Case: Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317
Outcome: referred to
in extreme cases, Order 8 rule 3(2)(c) will not require a prima facie case in respect of each cause of action pleaded or contended for. If a prima facie case for a particular form of relief is made out on one cause of action, it is immaterial that a prima facie case for the same relief on another cause of action may not be made out (per Lindgren J in Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 ('Cell Tech') at 373; see also per Carr J in Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317 ('Bray') at [47]-[55] and per Branson J at [176]-[191]). Ho v Akai Pty Limited (in liquidation) [2006] FCAFC 159 ; (2006) 24 ACLC 1526 ('Ho') was an appeal from a judgment of Gyles J given under Order 9 rule 7 of the Federal Court Rules . The only issue before Gyles J was whether Akai Holdings and its liquidator had established a prima facie case for the relief sought in the proceeding against Mr Ho which satisfied Order 8 rule 3(2)(c) or its predecessor. Questions arose as to whether Mr Ho had a liability as a 'shadow director' and also whether he had a liability as an 'officer' of Akai Australia. Gyles J concluded that there was no sufficient basis for raising an arguable case that Mr Ho was a shadow director, but that there was an arguable case that he was an 'officer' of Akai Australia. Because of the construction given to Order 8 rule 3(2)(c), or its predecessor in Bray , the finding that there was a prima facie case that Ho was an officer of Akai had the consequence that he could be proceeded against on both the 'officer' and 'shadow director' bases, Gyles J having held that a prima facie case had been made out 'for the relief sought'. In Ho Finn, Weinberg and Rares JJ granted leave to appeal from the judgment of Gyles J but proceeded to dismiss each appeal. At [56] their Honours observed, by way of obiter dicta, that: '...[A]ccording to Bray , it is not the similarity in elements of the cause of action that is brought into question for O 8 r 2(2)(c) purposes. Rather it is similarity in the relief sought.' Finn, Weinberg and Rares JJ considered that the difference between the two types of claim for relief in insolvent trading cases did not reflect in substance merely a choice as to two different measures of compensation. They observed that the two species of relief served different purposes, had different statutorily prescribed measures and were required to be specified individually in an application, including an application served out of the jurisdiction. In those circumstances their Honours opined that relief sought under s 1317H of the Corporations Act 2001 (Cth) was not the same as that sought under s 588J (or for that matter s 588M). In addition, they described s 1317H as a general provision but s 588J (or s 588M) as a specific provision creating a remedy in a particular situation. They observed that the ordinary principle of statutory construction was that in cases in which ss 588J or 588M provided a remedy, s 1317H , being a general provision, would not apply. In the circumstances, Finn, Weinberg and Rares JJ doubted the correctness of Gyles J's conclusion that the principle in Bray's case would save the shadow director claim against Mr Ho from being struck out. The observations so made were qualified by their Honours saying at [58]: 'However, because of the different conclusion we have reached in that claim to that of Gyles J, the views we have expressed above on the application of Bray have no actual consequence.' In my opinion Ho is not authority for the proposition that satisfaction under Order 8 rule 3(2) cannot be reached unless an applicant has a prima facie case for each and every item of relief claimed in the proceeding. If, at an interlocutory stage, a prima facie case is made out for trade practices relief, it matters not whether that relief is ordered under s 82 or 87 of the Trade Practices Act or s 68 or s 72 of the Fair Trading Act . They provide choices in respect of the same conduct. In relation to claims for relief under s 87 of the Trade Practices Act and/or s 72 of the Fair Trading Act no greater specificity is required than is contained in the applicant's prayer for relief numbered 2 in its Amended Application. The present case is not one where discrete relief is applicable for a particular contravention of one provision of the relevant legislation and different relief is applicable where there is a contravention of a different provision in the same legislation. The first respondent's further submission that the applicant's claims for relief under the Trade Practices Act and/or the Fair Trading Act (NSW) ought not to be permitted, since the entirety of the wrongful conduct on its behalf, assuming it to be wrongful, occurred outside Australia, should be rejected. The concession made by Fujitsu Limited that the brochure published and printed in English in the United States of America was made available for distribution in Australia by it and that it was involved in the use in Australia of that promotional material, coupled with Fujitsu Limited's provision to/making available of copies of the brochure in English printed by it in Japan, to Fujitsu Australia Limited, which disclosed that Fujitsu Australia Limited was Fujitsu Limited's 'local representative', is quite inconsistent with the first respondent's submission.