Gough and Gilmour Holdings Pty Ltd v Caterpillar of Australia Pty Ltd (No 2)

[2009] FCA 1557

FEDERAL COURT OF AUSTRALIA

Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Pty Ltd (No 2) [2009] FCA 1557

PRACTICE AND PROCEDURE — application for leave to serve originating process outside Australia — requirement of a prima facie case — exercise of discretion

Held: leave granted

Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Pty Ltd [2009] FCA 1429, referred to
WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472, cited

GOUGH & GILMOUR HOLDINGS PTY LTD (ACN 008 646 259) v CATERPILLAR OF AUSTRALIA PTY LTD (ACN 004 332 469) AND ORS

NSD 1123 of 2009

FLICK J
21 DECEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 1123 of 2009

BETWEEN:

GOUGH & GILMOUR HOLDINGS PTY LTD (ACN 008 646 259)
Applicant

AND:

CATERPILLAR OF AUSTRALIA PTY LTD (ACN 004 332 469)
First Respondent

CATERPILLAR INC
Second Respondent

CATERPILLAR OVERSEAS CREDIT CORPORATION S.A.R.L.
Third Respondent

CATERPILLAR S.A.R.L.
Fourth Respondent

JUDGE:	FLICK J
DATE OF ORDER:	21 DECEMBER 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to Order 8 r 3(2) of the Federal Court Rules leave is given to the Applicant to serve the Amended Application and the Further Amended Statement of Claim, both filed on 11 December 2009, by registered post upon:

(a)        the Second Respondent addressed as follows:

The Proper Officer
Caterpillar Inc
100 N E Adams Street
Peoria 61629-0002
ILLINOIS USA

(b)        the Third Respondent addressed as follows:

The Proper Officer
Caterpillar Overseas Credit Corporation S.A.R.L.
Route de Frontenex
76, 1208 Geneva
SWITZERLAND

(c)        the Fourth Respondent addressed as follows:

The Proper Officer
Caterpillar S.A.R.L.
Route de Frontenex
76, 1208 Geneva
SWITZERLAND.

2.        The proceeding be stood over for Mention at 9:30 am on 1 February 2010.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 1123 of 2009

BETWEEN:

GOUGH & GILMOUR HOLDINGS PTY LTD (ACN 008 646 259)
Applicant

AND:

CATERPILLAR OF AUSTRALIA PTY LTD (ACN 004 332 469)
First Respondent

CATERPILLAR INC
Second Respondent

CATERPILLAR OVERSEAS CREDIT CORPORATION S.A.R.L.
Third Respondent

CATERPILLAR S.A.R.L.
Fourth Respondent

JUDGE:	FLICK J
DATE:	21 DECEMBER 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Revised from Transcript)

1. An application previously made by the Applicant for orders pursuant to O 8 r 3(2) of the Federal Court Rules to serve its originating process filed in the present proceeding on the Second, Third and Fourth Respondents overseas was rejected: Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Pty Ltd [2009] FCA 1429. Matters of concern addressed in that judgment focussed upon the manner in which the causes of action were sought to be advanced against one or other of those Respondents and the jurisdiction of the Court.

2. The Applicant thereafter filed an Amended Application and a Further Amended Statement of Claim. A further Notice of Motion has also been filed, again seeking orders pursuant to O 8 r 3(2) in respect to the amended documents.

3. Notwithstanding continuing reservation as to the manner in which the Further Amended Statement of Claim is expressed, it is nevertheless not considered that those reservations provide a sufficient basis upon which the discretion conferred by O 8 r 3(2) should be exercised adversely to the Applicant.

4. Such evidential material as is now before the Court, it is concluded, provides an adequate basis upon which the Court can be satisfied that:

   (i)the Court has jurisdiction in the proceeding;

   (ii)the proceeding is of a kind mentioned in r 2, being a proceeding of a “kind” falling within Item 1, 2, 3, 6(b), 11 and/or 12; and

   (iii)the Applicant has a “prima facie case” for the relief claimed.

   As previously noted, the requirement imposed by O 8 r 3(2)(c) that the person seeking leave satisfy the Court as to a “prima facie case” is a requirement to be assessed “in proportion to the nature of such an interlocutory issue”: [2009] FCA 1429 at [13], citing WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 at 476. The evidence upon which that state of satisfaction has presently been reached is the Affidavits of Michael Daniel Harmer affirmed on 30 November 2009, 2 December 2009 and 11 December 2009 together with exhibits to his Affidavit of 30 November 2009, being Exhibits MDH 8, 63, 64 and 65.

5. It is thus concluded that leave should be given to the Applicant to serve the Amended Application and the Further Amended Statement of Claim upon the Second, Third and Fourth Respondents overseas.

   ORDERS

6. The Orders of the Court are:

   1.Pursuant to Order 8 r 3(2) of the Federal Court Rules leave is given to the Applicant to serve the Amended Application and the Further Amended Statement of Claim, both filed on 11 December 2009, by registered post upon:

   (a)        the Second Respondent addressed as follows:

   The Proper Officer
   Caterpillar Inc
   100 N E Adams Street
   Peoria 61629-0002
   ILLINOIS USA

   (b)        the Third Respondent addressed as follows:

   The Proper Officer
   Caterpillar Overseas Credit Corporation S.A.R.L.
   Route de Frontenex
   76, 1208 Geneva
   SWITZERLAND

   (c)        the Fourth Respondent addressed as follows:

   The Proper Officer
   Caterpillar S.A.R.L.
   Route de Frontenex
   76, 1208 Geneva
   SWITZERLAND.

   2.        The proceeding be stood over for Mention at 9:30 am on 1 February 2010.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated:        21 December 2009

Counsel for the Applicant:	Mr MJ Steele
Solicitor for the Applicant:	Harmers Workplace Lawyers

Date of Hearing:	21 December 2009
Date of Judgment:	21 December 2009