Trade Practices Commission v Australian Iron & Steel Pty Ltd

[1989] FCA 653

3URGMENT No. L.%..,&,

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) No NG 591 of 1989
)
GENERAL DIVISION	1

BETWEEN:  TRADE PRACTICES COMMISSION

Applicant

AND : AUSTRALIAN IRON AND STEEL

PTY. LIMITED & ORS.

Respondents

29 SEPTEMBER 1989

REASONS FOR JUDGMENT

LOCKHART J.:

Yesterday I discharged the ex parte orders made by me on 4 September 1989 giving leave to the applicant to serve the fourth and fifth respondents in New Zealand with the originating process, namely, the application. The fourth and fifth respondents now seek an order pursuant to Order 9 rule 7 setting aside the service of that process upon them. The applicant seeks an order pursuant to Order 8 rule 2 ( 4 ) confirming that service.

I said yesterday, when giving my reasons for discharging the ex parte order granting leave to serve outside the	jurisdiction, that there were two essential reasons for the
Court's havlng made the ex pare orders on 4 September. First, counsel for the applicant moved for the ex parte order towards the end of the afternoon's hearing on 4 September and counsel informed me that it was a plain case for the making of an ex
parte order. Secondly, I noticed during the course of that day the presence in court of counsel for the fifth respondent and assumed erroneously that the motion was in all the circumstances a formality so that the fourth and fifth respondents could effectively become parties to the proceeding. Subsequent events proved that assumption to be wrong. Those reasons alone were in my view sufficient to support the discharge of the ex parte order. It is in my view a logical extension of that order that I set aside the service made pursuant to it. Rule 2 ( 4 ) of Order 8 assumes that although service has been effected it was made without leave. That service was effected here pursuant to leave, but the order granting leave was subsequently discharged. I doubt if rule 2 ( 4 ) was intended to apply in circumstances such as the present.
There are other reasons why in my opinion the service should be set aside. The case is at an early stage. The application has been filed and a statement of claim has been filed, though the latter only within the last few days.
Fundamental to the case are sections 50 and 81 of the Trade Practices Act 1974 which in turn involve the question of the extra territorial operation of those provisions. It is plain that the Court must be satisfied that this proceeding is one in which it has jurisdiction before leave to serve out of the jurisdiction can be given and before an order should be made confirming the service in this case.
The relevant authorities have been the subject of considerable argument; and I need simply refer to the judgment of the High Court in Contender v LEP International Ptv Limited
(1988) 82 ALR 394 and the judgment of the English Court of
Appeal in Metal1 Rohstoff v Donaldson Lufkin and Jenrette Incorporated (1989) 3 WLR 563.
I am not satisfied that this proceeding is one in which the court has jurisdiction, as against the fourth and fifth respondents - which, in my opinion, is the relevant consideration. The questions of law that are involved are of
that I am positively satisfied that the Court does not have considerable importance and of some difficulty. I do not say
jurisdiction; I simply say I am not satisfied at this stage on the evidence presently adduced that the Court does have jurisdiction.
Though substantial argument has taken place, it does so in a proceeding which is in its early days and has, as I say, not even reached the stage of the completion of pleadings. The evidence adduced by the applicant in support of its motion - I do not say this at all critically - is meagre and contributes to my state of not being satisfied of

jurisdiction.

Whether it is possible for these questions of law to be argued prior to the final hearing by, for example, preliminary questions of law, or indeed, a stated case pursuant to order 29, is matter on which I need not say anything at this stage except that I think it is desirable that the questions of law going to the extra territorial operation of the relevant sections under the Trade Practices Act should be disposed of as early as possible and preferably before the final hearing. The applicant would then know whether or not it is proper to involve the fourth and fifth respondents by obtaining leave to serve out of the jurisdiction. If that leave were to be granted the case would then proceed to a final hearing which will involve lengthy and complicated evidence with those parties before the Court.

I do not think it appropriate to adjourn these motions until the final hearing, as it would, I think, place the applicant in an impossible or very difficult position at the trial.

I had thought of referring the motions before me to a ~ u l l Court but I think little purpose would be served by taking that course because the Full Court would itself be placed in the same difficulty I am in at this early stage of

the. case in determining a question of jurisdiction, especially
in the light of slight evidence.

It is, of course, always open to the applicant to move again for an order obtaining leave to serve the process.upon the fourth and fifth respondents with evidence that is of more probative value. Accordingly, the Court declines to order that the service effected upon the fourth and fifth respondents in New Zealand be confirmed and sets aside that service.

I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate Y

Dated: 29 September 1989

Counsel for Applicant:  W. 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:	29 September 1989