Case: Ho v Akai Pty Ltd (in liq) (2006) 24 ACLC 1526 ; [2006] FCAFC 159
Outcome: applied
The Suzlon companies argued that the evidence before me (from the part-heard, but now resolved, motion which I dealt with on 4 November 2008, together with the additional emails provided with written submissions after the further hearing of this application on 12 November 2008) established a sufficient case for service outside the jurisdiction to satisfy the requirements of O 8 r 3(2)(b) and (c). These requirements were summarised by Finn and Weinberg JJ and myself in Ho v Akai Pty Ltd (in liq) (2006) 24 ACLC 1526 ; [2006] FCAFC 159 at [10] in the following terms: As has been observed on many occasions, the prima facie case requirement has to be met at the outset, usually on an ex parte basis, and without the advantage of discovery and other procedural aids to the making out of a case: see e.g. Merpro Montassa Ltd v Conoco Specialty Products Inc [1991] FCA 70 ; (1991) 28 FCR 387 at 390. It "should not call for a substantial inquiry": WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 at 476; see also Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549. For present purposes it is sufficient to say that a prima facie case for relief is made out if, on the material before the court, inferences are open which, if translated into findings of fact, would support the relief claimed: Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 at 110. Or, to put the matter more prosaically as Lee J did in Century Insurance (in provisional liquidation) v New Zealand Guardian Trust [1996] FCA 376: "What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court's processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified." 33 The Full Court noted that, because of the construction given in Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317 by of the majority of the Court to what is now O 8 r 3(2)(c), a finding that there was a prima facie case on one aspect of the claim against Mr Bangad has the consequence that he may be proceeded against on other bases as well. That is because it is only necessary that a prima facie case be established for any one of the causes of action relied on for the relief sought: Bray 130 FCR at [47]-[55] per Carr J, [176]-[191] per Branson J: Ho [2006] FCAFC 159 ; (2006) 24 ACLC 1526 at [45] - [46] . 44 I was satisfied that on the material before me, inferences were open which, if translated into findings of fact, would support the relief claimed on each of the bases in the claims falling within items 5, 6 and 18 described above: Ho [2006] FCAFC 159 ; (2006) 24 ACLC 1526 at [10] . 45 On the material before me, the inference was available that Mr Bangad was unable to explain to his employer, or to Mr den Hartog, the commercial justification for the impugned documents and the relationship they evidenced between the Suzlon and Headway companies. If Mr den Hartog gave evidence to the effect of the material in his emails, an inference could be drawn that he, on behalf of Beluga, had been misled into entering into the transactions for the carriage of goods to Port Kembla on the basis that he understood that the Headway companies were associated with, rather than independent and at arms length from, the Suzlon companies. That inference would be supported, in the absence of explanation, by the fact that Suzlon Infrastructure guaranteed Headway Shipping's performance of the time charter, apparently before it was even made. If the transactions were at arms length, an explanation would be needed, which is not presently before me, as to why Suzlon Infrastructure would guarantee a time charter entered into by Headway Shipping with Beluga for the time charter of the Beluga Fantastic . There was no evidence of any reward or benefit passing to Suzlon Infrastructure or any other Suzlon company for this guarantee. The inference was also open that the Headway companies would earn a profit from performing the time charter and carrying the Suzlon companies' goods. 46 It was difficult to see, in the absence of an explanation, the commercial rationale for the related company of the shipper and consignee (both Suzlon companies) guaranteeing the owners under a time charter of the vessel for its performance by the party (Headway Shipping) contracting with the shipper for the carriage of its goods to Australia.