Rock Solid Surfaces Pty Ltd v Biesse Group (Australia) Pty Ltd - [2011] FCA 42

FEDERAL COURT OF AUSTRALIA
Rock Solid Surfaces Pty Ltd v Biesse Group (Australia) Pty Ltd [2011] FCA 42

Citation: Rock Solid Surfaces Pty Ltd v Biesse Group (Australia) Pty Ltd [2011] FCA 42

Parties: ROCK SOLID SURFACES PTY LIMITED (ACN 120 652 977) v BIESSE GROUP (AUSTRALIA) PTY LIMITED (ACN 098 130 191) and STEPHEN YVON HOAREAU; BIESSE GROUP (AUSTRALIA) PTY LIMITED (ACN 098 130 191) and STEPHEN YVON HOAREAU; ZIPOR EQUIPAMENTOS E TECNOLOGIA INDUSTRIAL SA and ROCK SOLID SURFACES PTY LIMITED (ACN 120 652 977)

File number: WAD 217 of 2010

Judge: GILMOUR J

Date of judgment: 2 February 2011

Catchwords: PRACTICE AND PROCEDURE – service of process – leave to serve outside jurisdiction – O 8 r 3 Federal Court Rules – whether prima facie case for relief

Legislation: Trade Practices Act 1974 (Cth) s 52
Electronic Transactions Act 1999 (Cth), s 14(5) s 14(6)(a)
Federal Court Rules Order 8A

Cases cited:
Australian Competition & Consumer Commission v April International Marketing Services Australia Pty Ltd (No 6) (2010) 270 ALR 504
Australian Competition & Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218
Bray v F Hoffman- La Roche Ltd (2002) 118 FCR 1
Bray v F Hoffman-La Roche (2003) 130 FCR 317

Edensor Nominees Pty Ltd v Australian Securities & Investments Commission (1999) 95 FCR 42

Ho v Akai(in liq) (2006) 24 ACLC 1526
Howard v National Bank of NZLimited (2002) 121 FCR 366
Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (No 2) (1993) 44 FCR 485

Date of hearing: 17 December 2010

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 37

Counsel for the Applicant: Ms C Donald

Counsel for the First and Second Cross-Claimants (First and Second Respondents): Mr J Emmett

Solicitor for the First and Second Cross-Claimants (First and Second Respondents): Horton Rhodes Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 217 of 2010

BETWEEN:
ROCK SOLID SURFACES PTY LIMITED (ACN 120 652 977)
Applicant

AND:
BIESSE GROUP (AUSTRALIA) PTY LIMITED
(ACN 098 130 191)
First Respondent

STEPHEN YVON HOAREAU
Second Respondent

BIESSE GROUP (AUSTRALIA) PTY LIMITED
(ACN 098 130 191)
First Cross-Claimant

STEPHEN YVON HOAREAU
Second Cross-Claimant

ZIPOR EQUIPAMENTOS E TECNOLOGIA
INDUSTRIAL SA
First Cross-Respondent

ROCK SOLID SURFACES PTY LIMITED (ACN 120 652 977)
Second Cross-Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

17 DECEMBER 2010

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.Leave be granted to the first and second cross-claimants to serve the first cross-respondent with the cross-claim filed on 12 November 2010 in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and Order 8A of the Federal Court Rules.
2.Costs be in the cause.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FCA 42
Decision Date: 2 February 2011

CaseChat Overview and Summary

Rock Solid Surfaces Pty Ltd and Biesse Group (Australia) Pty Ltd were involved in a dispute over the terms of a contract for the sale of a surface coating system. The case was heard in the Federal Court of Australia. The primary issue before the court was whether the first and second cross-claimants were entitled to serve a cross-claim on the first cross-respondent outside the jurisdiction in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and Order 8A of the Federal Court Rules. The cross-claimants sought leave to serve the cross-claim on the first cross-respondent in Italy, where the first cross-respondent's principal place of business is located.

The court had to decide whether the cross-claimants had made out a prima facie case for the relief sought under Order 8 rule 3 of the Federal Court Rules. This required the court to consider the merits of the cross-claim, including whether the cross-claimants had a reasonable prospect of succeeding on the merits and whether there were compelling circumstances that warranted serving the cross-claim outside the jurisdiction. The court also considered whether serving the cross-claim outside the jurisdiction would be consistent with the principles of justice and the Convention.

