Liftronic Pty Ltd v. Montgomery Elevator Company
 ATPR 41-458
(Judgment by: Sackville J,
Liftronic Pty Ltd v.
Montgomery Elevator Company
The Federal Court of Australia
Judgment date: 24 August 1995
Reasons for Judgment
In this matter an application has been made pursuant to FCR, O.8, r.2(1)(a) for leave to serve an application and statement of claim outside the jurisdiction. The applicant seeks leave to serve its initiating process upon the respondent, the offices of which appear to be in Moline, Illinois, in the United States of America. Under O.8, r.2(2) the Court must be satisfied that:
- the proceeding is a proceeding in which the court has jurisdiction;
- the proceeding is a proceeding to which O.8, r.1 applies; and
- the applicant has a prima facie case for the relief which is sought.
The case as pleaded alleges two causes of action against the respondent. The first is that the respondent, which carries on business in Illinois, had represented to the applicant that it was ready, willing and able to manufacture and ship to the applicant elevators and escalators in accordance with certain specifications.
It is alleged that that representation and an associated representation was misleading and deceptive in the circumstances of the case. It has been submitted that the first cause of action is within O.8 r.1(b) in that the proceeding is founded on a breach of an Act where the breach is committed in the Commonwealth. The statement of claim alleges that the representation was contained in a quotation of 14 April 1994 which was transmitted by facsimile to the offices of the applicant in Australia.
It has been submitted on behalf of the applicant that the breach within the meaning of O.8 r.1(b) is that of s.52 of the Trade Practises Act 1974 and that the breach occurred in the Commonwealth of Australia because the facsimile transmission containing the allegedly misleading representations was received by the applicant in this country. Although there has been no analysis of authorities dealing with this issue, I am prepared to accept that this cause of action is within O.8 r.1(b).
The second cause of action pleads that, on 18 May 1994, the applicant contracted with the respondent whereby the respondent undertook to manufacture and ship to the applicant two escalators. It is also pleaded that it was an implied term of that contract that the respondent would provide to the applicant the technical information necessary to enable the applicant to order the escalators from the respondent.
There is authority that, where a statement of claim alleges distinct causes of action, each of the causes of action must be brought within the provisions of O.8 r.1: see Tycoon Holdings Limited v Trencor Jetco Inc. (1992) 34 FCR 31, at 35, per Wilcox J. However, the contrary view now has been adopted in a number of cases, where the issue has been whether a prima facie case must be made out for each cause of action: see Western Australia v Vetter Trittler Pty Ltd (in liq.) (1991) 30 FCR 102, at 110, per French J. (not referred to by Wilcox J.); Trade Practices Commissioner v The Gillette Co (No.1) (1993) 45 FCR 366, at 371, per Burchett J.; Cell Tech Communications Pty ltd v Nokia Mobile Phones (UK) Ltd, Lindgren J., 20 April 1995, unreported, at 9.
When the matter was before me this morning, Mr Lewis, who then appeared for the applicant, submitted that the cause of action in contract was within O.8 r.1(ab), in that it was for the enforcement of a contract, or for damages or other relief in respect of a breach of contract, where the contract was "made in the Commonwealth". I expressed doubts as to whether this was accurate having regard to the fact that the contract was said to have been made by a telephone acceptance of an offer in writing, the telephone conversation taking place between the offeree in Australia and the offeror in the United States. I asked for some further submissions on this issue to be made.
Mr Gray of counsel appeared in the afternoon. Mr Gray's submission was not that that was a contract made in the Commonwealth but that the matter came within O.8 r.1(aa). This provides that originating process may be served outside the Commonwealth:
"where the proceeding is founded on a breach in the Commonwealth of a contract wherever made, whether or not the breach is preceded or accompanied by a breach, wherever occurring, that renders impossible the performance of any part of the contract which ought to be performed in the Commnwealth."
The foundation of this argument is that the statement of claim alleges an implied term that information was to be provided within Australia and that that term had been breached. Mr Gray's submission is that where a term of the contract requires performance of an obligation in Australia and that obligation is not performed, the breach for the purposes of O.8 r.1(aa) takes place in Australia.
Having regard to the authorities to which I have referred, it may not be necessary to address the issue. However, Mr Gray's submission, although he did not support it by authorities, seems to me to be correct. The general principle is stated in Nygh, Conflict of Laws in Australia (6th ed 1995), at 54:
"Where the breach consists of non-feasance, the place of the breach is the place where the obligation in question is due to be performed."
On this basis, on the information before me, I think the applicant has shown that the cause of action in contract is within O.8, r.1(aa).
It follows that the applicant has shown that O.8 r.1 applies to each of the causes of action pleaded in the statement of claim. I am satisfied on the affidavit material that the applicant has a prima facie case for the relief sought in the statement of claim and that the Court has jurisdiction to deal with the matter.
Accordingly, the conditions for granting leave to serve the originating process outside the Commonwealth as specified in O.8 r.2(2) are satisfied. I therefore make the order sought in the notice of motion, that is, I grant leave to the applicant to serve the application and statement of claim herein on the respondent outside the Commonwealth of Australia in the State of Illinois in the United States of America. I direct that the time within which the respondent is to file a notice of appearance and a defence be 42 days after, and exclusive of, the date on which service of the application and statement of claim is effected pursuant to order 1. I reserve the costs of and incidental to the notice of motion.
In the light of what Mr Gray has said, quite correctly in my view, about the form of application, I will grant leave to the applicant to file an amended application which refers to the proceedings being brought under the Trade Practices Act, 1974, ss.52 and 82, rather than under the Trade Practices Act s.51A. I order that the initiating process to be served on the respondent, in accordance with the previous orders, should be the amended appdication as filed. I direct that that amended application be filed on or before 5 pm on 28 August 1995.