[1995] FCA 878

IN THE FEDERAL COURT OF AUSTRALIA                  )
  )
NEW SOUTH WALES DISTRICT REGISTRY                 )          NG 148 of 1994
  )
GENERAL DIVISION  )

CELL TECH COMMUNICATIONS PTY LIMITED

Applicant

NOKIA MOBILE PHONES (UK) LIMITED and ORS

Respondents

Coram:           Whitlam J
Place:              Sydney

Date:26 May 1995

REASONS FOR JUDGMENT

(Ex Tempore)
           On 1 May 1995 Lindgren J made an order setting aside service of the application upon the second respondent.  By notice of motion filed on 11 May 1995 the applicant seeks leave to appeal from what has been described as the decision of Lindgren J given on 20 April 1995.  That is a reference to the date on which his Honour delivered judgment for the orders being made on 1 May.  I am relieved from setting out the facts underlying the application by a reference to those reasons for judgment which very comprehensively chronicle the background to the applicant's claim, the nature of the proceedings and the facts as they fell out before his Honour.

His Honour was dealing with claims made against the first and the second respondents.  At that stage the third respondent had not been served.  In the event his Honour set aside service only against the second respondent.  In their submissions today,
counsel have relied principally on the framework of his Honour's judgment and the reasons.  They have also referred to the transcript of the proceedings before his Honour and to some small part of the evidence.

Importantly, counsel have drawn attention to an error of fact expressed in the published reasons for judgment where his Honour referred to what is accepted by both parties as an important document.  The date of the document had been wrongly expressed to be 1988 instead of 1989.  This was drawn to his Honour's attention prior to orders being pronounced on 1 May and his Honour said it would not make any difference in any event.  It is important that that should be made clear because the document is one upon which counsel for the applicant relies, particularly in terms of errors that he identifies in his Honour's reasons.

The notice of appeal, which it will be sought to agitate if leave be granted, is annexed to the affidavit made by the applicant's solicitor John Anthony Leslie on 24 May 1995.  It propounds three proposed grounds of appeal.  The relevant passage in his Honour's reasons for judgment occurs at pages 41 to 43 where he deals with the claim against the second respondent, Mr Martensson.  Mr Motbey of counsel, who appeared for the applicant, identified what he described as the errors of law in his Honour's approach by reference to those grounds of appeal.

The ground numbered 3 suggests that his Honour applied a wrong test in looking at the question of what was required in terms of a prima facie case for the purposes of O 8    r 2(2)(c), as it is applied to O 9 r 7.  However, when reference is made to earlier passages in his Honour's judgment, particularly those occurring at pages 15 through 18, I do not think it can be said that his Honour applied the wrong test.  It is when one comes to grounds 4 and 5 that Mr Motbey is perhaps on firmer ground.  In particular, in ground 5 the applicant identifies what is said to be an error of law made by his Honour in failing to recognise or to label evidence as being sufficient to constitute a prima facie case for the purposes of the application before the Court.  It may be that this gives rise to the kind of question of law in respect of which leave to appeal may be granted.

Counsel are agreed on the principles governing the question of whether leave to appeal should be granted.  Both of them have cited well-known authorities and in view of the lateness of the hour I hope counsel will forgive me if I do not recite them myself.  They are fresh in my mind and they do not seem to me to be in any doubt.  The question upon which I have most concerned myself is whether, in the circumstances, there would be a real injustice to the applicant in letting the order stand, bearing in mind, of course, that one is dealing here with a matter in which any potential appellant would have all the difficulties inherent in interesting a Full Court in taking a different view of the discretion that is reposed in the primary Judge.

No doubt for this reason Mr Rein of counsel, who appeared for the second respondent, was anxious to take me to passages in the evidence which would sustain the conclusions expressed at page 43 of his Honour's reasons for judgment.  As to those reasons, Mr Motbey has mounted a powerful argument to suggest that an inference of the type pleaded in the particulars and in paragraph 19 of the statement of claim or of the kind refined in oral submissions before his Honour on the hearing of the application, ought to be available.

Nonetheless, I have reached the view that in the circumstances this is not a case where it is appropriate to grant leave to appeal.  In reaching that conclusion I am fortified by the fact that even if I am wrong in the view that I have taken that I am unable to identify any error in his Honour's approach, no real injustice, it seems to me, can befall the applicant here where the substantive order made is simply that service be set aside.  This is not the kind of case where forevermore the applicant will be shut out of a case against the second respondent.  The applicant can make a fresh application for leave to serve the second respondent outside Australia and it would be open to the applicant in such an application to adduce evidence of a prima facie case which might plug the gaps that his Honour perceived in the evidence before him.

For these reasons the notice of motion is dismissed.  I order that the applicant pay the second respondent's costs of the motion.

I certify that this and the preceding three pages are a  true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam

Associate:

Date:                 26 May 1995

Counsel for the applicant:  S.J. Motbey

Solicitor for the applicant:  John Leslie

Counsel for the 1st and 2nd respondents:    N.G. Rein

Solicitor for the respondents:  Phillips Fox

Date of hearing:  26 May 1995