Trade Practices Commission v Australian Iron and Steel Pty Ltd

[1989] FCA 695

NOT FOR DISTRIBUTION

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JUDGMENT No ........ ........ ... L . . . . -

IN THE FEDERAL COURT OF AUSTRALIA ) t ;:

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I	NEW SOUTH IJALES DISTRICT REGISTRY	)	No NG 591 of 1989
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! . GENERAL DIVISION 1

i	BETWEEN:	TRADE	PRACTICES
COMMISSION

! Applicant

AUSTRALIAN IRON AND

STEEL PTY LIMITED & ORS.

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Respondents i

28 September 1989

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REASONS FOR JUDGMENT

LOCKHART J.:

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On 4 September last counsel for the applicant, the Trade - I.

Practices Commission, sought the leave of the Court to serve !':

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the originating process in this matter outside the , -

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Commonwealth upon the fourth and fifth respondents, Steel and , .

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Tube Holdings Limited and Helenus Corporation Limited, both of ';,,

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whom are New Zealand Corporations. Evidence was adduced in' -.

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the form of the affidavit of Paul Rudnev of 1 September 1989: in support of the motion. The motlon was heard ex parte and.

REGISTRY

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it is plain from my recollection and from transcript of proceedings, on page 30 of that day's transcript, that the

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Court treated the matter as a formality. It is necessary to	1 .,
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say why that was done.

5 3 NOV 1989
FEDERAL COURT OF
AUSTRALIA
PRINCIPAL

It was done, and I say this in no way critically of counsel for the applicant, first because the Court was informed it was a clear case for the making of the orders sought; and secondly, because although ex parte, there was present in Court counsel from the Victorian bar who was in Sydney and who represented Helenus in another proceeding before the Trade Practices Commission, involving certain of the matters that are involved in this proceeding. The assumption was made by the Court that in those circumstances it was simply a case of making a formal order so that the parties could be properly served under the rules and then appear. It would seem in the light of events today that that assumption was not correct. However, nothing was said or done on 4 September to remove the assumption from my mind and I say nothing further about that.

Today two motions have been made returnable instanter;

one by the fourth respondent and the other by the fifth

respondent, and each seeks in essence an order discharging the	order granting leave to serve outside the jurisdiction. The
authorities are quite clear as to the relevant principles that govern motions for leave to serve out of the jurisdiction. In view of the way the matter was approached by the Court I
think it would be quite wrong to allow the order granting leave to serve out of the jurisdiction to stand, and in the exercise of the Court's discretion I discharge the order made on 4 September last giving leave to serve both the fourth respondent and fifth respondent out of the jurisdiction.
I make no order at this stage setting aside the service, which I am told has taken place in New Zealand, and in the event that the applicant makes a successful application for leave to serve them outside the jurisdiction, then Rule 2, sub-rule 4 may become relevant.

I certify that this and the preceding

two (2) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

.A

Associate

Dated: 28 September 1989

Counsel for Applicant:	Mr. C.A. Sweeney Q.C.
Mr. C. Hodgekiss
Solicitors for Applicant:	Australian Government Solicitor
Counsel for First and Second	Mr. C.P. Comas
Respondents:
Solicitors for First and Second
Respondents:	Blake Dawson Waldron
Counsel for Third Respondent:	Mr. J.S. Hilton
Solicitor for Third Respondent:	Clayton Utz
Counsel. for Fourth Respondent:	Mr. R. Gyles Q.C. Mr. N.C. Hutley
Solicitors for Fourth Respondent:	Minter Ellison
Counsel for Fifth Respondent:	Mr. N.J. Young
Solicitors for Fifth Respondent:	Mallesons Stephen Jacques
Date of Hearing:	29 September 1989
Date of Judgment:	28 September 1989