FEDERAL COURT OF AUSTRALIA
Costa Vraca v Bell Regal Pty Ltd [2003] FCA 65
TRADE PRACTICES – claims for loss and damage by tomato growers in Australia against an Israeli producer of infected tomato seeds – the producer supplied the seeds in a sealed package for resale by its exclusive distributor in Australia – leave to serve the originating process out of the jurisdiction – whether certain statements made on the package and by the producer to its exclusive distributor in Australia constitute conduct by the producer in Australia – whether the Australian tomato growers have a prima facie case for the relief they claim against the producer
COURTS – Practice and procedure – security for costs – whether security should be ordered in circumstances where those standing behind an applicant will benefit from the litigation but are not prepared to bear any risks as to the applicant’s costs of the litigation.
Trade Practices Act 1974 (Cth) ss 5(1), 52 and 86
Federal Court Rules 1979 (Cth) O 8 r 2(2), O 28 r 3(1)(b)
Foreign States Immunity Act 1985 (Cth) ss 9, 11(1) and 13
Federal Court of Australia Act 1976 (Cth) s 56
Corporations Act 2001 (Cth) s 1335(1)Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 - applied
Bray v F Hoffman-La Roche Ltd (2002) 190 ALR 1 - applied
Handbury v Nolan (1977) 13 ALR 339 - cited
Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd (1998) 155 ALR 714 - cited
Dovuro Pty Ltd v Wilkins (2000) 105 FCR 476 - cited
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 - cited
Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145 - cited
Donoghue v Stevenson [1932] AC 562 - cited
The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 - applied
Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 - cited
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 - cited
Henry v Henry (1996) 185 CLR 571 - cited
Beach Petroleum NL v Johnson (1992) 10 ACLC 525 - cited
MHG Plastic Industries Pty Ltd v Quality Assurance Services Pty Limited [2002] FCA 821 - cited
Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467 - cited
Acohs Pty Ltd v Merck Ltd [1997] FCA 573 - considered
Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 - cited
Bryan E Fencott Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 - cited
Laundry Coin-Wash Nominees Pty Ltd v Dunlop Olympic Ltd (1985) ATPR 40-584 - citedHarpur v Ariadne Australia Limited (1984) 2 Qd R 523 - cited
Jalpalm Pty Ltd v Hamilton Island Enterprises Pty Ltd (1995) 16 ACSR 532 - citedCOSTA VRACA PTY LTD v BELL REGAL PTY LTD AND OTHERS
VG 773 OF 2000
A & F & D MERCURI PTY LTD v BELL REGAL…
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- Case
- [2003] FCA 65
- Decision Date
CaseChat Overview and Summary
The Court had to decide if Vraca had a prima facie case for the relief sought, if the Court had jurisdiction over the proceeding, and if the proceeding met the requirements of Order 8 rule 2(2) of the Federal Court Rules. The Court also had to consider if the Federal Court was an appropriate forum for the dispute.
The Court found that Vraca had a prima facie case against Hazera for breach of the Australian Consumer Law and in negligence. It held that the Court had jurisdiction under s 86(1) of the Trade Practices Act, and that the negligence claim was part of the "matter" raised by the s 52 claim, which was within the Court's accrued jurisdiction. The Court also found that the proceeding met the requirements of Order 8 rule 2(2). The Court dismissed the respondents' contention that the Federal Court was an inappropriate forum for the proceeding.
The Court dismissed the respondents' applications, ordered the respondents to pay Vraca's costs, and granted Vraca leave to amend its statement of claim within 28 days. It also ordered Vraca to pay a specified amount for security for costs within 30 days or provide a bank guarantee for the payment of those costs in a form acceptable to a Registrar of the Court. The Court reserved its liberty to apply for further orders.
Orders
Orders of the court
1. The Notice of Motion of the second and third respondents dated 15 February 2002 be dismissed.
2. The second and third respondents pay the applicant’s costs of and incidental to the motion.
3. The applicant have leave to further amend its statement of claim within 28 days.
4. The Notice of Motion of the first and fourth respondents dated 6 June 2001 for security for costs be dismissed.
5. The first and fourth respondents pay the applicant’s taxed costs of and incidental to the Notice of Motion for security for costs.
1. The Notice of Motion of the second and third respondents dated 15 February 2002 be dismissed.
2. The second and third respondents pay the applicant’s costs of and incidental to the motion.
3. The applicant have leave to further amend its statement of claim within 28 days.
4. Within 30 days the applicant either pay into Court the sum of $20,000 for security for costs or provide a bank guarantee for the payment of those costs in a form acceptable to a Registrar of the Court.
5. Reserve liberty to apply.
6. The applicant pay the taxed costs of the first and the fourth respondents of and incidental to their Notice of Motion dated 6 June 2001 for security for costs.
1. The Notice of Motion of the second and third respondents dated 15 February 2002 be dismissed.
2. The second and third respondents pay the applicant’s costs of and incidental to the motion.
3. The applicant have leave to further amend his statement of claim within 28 days.
1. The Notice of Motion of the second and third respondents dated 15 February 2002 be dismissed.
2. The second and third respondents pay the applicants’ costs of and incidental to the motion.
3. The applicants have leave to further amend their statement of claim within 28 days.
1. The Notice of Motion of the second and third respondents dated 15 February 2002 be dismissed.
2. The second and third respondents pay the applicant’s costs of and incidental to the motion.
3. The applicant have leave to further amend its statement of claim within 28 days.
4. Within 30 days the applicant either pay into Court the sum of $10,000 for security for costs or provide a bank guarantee for the payment of those costs in a form acceptable to a Registrar of the Court.
5. Reserve liberty to apply.
6. The applicant pay the taxed costs of the first respondent of and incidental to its Notice of Motion dated 6 June 2001 for security for costs.
1. The Notice of Motion of the second and third respondents dated 15 February 2002 be dismissed.
2. The second and third respondents pay the applicants’ costs of and incidental to the motion.
3. The applicant have leave to further amend their statement of claim within 28 days.
1. The Notice of Motion of the second and third respondents dated 15 February 2002 be dismissed.
2. The second and third respondents pay the applicant’s costs of and incidental to the motion.
3. The applicant have leave to further amend its statement of claim within 28 days.
4. Within 30 days the applicant either pay into Court the sum of $15,000 for security for costs or provide a bank guarantee for the payment of those costs in a form acceptable to a Registrar of the Court.
5. Reserve liberty to apply.
6. The applicant pay the taxed costs of the first and the fourth respondents of and incidental to their Notice of Motion dated 6 June 2001 for security for costs.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: MERKEL J
Full text does not contain this section.