Case: Delco Australia Pty Ltd v Equipment Enterprises Incorporated trading as Kukla Trenchers [2000] FCA 821
Outcome: cited
The causes of action pleaded are based on conduct engaged in in the United States. Even though the duties pleaded depend upon conduct in Australia that does not mean that their breach by acts outside Australia gives rise to a cause of action 'arising in the Commonwealth' under O 8 r 1(a). As von Doussa J observed in Delco Australia Pty Ltd v Equipment Enterprises Incorporated trading as Kukla Trenchers [2000] FCA 821 , the authorities establish that 'cause of action' within the meaning of O 8 r 1(a) does not refer to all the elements of the cause of action. It refers rather to the act on the part of the defendant which gave the plaintiff his cause for complaint. In Distillers Co (Biochemicals) v Thompson [1971] AC 458 at 467, Lord Pearson said (at 468): It is not the right approach to say that, because there was no complete tort until the damage occurred, therefore the cause of action arose wherever the damage happened to occur. The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise? Theory no (iii) is that the cause of action arose within the jurisdiction if the act on the part of the defendant, which gives the plaintiff his cause of complaint has occurred within the jurisdiction. That is the rule laid down in Jackson v Spittal (1870) LR 5CP 542, which is an authoritative case, and the rule is inherently reasonable, as the defendant is called upon to answer for his wrong in the courts of the country where he did the wrong.' In my opinion the causes of action in breach of confidence and breach of fiduciary duty are not demonstrated, on the current state of the pleadings, to be proceedings to which O 8 r 1 applies. 63 The question that then arises is whether, given that the causes of action in misleading or deceptive conduct and breach of contract are within O 8 r 1, that is sufficient to satisfy the requirement that the rule 'applies to the proceeding' within the meaning of O 8 r 2(2)(b). As to that von Doussa J in Delco Australia said [at 35]: 'In this Court r 1(n) makes express provision for a proceeding where a proceeding does not fall squarely within one of the heads enumerated in the earlier paragraphs. In my opinion r 1(n) makes it clear that an originating process to be served out of the Commonwealth must be confined to causes of action that fall wholly within one or several of the heads in r 1. An originating process that includes a claim that does not fall within one or more of the heads is not an originating process that meets the description of r 1, in that it is not one "in" any of the cases described in the rule. It is not a "proceeding to which rule 1 applies" so as to meet the requirement of r 2(2)(c)(b). A similar conclusion was expressed by Wilcox J in Tycoon Holdings Ltd v Tencor Jetco Inc (1992) 34 FCR 31 at 35.' 64 In the circumstances, because of the inclusion of the claims for breach of confidence and breach of fiduciary duty, it is not possible to conclude that 'the proceeding' is one to which O 8 r 1 applies. The order sought by Traxon cannot be made on the current state of the pleadings. It will be necessary to reconsider the pleadings and either plead those facts which would make it clear that the causes of action referred to fall within the scope of the rule or to abandon those causes of action.