Case: Traxon Industries Pty Ltd v Emerson Electric Co [2006] FCA 450
Outcome: cited
Traxon Industries Pty Ltd (Traxon) applied to the Court by motion dated 18 April 2006 for leave to serve proceedings on Emerson Electric Co (Emerson) in the United States of America (USA). The proceedings arose out of a dispute between Traxon and Emerson connected with the performance of a Confidentiality Agreement and a Distributorship Agreement relating to the marketing and sale, in the USA, of oil level control devices manufactured by Traxon. Traxon's causes of action against Emerson were for misleading or deceptive conduct in contravention of the Trade Practices Act 1974 (Cth), breach of contract, breach of duty of confidence and breach of fiduciary duty. For reasons published on 26 April 2006 the motion was adjourned and Traxon given leave to amend its statement of claim and to file further affidavit evidence in support of its application Traxon Industries Pty Ltd v Emerson Electric Co [2006] FCA 450. The principal reason for the decision not to accede to Traxon's motion was its inclusion in the application and statement of claim of the causes of action arising out of breach of confidence and breach of fiduciary duty. These causes of action were based entirely on conduct allegedly committed by Emerson in the United States. They did not otherwise fall within any of the categories of causes of action to which the relevant rule of Court, O 8, authorising service out of the jurisdiction, applies. 2 Traxon has now filed a proposed amended application and proposed amended statement of claim together with a proposed further amended application and further amended statement of claim. It has also filed additional affidavit material. In its proposed amended application and amended statement of claim Traxon seeks to join Traxon International Ltd (Traxon International) as a second applicant. It abandons the claim for breach of duty of confidence but maintains the claim based on breach of fiduciary duty. As an alternative position, it relies upon a further amended application and further amended statement of claim which would also omit the cause of action for breach of fiduciary duty. 3 For the reasons which I now publish, I am prepared to grant leave to serve an application and statement of claim on Emerson in the United States in the form set out in the further amended application and further amended statement of claim. So that Emerson may also be served with a reasonably self contained set of reasons for that decision these reasons repeat elements of those published on 26 April 2006 adapted to take account of the amendments to the pleadings and the additional evidence which has been filed. 4 Traxon, on 18 April 2006, commenced proceedings in this Court against Emerson. It claimed damages for misleading or deceptive conduct in contravention of the Trade Practices Act , at common law for breach of contract and, alternatively, in equity for breach of confidence and breach of fiduciary duty. Traxon is an Australian company which carries on the business of manufacturing, marketing and selling oil level control devices, one of which is known as the TraxOil Management System (the TraxOil Device). Emerson is incorporated in Missouri and currently trades under the business name Emerson Climate Technologies. It used to trade as Alco Controls. 5 By a notice of motion filed on 18 April 2006, Traxon sought leave to serve its application, statement of claim and supporting affidavits on Emerson in the USA. Its motion was filed pursuant to O 8 of the Federal Court Rules .