No. 1 Raberem Pty Ltd v Monroe Schneider Associates (Inc)

[1989] FCA 877

trial in Australia as opposed to the convenience of a trial somewhere in the U. S.A. The respondentsr motion is brought

0.9, r.7(l)(d) which provides that the Court may, on the
application made by a respondent to any originating process on

notice of motion, discharge any order giving leave to serve the

originating process outside Australia. Clearly, that rule i !

that there will be a hearing at which the respondent can raise matters which would have been relevant to the	i
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consideration of the Court on the application earlier made ex parte under 0.8 for leave to serve outside the jurisdiction' of
the Court.	Under 0.8, process may be served outside the
commonwealth in a case which falls within the paragraphs of	r.1.

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In this case, the applicants rely on paras.(a),	(b) and (c).
Order 8, r.1 relevantly reads :

"1. Subject to rule 2, originating process may be

served outside the Commonwealth in the following

cases:

(a)	where the proceeding is founded on a cause of action arising in the Commonwealth;
(b)	where the proceeding is founded on a breach of an Act, where the breach is committed in the Commonwealth;
(C) where the proceeding is founded on a breach, wherever occurring, of an Act, and is brought	i
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in respect of, or for the recovery of, damage	suffered wholly or partly in the Commonwealth;

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. . .

Order 8, r.2(2) reads :

"(2) Where the Court is satisfied of the following

matters -

(a)	that the proceeding is a proceeding in which the court has jurisdiction;
(b)	that the proceeding is a proceeding to which rule 1 applies; and

$" the Court mav. bv order. arant leave to serve

The affidavit evidence from the respondents on the first

of the topics which I have identified is directed to displacing

the applicants' original affidavit evidence on the question of a llprima facie case for the relief" under r.2(2)(c). It is qot disputed, as I understand the affidavits and the argument, that the proposed action is one in which the Court would have jurisdiction over the subject matter and that it is one to which r.1 applies, as required by rr.2(2)(a) and (b). It is necessary, therefore, to concentrate on the meaning of r.2(2)(~).

In my view, the requirement that a court be satisfied that there is a prima facie case for relief is a requirement that there be evidence which, if accepted, would be sufficient to m$ke out a case in the applicants' favour. The test to be applied is one akin to that which applies on a submission of no case to answer at the end of a plaintiff's or prosecutor's case - that test being enunciated by the High Court in May v. O'Sullivan (1955) 92 CLR 654 at 658.

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The requirement is not that the Court evaluate the affidavit evidence to see where the predominant weight lies. The Court is not required to conduct, as it were, a mini-trial. It would be quite inappropriate for the Court to embark upon $uch a course which, sooner or later, would be likely to lead intq a consideration of credit or reliability of witnesses and to the weight of evidence. Those are matters that should await the

As Mr Gray Q.C. has pointed out, there may well be cases where a respondent served overseas can come before the Court and properly complain that there is no prima facie case within the meaning of 0.8, r.2(2)(c). For example, the applicant on the original ex parte application may have failed to fully and frankly disclose the true facts whereas a full disclosure shbws the claim could not succeed. Or there may be a point such as a time limit or a statutory provision which provides a complete defence that went unnoticed by the Court in the first instance,

The present case is not one of that kind. Here, what

the affidavits of the respondents seek to do is to tilt the scales by weight of evidence to the point where it would appear that at a trial they would probably succeed. In my view, it is not the function of the Court on an application under 0.9, r.7 to embark on the exercise of weighing the respective merits of the case of each side to the contest. I add, this is not to *ay that there may not occasionally be an extreme case where on iihe evidence before the Court (whether on an ex parte application or

Court considers that the applicant 'S case appears to be a

on the hearing of a motion by a respondent under 0.9, r.7), Uhe

particularly weak one with very little chance of success, or a Particularly strong one. In such a case, the Court may have regard to that evaluation of the evidence in considering whether to exercise its discretion in favour of giving or confirming leave to serve out of the jurisdiction. That the weakness or strength of the case may be taken into account in this way does not, however, imply that the notion of "a prima facie case for the relief" requires the Court to embark on an evaluation of the weight of the evidence. The present case is not one which approaches either of these extremes. Rather it is one where each side has placed evidence before the Court on affidavit which in critical respects contradicts the evidence of the other side. The combined effect of the affidavits is to demonstrate that there are disputed questions of fact which will have to be resolved on a trial.

