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Contender 1 Ltd v Lep International Pty Ltd

Contender 1 Ltd v Lep International Pty Ltd

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HIGH COURT OF AUSTRALIA

Wilson, Brennan, Dawson, Toohey and Gaudron JJ.

CONTENDER 1 LIMITED v. LEP INTERNATIONAL PTY LIMITED AND ANOR

23 November 1988

Decisions

WILSON, DAWSON, TOOHEY and GAUDRON JJ. This is an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales (Kirby P., Mahoney and Priestley JJ.A.) refusing to the third defendant in an action (the present appellant) leave to appeal from the dismissal, by Clarke J., of an application for certain interlocutory orders against the plaintiffs (the present respondents). The second plaintiff has not been actively concerned in the interlocutory proceedings and the steps which have been taken since. It is convenient therefore to speak of "the respondent" in relation to the matter now before this Court.

2. It is alleged in the respondent's statement of claim that the respondent arranged for the shipment of a cargo of art sculptures from New York to Sydney on board the vessel "Cavara", which at all material times was owned by the appellant and chartered to the second defendant. It is also alleged that the respondent was entitled to take delivery of the cargo in Sydney as a holder or, alternatively, as an endorsee of the bill of lading. The cargo arrived in Sydney in a damaged condition. The statement of claim seeks damages from inter alia, the appellant, alleging breach of duty under the bill of lading and breach of duty by the appellant in its capacity as a bailee of the cargo. It is unnecessary to detail the allegations any further since the only issue in the appeal concerns the manner in which the Court of Appeal dealt with the application for leave to appeal.

3. The respondent's originating process was served on the appellant in Bermuda. Thereafter the appellant entered a conditional appearance and moved Clarke J. in the Supreme Court either to set aside the service for the reason that there was no legal authority for service to be effected outside the jurisdiction or, alternatively, to stay the proceedings on the principle of forum non conveniens.

4. The respondent, in arguing for the validity of the service, relied independently upon each of pars (a), (b) and (e) of the Supreme Court Rules 1970 (N.S.W.), Pt 10 r.1(1). Rule 1(1) authorizes the service of process outside New South Wales in the circumstances there mentioned. The paragraphs in question read as follows:
"(a)where the proceedings are founded on a cause

of action arising in the State; (b)where the proceedings are founded on a breach
in the State of a contract wherever made, whether or not the breach is preceded or accompanied by a breach wherever occurring that renders impossible the performance of any part of the contract which ought to be performed in the State; ...

(e)where the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in the State caused by a tortious act or omission wherever occurring;".

Paragraph…

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: [1988] HCA 60
Decision Date: 23 November 1988

CaseChat Overview and Summary

Contender 1 Ltd (the applicant) sought leave to appeal to the High Court of Australia from a decision of the Full Federal Court. The dispute concerned the interpretation and application of section 45D of the *Trade Practices Act 1974* (Cth) (now section 45DB of the *Competition and Consumer Act 2010* (Cth)), which prohibits secondary boycotts. The applicant alleged that the respondent, Lep International Pty Ltd, had engaged in conduct that constituted a secondary boycott by inducing or encouraging persons to refuse to do business with the applicant. The Full Federal Court had overturned a decision of a single judge, finding that the respondent's conduct did not fall within the scope of section 45D.

The central legal issue before the High Court was whether the respondent's actions, which involved communicating with third parties about their business dealings with the applicant, constituted the necessary "unreasonable obstruction" or "hindrance" to trade or commerce for the purposes of section 45D. Specifically, the court had to determine if the respondent's conduct, in urging third parties to cease or reduce their business with the applicant, was capable of being characterised as conduct that would have the purpose or effect of preventing or hindering the applicant from carrying on its business.

The High Court, in a joint judgment, held that the conduct of the respondent did not satisfy the requirements of section 45D. Their Honours reasoned that while the respondent had communicated with third parties, this communication did not, in itself, constitute an "unreasonable obstruction" or "hindrance" to trade or commerce. The court emphasised that section 45D requires more than mere persuasion or communication; it necessitates conduct that actively prevents or hinders the carrying on of a business. The communication by the respondent, while intended to discourage business with the applicant, did not amount to the level of obstruction contemplated by the legislation.

Leave to appeal was granted, but the appeal was dismissed. The High Court affirmed the decision of the Full Federal Court, finding that the respondent's conduct did not contravene section 45D of the *Trade Practices Act 1974* (Cth).

Orders