Case: Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 (2003) 130 FCR 317
Outcome: followed
leading authority on the power given by the Federal Court Rules to order service outside Australia is the judgment of the Full Court in Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 (2003) 130 FCR 317. Some caution must be exercised with respect to some aspects of what the Full Court said about the provisions of O 8 of the Federal Court Rules in that case, because O 8 has been amended significantly since Bray was decided. At the time when Bray was decided, the provision equivalent to that now found in O 8 r 2 was in O 8 r 1 and was in terms different from the current provision. At that time, O 8 r 1 provided that "originating process may be served outside the Commonwealth in the following cases". There followed a series of paragraphs, each commencing with the words "where the proceeding". In some instances, these words were followed by the words "is founded on", followed in turn by a reference to a particular cause of action or factual circumstance. In other paragraphs, other descriptions of the kind of proceeding contemplated were set out. The focus was thus on the nature of the proceeding. Order 8 r 1 now contains nothing more than definitions of four terms used elsewhere in O 8. The form of O 8 r 2, which appears from the extracts from the rule that I have set out in [5] above, has been changed, so that the reference is to "a proceeding which consists of, or includes, any 1 or more of the kinds of proceeding mentioned in the following table". The focus is no longer on whether a proceeding is of a kind mentioned in the list, but whether the proceeding consists of or includes a proceeding of any of the relevant kinds. The provisions that were in O 8 r 2 at the time of Bray are now found in O 8 r 3. There have been some changes. The requirement, formerly appearing in O 8 r 2(2)(b), that "rule 1 applies to the proceeding", is now in O 8 r 3(2)(b) as "the proceeding is of a kind mentioned in rule 2". The relevant criterion has broadened, to apply to a proceeding that is not only of a kind mentioned in the relevant list, but one which "consists of, or includes" any one or more of the kinds of proceeding in the relevant list. It follows that, for the purposes of the application of the present O 8 r 3(2), the proceeding may also include proceedings of kinds not mentioned in r 2, so long as it also includes one or more proceedings that are of such a kind. Significantly, O 8 r 3(2)(c) is in terms identical to the former O 8 r 2(2)(c), the meaning of which was considered by the Full Court in Bray . The Court was divided on the issue whether this requirement should be construed as a requirement that the applicant have a prima facie case in respect of every cause of action in the proceeding, or only a prima facie case in respect of the relief sought in the application, even if that relief were sought by reference to alternative causes of action which did not bring the proceeding within one of the kinds referred to in the then O 8 r 1. The majority, Carr J at [36]-[55] and Branson J at [171]-[193], held that it was sufficient that there was a prima facie case for the relief sought on the basis of any of the causes of action relied upon. Finkelstein J dissented. In construing O 8 r 3(2)(c), I am bound to follow the view of the majority in Bray . It is also necessary to point out that the power given by O 8 r 3(2) is clearly a discretionary power. Even if the Court achieves a state of satisfaction as to all of the elements in the paragraphs of subr (2), it is not bound to give the leave sought. Some respect must be paid to the principle of comity between the courts of different countries. Litigation between parties in different countries will be expensive and inconvenient for one of those parties in whichever of the countries it takes place. It is undesirable for a court to seize jurisdiction too readily, simply because a small aspect or small aspects of a proceeding fall within the kinds of cases contemplated in which service outside the jurisdiction of that court may be ordered, while the major elements of the proceeding do not. I do not take the amended form of the words in O 8 r 2 to amount to a requirement that, in every case in which it is possible to find the slightest element of a kind of case found in the table in that rule, it should follow that the power to order service outside Australia should be exercised. The tail should not always be allowed to wag the dog. The jurisdiction of the Court and the nature of the proceeding There can be no doubt that the proceeding instituted by the applicant falls within the jurisdiction of the Court. By s 86(1) of the Trade Practices Act , jurisdiction is conferred on the Court in any matter arising under the Trade Practices Act in respect of which a civil proceeding has been instituted under Pt VI. Part VI of the Trade Practices Act includes s 82. By s 82(1) a person who suffers loss or damage by conduct of another person in contravention of a provision (among others) of Pt V may recover the amount of the loss or damage by action against that other person. In the present proceeding, there is a claim for damages pursuant to s 82 , based on an alleged contravention of s 52 of the Trade Practices Act , which prohibits a corporation, in trade or commerce, engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. Section 52 is found in Pt V of the Trade Practices Act . The relief sought in the proceeding is set out in six numbered paragraphs of the amended application. Two of those numbered paragraphs are each divided into two subparagraphs and another is divided into six subparagraphs. Each paragraph, and each subparagraph, involves a separate claim for specified relief. Some of the claims are cumulative, some stand alone, and others are alternative. Each claim for relief makes specific reference to one or more paragraphs of the amended statement of claim. To determine whether there is a prima facie case for the relief sought, it is necessary to examine separately each claim for relief by reference to the relevant paragraph or paragraphs of the amended statement of claim, and by reference to the affidavit evidence filed in support of the application. To the extent to which there are alternative claims for the same relief, it will be sufficient if there is a prima facie case for that relief on either of the bases claimed, in accordance with the principle from Bray to which I have referred in [9] above. Misleading and deceptive conduct Paragraph 1 of the relief claimed in the amended application is a claim under s 82 of the Trade Practices Act for loss or damage suffered as a result of the respondent's alleged contraventions of s 52. The claim is specifically based on paras 58 to 60 of the amended statement of claim. In fact, it is necessary to look at other paragraphs of the amended statement of claim to understand paras 58 to 60. Paragraph 54A alleges that from around 6 February 2002 until 23 May 2007, the respondent represented to the applicant that his assignment to Australia was long-term and secure. The particulars of these representations are as follows: The representations included the following: (i) a representation from Powell on either 6 or 7 February 2002 to the effect that the Applicant could stay as the Australian based CEO of Australian business as long as AWG did business in Australia; (ii) support from the Respondent in applying for permanent residency during 2002 and 2003; (iii) a representation from Powell between 5 December 2002 and February 2003 to the effect that the Applicant's assignment was permanent; (iv) a representation by Cole and Powell on 23 September 2003 to the effect that the Applicant could stay as the Australian based CEO of the Australian business as long as AWG did business in Australia. The representations were on-going until 23 May 2007 as the Applicant continued to serve as the CEO of the Australian business up until being told of the termination of the assignment on 23 May 2007, without the Respondent ever withdrawing or resiling from the representations. Paragraph 55 alleges that the representations were made in trade and commerce. In para 56, the applicant alleges that he acted in reliance upon the representations. This allegation is particularised as follows: The reliance included: (i) the Applicant's devotion as the full-time Australian based CEO of the Australian business without seeking any other alternative employment elsewhere; (ii) purchasing a house in Noosa, Australia on 24 February 2003; (iii) arranging for the Applicant's eldest daughter to move permanently to Australia in October 2004; (iv) applying for Australian citizenship in March 2004; (v) selling the Applicant's UK house on 2 December 2005; (vi) assisting the Applicant's wife to purchase a Security Monitoring business in Australia in early 2007.