On this application I have to reconsider the matters

which arise under 0.8, l and 2(2), and to do so on the l l

totality of the material now before the Court. Having considered all the new material I remain of the view that, within

case for relief. This does not mean that the Court has formed a provisional view on the merits. It simply means that the applicants have put forward evidence which, if accepted in h e course at trial, would establish a cause of action in theiir

I am of the opinion that the case falls within che

requirements of 0.8, r.1.	There remains, however, the questi'on
whether the discretion which resides in the Court under 0-8,

r.2(2) should be exercised.

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In my view, once a party proves that his or her propoged case falls within the requirements of 0.8, rr.1 and 2, apart from	1
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matters of convenience, there would have to be some strong rea$on
that justified exercising the discretion against the applicant.	i l

counsel for the respondents, in his forceful argument, treated matters of convenience (the forum non conveniens argument) as a separate topic. Putting that aspect of his argument aside for the moment the main point argued by counsel for the respondents against the exercise of discretion was the factual nature of the claim advanced by the applicants. He characterised the applicants' claim as a curious one. It starts from an acknowledgement by the applicants that a servant of theirs misquoted a price for carpets. rn the first instance the applicantsr servant made a misleading statement and one which, if events had taken a different course, may have resulted in the respondents bringing proceedings against the applicants for misleading conduct. The applicants say that they honoured the misquoted price, as men of good business standing could be expected to do. But in these proceeclings, they have now turned around to allege that they so acted only because they were in turn misled by the respondents. They say they were misled firstly as to the lack of profit that the respondents stood to make out of the deals with their clients; and secondly, becquse the respondents indicated they were already committed to a contractual obligation to supply when that was not the case. Counsel for the respondents contends that even if the applicants

were misled in these ways (which is denied) that is beside the	point as they should stand by the consequence of the misqulote
anyway. If the applicants establish the case which they have pleaded, in my view those matters go rather to the measure of damage, than to the basic question of Liability.

The applicantsr case puts a different complexion on

those basic facts. The applicants say they stood by their quote because they had been misled into believing that it was too late

for the respondents to extricate themselves from a contract

further down the tendering chain and because they were told that the respondents would suffer a heavy loss if the carpets were not supplied at the quoted price. The applicants say that both those facts were simply not so. In relation to the last of the two supply contracts to which the respondents say they were committed, the applicants have produced evidence which suggests that the respondents were well aware of the fact that the prices which had been quoted were wrong long before they even quoted1 prices to their clients.

Apart from matters argued under the heading of forum non conveniens, there is nothing in the case or the nature of the case which I think would justify exercising the discretion against the applicants.

I turn then to the second limb of the respondents' application which raises the so-called - forum non conveniens rule. In his argument, counsel for the respondents suggested that the onus is upon the respondents to establish that the Australian Court is not the forum of convenience. Reference was made t,o the decision of the High Court in - Oceanic Sun Line Special

Shipping Co. Inc. v. Fay ( 1 9 8 7 ) 79 ALR 9, where competing views Were debated as to the formulation of the test applied where an application for a stay of proceedings is based on this rule. Put very broadly, the competing views were whether, on the one hand, it is sufficient for the respondents to show that there is

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8.   I

a more convenient jurisdiction in which the case could be heard;

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1. and on the other hand, whether the respondents have to establish

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   that the Australian jurisdiction is not an appropriate

It is submitted t.hat by analogy the $ame

principles apply here in deciding whether the Australian Court is	I
a convenient forum.	l

In my view, the applicants succeed, whichever of the l

tests is appropriate.

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I	basic claim made by the applicants is that after a social meeving with the respondent in the U.S.A., the applicants were approached
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I	at their place of business in Adelaide by the respondents and
asked to supply. They were approached by telephone (which is
sufficient, if there were any doubt about it, to inyoke 1
provisions of the Trade Practices Act). The applicants seek to
pursue a remedy given under an Australian Act. There is no evidence that there is any like remedy available to them in any other country - in particular, U.S.A. - and to pursue that one step further, there is no evidence that any cause of action, if it exists, would still be in time there. We do know the cJaim here is in time.

