Murex Diagnostics Australia Pty Ltd Chiron Corporation

[1996] FCA 162

NOT SUITABLE FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 106 of 1994
  )
GENERAL DIVISION                 )

BETWEEN:MUREX DIAGNOSTICS AUSTRALIA PTY LIMITED

Applicant

AND:     CHIRON CORPORATION

First Respondent

ORTHO DIAGNOSTIC SYSTEMS INC

Second Respondent

CHIRON CORPORATION

Cross-Claimant

MUREX DIAGNOSTICS AUSTRALIA PTY LIMITED

First Cross-Respondent

MUREX DIAGNOSTICS LIMITED

Second Cross-Respondent

CORAM: Burchett J.
PLACE: Sydney
DATE : 8 March 1996

REASONS FOR JUDGMENT

BURCHETT J.:

Joinder of the parent company in this matter is sought on the basis of certain evidence suggesting that it may have authorised, and be authorising, the breaches alleged to have been committed by the Murex companies which are already
parties.  That evidence, as Mr Catterns has shown, is certainly capable of being explained away.  But the real question, at any rate for the purposes of service out of the jurisdiction within the meaning of the principles discussed in Trade Practices Commission v Gillette Company (No 1) (1993) 45 FCR 366 and in the previous decision in this very case, to which I have again been referred, Murex Diagnostics Australia Pty Ltd v Chiron Corporation (1995) 128 ALR 525, is whether there is a sufficient prima facie case shown. Probably, for the purpose of joinder, treating that as a separate issue from the service out of the jurisdiction if it be joined, the test is easier for Mr Kerr to overcome.

I think that there is a sufficient case.  That does not indicate any view, of course, about what the ultimate decision ought to be, which will have to be made on all the evidence that is available before the Court at the time of the hearing.  But, certainly from the point of view of joinder, it seems to me that Mr Kerr ought to have the opportunity to seek to make the case he seeks to make; and from the point of view of service out of the jurisdiction, although it is very close to the border line, I think there is a sufficient prima facie case within the principles to which I have referred.  I say that in reliance on the evidence to which Mr Kerr has drawn my attention.

I do not think it is necessary to burden these reasons with a recitation of that material.  It is all contained in the affidavits, and the transcript identifies the portions of the affidavits in question.  So I will make the order, but I will make it on the footing that Mr Kerr will amend the statement of claim in the manner that was indicated in the course of argument.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 14 March 1996

Counsel for the Applicant        Mr D K Catterns QC

(Respondent to the Notice        with Ms K J Howard
     of Motion):

Solicitors for the Applicant     Banki Palombi Haddock

(Respondent to the Notice        & Fiora
     of Motion):

Solicitor for the Respondents        Mr P Kerr of Allen

(Applicants in the Notice of         Allen & Hemsley
     Motion):

Date of hearing:                 8 March 1995