The court found that the cross-claimants had made out a prima facie case for the relief sought. The court was satisfied that the cross-claimants had a reasonable prospect of succeeding on the merits and that there were compelling circumstances that warranted serving the cross-claim outside the jurisdiction. The court also found that serving the cross-claim outside the jurisdiction would be consistent with the principles of justice and the Convention. The court noted that the first cross-respondent had previously consented to service of process in Australia and that it was appropriate to allow the cross-claimants to serve the cross-claim in Italy, where the first cross-respondent's principal place of business is located.

The court granted leave to the cross-claimants to serve the cross-claim on the first cross-respondent in accordance with the Convention and Order 8A of the Federal Court Rules. The court also ordered that costs be in the cause. This decision provides guidance on the factors that the court will consider when deciding whether to grant leave to serve a cross-claim outside the jurisdiction. It highlights the importance of considering the merits of the cross-claim, the interests of justice, and the principles of the Convention when making this decision.

Orders

Orders of the court

1. Leave be granted to the first and second cross-claimants to serve the first cross-respondent with the cross-claim filed on 12 November 2010 in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and Order 8A of the Federal Court Rules.

2. Costs be in the cause.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

BETWEEN:	ROCK SOLID SURFACES PTY LIMITED (ACN 120 652 977) Applicant
AND:	BIESSE GROUP (AUSTRALIA) PTY LIMITED (ACN 098 130 191) First Respondent STEPHEN YVON HOAREAU Second Respondent
BIESSE GROUP (AUSTRALIA) PTY LIMITED (ACN 098 130 191) First Cross-Claimant STEPHEN YVON HOAREAU Second Cross-Claimant
ZIPOR EQUIPAMENTOS E TECNOLOGIA INDUSTRIAL SA First Cross-Respondent ROCK SOLID SURFACES PTY LIMITED (ACN 120 652 977) Second Cross-Respondent

Citation:		Rock Solid Surfaces Pty Ltd v Biesse Group (Australia) Pty Ltd [2011] FCA 42
Parties:		ROCK SOLID SURFACES PTY LIMITED (ACN 120 652 977) v BIESSE GROUP (AUSTRALIA) PTY LIMITED (ACN 098 130 191) and STEPHEN YVON HOAREAU; BIESSE GROUP (AUSTRALIA) PTY LIMITED (ACN 098 130 191) and STEPHEN YVON HOAREAU; ZIPOR EQUIPAMENTOS E TECNOLOGIA INDUSTRIAL SA and ROCK SOLID SURFACES PTY LIMITED (ACN 120 652 977)
File number:		WAD 217 of 2010
Judge:		GILMOUR J
Date of judgment:		2 February 2011
Catchwords:		PRACTICE AND PROCEDURE – service of process – leave to serve outside jurisdiction – O 8 r 3 Federal Court Rules – whether prima facie case for relief
Legislation:		Trade Practices Act 1974 (Cth) s 52 Electronic Transactions Act 1999 (Cth), s 14(5) s 14(6)(a) Federal Court Rules Order 8A
Cases cited:		Australian Competition & Consumer Commission v April International Marketing Services Australia Pty Ltd (No 6) (2010) 270 ALR 504 Australian Competition & Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218 Bray v F Hoffman- La Roche Ltd (2002) 118 FCR 1 Bray v F Hoffman-La Roche (2003) 130 FCR 317 Edensor Nominees Pty Ltd v Australian Securities & Investments Commission (1999) 95 FCR 42 Ho v Akai(in liq) (2006) 24 ACLC 1526 Howard v National Bank of NZLimited (2002) 121 FCR 366 Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (No 2) (1993) 44 FCR 485
Date of hearing:	17 December 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	37
Counsel for the Applicant:	Ms C Donald
Counsel for the First and Second Cross-Claimants (First and Second Respondents):	Mr J Emmett
Solicitor for the First and Second Cross-Claimants (First and Second Respondents):	Horton Rhodes Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 217 of 2010

JUDGE:	GILMOUR J
DATE OF ORDER:	17 DECEMBER 2010
WHERE MADE:	PERTH