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The applicants allege that certain misleading and deceptive conduct occurred in the nature of oral and wrihten representations. Those representations were acted upon in Australia and, in due course, the loss for which the applicants claim was suffered by them was in Australia. In those i

Circumstances, it would seem likely that even if there were causes of action available in the U.S.A., the closer connection

I the courts in the Australian jurisdiction.

It is difficult, therefore, to see how it could be said

that there is a more convenient forum elsewhere, or that the Australian forum is not convenient, when it is not suggested by the papers that the applicants necessarily have any cause of action in any other country.

Quite apart from that fundamental difficulty with the respondents' position, it seems to me that the evidence they advance as to necessary witnesses, and their locations, are not matters which tilt the scales against the Australian Court being a convenient forum.

I think it must be remembered that many of the authorities which are relied on in arguments of this kind are authorities that were decided decades ago when international trade was not so common and the means of mobility and communication between residents of different countries were very much more difficult. Cases of this kind, I suspect, are notnow uncommon and are likely to become more common as the years go on.

or the other in whatever place a dispute is resolved. It is not	Inevitably, there will be a degree of inconvenience to one iide
improbable there will be a good deal of inconvenience to all the parties because of the location of witnesses. As counsel for the applicants observed the present parties are, it seems, financially substantial corporations. There is no real reason to believe that one or the other would be prevented by cost from

pursuing their claim or defence as the case may be in whichever
country the trial takes place.

There are witnesses in New Zealand; there are witnessels in Canada; and of course, there are witnesses in the United states and Australia. In sheer numbers, the respondents might have identified more witnesses that they may want to call who are in America, than the applicants have nominated in Australia. I note also that the applicants now say that some of the American witnesses they would wish to call anyway as part of their case, and they are prepared to undertake the task of transporting them to Australia if that is necessary. However, a head count is not

a constructive exercise. There are other means of obtaining

evidence. It is too early to tell how many witnesses would be needed. The applicants argue that the substantial part of the case can be proved on documents and if that is so, geographic locality of the witnesses may be of little impact.

There are procedures for interrogating. If necessary,

there are procedures available to accept evidence by affidavit or on commission. Those are entirely satisfactory means for accepting evidence on formal matters, for the identification of

documents and probably even for proof of trade custom and The number of witnesses whose credit is likely to be important are few. It would be desirable that the tribunal which is to determine the matter sees and hears those people give evidence, but I am not persuaded that the respondents would be

prejudiced in presenting their case if the matter were heard in

Judges of the Federal Court of Australia have in the past travelled overseas to hear evidence and if it became necessary to do so because witnesses were not prepared to come to Australia, no doubt that could b e organised again.

applicants' counsel has indicated his instructions that if it became necessary to do so, the applicants would, in the first

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instance, bear some or, if necessary, all of the cost of

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transporting court personnel to the U.S.A. Whilst I mention

that, I must say that there is force in counsel's observation

that neither one party nor the other should be asked to accept

that responsibility exclusively except in an extreme situation;	1
rather it should be a case of both sides contributing to take the

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Court wherever it has to go to hear evidence. that the Court can travel, and there is no reason to think that But the point is

the respondents would suffer any serious prejudice, or any	j
prejudice that could not be overcome by procedural techniques in	l

the presentation of their defence, if the proceedings continue in
this Court.

For those reasons, in my view, the notice of motion to

set aside the application and the statement of claim should be	1
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7--

dismissed. The application in the notice of motion will be

dismissed with costs.

I certify that this and

the I\ preceding pages are
a true copy of the Reasons
for Judgment of Mr Justice

von Doussa.

Associate:	-
--  Dated:

Counsel for the Applicants	Mr T.A. Gray Q.C. with Mr
P.A. McNamara
Solicitors for the Applicants	F'isher Jeffries
Counsel for the Respondents	Mr W.H. Holligan
Solicitors for the Respondents	E'inlaysons