Case: Distillers Co (Biochemical) Ltd v Thompson [1971] 1 NSWLR 83
Outcome: followed
The applicant submitted that the causes of action pleaded in its statement of claim include claims falling within a number of the kinds of proceedings listed in Order 8 rule 2. First, the claims are said to fall wholly within item 1, which allows for an originating process to be served on a person outside Australia where the proceeding ' is based on a cause of action arising in Australia '. The term ' causes of action ' in item 1 was asserted to carry the same meaning as it did in relation to the previous Order 8 rule 1, as construed in Distillers Co (Biochemical) Ltd v Thompson [1971] NSWLR 83 at 90, the correct approach being to ' ask the question, where in substance did this cause of action arise '. The applicant asserted that the representations were made in Australia, the failure to warn occurred in Australia, the defective hard drives were bought in Australia and the damage was suffered in Australia. 14 Secondly, the claims for relief under the TPA were also submitted to be claims for a breach of an 'Act' within items 11, 12 and 13 of rule 2, which appear as follows: 'Kind of Proceeding in which originating process may be served on a person outside Australia ... 11 Proceeding based on a breach of a provision of an Act that is committed in Australia 12 Proceeding based on a breach of a provision of an Act (wherever occurring) seeking relief in relation to damage suffered wholly or partly in Australia 13 Proceeding in relation to the construction effect or enforcement of an Act, regulations or any other instrument having, or purporting to have effect under an Act ...' In terms of the operation of items 11 and 13, the misleading representations and the failure to warn comprised or included conduct submitted to have occurred in Australia, whilst in relation to item 12, as previously observed, the damage was submitted to have occurred in Australia. Thirdly, the claims in tort were submitted to fall within item 4, the negligent representations being directed to and understood by the applicant in Australia. On my reading of Order 8 rule 3(2), the claims put forward by the applicant do fulfil the requirements set out in items 1, 11, 12, and/or 13. 15 In support of its case for service out of the jurisdiction, the applicant brought the Court's attention to what it categorised as cases analogous to the present proceedings. One of the cases referred to was Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2004] FCA 532 in which French J granted leave to the applicant to serve originating process on the English parent of an Australian registered subsidiary, based on allegations of misleading or deceptive conduct in the course of contractual negotiations between the applicant and that subsidiary, and of an alleged breach of fiduciary duty. Having regard to that authority, and the analogous authorities of Distillers [1971] NSWLR 83, Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 ; (2002) 210 CLR 491 and Bray v F Hoffman La Roche [2003] FCAFC 153 ; (2003) 130 FCR 317, and in light of the applicant's satisfaction of the conditions prescribed under Order 8 rule 2, I was satisfied that I should grant the applicant's application for leave to serve the application and statement of claim on the first respondent and to use the diplomatic channel for that purpose. I made that order on the day of the interlocutory hearing.