Fletcher v Commissioner of Taxation

Minproc Titanium Australia Pty Limited (MTA) sought leave to serve the application and statement of claim on three respondents in Italy, namely Ginatta Torino Titanium S.P.A. (GTT) and Ugo and Marco Ginatta. The claim by MTA against GTT was for damages for contravention of Part V of the Trade Practices Act 1974 (the Act) and for breach of contract, a declaration, and an order under section 87 of the Act. The damages claimed were of the order of 11 billion Italian lire plus $A3 million. The basis of the claim was that MTA entered into certain agreements with GTT, who were directors or principals, by which GTT was to supply MTA with technology and know-how concerning the production of titanium crystals. The Court was required to decide whether MTA had a prima facie case for the relief being sought, whether the proceeding was one to which rule 1 of order 8 applied, and whether the applicant had a prima facie case for the relief being sought.

The Court found that MTA had established a prima facie case for the relief sought. The evidence consisted of some affidavits to which were annexed or exhibited a number of documents. One affidavit was of Philip Donald Bush who was a technical consultant and was a doctor of philosophy in metallurgy with 25 years of experience in mineral processing technology, seven years specifically with titanium processing. Dr Bush was involved in the testing of the technology of GTT with a view to analysing the veracity of the representations made by that company in its documentation and contacts with MTA. His evidence was sufficient to establish that there was a prima facie case for the relief sought. The final matter for consideration was whether the Court should exercise its discretion to grant the relief sought in the notice of motion. The Court found that the case was properly in the Federal Court and that there were no grounds for refusing the leave sought on this basis. The Court therefore ordered that MTA be granted leave to serve the application and statement of claim upon the respondents outside the Commonwealth of Australia. The costs of the motion would be costs in the cause.