FEDERAL COURT OF AUSTRALIA

Webster Computer Systems Pty Limited v Fujitsu Ltd (No 2) [2009] FCA 1104

WEBSTER COMPUTER SYSTEMS PTY LIMITED (ACN 062 861 894) v FUJITSU LTD and FUJITSU AUSTRALIA LTD (ACN 001 011 427)

NSD 306 of 2007

GRAHAM J

25 SEPTEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The first respondent’s Notice of Motion filed 30 June 2009, seeking orders under Order 9 rule 7(1) of the Federal Court Rules, be dismissed

2.                  The first respondent pay the applicant’s costs of the motion

3.                  The matter stand over for directions on Monday 16 November 2009 at 9:30am.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     On 30 June 2009 the first respondent Fujitsu Limited filed Notices of Motion in two matters then before the Court, the first being NSD 306 of 2007, Webster Computer Systems Pty Limited v Fujitsu Limited and another, and the second, NSD 1222 of 2007, Anabelle Bits Pty Limited ACN 068 649 972 v Fujitsu Limited and another.  The motions were filed following the service of Amended Applications in each matter in Japan on Fujitsu Limited.  Service of the Applications in their original form in each matter was effected upon Fujitsu Australia Limited, a wholly owned subsidiary of Fujitsu Limited, and the second respondent in both proceedings some years ago. 

2                     In proceeding NSD 306 of 2007 Fujitsu Australia Limited appeared by its solicitors, Allens Arthur Robinson on 23 March 2007, and in proceedings NSD 1222 of 2007 Fujitsu Australia Limited appeared by its solicitors, Allens Arthur Robinson on 17 July 2007.  Conditional appearances were filed by Fujitsu Limited in both proceedings on 16 June 2009. 

3                     On 17 September 2009 the Court heard the Notice of Motion filed 30 June 2009 in NSD 1222 of 2007 in which Fujitsu Limited sought orders setting aside the service of the originating process on it, and discharging the order giving leave to serve the originating process outside Australia, which leave was relevantly granted on 2 March 2009. 

4                     Earlier today the Court published its reasons for judgment in proceedings NSD 1222 of 2007 and ordered that Fujitsu Limited’s Notice of Motion, filed 30 June 2009, seeking orders under Order 9 rule 7(1) of the Federal Court Rules be dismissed.  A further order was made requiring Fujitsu Limited to pay the applicant’s costs of the motion

5                     Prior to the hearing of the motion filed 30 June 2009 in proceedings NSD 1222 of 2007 consideration was given to the utility of hearing the two motions filed on 30 June 2009 in the two matters, together.  The matter proceeded on 17 September 2009 on the basis that the motion in NSD 1222 of 2007 would be dealt with separately and before the motion in NSD 306 of 2007 and the motion in NSD 306 of 2007 would be determined sympathetically with the decision of the Court in respect of the motion in NSD 1222 of 2007. 

6                     Fujitsu Limited failed to secure the relief which it sought on its motion in NSD 1222 of 2007.  A similar result should follow, in the circumstances, in NSD 306 of 2007. 

7                     It is not proposed that the orders be made by consent, as Fujitsu Limited has not yet had an opportunity to consider the Court’s reasons for judgment on the motion in NSD 1222 of 2007, and it may wish to appeal or seek leave to appeal from the judgment in that matter (see Anabelle Bits Pty Ltd v Fujitsu Ltd (No. 3) [2009] FCA 1089).

8                     The parties have now led the evidence upon which they wish to rely in proceeding NSD 306 of 2007.  Neither party wishes to address the Court on the appropriate orders.  In the circumstances, it follows that orders should be made in NSD 306 of 2007 as were earlier made in NSD 1222 of 2007. 

Associate:

Dated:         29 September 2009

The Second Respondent did not appear.