Case: Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365
Outcome: cited
order sought by the second respondent (set out at [6] above) is sought under O 9 r 7(1)(a). In Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 (" Cell Tech Communications "), Lindgren J made a number of observations about the scope of O 9 r 7(1). His Honour said that the rule was to be distinguished from an application for summary dismissal (O 20 r 2) and an application for the striking out of pleading (O 11 r 16). To these I would add an application for summary judgment (Federal Court Act s 31A) and an order for dismissal which may follow the determination of a separate question under O 29 r 2. Lindgren J also made the point (at 370) that, although the other procedures he identified were to be distinguished from O 9 r 7, that was not to say that "considerations relevant to such applications may not be relevant to an application under one or other of the paragraphs of O 9, r 7(1)". The authorities establish that O 9 r 7(1) is not confined to cases where there has been service outside the jurisdiction. While O 9 r 7(1)(b), (c) and (d) refer to service of an originating process, (a) does not, and under that subparagraph an originating process may be set aside where the Court does not have jurisdiction to entertain the claim made in it, or where the originating process constitutes an abuse of process: F Sharkey &amp; Co Pty Ltd v Fisher [1980] FCA 146 ; (1980) 50 FLR 130 ; 33 ALR 173 ; Cell Tech Communications (at 370). The second respondent's first ground (see [7] above) raises an issue of jurisdiction and, if made good, engages the power to set aside the originating process. By contrast, the second ground does not raise an issue of jurisdiction, and, even if made good, does not engage the power to set aside the originating process. I have not been able to find any direct authority addressing the submission by the second respondent that an originating process served within the jurisdiction may nevertheless be set aside because the applicant has no prima facie case on the merits. There is authority that it is not appropriate to exercise the power in O 9 r 7 on the ground that a party's pleadings are defective: Cell Tech Communications at 371 per Lindgren J. I do not think the power in O 9 r 7 extends to cases where the originating process has been served within the jurisdiction and a respondent claims that the applicant has no prima facie case on the merits. The rules, and now s 31A of the Federal Court Act, provide adequate procedures for a party who claims that the case against him or her has no substance. The second respondent's submission that I can order that the application be set aside under O 9 r 7 because the applicant does not have a prima facie case on the merits must be rejected. I would not permit the second respondent to call in aid s 31A of the Federal Court Act in circumstances where it was not referred to in the application or supporting affidavit and was only mentioned briefly in submissions. Jurisdiction In her application, the applicant relies on s 39B(1A)(c) of the Judiciary Act and s 21 of the Federal Court Act. The important provision is s 39B(1A)(c) because s 21 gives this Court power to grant declarations only in those matters in which the Court has original jurisdiction.